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[2014] ZAWCHC 13
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Uithaler v S (A490/2013) [2014] ZAWCHC 13; 2015 (1) SACR 174 (WCC) (10 February 2014)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: A490/2013
Reportable
In
the matter of:
CALWYN
UITHALER
Appellant
versus
THE
STATE
Respondent
Before
: Zondi J and Van Standen AJ
JUDGMENT DELIVERED ON
10 FEBRUARY 2014
ZONDI,
J
[1]
The appellant together with his co-accused appeared in the George
Regional Court facing two counts of
rape. It was alleged in the
charge sheet that on two occasions on 1 April 2007 the appellant had
sexual intercourse with a female
complainant without her consent. The
charges were subject to the provisions of section 51 of Act 105 of
1997 (the Minimum Sentence
Act) as the complainant was raped more
than once.
[2]
The appellant, who was legally represented, pleaded guilty to both
counts. His plea was accepted by
the State. The trial court convicted
the appellant as charged in accordance with his plea. It took both
counts together for the
purposes of sentence and sentenced him to
twenty eight years imprisonment. The appellant appeals against the
sentence only with
the leave of this court.
[3]
The offence was committed in the circumstances as set out in the
appellant’s plea statement in
terms of section 112 (2) of the
Criminal Procedure Act 51 of 1977 (the Act). On the day in question
the appellant and his co-accused
approached the complainant while
relaxing with her male companion at the back of a bakkie which was
parked in an industrial area
in George. The appellant forced the
complainant to accompany him into nearby bushes where he proceeded to
rape her vaginally. Thereafter
he instructed the complainant to turn
and lie on his stomach and penetrated her anally. When he was
finished, his co-accused proceeded
to rape the complainant. Whilst
the complainant was being sexually assaulted her male companion
managed to escape and alerted the
police who immediately responded.
The appellant and his co-accused were still on the scene when the
police arrived and in fact
his co-accused was still raping the
complainant. On seeing the police the appellant and his co-accused
fled the scene.
[4]
Shortly after the incident the complainant was taken to George
Hospital for medical examination and
treatment and the doctor who
examined her recorded his findings and conclusion on the J88
medico-legal report.
[5]
On examination the complainant was found to have had a swollen
urethral orifice, labia majora, labia
minora and hymen. Her vagina
was bleeding. Anal examination was, however, not conducted. According
to the J88 medico legal report
the complainant was born on 17 March
1982. It is unfortunate that there is no evidence regarding the
extent to which the entire
ordeal has affected the complainant and
her attempt to cope with it. Such evidence could have been placed
before the trial court
by way of a victim impact report if for some
other reason the complainant was unable to testify. This evidence is
necessary as
it assists the sentencing court to undertake the
determination of the appropriate sentence not only from the
offender’s perspective
but also from the complainant’s
perspective. (
S v Vilakazi
2009 (1) SACR 552
(SCA) paras 56 –
57).
[6]
The appellant was twenty two years old at the time of the incident.
He is single and has no dependents.
He passed grade 6 and was
employed as a labourer by a garden services company. He earned
R70-00 per day.
He is not a first offender.
He has four previous convictions for house-breaking with intent to
steal and theft the last of which
was committed on 29 July 2003.
[7]
The trial court considered both evidence in mitigation and
aggravation and concluded that there were
substantial and compelling
circumstances justifying the deviation from imposing a prescribed
minimum sentence of life imprisonment.
On the basis of such finding
it sentenced the appellant to twenty eight years’ imprisonment
having taken both counts together
for the purpose of sentence.
[8]
The sentence is attacked on the ground that it is shockingly
inappropriate. It is contended that although
the trial court found
that there were substantial and compelling circumstances it failed in
its assessment of the appropriate sentence
to give sufficient and
adequate weight to this finding. It was argued by Ms Mahlasela
appearing for the appellant, first, that
the offences were not
premeditated; secondly, no weapons were used during the commission of
the offence and, thirdly the two rapes
occurred almost immediately
and were closely connected in terms of time and place. In my view the
appellant’s third leg of
attack on the sentence is without
basis. It is clear to me that the trial court was alive to the fact
that the offences are interconnected
and for that reason took the two
counts together for the purposes of sentencing. This it did to
ameliorate the cumulative effect
of the sentence had it imposed a
separate sentence for each of these offences.
[9]
The question is whether the sentence imposed by the trial court is
shockingly excessive in the manner
suggested by counsel for the
appellant. It is beyond question that the sentencing court should
impose an appropriate sentence based
on all the circumstances of the
case and should reflect the severity of the crime, the
blameworthiness of the offender and serve
the interest of society (
S
v Zinn
1969 (2) SA 537
(A)). In the interests of society the
purposes of sentencing are deterrence, prevention, rehabilitation and
retribution. It is
important to emphasise that public sentiment
cannot be ignored, but “
it can never be permitted to
displace the careful judgment and fine balancing
” that is
involved in arriving at an appropriate sentence (
S v SMM
2013
(2) SACR 292
(SCA) at 297 C).
[10]
The abuse of women and children especially girl children is rife in
this country. As the Constitutional Court put
it in
F
v Minister of Safety and Security
2012 (3) BCLR 244
(CC) at para [56] : “
The
threat of sexual violence to women is indeed as pernicious as sexual
violence itself. It is said to go to the very core of the
subordination of women in society. It entrenches patriarchy as it
imperils the freedom and self determination of women. It is deeply
sad and unacceptable that few of our women or girls dare to venture
into public spaces alone, especially when it is dark and deserted.
If
official crime statistics are anything to go by, incidents of sexual
violence against women occur with alarming regularity.
This is
so despite the fact that our Constitution, national legislation,
formations of civil society and communities across our
country have
all set their faces firmly against this horrendous invasion and
indignity imposed on our women and girl-children
”
.
[11]
The offences with which the appellant was charged, and convicted of,
are subject to the provisions of section
51 of the Minimum Sentence
Act and Marais JA reminds us in
S v Malgas
2001 (1) SACR 469
(SCA) at para [25] that Courts are required to approach the
imposition of sentence conscious that the legislature has ordained
life imprisonment as the sentence that should ordinarily and in the
absence of weighty justification be imposed and that if there
is
sufficient basis for deviation from imposing the prescribed minimum
sentence, account must be taken of the fact that crime of
that
particular kind has been singled out for severe punishment and that
the sentence to be imposed in lieu of the prescribed sentence
should
be assessed paying due regard to the bench mark which the legislature
has provided.
[12]
The trial court found that there existed substantial and compelling
circumstances justifying a departure from the
minimum sentence. Its
finding was based on the fact, first, that the appellant was a first
offender in relation to sexual offences,
secondly, had pleaded
guilty, thirdly, he did not use excessive force in the commission of
the offence to the extent that the complainant
suffered no other
serious physical injuries and fourthly, his relative youthfulness
increased his prospects of rehabilitation.
The trial court as I have
already pointed out took counts 1 and 2 together for the purposes of
sentence and sentenced the appellant
to twenty eight years’
imprisonment. It is necessary to comment on the third factor, namely
absence of serious physical injuries,
which the trial court took into
account in its consideration of the substantial and compelling
circumstances. The fact that the
victim of sexual assault suffered no
physical injury in the course of the assault does not in my view,
render the crime of rape
less reprehensible. As the SCA observed in
S
v SMM, supra
at para 17: “
rape is undeniably a degrading
humiliating and brutal invasion of a person’s, most intimate,
private space. The very act itself,
even absent any accompanying
violent assault inflicted by the perpetrator, is a violent and
traumatic infringement to be free from
all forms of violence and not
to be treated in a cruel, inhumane or degrading way
”
(footnote omitted). See
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA). I
fully agree with these sentiments.
[13]
The facts which the appellant admitted in his plea statement
established in relation to the first count that he
raped the
complainant by penetrating her vaginally and in relation to the
second count that he penetrated her anally.
[14]
On reading the record I entertained some doubt as to whether the
facts he admitted in relation to the second count
on which he pleaded
guilty constituted a crime of rape. I informed both counsel that when
the appeal is argued they would be required
to address the Court on
whether the appellant’s guilty plea to the second count was
appropriate having regard to the fact
that the crimes were committed
on 1 April 2007 before the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
came into operation.
[15]
Both counsel agreed that the facts the appellant admitted in his plea
statement and on which he was convicted did
not constitute a crime of
rape at the time of the commission of the offences but indecent
assault and that the appellant should
therefore have been charged
with indecent assault. Counsel for the State informed the Court that
the State’s decision to
charge the appellant with a crime of
rape on the second count was as a consequence of its
misinterpretation of the Constitutional
Court judgment in
Masiya v
Director of Public Prosecutions
2007 (2) SACR 435
CC delivered on
10 May 2007 which extended the definition of the crime of rape to
include the crime of indecent assault which the
State believed
applied retrospectively.
[16]
The trial court misdirected itself in sentencing the appellant on the
basis that he had committed two rapes. The
evidence as set out in his
plea statement, which formed the basis of his conviction on 28
October 2008 makes it clear that the
appellant sexually assaulted the
complainant by penetrating her, first, vaginally and secondly,
anally. The offences according
to the charge sheet occurred on 1
April 2004 during which time the crime of anal penetration
constituted indecent assault not rape.
The offence of anal
penetration became a crime of rape as a result of the enactment of
the Criminal Law (Sexual Offences and Related
Matters) Amendment Act
32 of 2007 (the Sexual Offences Act) which
inter alia
repealed
the common-law crime of rape and replaced it with an extended
statutory crime of rape. It also repealed the common law
crime of
indecent assault and replaced it with a statutory crime of sexual
assault, applicable to all forms of sexual violation
without consent
(Snyman, Criminal Law 5
th
ed at 353). The Sexual Offences
Act came into operation on 16 December 2007.
[17]
Section 69, which deals with transitional provisions, provides as
follows:
“
69
Transitional provisions
(1) All criminal
proceedings relating to the common law crimes referred to in section
68 (1) (b) which were instituted prior to
the commencement of this
Act and which are not concluded before the commencement of this Act
must be continued and concluded in
all respects as if this Act had
not been passed.
(2) An investigation
or prosecution or other legal proceedings in respect of conduct which
would have constituted one of the common
law crimes referred to in
section 68 (1) (b) which was initiated before the commencement of
this Act may be concluded, instituted
and continued as if this Act
had not been passed.
(3) Despite the repeal
or amendment of any provision of any law by this Act, such provision,
for purposes of the disposal of any
investigation, prosecution or any
criminal or legal proceedings contemplated in subsection (1) or (2),
remains in force as if such
provision had not been repealed or
amended.”
[18]
This section must be read with section 68 in particular section 68
(1) (b) which repeals the common-law crimes
of rape and indecent
assault, among other offences with the result that sexual offences
such as these before us committed before
the commencement of the Act
are punishable under the common law not under the Sexual Offences
Act.
[19]
The appellant was not charged with the statutory crime of rape under
the Sexual Offences Act. There is no reference
in the charge sheet to
the provisions of that Act. The charges are framed under the common
law and are subject to the provisions
of section 51 of Act 105 of
1997. In
S and Another v Acting Regional Magistrate, Boksburg and
Another
2011 (2) SACR 274
(CC) at para [17] Mthiyane AJ writing
for that Court made it clear that there is nothing express or implied
in section 68, to the
effect that the common-law crime of rape is
repealed retrospectively . He explained that if this section had been
intended to apply
retrospectively it would result in the extinction
of criminal liability incurred before the commencement of the Act. He
went on
to consider whether section 69 has the retrospective effect.
After analysing the text of section 69 and the objects of the Sexual
Offences Act, Mthiyane AJ held that the section does not apply
retrospectively and did not apply to prosecutions not yet instituted.
I would be surprised if it did because in our common law there is a
presumption against retrospectivity. It is presumed that a
statute
does not operate retrospectively, unless a contrary intention is
indicated, either expressly or by clear implication (
S and Another
v Acting Regional Magistrate, Boksburg supra
at para [15] and the
cases therein cited.
[20]
In light of this analysis it is clear that the State
improperly charged the appellant with rape on count 2 and the
appellant’s guilty plea to that charge was thus in error. He
should have been charged with, and, convicted of, indecent assault.
Conviction of rape on count 2 can therefore not stand. It should be
set aside and substituted with one of indecent assault. For
purposes
of sentence both counts will be taken together as the trial court
did.
[21]
The trial court found that substantial and compelling circumstances
were present in this matter which justified
it to impose a lesser
sentence and substantiated the basis of its finding. It took both
counts together for the purposes of sentence
and proceeded to
sentence the appellant to twenty eight years’ imprisonment.
That sentence was predicated on the basis that
the appellant had been
convicted of two counts of rape. In light of the fact that the basis
upon which the sentence of the trial
court was premised was
incorrect, it must follow that it should be set aside and substituted
with a correct one. The sentence to
be imposed must however remain
severe as it should be assessed having regard to the fact that the
legislature has singled out the
crime of rape for severe punishment.
[22]
Taking all the circumstances of the case I am of the view that the
sentence of twenty years’ imprisonment
would be appropriate.
The appellant has been serving his sentence since 28 October 2008
when he was sentenced. The sentence should
be antedated accordingly.
[23]
In the result the following order is made:
1.
The appeal against sentence succeeds and the sentence of twenty eight
years imprisonment is set
aside and replaced with the following
sentence:
“
The
accused is sentenced to 20 years’ imprisonment
”.
2.
The sentence is antedated to 28 October 2008.
ZONDI, J
I agree.
VAN STADEN, AJ