Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter of:

Versus

MIA AJ

[4] In sentencing the appellants, the magistrate approached the sentence on the basis that life imprisonment is the prescribed sentence for rape when the complainant is raped more than once by an accused or co-perpetrator or by more than one person acting with common purpose unless there are substantial and compelling circumstances which indicate that there ought to be a departure from the prescribed minimum sentence. The magistrate took the incidents which occurred on the same evening together for the purpose of sentence and found that there were no substantial and compelling circumstances which required a departure from the prescribed sentence.

[5] The issues which must be considered in this appeal are whether the conviction with regard to the second appellant is sustained on the evidence beyond reasonable doubt and whether the sentences imposed on the appellants are, in the circumstances of the present matter, disproportionate to the crime and thus shockingly inappropriate.

Background
[6 ] The complainant resided with her four year old daughter in Gansbaai in the district of Hermanus at the time of the offence. The complainant lived an independent life at the time. She was asleep on the night in question and woke up when she heard a noise in the bathroom. She saw the first appellant climbing through the window, picked her daughter up and tried to flee through the front door. When she opened the door the second appellant was waiting and pushed her back inside the house. The first appellant commanded her to sit against the wall whilst they searched the room. They found her Compact Disc player and cell phone and placed it aside. It subsequently transpired that these items were missing after the incident.

[8] The first appellant is charged with robbing a further complainant of her cell phone at knife point the following day. This complainant ran to a security company and raised an alarm giving the officer a description of the offender. When the first appellant was approached by the officer, he ran away dropping the dismantled parts of the cell phone along the way. A colleague of the officer apprehended the appellant shortly thereafter.

[9] The only dispute concerns the charge of theft and whether the second appellant raped the complainant. The medical report reflects that she had sustained fresh flesh wounds and blood was present, which is indicative of forceful penetration.

[11] Mr Mahomed who appeared on behalf of the appellants submitted that as the complainant was a single witness, that first appellant denied that the second appellant was involved and that the State, inexplicably had failed to produce DNA and other forensic evidence in respect of the second appellant. He argued therefore that there was insufficient evidence to convict the second appellant of rape. The complainant, however, had no difficulty in identifying both appellants at the ID parade. She justified her identification of both appellants by way of plausible evidence, in particular that she had the opportunity to clearly identify both appellants when they invaded her home on 30 October 2004.

Sentence
[13] In the present matter both the appellants are repeat offenders, having committed previous offences which have a bearing on the sentences in the present matter. The first appellant has previous convictions for housebreaking and theft as well as robbery. The second appellant has previous convictions for theft and trespass offences. The prescribed minimum sentence applies in terms of section 51 (1) Act 105 of 1997. The first appellant pleaded guilty to the charge of rape. The second appellant made certain admissions that he was on the property on the day in question but denies the rape and theft charges.

[14] The Victim Assessment Reoort indicates that the complainant's life has been detrimentally affected. She has never returned to the address. Her daughter has suffered tremendously as a result. Understandably due to the trauma of the rape of her mother and the violation of the safety of her home, she has not coped emotionally. This has impacted on other areas of her life, including her schooling. This incident necessitated the complainant having to place her daughter in a boarding facility to ensure that she obtained the necessary psychological support. This is in stark contrast with the complainant's evidence of her life prior to the incident when she lived independently with her young daughter. The social worker's assessment indicates that the complainant has not recovered and does not receive the required psychological support to deal with the trauma of the incident. This impacted on her ability to parent the minor child effectively.

[15] The first appellant is a repeat rape offender. The probation officer's assessment indicates that the first appellant grew up without a male role model and left home at age 15 years old to live with his siblings. The implication appears to be that he received inadequate socialisation. The second appellant appears not to have received the necessary stability according the probation officer. Having regard to the previous offences of both appellants, the appellants show no regard for any opportunities they were given previously to address their offending behaviour. The danger posed by the appellants require the strictest measures to ensure that people can enjoy their rights to security of person.

"the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."

[17] Mr Mahomed points out that the second appellant was just more than 17 years old at the time of the commission of the offence and not yet 18 years old. He submits that in light of the second appellant's age and having regard to the aforementioned Convention, and that the complainant did not present with any visible physical injuries, the sentence is disproportionate to the crime. In particular he drew attention to Section 51(3)(b) which provides that when a Court imposes a minimum sentence upon a child who is aged between 16 and 18 at the time of the commission of the offence it shall enter its reasons on the record. As the magistrate overlooked this provision, Mr Mahomed submitted that this court was now at large to determine the sentence.

[18]   Section 51(3) (aA) provides:
"(aA) When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence:

(iii)    an accused person's cultural and religious beliefs about rape: or
(iv)    any relationship between the accused person and the complainant prior to the offence being committed."

[19] The Act provided specifically that the apparent lack of physical injury to complainant shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence. The fact that the complainant did not sustain further injuries and was not assaulted or did not experience further violation is not a factor in the present matter that the second appellant can rely on to persuade the Court to depart from the prescribed minimum sentence.

[21] Having regard to the above Conventions, the Court is faced with protecting the interests of the appellant, a 17 year old at the time of the offence as well as the interests of the complainant who is the victim of the offence committed by the 17 year old offender.

[22] The article of the Convention on the Rights of Child which Mr Mahomed relies on does not exclude imprisonment. It requires that the imprisonment be meted out in accordance with the law and for the shortest period possible. Having regard to the prescribed minimum sentence provided for in section 51(1)(a) and subject to section 51(3)(a) the Court is also required to consider whether there are substantial and compelling circumstances. In this instance there are none. In this case therefore, it will appear that the minimum sentence is applicable

[23] I have had regard to four factors influencing sentence, the seriousness of the offence, the purpose of punishment, the personal circumstances of the appellants and the effect of the crime on the victims, being both mother and child, as well as the provisions of Act. The absence of substantial and compelling circumstances is equally important to justify not imposing a lesser sentence.

Order

[25]   For the reasons given above,
1) The appeal against the conviction of the first appellant is dismissed.
2) The sentence of the first appellant is amended so that the 15 years imprisonment is ordered to run concurrently with the sentence of life imprisonment.
3) The appeal against the convictions and sentence in relation to the second appellant is dismissed.

MIA, AJ

I agree and it is so ordered.

DAVIS, J