South Africa: Eastern Cape High Court, Grahamstown

[12]    It is trite that it is permissible for a court to impose a sentence that is less than the one that is prescribed. This can only happen if the court is satisfied that substantial and compelling circumstances exist which justify a departure from imposing the prescribed sentence (Section 51 (3) (a)). The principles that have since crystallised regarding the application of these provisions are inter alia:

[13]    Regarding sentencing in general, I will be mindful of the objectives that are meant to be served by a sentence – objectives that an appropriate sentence is capable of serving. A sentence is designed to serve the following important functions:

Deter members of community from committing crimes in the knowledge that should they do so they will be visited with appropriate punishment.

Prevent he offender from being tempted to engage in similar conduct in the future.

Protect the society from those who harm its members.

Satisfy the society’s need of or interest in seeing wrongdoers being punished.

The interest of justice which includes the interests of the society will be best served if the punishment also serves to rehabilitate the offender.

[14]    Counsel for the accused, Mr Solani conceded rightfully so, that the accused has been convicted of very serious offences. And that this warrants the imposition of lengthy terms of imprisonment. He submitted however, that in respect of those offences that attract a minimum sentence substantial and compelling circumstances exist which justify lesser sentences. This based on inter alia accused’s personal circumstances and the following factors which he urged to take into account:

The first of the offences was committed when accused was 19 years old and therefore relatively young with the last one committed when he was 21 years old. He is now 23 years old.

Even though he is not a first offender, this is the first time he has been convicted of offences that involve violence to others as such should be considered as a first offender.

He has displayed some level of remorse in that he later conceded that he may have had sexual intercourse with complainants in counts 3 and 9 when he was under the influence of alcohol.

There is no evidence that the offences were pre-meditated / planned.

He has been in custody awaiting trial for a year and 9 months.

Lengthy terms of imprisonment that are ordered to run concurrently will serve the purpose of protecting the society as well as rehabilitating the accused. Whose need for prescribed sentence to be imposed.

[15]    Ms Hedricks for the state on the other hand was not in agreement that substantial and compelling circumstances that called for a departure from the prescribed minimum sentence exist. She submitted that any mitigating factors that may favour the accused pale into insignificance when juxtaposed against aggravating circumstances that are inherent in this matter she proceeded to highlight those as being the following:

The fact that the offences were committed over an extended period of time indicates that accused poses a serious danger on women and girl children in the community.

He has a number of previous convictions, the first of which was committed before his 16^th birthday. Although they were for less serious crimes, he is clearly going up the rung and committing more serious offences.

In the present matter the robberies started as common robberies but he progressed to committing those in which aggravating circumstances were present. He also raped 4 women and a child. Only stopped by arrest. That in view of this age cannot operate in his favour.

She pointed out to the negative impact that the rapes had on the complainants as evidenced by the reports in this regard.

She went on to remind the court how each of the offences were committed where the complainants were subjected to violence, indignity and no doubt terror / fear. So serious where the offences so it was argued by Ms Hendricks, that even in those instances where the minimum prescribed sentence is 10 years, the court is urged to impose a substantially higher sentence because 10 years is only a minimum.

[16]    There can be no doubt that the accused has been convicted of very serious offences. There has been as debate between the parties as to whether or not the offences were planned. In my view, the evidence reveals that accused prowled the street mostly in the still of the night in the hope of spotting vulnerable targets, mostly women who had been enjoying alcoholic beverages. He did let us in into his modus operandi, saying he preferred proposing love to women who liked drinking. Except that it transpires that his way of proposing is forcefully drag the women to secluded spots. In my view this amounts to pre-planning. I do not believe that the accused has any insight into the gravity and consequences of his actions. Even when he half-heartedly admitted that he may have had sexual intercourse with complainants Ms M[…] and Ms M[…] he kept on saying but he did not rape them. How can he say so if he does not even recall when he may have had sexual intercourse with them?

[17]    I agree with Ms Hendricks that accused poses a serious danger to the society especially women and girl children. Whilst he started off by targeting vulnerable women at night, even the light of day or the presence of others, day or night did not stop his onslaught on hapless victims. We know that he attacked the 11 year old Ms A B in broad daylight separating her from her friends. We know that the only time that his onslaught on women stopped, when there was a lull on the onslaught is when he was in jail serving a sentence. After which he struck again only to be stopped by his arrest on the 9 May 2019.

[18]    I do not agree with Mr Solani that he should be regarded as a first offender. He had been convicted and sentenced before but those sentences did not help to keep him in the straight and narrow – to bring it home to him that it is not acceptable to commit crimes. Instead, he continued to show disregard for other people’s rights. Graduating from disregarding people’s rights to their property, to a complete disregard for rights to privacy, human dignity, bodily integrity etc. Clearly the only salvation from the women and girl children of Molteno is the removal of the accused from he society.    

[19]    I agree that his personal circumstances and mitigating factors are far outweighed by the aggravating circumstances that are inherent in those attacks. I am therefore of the view that there are no substantial and compelling circumstances that warrant a departure from the prescribed sentences. The complainants in respect of the rape charges have been subjected to traumatic experiences, the effects of which will remain with them for a long time as the impact reports show. This point was also made in S v C 1996 (2) SACR 181 at 186 where it was stated that:

“A rapist does not murder his victim. He murders her self-respect and destroys her feeling of physical and mental integrity and security. His monstrous deed often haunts his victims and subjects her to mental torment for the rest of her life, a fate often worse than loss of life.” 

[20]    If I were to find that the imposition of the prescribed sentences will be unjust – in that it will be disproportionate to the crimes, the offender and the interests of the society, I will not only be failing in my duty to send a message to other would be rapist and members of community at large that we will not tire in our endeavours to protect the equality, dignity and freedom of all the women young and old from marauding attacker of accused’s type. 

[21]    Accordingly, the following sentences are considered appropriate in the circumstances:

Count 1: Accused is sentenced to undergo imprisonment for life.

Count 2: 18 months’ imprisonment.

Count 3: 18 years’ imprisonment.

Count 4: 18 months’ imprisonment.

Count 5. 18 years’ imprisonment.

Count 6: 15 years’ imprisonment.

Count 7: 24 months’ imprisonment.

Count 8: Imprisonment for life.

Count 9: 18 years’ imprisonment.

Count 10: 15 years’ imprisonment.

_____________­­__

NG BESHE

JUDGE OF THE HIGH COURT

For the State        :        Adv: Hendricks

For the Defence    :        Adv: Solani