IN THE HIGH COURT OF SOUTH AFRICA

In the matter between 

and

JUDGMENT

The appellant was convicted on two charges of rape for which he was sentenced to 12 years direct imprisonment on each count, which sentences were to run concurrently. In addition the appellant was convicted on one count of possession of a dangerous weapon, a knife, and two counts of robbery with aggravating circumstances. The last three counts were taken together for purposes of sentence. The appellant was; sentenced to a further 8 years direct imprisonment on two of these three counts and. to one year on the remaining count. These sentences were to run concurrently. As a result the

appellant was sentenced to an effective term of 20 years direct imprisonment. This appeal is against sentence only with the leave of the High Court on petition.

The offences were all committed on 5 September 2005. At the time of the commission of the offences the appellant was 17 years old and 8 months. The appellant was sentenced on 26 February 2007. At the time of sentence he was 19 years old. He spent two years in custody awaiting trial.
The matter was approached on the basis that section 51 (ii) and

“Every child, has the right not to be detained, except as a measure of last resort, in which case the child may be detained only, for the shortest appropriate period of time and his the rights to be kept separately from detained persons over the age of 18 years and treated in a manner and kept in conditions that take account of the child’s ^ ^ ~ ” age .
In paragraph 32 of the judgment Cameron, J held as follows.
In short section 21(8)(g) requires that individuated judicial response to sentencing, one that focuses on the particular child who’s being sentenced rather than an approach encumbered by the rigid starting point that minimum sentencing entails. The injunction that the child may be detained only for the shortest: “appropriate", period of time

relates to the child and to the offence he or she has committed. It requires an individually appropriate sentence.

The facts of the matter are as follows. On 5 September 2005 and at Lotus River, Western Cape, the appellant raped two sisters, Yumna Davids, aged 16 and Quaaneta, aged 19. The girls had been sent by their mother to buy carrots from a shop some 15 m inutes from t h ei r ho me. The a ppe 11 an t fi rst . demanded their cell phones from them which they did not have and thereafter forced them to accompany him to a nearby clinic. They accompanied him because they feared for their safety, thinking he was armed, possibly with a gun. He subsequently threatened them with a knife and ultimately stole a gold bangle and earrings from Yumna and a watch from Quaaneta. Both girls were severely traumatised by the rape and robbery. The one was forced to watch the other being raped, both required surgery, both were virgins. The trauma suffered by them is apparent. Their families were also severely affected by the events. (Quaaneta as a result of excessive teasing thereafter left school prematurely.)
The appellant denied that he was the culprit. He did not appear to show any remorse for his actions. His personal
circumstances are as follows. He resided in Ottery with his grandmother, his mother and his aunts, as an only child. His father was sentenced to imprisonment for 15 years in 2004 having been arrested in 2001. He left school in standard 6 in order to assist his mother financially by selling roses when his father was incarcerated. At once stage he used drugs but for the two years awaiting trial he no longer did so. In Pollsmoor prison, where he occupied a single cell, presumably because of his youthfulness, he participated in what is referred to in the heads of argument for the appellant as: “die kerklike kamer”, which is understood to mean that he had attended spiritual or religious sessions, possibly also indicative of an attempt at rehabilitating himself.
He stated to the Court that he would have preferred to complete his schooling and had he still been at school would've enjoyed continuing with his sports activities, more particularly soccer. He had previous ponvictions for theft.
It was argued on his behalf that the two years in custody should have been taken into account in determining an appropriate sentence and that the sentence in respect of all the charges should have run concurrently.
The magistrate considered the seriousness of the offences in
determining sentence, including the fact that they were committed in daylight and both complainants suffered serious physical injuries as well as severe emotional trauma. The actions of the accused were described as cruel and rightly so.

In respect of the rape charges, two years more than the minimum sentence of 10 years for a first offence were in fact imposed. The robbery charges, which have a minimum sentence of 15 years, were however met with 8 years direct imprisonment. This was essentially, it appears because there were no injuries during the course of the robbery.
It is difficult to fathom exactly why the magistrate distinguished between the robbery charges and the possession of the dangerous weapon on the one hand, yet on the other hand treated the two rapes as having occurred sufficiently, closely connected to each other in order for a concurrent sentence to be imposed in respect of the rapes, but not in respect of the robbery charges.
In my view the robbery charges are more closely connected to the rapes than the two rapes to each other. There is no appeal against the magistrate having treated the two rapesn together for purposes of ordering a concurrent sentence in respect of those rapes. AM the criminal acts took place in the same circumstances on the same day, as part the same series of events. The cumulative effect of the sentences was that the accused was sentenced to 20 years imprisonment for a series of acts which all occurred on the same day withjn the space of roughly an hour.

In my view it is not only this factor but also the youthfulness of the appellant at the time of the offences, which did not receive : the necessary recognition by the Magistrate and which, together with the view that the minimum sentences applied, led to a sentence which I consider to have been disturbingly inappropriate.

"A vulnerable young girl ... had taken from her by force her ultimate sexual intimacy after she refused to grant it. He did so in a wilful act of domination and bodily intrusion that left her physically bruised and emotionally shaken. Some of his actions afterwards displayed, a bare arrogance that makes it hard to warm to him. as a sentencing subject”.
Paragraph 38 of the same judgment, Cameron, JA, dealt with the fact of youth in deciding what this meant for sentence. The learned Judge of. Appeal (as he then was) firstly,
“Youth gives us no warrant to sentimentalise him or any other child. He was a fit and able young man with the capacities of choice, who on this occasion grossly violated another".
In paragraph 39 of the judgment, the constitutional injunction is referred to the court is required to weigh in the mix the fact that the appellant is a minor.

The robbery and the rape counts may. be slightly dissimilar in nature, but in the circumstances of this matter, given the fact that the robbery essentially formed part of the same course of action as the rapes, I am of the view that it would be appropriate for the sentences in respect of the robbery charges to run concurrently with the rape charges.
This brings one to consideration of what would be an appropriate sentence in respect of the separate offences. The magistrate in the court a quo imposed 12 years direct imprisonment in respect of the rapes.

“Rape is a very serious offence constituting as it does a humiliati ng, degrad ing and b rut a I i nvas i o n of the privacy, the dignity and the person of the victim. The courts are under a duty to send a clear message to the accused, to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women and we shall show no mercy to those who seek to invade those rights."

The sentence of 12 years imposed by the. magistrate for these two crimes, in my view, strikes the right balance between the appellant’s youthfulness and the severity of the crime, the interests of the community and the factors to be taken into account in sentencing. Particularly given the fact that the appellant also spend some two years awaiting sentence in custody, this would make such a sentence appropriate.
The term of eight years imprisonment, in respect of the robbery, may also on its own have been an appropriate sentence, taking into account that a large knife, half the size of a 30cm ruler, was used to callously steal from the complainants personal items.

This in my view strikes the necessary balance between the appellant’s youthfulness and all the other factors referred to herein and would constitute a sentence which is not disproportionate.

I would uphold the appeal against sentence and impose a sentence of imprisonment of 12 years in respect of the two counts of rape, 8 years in respect of the two counts of robbery and the one count of possession of a dangerous weapon and order further that all the sentences are to run concurrently, with the result that the appellant will serve an effective 12 years imprisonment in respect of all the charges.

The order I propose making is as follows:
1. The appeal against sentence is upheld.
2. The appellant is sentenced to 12 years imprisonment on each count of rape.	.
3. On count 5 possession of a dangerous weapon, count 6 and 7 robbery, the appellant is sentenced to undergo a term of imprisonment of 8 years.
4. The sentences in counts 4, 5, 6 and 7 are ordered to run concurrently with the sentence in respect of count 3.

The sentences are antedated to 26 February 2007. Effectively the appellant is sentenced to a period of 12 years imprisonment with effect from 26 February 2007.

I agree.