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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

CASE NO: CC03/2014

DATE HEARD: 17/02/2014

DATE DELIVERED: 18/02/2014

NOT REPORTABLE

In the matter between:

THE STATE

and

ZAKHE SAMUEL JOE

JUDGMENT: SENTENCE

PLASKET J

[1] The accused was charged with three offences namely, housebreaking with intent to commit rape, rape and theft. He pleaded guilty to all three charges and I convicted him on the basis of his plea.

[2] He admitted in his statement in terms of s 112 of the Criminal Procedure Act 51 of 1977 that, on 9 September 2012, he entered the yard of the complainant, an 85 year old woman, at 7[…] O[…], S[…], and broke into her house.  He entered her bedroom where he found her asleep.  He undressed her and raped her. He raped her four times during the night. When he was about to leave her house the next morning, he searched her wallet and stole R11.00 from it.

[3] In the indictment the State gave notice that in the event of the accused being convicted of rape as charged, it would rely on s 51(1) of the Criminal Law Amendment Act 105 of 1997. This provision, read with Part 1 of Schedule 2, prescribes a sentence of life imprisonment (unless substantial and compelling circumstances justify a less severe sentence) in a case such as this in which a victim has been raped ‘more then once whether by the accused or by any co-perpetrator or accomplice’. 

[4] In determining an appropriate sentence a court is required to consider and balance the various interests that are present in the triad made up of the offender, the crime and the interests of society, and then to measure them against the yardstick of ‘substantial and compelling circumstances’ in order to decide whether a departure from the prescribed sentence is justified. See S v Malgas 2001 (1) SACR 469 (SCA) para 25F and G.  I turn now to this analysis.

[5] The accused is 39 years old, having been born on 3[…] (according to his identity document). He is not an educated person having got no further at school than sub B.

[6] He was unemployed at the time that the offences in this matter were committed.  He was supported by his mother and he also received a disability grant.  I do not know the precise nature of his disability.

[7] Although it was referred to as a mental illness, the accused was found when evaluated for purposes of s 79 of the Criminal Procedure Act to be able to follow proceedings so as to make a proper defence, to have been able to appreciate the wrongfulness of his conduct at the time of the commission of the offences and to have been able to act in accordance with that appreciation.

[8] The report records that the accused suffers from antisocial personality disorder. To put this finding into perspective, in S v Mshumpa and another 2008 (1) SACR 126 (E) Froneman J said of one of the accused that he had been diagnosed as being a ‘sociopath with psychopathic traits, nowadays apparently referred to as an antisocial personality disorder’ (at para 77) and that the personality traits of such a person include a lack of conscience (at para 78).

[9] The accused is not a first offender. He admitted the following previous convictions: assault, assault with intent to commit grievous bodily harm, assault, theft, robbery and rape. All of these previous convictions are relevant to the offences of which the accused has been convicted in this matter.

[10] I take into account, however, that the first two previous convictions are dated: they go back to 1994 and 1997 respectively. The remainder are of more recent vintage – 2006, 2007, 2009 and 2010 – and are more serious in nature. The accused admitted in his cross-examination that when he committed the offences in this case he was on parole in respect of his rape conviction from 2010. 

[11] The accused stated that he was sorry about what he had done – that he felt disappointed in himself, his heart, he said, was ‘sore’ and that he was worried. When he was arrested, he co-operated with the police by making a confession and doing a pointing out. He says that he told the police that he felt bad about what he had done and was sorry. He ended his evidence in chief by saying that if he got the opportunity to speak to the complainant, he would apologise to her for what he had done to her. 

[12] When he was cross-examined by Mr Henning for the State, he confirmed that he had been sorry for what he had done on each previous occasion when he had been convicted, and that he had told this to each court in which he had appeared.  When he was then asked why he had continued to commit offences he said – and this has a familiar ring to those who followed the match-fixing scandal in South African cricket a few years ago – that the ‘devil just got into me’ and that he was ‘misled by the devil’. 

[13] It was also put to him by Mr Henning that his plea of guilty was not an indication of remorse but the result of an insurmountably strong State case against him comprising of a confession, a pointing out, a positive identification in an identification parade and DNA evidence linking him to the rape of the complainant.

[14] In S v Matyityi 2011 (1) SACR 40 (SCA) para 13, Ponnan JA made the point that ‘a plea of guilty in the face of an open and shut case against an accused person is a neutral factor’ before proceeding to say:

‘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 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] It appears to me, having considered the evidence of the accused both in chief and during cross-examination, that it cannot be accepted that he is, in fact, remorseful. I say this for the following reasons: first, he did not even try to explain why he acted in the way he did, so I have no way of knowing what motivated him; secondly, his concession that he had said he was sorry on each previous occasion when he had been convicted, yet continued to offend in even more serious respects, shows a lack of insight into his own conduct and into the seriousness of his misdeeds that is at odds with sincere remorse; thirdly, his expression of remorse was undermined by his shifting of blame – to the devil – and his failure to accept blame in any meaningful way; fourthly, the fact that such a serious case of rape followed so shortly after a previous conviction for rape and occurred while he was on parole is indicative of the complete antithesis of remorse – an indifference for the consequences of his actions and their affects on his victim.

[16] In these circumstances, it seems to me, he pleaded guilty to the charges against him, not as a result of remorse, but because he was faced with an exceptionally strong case against him.

[17] I turn now to the crimes of which the accused was convicted. The offences of housebreaking with intent to rape and rape are related in the sense that the first was committed to facilitate the second. Housebreaking is a serious offence in its own right as its essence is the unwarranted invasion of the home – the sanctuary – of another, usually to commit a crime.

[18] The accused’s victim was an 85 year old woman who lived on her own. The age of the complainant is an aggravating factor rendering the offence more serious than may otherwise have been the case: her advanced age made her more vulnerable than she might otherwise have been. In S v Marhotya and another ECD 2 March 2007 (Case No: CC14/2007) unreported at para 11, I made the point that the courts ‘have made it abundantly clear that they are prepared to impose stern sentences on those who prey on the vulnerable and weak, whether the victims be children, woman or old people’.

[19] The vulnerability of the complainant apart, however, it is not difficult to imagine the terror that she must have experienced when she was woken up by a stranger in her own bedroom and raped not once but four times throughout the night. Two factors need to be emphasised. The first is that this attack on the complainant’s dignity and right to freedom and security of the person took place in the sanctity of her own home, where she was entitled to feel safe and secure. Secondly, the duration of the incident and the repeated rape of the complainant compounded the accused’s attack on her dignity and right to freedom and security of the person.

[20] The theft conviction is the least serious of the three offences of which the accused was convicted but it is indicative of his attitude to his victim. Having robbed her of her dignity he proceeded, as he left, to help himself to her money.

[21] I turn now to the final leg of the triad, the interests of society. Right-thinking members of society are outraged when a senior citizen such as the complainant is raped. And correctly so. This was an appalling crime. The conduct of the accused is contrary to important values that our society has committed itself to – the value of human dignity, in particular, which is a founding value of our Constitution.

[22] When such a callous act is committed by a man who has shown through his previous convictions that he has no respect for the rights of others – whether to bodily integrity or to property – the interests of society loom large and the need for effective protection for members of society in general from a person like the accused comes to the fore.

[23] I have some sympathy for the accused’s lack of education and opportunity.  But these difficulties do not, in my view, serve as mitigation for what he has done.  He has committed a particularly serious rape, has not displayed genuine remorse, and has shown from his previous convictions that he has little respect for the rights of others. All of this leads me to conclude that society must be effectively protected from him.

[24] I can find no substantial and compelling circumstances in the accused’s personal circumstances that could justify a less severe sentence than life imprisonment for the offence of rape that he committed, and the nature of the offence and the interests of society satisfy me that this is an appropriate and just sentence.

[25] As far as the other two offences are concerned, I am of the view that a sentence of four years imprisonment is appropriate in respect of the count of housebreaking and that one years imprisonment is appropriate in respect of the count of theft (having particular regard to his previous convictions for theft and, more recently, robbery).

[26] I accordingly impose the following sentences:

(a) count 1 – housebreaking with intent to rape: four years imprisonment;

(b) count 2 – rape: life imprisonment;

(c) count 3 – theft: one years imprisonment.

C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES:

For the State: N Henning, office of the Public Prosecutions, Grahamstown.

For the Accused: O Mtini, Grahamstown Justice Centre.

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