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Smith v S (A214/11) [2011] ZAWCHC 511 (19 August 2011)

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JUDGMENT

DOLAMO. AJ

The appellant, who was 24 years old at the time, was convicted in the Regional Court, and received a term of imprisonment of 25 years, on three counts of rape. He applied and was refused leave to appeal.

This Court on petition granted him leave to appeal against sentence only.

The events of the night of 6 September 2008 are the genesis of the appellant's ultimate trial, conviction and sentence. This played itself out in a township in Beaufort West. They are briefly as follows; the complainant, who was 23 years old at the time, went with her 15 years old friend to a tavern where the two enjoyed a beer or two. They left the tavern at about 1 am and on their way home encountered the appellant. He approached complainant and her friend on the pretext that he was looking for a lighter for his cigarette. A conversation was struck with him, but it soon became apparent what his motives were when he started with threats to complainant's friend. Complainant's friend, after establishing that she will be able to gain entry to her brother's house where she was going to spend the night, bid complainant goodbye, leaving her in the company of the appellant.

Despite the earlier threats by the appellant it would appear that the situation had calmed down so much that the complainant agreed to walk with the appellant towards her home. When they reached a stop in the street, and she wanted to go her separate way appellant picked up a stone and threatened her there with, forcing her to go with him to his sister's place. Once at the sister's house appellant left the complainant alone in the street and went to a neighbour's house looking for a key to this sister's place. He came back without a key, but this did not dissuade him as he still went on to force the complainant by pricking her on the side with a knife to enter the house through a window. The fear that made the complainant, in the first place not to run away as she was left alone when the appellant went looking for a key again made her to succumb to the appellant's instructions to enter the house through the window. Once inside appellant forced her to undress and went on to rape her, three times during the course of the night, paying no heed to her protest that she was menstruating. He restricted her by holding her down in between the rape intervals. She eventually left in the morning after daring the appellant to do what he liked and on arrival at home reported to her brother the ordeal she suffered at the hands of the appellant.

The police were summoned and the appellant was arrested, and tried.

His version that he was in an on/off relationship with the complainant and that he had consensual sex once with her that night was in my view correctly rejected by the court a quo, and the appellant accordingly convicted.

Having been convicted of the repeated rapes on the complainant the appellant faced the prospects of life imprisonment, unless the Court found the existence of substantial and compelling circumstances which would have justified a departure from this minimum prescribed sentence. The learned magistrate found in the main that appellant's youthfulness constituted a substantial and compelling circumstance, which justified a departure from imposing the minimum sentence, and sentenced him to 25 years imprisonment.

It is against this sentence that the appellant is appealing.

It is common cause between the State and the appellant that indeed the existence of substantial and compelling circumstances justify the departure from the prescribed minimum sentence of life. The appellant however argued in his heads that 25 years imprisonment is shocking and disturbingly inappropriate, that the learned magistrate misdirected himself by overemphasizing the seriousness of the offence, the appellant's previous convictions, his lack of remorse, and that the sentence reflects no element of mercy. That in the circumstances the learned magistrate did not exercise his discretion properly.

The State on the other hand submitted that the Court a quo properly exercised its discretion and was aware that in certain appropriate circumstances it may attach more weight to certain elements of punishment, and in this case the appellant's personal circumstances had to give way to retribution and general deterrence.

In defence of the propriety of the sentence the State relied on the triad that a sentence is entirely a matter for the discretion of the presiding officer in the trial court, and that a court on appeal cannot, in the absence of material misdirection interfere with that sentence and impose a sentence which it prefers.

In my view the submission that the learned magistrate overemphasized the seriousness of the offence has merit. He also placed, in my view, emphasis on the prevalence of the offence and the need to impose a sentence which will send a message to the appellant and other would-be offenders, and which will ensure that the community does not take the law in its own hands. But this emphasis as against the appellant's youthfulness and other mitigating factors in my view constitute a misdirection that will justify an interference by this Court.

In the circumstances I am satisfied that the learned magistrate misdirected himself, that this misdirection is material as to entitle this Court to interfere with the sentence he imposed and to impose an appropriate one.

I deem the reference in the heads of argument to the appellant's personal circumstances as sufficient. As already stated the appellant is not a first offender. His previous convictions include assaults, housebreaking and indecent assaults, dating back to when the appellant was still very young. I am of the view however that he has now reached a crossroad where he is in a position to make an informed decision as to whether he wants to remain on the path of clashing with the law all the time, or returning there from.

I am of the view that the appeal must succeed and the order I propose is therefore the following:

The APPEAL SUCCEEDS. THE SENTENCE OF 25 YEARS IMPRISONMENT IS SET ASIDE and a SENTENCE OF 15 (FIFTEEN) YEARS IMPRISONMENT IS IMPOSED.

DOLAMO, AJ

I agree, THE JUDGMENT OF THE COURT A QUO IN RELATION TO SENTENCE IS SET ASIDE. IT IS SUBSTITUTED WITH 15 (FIFTEEN) YEARS IMPRISONMENT.

HLOPHE, JP