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[2015] ZAWCHC 19
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Olivier v S (A268/12) [2015] ZAWCHC 19 (26 February 2015)
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THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A268/12
Trial
Court Case No: OSH25/2011
In
the matter between:
DONOVAN
OLIVIER
...........................................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
Coram:
ROGERS & DOLAMO JJ
Heard:
20 FEBRUARY 2015
Delivered:
26 FEBRUARY 2015
JUDGMENT
ROGERS
J (DOLAMO J concurring):
[1]
The appellant was the second accused in the
court quo, the first accused being Clive Coerecius. They were charged
on three counts:
the rape of a 19-year-old woman, M[…] M[…]
(count 1), assaulting the latter’s boyfriend, P[…] F[…],
with intent to cause grievous bodily harm (count 2); and assaulting
M[…] with intent to cause grievous bodily harm (count
3).
[2]
The incident giving rise to these charges
occurred on 23 December 2010. Both accused pleaded not guilty. In
regard to the rape charge,
their defence was that M[…]
consented to sexual intercourse. Their evidence to this effect was
rejected and on 15 June 2011
they were convicted on all three counts.
On 28 June 2011 they were sentenced to life imprisonment. The
magistrate took the three
counts together for purposes of sentence.
The sentence of life imprisonment was imposed pursuant to
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
on the grounds that the
rape was committed by more than one person and in the execution or
furtherance of a common purpose and
on the basis that there were no
substantial and compelling circumstances to depart from the
prescribed minimum sentence.
[3]
The appellant appeals to this court against
sentence. In terms of s 309(1) of the Criminal Procedure Act 51
of 1977 (as amended,
with effect from 1 April 2010, by s 10 of
Act 42 of 2013) the appeal is pursued as of right, no leave having
been required.
[4]
The appellant’s co-accused also
appealed against sentence. On 16 March 2012 this court (per Allie J,
with Mantame J concurring)
found that the magistrate had erred in
taking the three counts together for purposes of sentence. The
sentence of life imprisonment
on count 1 was confirmed. The sentences
on counts 2 and 3 were set aside and replaced with sentences of seven
and ten years’
imprisonment respectively, to run concurrently
with the life sentence. See
S v
Coerecius
[2012] ZAWCHC 72.
[5]
It is regrettable that the appeals were not
heard together but nothing can be done about that now.
[6]
The facts giving rise to the convictions
are briefly the following. On the early evening of Thursday 23
December 2010 M[...]
and her boyfriend F[...] were walking home along
a dirt road. The two accused confronted them. Coerecius restrained
F[...] with
a knife while the appellant grabbed M[...], pulled down
her underwear and raped her. She was struggling and crying. The
appellant
punched her in the face. She testified that he had ‘two
rounds’ with her. He ejaculated. In the meanwhile, Coerecius
had struck F[...] on the head with his knife. When the appellant was
finished raping M[...], Coerecius proceeded to rape her while
the
appellant, who was also armed with a knife, threatened F[...].
Coerecius also ejaculated. He kicked M[...]. They threatened
to kill
M[...] and F[...] and then told them to leave. However, a short time
later they again confronted M[...] and F[...] on the
tar road. They
grabbed M[...] and dragged her face down along the road. They
eventually let them go. M[...] and F[...] made a prompt
first report
to F[...]’s mother.
[7]
At about 08h00 on Christmas morning
(Saturday 25 December 2010) M[...] and F[...] were examined at
Oudtshoorn Hospital by a Dr Merkel.
His J88 reports were handed in by
agreement without his needing to testify.
[8]
Photographs taken by the investigating
officer on Tuesday 28 December 2010 were also handed in by agreement.
They showed the site
of the rape and M[...]’ injuries.
[9]
As to the general approach to the minimum
sentencing legislation, the leading case remains
S
v M[...]
2001 (1) SACR 469
(SCA). The
factors which are to be considered in determining whether substantial
and compelling circumstances exist are all the
factors traditionally
taken into account in assessing an appropriate sentence, bearing in
mind, however, that it is no longer ‘business
as usual’
and that the emphasis has shifted to the objective gravity of the
type of crime and the need for effective sanctions.
If, after
considering all the relevant factors, the court has not merely a
sense of unease but a conviction that injustice will
be done if the
prescribed sentence is imposed or (to put it differently) that the
prescribed sentence would be disproportionate
to the crime, the
criminal and the legitimate needs of society, there will be
substantial and compelling circumstances requiring
the court to
depart from the prescribed sentence and to impose a lesser sentence.
[10]
The statement in
M[...]
that no factors conventionally relevant
to sentencing are excluded from consideration must now be qualified
because of the insertion
into s 51(3) of the Act of para (aA)
(this occurred when s 51 was substituted in terms of s 1 of
Act 58 of 2007).
Paragraph (aA) sets out certain circumstances which,
in the case of rape, shall
not
constitute substantial and compelling
circumstances. Among these are that the complainant suffered no
physical injuries. The exclusionary
effect of this paragraph has been
held to convey that any such circumstance on its own will not amount
to substantial and compelling
circumstances but that such factors may
be taken into account together with others in reaching a conclusion
that there are substantial
and compelling circumstances: see
S
v Nkawu
2009 (2) SACR 402
(ECG) para
15. This view was recently approved by the Supreme Court of Appeal in
Mudau v S
[2012]
ZASCA 56
para 26.
[11]
In upholding Coerecius’ sentence of
life imprisonment, Allie J mentioned the following features. As to
his personal circumstances,
he was 20 at the time of the offences,
had no children and was unemployed. At school he had attained grade
5. He had a previous
conviction for assault. In regard to the rape
itself, the surrounding circumstances included violence, coercion and
humiliation.
The accused had every intention of raping and assaulting
M[...]. They assaulted her boyfriend, F[...], and made him endure the
trauma of watching them rape his girlfriend. M[...] was seriously
injured and very distraught after the incident. The two accused
lacked remorse and even laughed while F[...] was testifying about the
rape. The court on appeal found no basis for interfering
with the
magistrate’s finding that there were no substantial and
compelling circumstances.
[12]
Allie J’s general observations
concerning the heinous nature of the rape and the accused’s
lack of remorse are equally
applicable to the appellant. Mr Beukes,
who appeared for the appellant in this court, submitted that the J88
report did not bear
out the magistrate’s description of M[...]’
facial injuries as serious; the report said only that there were two
‘abrasions’
on her forehead. What the magistrate said was
that M[...] sustained serious injuries, that she had injuries on her
face, body,
eyes and arms. Dr Merkel examined M[...] two days after
the incident and was probably focusing on the allegation of rape.
M[...],
who was regarded by the magistrate as an honest and credible
witness, testified that apart from the abrasions on her face (caused
when she was dragged along the road) her face was blue from having
been punched and kicked. Her arms were also blue. Photographs
4 and
5, which are among several photographs taken about five days after
the incident, appear to support her description of her
injuries. She
also testified that she was bleeding from her private parts and
suffered considerable internal pain in the immediate
aftermath. This
evidence was corroborated by F[...]’s mother and by F[...]’s
evidence that there was blood on her underclothing.
One can obviously
conceive of a rape accompanied by more severe injuries. Nevertheless,
the evidence clearly established that that
rape was accompanied by
considerable sexual and other physical force and violence. The
incident was hugely traumatic for M[...]
and F[...].
[13]
In his submissions on sentence in the court
quo, the appellant’s attorney placed on record that the
appellant was 18 years
old, had been in custody for about six months
since his arrest, was unmarried, had no children, was unemployed and
had only attained
Standard 5 at school. He had a couple of prior
convictions for drug possession.
[14]
The appellant’s circumstances were
thus very similar to those of Coerecius, except that he was about two
years younger and
had no previous conviction involving violence. I do
not think the magistrate or Allie J could have been much influenced
by Coerecius’
previous conviction for assault. The offence in
question was committed in July 2007 and Coerecius paid an admission
of guilt fine
of R150. It was thus of a very minor nature and would
not have served to distinguish Coerecius’ case from that of the
appellant.
[15]
Mr Beukes understandably placed emphasis on
the appellant’s youthfulness. He was only 18 years and two
months old at the time
the offences were committed.
[16]
Although each case must naturally turn on
its own facts, in
Director of Public
Prosecutions KZN v Ngcobo & Others
[2009]
4 All SA 295
(SCA) the fact that the appellants were aged between 20
and 22 at the time of the premeditated murder was not regarded, on
its
own or with other factors, as constituting substantial and
compelling circumstances. The court said that none of them
demonstrated
immaturity and that there was no evidence of peer
pressure. The finding of substantial and compelling circumstances by
the trial
court was, on appeal by the Director of Public Prosecutions
for KZN, overturned and the lesser sentences imposed by the trial
court
were replaced with life sentences.
[17]
I may also refer to
S
v Matyityi
2011 (1) SACR 40
(SCA),
another case where the Supreme Court of Appeal held that a trial
court erred in deviating from the life sentence laid down
in the Act.
Ponnan JA, with whom the other members of the court concurred, was
critical of the trial judge’s use of the phrase
‘relative
youthfulness’ without any attempt at defining what exactly that
meant in respect of the particular individual.
The learned Judge of
Appeal said that while someone under the age of 18 years could be
regarded as naturally immature the same
does not hold true for an
adult and that a person of 20 years or more must show by acceptable
evidence that he was immature to
such an extent that his immaturity
can operate as a mitigating factor.
[18]
The magistrate was aware of the relative
youthfulness of both the accused. In the particular circumstances of
the case, he did not
regard their youthfulness as a substantial and
compelling circumstance to deviate from a life sentence. He pointed
out that the
appellant had taken a leading role in the crimes. He was
the one who first grabbed M[...] and raped her. He, like Coerecius,
was
armed with a knife. He was able to restrain and threaten F[...],
who was some years older than him. There was no suggestion in the
evidence that Coerecius was the dominant personality. The magistrate,
who had the opportunity of observing the appellant during
the course
of the trial, said that he behaved as an adult. He showed a complete
lack of remorse. Along with Coerecius, he was observed
to smile as
F[...] described the rape. When he was shown photographs of M[...]’
injuries, he fobbed them off as not being
serious.
[19]
Mr Beukes criticised the magistrate’s
failure to call for a probation officer’s report, submitting
that the personal
information placed on record by the appellant’s
attorney was insufficient properly to inform the magistrate of the
appellant’s
circumstances. It is true, as Ms Jacobs for the
State pointed out, that the appellant’s attorney, at the
commencement of
the sentencing proceedings, asked for an adjournment
to discuss with his clients whether there should be a postponement to
obtain
a probation officer’s report. Proceedings resumed about
half an hour later. The attorney advised the magistrate that in the
light of the circumstances of the case he did not think a probation
officer’s report would take matters much further. He
proceeded
to place his clients’ personal circumstances before the court
and made submissions on sentence.
[20]
Nevertheless, although a pre-sentencing
report is usually requested by the prosecution or defence, it is the
ultimate responsibility
of the presiding officer to satisfy himself
of the accused’s personal circumstances and that no substantial
and compelling
circumstances to deviate from the prescribed minimum
sentence are present (see
S v Dlamini
2000
(2) SACR
266
(T) at 268d-e;
Rammoko v Director of
Public Prosecutions
2003 (1) SACR 200
(SCA) para 14
). In
S
v
Ravele
[2014
]
ZASCA 118
Mocumie
AJA,
in criticising the trial court’s failure to obtain a
pre-sentencing report, said that no court should proceed to sentence
a youthful person (in that matter, a 20-year-old) unless it has all
the facts relevant to sentencing. Notions of onus of proof
were
inapposite; in the sentencing phase of proceedings the trial court’s
role was more active and inquisitorial (para 17).
In the present case
the magistrate knew virtually nothing about the appellant’s
upbringing. In
S v OZ
2013
(2) SACR 138
(GNP), where a sentence of 25 years’ imprisonment
on an 18-year-old accused found guilty of raping a girl of 10 was set
aside
on account of the magistrate’s failure properly to inform
himself of the accused’s personal circumstances, the court
said
the following (para 6):
‘
Currently,
in my view, the best way to obtain relevant information pertaining to
a youth, to enable a magistrate to structure a
sentence that will
best suit the needs and interests of a youth, is to obtain a report
of a probation officer appointed in terms
of the Probation Services
Act 116 of 1991. We do not know whether the childhood of appellant
was characterised by neglect, ill
discipline or ineffective
parenting. It is unknown whether the youth has challenges inherent in
his faculties, challenges from
his family set-up or challenges from
the community from which he emerges. By not obtaining a probation
officer’s report,
and any further relevant evidence to assist
the magistrate to structure a sentence best suited to appellant, it
was a misdirection.
The misdirection resulted in the magistrate
denying himself an opportunity to impose a sentence which would
promote the rehabilitation
of the appellant. The sentence imposed, in
my view, is disproportionately harsh. It is not individualised to the
appellant…’
See
also
S v Trichart
2014
(2) SACR 245
(GJ) para 10 and
S v Mugano
2014 (2) SACR 423
(GP) paras
8-10.
[21]
The appellant was facing the most severe
sanction recognised in our law, life imprisonment. It is particularly
important in such
cases that trial courts take care to elicit the
necessary information to put themselves in a position to exercise
their sentencing
discretion properly (
S
v EN
2014 (1) SACR 198
(SCA) para 14;
S
v Nndateni
[2014] ZASCA 122
paras
17-18). The appellant had only just reached his 18
th
birthday. He was of an age where a measure of immaturity and poor
judgement on account of youthfulness could still be expected.
He had
no prior convictions involving violence or for sexual offences. He
had two convictions for drug possession. There was evidence
that the
appellant and his co-accused smoked tik on the day of the rape. A
deprived upbringing may have set him on a path of drug
abuse. I agree
with Mr Beukes that the court simply did not have enough information
to determine whether, in accordance with the
M[...]
test, a sentence of life-imprisonment
would in all the circumstances be disproportionate to the crime, the
criminal and the legitimate
needs of society and constitute an
injustice.
[22]
The magistrate was quite right to emphasise
the heinous nature of rape general and of this rape in particular. He
bemoaned the fact
that no other crime came so often before his court.
It is clear from the minimum sentencing legislation that the lawmaker
intended
courts to address various crimes, including rape, by way of
firm sentences and singled out particular kinds of rape, including
rape by multiple perpetrators, for the harshest sanction of life
imprisonment. In regard to the latter type of rape, the lawmaker
itself has chosen not to distinguish between first, second and
multiple offenders. There were a variety of aggravating circumstances
in the present case. But the heinousness of the crime and aggravating
circumstances needed to be balanced against the appellant’s
youthfulness, the fact that he was a first offender and his personal
circumstances. Of the latter, the magistrate simply did not
have
enough information. In my view it was a misdirection for him not to
have insisted on a pre-sentencing report.
[23]
The appropriate course, in the
circumstances, is to set aside the sentence and remit the matter to
the court quo to reconsider sentence
after obtaining a probation
officer’s report. It may also be appropriate for a victim
impact report to be prepared.
[24]
For the magistrate’s guidance, I
agree with Allie J’s finding, in Coerecius’ appeal, that
the court a quo erred
in taking the three counts together for
purposes of sentence. The magistrate should thus impose separate
sentences on counts 1,
2 and 3. And I must add that the magistrate
should not assume that the sentences imposed by this court in
Coerecius’ appeal
on counts 2 and 3 are appropriate for the
appellant.
[25]
In the result the following order is made:
The sentence imposed by the court a quo is set aside and the matter
is remitted to the
court quo to reconsider sentence after obtaining a
probation officer’s report and after considering such further
evidence
and submissions as the appellant and the State wish to place
before the court.
______________________
ROGERS
J
______________________
DOLAMO
J
APPEARANCES
For
Appellant: Mr HA Beukes
Suite
404, 4
th
Floor
42
Keerom Street
Cape
Town
For
Respondent: M Jacobs
Office
of the DPP
Cape
Town