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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

 

1)   REPORTABLE    YES/NO

2)   OF INTEREST TO OTHER JUDGES YES/NO

3)   REVISED

Case number: CC38/19

12/12/2019

 

In the matter between

 

THE STATE

 

versus

 

ANTHONY SITHOLE                                                                                             ACCUSED

SENTENCE

VAN VEENENDAAL AJ

[1.]       Mr Anthony Sithole, the Accused in this matter, has pleaded guilty and was convicted on 11 December 2019.

[2.]       The Accused was convicted on the following counts

-         18 counts of rape read with the provisions of section 51(1) and (2) of Act 105 of 1997;

-         13 counts of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(2) of Act 105 of 1997

-         3 counts of Attempted murder,

-          4 counts of assault with the intent to cause grievous bodily harm;

-          1 count of sexual assault;

-          4 counts of pointing something that is likely to lead another person to believe it is a firearm without good reason to do so;

-          1 count of attempted robbery with aggravating circumstances.

 

[3.]       The court now has the task to sentence you, taking into account the minimum sentences applicable, the community's sense of outrage and the personal circumstances of the accused. The court bases its decision on the purposes of punishment, that is deterrence, prevention, rehabilitation and retribution. This is not an easy task.

 

The nature of the offences:

[4.]       The court has to take into account the offences and the effect on the victims and their families. The offences are all of a violent nature. Rape has never been viewed by the courts as a sexually-driven offence, but as a violence-driven offence.

[5.]       The State referred to the modus operandi: the Accused, acting either alone or with co-perpetrators, would accost the victims at night and under cover of darkness and rob and rape the women. The state also referred to the increasing violence as time progressed. The State also argues that the Accused would have continued with his acts of escalating aggression, were it not for the fact that he had been arrested.

 

The victims and their families:

[6.]      The victims explained to the court the extent of the violence committed on them and the long-term emotional effects through victim impact reports.

[7.]      The victims, through their victim impact reports, explained the effects of the violence perpetrated on them and their families. It is a golden refrain of not being able to sleep because of nightmares and flashbacks, fear of being with men, fear that the perpetrators will return, not being able to form long-term relationships with boyfriends, a feeling of not being safe, inability to trust any person, not being able to form friendships, not being able to walk on their own, not wanting to go out, but stay at home, feelings of embarrassment, a desire to not let a husband know, not to involve her family, the consequences on raising girls and fears regarding their future, not being able to stay in the community and moving away but still not being able to trust people, always having self-doubts and self-recrimination, always blaming the self for allowing the crimes to be perpetrated, anger issues always arising in relationships with other persons. short-tempered with others, inability to complete high school or tertiary education, thoughts of each victim that they will never be healed. The victims refer to the wounds inflicted that healed into scars that serve as perpetual reminders of what had happened to them.

[8.]       One victim describes that she lost a pregnancy and afterwards had great difficulty in falling pregnant again. Another victim explained that she developed sores on her genitalia. Yet another described that she feared that she might have contracted HIV infection.

[9.]       The victims are grateful that justice will prevail and that the Accused has been apprehended and will spend a long time behind bars.

 

The criminal:

[10.]    The Accused's personal circumstances were put before court through the evidence from the Accused's younger brother and his current girlfriend and mother of his youngest child. The Accused is 27 years old, he has two children, of 5 years and 18 months respectively. His eldest child lives with Accused's mother and the youngest with his current girlfriend. The children have different mothers.

[11.]    Accused worked in the week as a construction worker and during the weekend as a DJ. He brought in about R3 600 per month. He contributed to his younger brother's schooling and his mother's household. His mother relies on a pensioner grant.

[12.]    Accused's girlfriend testifies that the Accused has a relationship with his eldest child, but not his youngest child. Accused's brother asks that the Accused be released on bail and be sentenced to ten years imprisonment. Accused's brother would like to apologise to the victims on behalf of the family.

[13.]    The Accused pleaded guilty to the counts the state put to him. He did not waste the court's time and the state's resources, but by pleading guilty he substantially reduced the time required for a lengthy trial.

 

The interests of society

[14.]    The interests of society are reflected in the minimum sentencing regime. The minimum sentencing legislation provide for the gradation of first offenders, second offenders and so on. In S v Nteta and Others 2016 (2) SACR 641 WCC per Henney J said the following at p 468 ff:

 

"Interests of society

[22]     Society demands that wanton criminal acts as displayed by the accused should not be left unpunished. It demands of the courts to send out a clear and strong message that such acts of criminality will not be countenanced and further demands that the strictest and severest punishment should be meted out to individuals such as the accused. It is also for these reasons that the law prescribed certain sentences that the courts should impose in cases like these. In respect of count 1, which is a rape committed in terms of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA), where more than one person acted in common purpose, and also where the rape was committed involving grievous bodily harm, a sentence of life imprisonment is prescribed. In respect of count 2, murder, where the death of the deceased was caused by more than one person in the furtherance of a common purpose, and also that the death of the victim was caused by the accused by committing an offence of rape as contemplated in s 3 of SORMA, a sentence of fife imprisonment is also prescribed in terms of Act 105 of 1997.

[23]     In terms of s 51(3) of Act 105 of 1997, the court must impose the prescribed sentence unless there are substantial and compelling circumstances to deviate from such prescribed sentence. The approach a court should follow in determining whether there are substantial and compelling circumstances present has been laid down in the oft-quoted S v Ma/gas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30) at 470g- 471d:

'B.     Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C.     Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe) standardised and consistent response from the courts.

D.     The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or­ degrees of participation between co-offenders are to be excluded.

E.      The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F.     All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G.     The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (substantial and compelling) and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H.     In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I.       If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J.      In so doing, 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.' [Emphasis in original.]

 

In the same matter the court also referred to the issue of remorse, as a precondition before deciding whether compelling and substantial circumstances were present: at Par [25] the court continues: "Al/ of them expressed their regret and also apologised to the family of the deceased. Given the circumstances, I am not convinced that they have shown genuine remorse for their actions. In S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127) Ponnan JA had the following to say about this aspect in para 13:

 

'There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an

 

A accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.'

 

[15.]    In the case before court, the Accused displayed no regret and gave no explanation, as to what gave rise to his conduct over so many years in spite of his previous and concurrent sentences

[16.]    The court must temper the anger of the community with mercy. Although convicted offenders can undergo programmes in prison, the success of following programmes and continuing studies in prison is dependent on the personal commitment of each accused. The court has no oversight role in that regard.

[17.]    The Accused has not indicated any remorse or insight into his conduct and the consequences of his conduct on his victims.

 

Substantial and compelling circumstances:

[18.]    I have tried to find substantial and compelling circumstances to individualize sentence for the accused. I have also considered whether the personal circumstances of the accused constitute circumstances that are substantial enough to avoid being called "flimsy" in order to deviate from the prescribed minimum.

[19.]    However, I do not consider any of these circumstances, either alone or in conjunction with each other, sufficient to justify a finding of substantial and compelling reasons.

[20.]    The communities in which the offences took place over a period of almost six years, were terrorized, actually. There was a predator on the loose: the Accused admits that he and his co-perpetrators attacked women in the dead of night.

[21.]    Sentencing must also serve as deterrence of others who consider embarking on a life of crime. The message that must go out to others in the community, must be that even though a perpetrator may get away with a number of offences for a number of years. eventually such a perpetrator will be found, linked to those offences and will have to stand his trial and face conviction and sentence.

[22.]    The anger, outrage or indignation of the community must be reflected in the sentence. I view this purpose of sentencing to be reflected in the minimum sentences that are applicable. Rape is indeed one of the most serious offences against women. Rape is a humiliating, degrading, brutal invasion of the right to dignity of the person, which right is guaranteed in the Constitution. The right to freedom--is-also guaranteed in the Constitution. Women should have the right to walk the streets in safety, without having to look over their shoulders or expect an attack at any moment, especially when they are reliant on public transport and then need to walk home or want to walk to a place close enough to their residences. The Accused has infringed on these basic rights of all his victims. I can only refer to the following dictum from S v AM 2014 1 SACR 48 (FB) at par 16: ''[16] In this case the appellant conducted himself with total disregard for this young girl's right not to be abused and to individual physical integrity. To use the words of Ponnan JA in S v Matyityi above -

 

‘[this] is unacceptable in any civilised society, particularly one that ought to be committed to the protection of the rights of all persons, including women [and children]'."

 

[23.]    The court wishes to instruct the accused to follow the programmes offered in the prisons for his personal benefit, including the so-called victim-offender programmes in order to realize the impact of his conduct on the society.

[24.]    The court requests the State to assist the victims and their families to find and attend the so-called victim-offender programmes in order to make sense of the offences committed against the victims.

[25.]    The victims are also advised that they may keep in contact with the Department of Correctional Services in order to be contacted and to make input when the accused is considered for release.

[26.]    The State has indicated in counts 19, 28, 29, and 45 that section 51(2) should apply and not section 51(1). This means that the minimum sentence of life should not be imposed, but the minimum of 10 years imprisonment. This is to the benefit of the Accused and I correct his convictions as such for purpose of sentence.

 

The sentences I impose are as follows on each count:

1.           Robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977, read with the provisions of section 51(2) read with Part ii of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 - convicted 15 years imprisonment

2.           Contravening the provisions of section 3 read with sections 1, 55, 56(1) 57, 58, 59 and 60 and 61 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) Act 32 of 2007 read with sections 94, 257, 261 of the Criminal Procedure Act 51 of 1977; and further read with the provisions of section 51(1) read with Part i of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (rape)- convicted - life imprisonment.

3.           Contravening the provisions of section 120(6)(b) read with sections 1, 103, 120(1)(a), 121 read with Schedule 4 of the Firearms Control Act, 60 of 2000 (pointing of anything which is likely to lead a person to believe it is a firearm) -

 convicted-- 5 years imprisonment

4.           Robbery with aggravating _ circumstances as intended in section 1 of Act 51 of 1977, read with the provisions of section 51(2) read with Part ii of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 - convicted - 15 years imprisonment

5.           Contravening the provisions of section 120(6)(b) read with sections 1, 103, 120(1)(a), 121 read with Schedule 4 of the Firearms Control Act, 60 of 2000 (pointing of anything which is likely to lead a person to believe it is a firearm) - convicted - 5 years imprisonment

6.           Contravening the provisions of section 3 read with sections 1,

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