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

JUDGMENT

MOSES, AJ

The appellant, an adult male whose date of birth is reflected as 4 June 1987, was charged and convicted in the Regional Court Khayelitsha on two counts of rape on 17 October 2008. He was subsequently on 29 January 2009 sentenced to 20 years' imprisonment on the first count and 18 years' imprisonment on the second count.

The trial Court ordered that:

"These sentences are not to run concurrently." (See page 34 of the transcript record.)

After the appellant noted and launched an application for leave to appeal against the above-stated sentences, such leave was granted by the trial Court on 23 March 2010.

The question to be answered in this appeal is whether these sentences of 20 years' imprisonment and 18 years' imprisonment on the first and second counts respectively, and which were ordered to run successively, are appropriate in the circumstances of this particular case. The appellant contends that, given the circumstances of this particular case, more particularly the appellant's personal circumstances which, so it is submitted, were not properly and/or sufficiently considered by the sentencing Regional Court Magistrate, these sentences are startingly inappropriate and should be set aside and be replaced with a suitable sentence. That is to be gleaned from paragraph 13 and 14 of the appellant's heads of argument.

On the other hand counsel for the State's main contention was that, given the nature of the offence, namely a young 4-year old girl being raped within her own family and the societal interests, both of which outweighed the personal circumstances of the appellant, the sentences which the Magistrate imposed were appropriate in the circumstances. On that basis, so it is submitted, these sentences should be left undisturbed.

In considering these opposing contentions and in answering the above-stated questions, it is important to consider the facts of this case, albeit briefly. The salient facts with regards to the commission of the offences committed by the appellant are set out crisply in his written plea explanations tendered in terms of section 112(2) of the Criminal Procedure Act 51/1977 and which had been admitted and handed in marked exhibit A The plea explanation reads as follows:

"Plea in terms of section 112(2) Act 51/1977. I, Siphenathi Qeya, declare as follows: I am the accused in this matter and know and understand the charges against me. I plead guilty to both charges mentioned in the charge sheet and do so freely and voluntarily without any undue influence. I admit the following:

On the said date I was at home with my sister, husband and their children. I had just arrived from   a    nearby   shebeen.       I   took   the complainant from her mother and took her back to the backroom I placed the complainant on the bed and removed her underwear. I inserted my erect penis into her vagina and made up-and-down movements. At that stage I knew my actions were unlawful as she was 4 years old and could not consent to sexual intercourse. While I was raping the complainant the mother walked in, started screaming and pushed me off her daughter She grabbed the complainant and ran out. I went to my caravan and 3 days later I was arrested.

The   statement   which   was   dated   17   October   2008   at
Khayelitsha was signed by both the appellant and his legal representative. It is common cause that the State accepted the plea explanation and based on that the appellant was duly convicted on both counts by the learned Magistrate.

Subsequently and before sentence the appellant's sister was called by the State to give evidence after the defence has made oral submissions on behalf of the appellant in mitigation of sentence. The appellant's sister is Ms Nomonde Noqazo. who is also the mother of Akhona, the 4-year old victim of the appellant's heinous acts. When asked about how the young Akhona reacted after the second incident she testified as follows:

When asked  about  her  relationship with  her brother,  the appellant, the salient parts of her evidence in this regard are the following (on page 20 of the typed record):

"We are three at home. He is the lastborn. I love him more than my younger brother because that he never saw his mother and that I could not even assist him - okay. I could see the way he was suffering but I could not assist him. When he was 4 years old he was staying with my aunt and he was staying a little bit far from where I was staying. Then I missed him, Your Worship. Then I decided to go and visit him. On that day when I came from school then I went to him or to the place ...(intervention)

She further testified that she, upon discovering what he was doing, was very disappointed and upset and could not accept his apology and could not forgive him for what he did and decided to lay charges against him. She then went on to say:

"I would like to tell this Court, Your Worship, that Siphenathi, as I am his mother, Your Worship. As I am standing here, I am his mother, also his sister and I love him very much. But what he did, Your Worship, is very painful. I would like the Court, Your Worship, not to sentence him, not to sentence him, Your Worship, because of my pain. I would like, Your Worship, the Court to sentence him in an appropriate way, Your Worship, so that he again become human."

When during cross-examination it was put to her that her brother is facing two life sentences and whether she would want him to be sent away for life she answered no. After her testimony the following documents were handed in:
(a)	the medico-legal examination report by Dr Josias dated 10 March 2008 regarding the medical examination conducted in respect of the little girl, Akhona, at approximately 11h30, commonly referred to as the J.88, which was marked exhibit B. I return to exhibit B hereunder;
(b)	a victim impact report compiled by one Ms M Hendricks dated 29 October 2008 regarding the victim, Akhona Noqazo, handed in and admitted as exhibit C;
(c)	
(d)	a pre-sentence report in respect of the appellant by another probation officer, one Mr E Mulder, dated 29 January 2009 admitted and received as exhibit E.

All these reports, exhibits B, C, D and E were handed in by agreement between the defence and the State and no evidence was led in respect of either of the reports. The above-stated evidence therefore constitutes the factual matrix within which the trial Court had to consider and decide upon an appropriate sentence.

It should be said at the outset that counsel for the State in its written submissions made two important and material concessions, namely a) that the trial Court:

"did not discuss the age of the appellant or the aspect of rehabilitation." (See Respondent's heads of argument paragraph 44.) And b):

(See Paragraph 45 of the respondent's heads of argument, emphasis added).

With regards to the State's first-mentioned concession it must be pointed out that although the Magistrate has clearly considered the various reports, exhibits B, C, D and E, referred to above, the Magistrate misconceived the import of the findings in respect of the J.88, exhibit B, and the recommendations of the probation officers (in exhibit C and exhibit D) and that of the correctional supervision report, exhibit E. I deal with those hereunder.

With regards to the J.88, exhibit B, it must be pointed out at the outset that the J.88 reveals that little Akhona suffered no serious and/or severe physical injuries upon a physical and gynaecological examination by the doctor. Despite the fact that the Magistrate accepted these findings, namely the absence of any significant physical and gynaecological injuries (that's on page 33 of the judgment) she used these physical injuries as a basis for the imposition of 20 years' imprisonment in respect of count 1. This finding and sentence by the Magistrate was made against the appellant, and as a basis for the imposition of 20 years' imprisonment in respect of count 1. (See judgment page 34 lines 22 to 23.)
In addition the evidence, in good part derived from the abovementioned reports, reveals the following personal circumstances regarding the appellant which, seen in its proper perspective, are important mitigating factors:
1) the appellant was only 21 years old during the commission of these offences and he is still relatively young;
2) he is a first offender;
3) he had a seriously disruptive and unpleasant family background;
4) his parents passed away at a very early stage of his life;
5) the absence of a father figure may have negatively impacted upon his upbringing;
6) despite all the above difficulties:

a) his school career was above average;
b) he has no history of antisocial behaviour;

c) there is no drug and/or alcohol dependency on his part; and

d) he was enrolled as, and busy studying towards a Diploma in Nursing at the time of the commission of these offences.

7)   importantly, he showed remorse for his actions.   (See paragraph 16 of exhibit B) and

8) despite the fact that little Akhona suffered both physical injuries and psychologically, she was receiving counselling and had responded well to this.

In any event, the discrepancy between the Magistrate's sentences and that of this Court is so marked that it can only be inferred that she failed to exercise her discretion properly. Moreover, I am further of the view that the effective sentence imposed in this case is shockingly and disturbingly inappropriate. In the circumstances this Court is at liberty to interfere with the sentences imposed by the trial Court and in doing so can consider afresh what an appropriate sentence would be.

I have considered counsel's submissions as well as the facts and circumstances of this case. In all the circumstances I consider that the following sentence is appropriate:

I would in addition order:

(b )in  terms of section  282  of Act  51/1977  that the sentences are anti-dated to 29 January 2009; and

(c) in terms of section 276B of Act 51 of 1977 that the appellant shall not be considered for parole before he has served at least 10 years of his effective sentence.