---

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLICK OF SOUTH AFRICA

Case No. : A247/2011

In die appeal of:-

TELLO VINCENT MOKHESENG …...............................................Appellant

and

THE STATE …...........................................................................Respondent

CORAM: C J MUSI, J et SNELLENBURG, AJ

JUDGMENT: SNELLENBURG, AJ

HEARD: 28 MAY 2012

DELIVERED: 31 MAY 2012

[1] The appellant was convicted on 5 August 2010 in the regional court, Welkom, on one count of rape and sentenced to 10 years imprisonment in terms of part 3 of schedule 2 of the Criminal Law Amendment Act 105 of 1997 [Act 105 of 1997]. A further order was made in terms of section 52(2)(a) of the Sexual Offences and Related Matters Amendment Act 32 of 2007.

[2] The appellant appeals against the said sentence with leave granted on petition after the court a quo dismissed the appellant’s application for leave to appeal against the sentence.

[3] When imposing the sentence the Magistrate dismissed an application by the appellant in terms of section 280(2) of the Criminal Procedure Act 51 of 1977 [the Act] in terms whereof he requested that the sentence imposed or part thereof should run concurrently with a previous unrelated sentence imposed on 5 May 2009 which sentence he was undergoing. To this end and according to the South African Police Services Criminal Records System printout of the appellant’s criminal record, SAP 69c, which the Appellant duly admitted, the unrelated sentence followed on the appellant’s conviction on one count of housebreaking with the intention to rob and one count of robbery, both offences having been committed on 1 April 2007. The counts were ostensible taken together for purpose of sentence and the appellant was sentenced to 14 years imprisonment of which 4 years were suspended for the period of 10 years on condition that “the appellant is not convicted of the crime of housebreaking with the intent to rob, housebreaking with the intention to steal or robbery with aggravating circumstances during the period of suspension.” (The period of suspension is either incompetent or it was wrongly captured on the SAP69.)

[4] The charge of rape arose from an incident that occurred during the evening of 22 March 2008. At approximately 18h45 Semama Bridget Hlajoane (the complainant), at that time 17 years of age, was on her way home. She was dependent on transport by way of mini bus taxi service to get home. As the complainant was unsuccessful to procure passage to her parental home at the main taxi rank she made her way, on foot, to another taxi terminal near Zone 1, Welkom. Whilst walking towards the taxi terminal, in the vicinity of the Liberty Centre in Welkom, the appellant approached the complainant and threatened her, with what she perceived and believed to be a handgun, and requested her to accompany him. The appellant threatened to shoot the complainant should she attempt to seek help or otherwise fail to comply with his instructions. She thus accompanied him, fearing for her life if she did not.

[5] The appellant and complainant walked for quite a distance, her destination and fate unbeknown to her at that time. Although the complainant and appellant passed other people on the way and even security guards, she did not seek assistance due to continuous threats by the accused that he would shoot her if she tried to attract any attention to them. He instructed her to pretend that they were a couple, walking together. When they approached people the appellant would threaten the complainant and then hid what she though, as stated, to be a handgun.

[6] The appellant thus forced the complainant to accompany him to his room (quarters) at the Kopano Clinic, where he was residing. Here the accused traded what the complainant had believed to be a handgun for a screwdriver, which he used to threaten her to comply with his requests. He forced the complainant to kiss him where after he proceeded to rape her.

[7] Whilst the appellant was raping the complainant she managed to get hold of an object and hit the accused over the head. The accused lost consciousness and the complainant was able to make her escape. She did not report the incident to anybody but proceeded to the taxi terminal where she was able to secure safe passage to her aunt’s home.

[8] On arrival at her aunt’s home the complainant’s father was waiting for her. He was furious with her for returning home so late. He slapped her and returned to his place of residence whilst she stayed behind with her cousin. She kept her ordeal to herself and attempted to commit suicide later that same night by drinking bleach [‘Jik’]. She was subsequently hospitalised. Only after she was discharged from hospital did the complainant confide in her friends about the rape. She requested them to keep it to themselves. Later she narrated her ordeal to her cousin and ultimately proceeded to lay a charge of rape with the South African Police Services. She was subsequently taken to hospital for a medical examination, although this was only days after the incident.

[9] The plaintiff was able to retrace her steps and direct the investigating officer to the place where she was raped. This turned out to be the appellant’s room. He was however nowhere to be found.

[10] Notwithstanding that the investigating officer, Inspector Matthysen of the South African Police Services, informed the appellant telephonically that he was wanted in connection with an alleged charge of rape and notwithstanding that the appellant on his own testimony visited Welkom at least twice after he was so informed, the appellant failed to either inform Inspector Matthysen of his whereabouts or to hand himself over to the South African Police Services. The appellant apparently travelled extensively, by his own evidence, between Pietermaritzburg and Lesotho. The police eventually arrested the appellant after receiving information of his appellant’s whereabouts.

[11] After the appellant had finally been arrested the complainant was requested to attend to an identification parade where she identified the appellant as the person who had raped her.

[12] The appellant was indicted on a charge of rape, convicted and consequently sentenced, as stated, to 10 years imprisonment.

[13] The appellant’s appeal against the sentence is based on the ground that the sentence is strikingly inappropriate in that it is out of proportion to the totality of the accepted facts in mitigation. It is the appellant’s case that the sentence is excessive and induces a sense of shock. It is submitted on his behalf that the sentence disregards the time that he had been in custody awaiting trial.

[14] The test that finds application during this stage of the proceedings is trite, namely has the trial court misdirected itself in considering the sentence or has it exercised its discretion in an unreasonable manner. Does the sentence, in the circumstances of the case, induce a sense of shock or is it disturbingly disproportionate. S v Pieters 1987 (3) SA 717 (A). Sentence is primarily at the discretion of the trial court. Where the trial court thus exercises its discretion properly and reasonably, the court of appeal will have no power to interfere.

[15] Where the crime of which the accused is convicted brings the matter within the purview of section 51 of 105 of 1997, the point of departure for any court when proceeding with imposition of an appropriate sentence is succinctly set out in S v Malgas 2001 (1) SACR 469 (SCA).¹ It means that a court no longer has a clean slate to inscribe whatever sentence it thinks fit for the specified crime(s) where Parliament had enacted minimum sentencing legislation. The trial court needs to approach the question of sentencing, conscious of the fact that the minimum sentence had been ordained as the sentence which ordinarily should be imposed, unless substantial and compelling circumstances were found to be present. This was recently reaffirmed by the Supreme Court of Appeal in S v Matyityi 2011 (1) SASV 40 (SCA) para 10.

[16] A sentence of 10 years for rape falling under part 3 of schedule 2 will and can therefore, barring substantial and compelling circumstances, never be strikingly shocking or inappropriate. On the contrary, that is the absolute minimum sentence that the court must impose in terms of the applicable minimum sentence regime.

[17] As so aptly stated by Ponnan JA in Matyityi supra at para 23:

“Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Malgas, it still is 'no longer business as usual'. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons - reasons, as here, that do not survive scrutiny. As Malgas makes plain, courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other arms of State, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of State. Here Parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as 'relative youthfulness' or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.”

[18] The trial court, whilst evaluating the different elements that are applicable to sentencing so as to enable it to balance the various interests, clearly appreciated that it should apply the Malgas principle’s and that the personal circumstances of the accused must be taken into consideration. The trial court had this to say at p150 of the record:

“In State v Mdamvu 2005 (1) SACR 54 SA it was said ‘the sentence imposed by the court must balance all factors relevant to sentencing against the bench mark of the legislature.’ Therefore meaning that the accused’s personal circumstances must also be taken into consideration.”

and also at p151 of the record:

“The circumstances of this case are indeed serious. In State v Abrahams 2002 (1) SACR 116 SCA 25 it was said that ‘where factors of substance do not compel the conclusion that the application of the prescribed sentence would be unjust, then the sentence must be imposed’.”

[19] The mere fact that the trial court appreciates how it should go about the sentencing phase does not per se guarantee that there was no misdirection or improper exercise of the sentencing discretion. It therefore remains to consider whether the trail court has either misdirected itself or has improperly exercised its discretion with regards to any matter.

[20] The appellant elected not to testify under oath during the sentencing part of the trial. That is his constitutional right, but his silence is not without consequence.² Likewise, no evidence was led on his behalf. His representative did however place certain personal circumstances on record, which were accepted by the respondent. Mitigation was then argued on the appellant’s behalf.

[21] The appelant’s personal and other mitigating circumstances were argued to include that the appellant was 28 years of age when he committed the crime. He is not married but is the biological father of two daughters aged 2 years and 13 years respectively. Both daughters reside permanently with their biological mothers. The appellant was busy with his second year of studies in a human resources course at the Central University of Technology, Welkom. It was argued on his behalf that the crime was the appellant’s first sexual offence and that he spent a year and seven months in custody awaiting his conviction. It was also argued that the rape was not planned and that the complainant did not suffer any physical injuries.

[22] On behalf of the appellant it was also contended that the appellant had remorse in that he instructed his representative to advise the court that if he should be found guilty he will accept the verdict and that he is then remorseful about what he has done. In light of all the mitigation factors, it was premised that the appellant would be a prime candidate for rehabilitation.

[23] The appellant argues that the cumulative effect of the afore-mentioned factors constituted substantial and compelling circumstances, which would justify the court and should have moved the court to impose a lesser sentence than the prescribed minimum sentence of 10 years if it exercised its discretion properly. The appellant further argues that the court over-emphasised the aggravating circumstances and in particular the seriousness of the offence; the interest of the society; the deterrent effect of the sentence; the effect of the offence on the complainant, i.e. how traumatised she was during the trial and the fact that she tried to commit suicide; the fact that the complainant was threatened by what she believed to be a firearm and the finding that the previous conviction constituted an aggravating circumstance in so far that the accused showed a propensity to commit violence.

[24] The calculated manner with which the appellant perpetrated this crime speaks for itself. The fear that he instilled in the complainant forced her to walk past various individuals without seeking assistance. One can only speculate regarding how this would have ended had the complainant not been brave enough to hit the appellant over the head so as to enable her to make her getaway. It may well be that this resulted therein that there were no serious physical injuries. The absence of physical injuries was however not by the appellant’s doing. He wasn’t finished raping the complainant. She ended the crime perpetrated on her.

[25] In terms of section 51(3)(aA) of Act 105 of 1997 the absence of apparent physical injuries to the complainant shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence. The appellant however argues that it must be considered cumulatively together with other mitigating factors. On the facts of this case, at best for the appellant, the absence of physical injuries will, even when weighed cumulatively with other circumstances, constitute a neutral factor for purposes of sentencing.

[26] With regards to the submissions that the appellant’s age is a mitigating factor in this case, either viewed singularly or cumulatively with the other mitigating circumstances, it is apposite to quote Ponnan JA’s succinct summary of the relevant principles regarding age as mitigating factor, as set out in the Matyityi case at para 14:

“It is trite that a teenager is prima facie to be regarded as immature³ and that the youthfulness of an offender will invariably be a mitigating factor⁴ unless it appears that the viciousness of his or her deeds rules out immaturity.⁵ Although the exact extent of the mitigation will depend on all of the circumstances of the case, in general a court will not punish an immature young person as severely as it would an adult.⁶ It is well established that, the younger the offender, the clearer the evidence needs to be about his or her background, education, level of intelligence and mental capacity, in order to enable a court to determine the level of maturity and therefore moral blameworthiness.⁷ The question, in the final analysis, is whether the offender's immaturity, lack of experience, indiscretion and susceptibility to being influenced by others reduce his blameworthiness.⁸ Thus, whilst someone under the age of 18 years is to be regarded as naturally immature,⁹ the same does not hold true for an adult. In my view a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor.¹⁰ At the age of 27 the respondent could hardly be described as a callow youth. At best for him, his chronological age was a neutral factor. Nothing in it served, without more, to reduce his moral blameworthiness. He chose not to go into the box, and we have been told nothing about his level of immaturity or any other influence that may have been brought to bear on him, to have caused him to act in the manner in which he did.”

[27] The appellant placed no evidence before the trial court that would qualify his age of 28 as anything more than a neutral factor. For the same reasons his moral blameworthiness stands unaffected.

[28] The next mitigating factor strongly relied on in the proceedings was the appellant’s remorse. To my mind, the trial court erred by taking this aspect into consideration as a mitigating factor. It was an error in favour of the appellant. I say this because the court below accepted the submission on behalf of the appellant that he will accept the court’s verdict if found guilty and that he will then (and only then) be remorseful for what he has done.

[29] First and foremost the fact that the appellant indicated through his legal representative, after he was in any event convicted for the crime, that he will accept the trial court’s verdict must if anything be a neutral factor. The appellant pleaded not guilty and after all the evidence was led he was convicted. In casu the appellant can, in any event, not be found to have truly taken responsibility for his actions, nor is there any evidence that justifies a finding that he genuinely appreciates the error of his ways. To tender an apology in this manner after all is said and done, by way of the legal representative does not prove true contrition, at least not on the facts of this case. The appellant did not evidence such remorse and contrition by conduct.

[30] The proof that the tender by the appellant was nothing more than a stratagem to procure a more lenient sentence as opposed to true remorse and contrition for the consequences his actions appears from the fact that contrary to his instructions to his legal representative, the appellant proceeded to attempt to note an appeal to the High Court in his personal capacity (without assistance from his legal representative) against his conviction. In this notice of appeal the appellant noted that the trial court misdirected itself in finding him guilty as he was not ‘a person that raped a complainant’ and that the court erred in accepting the evidence regarding his identification as the perpetrator. This proves beyond doubt that the appellant has not accepted responsibility for his actions nor does he appear to have any form of understanding and insight. Of course, the trial court was unaware of this when accepting the tender. But the trial court did not appreciate the true nature of contrition and remorse when it accepted the tender on behalf of the appellant.

[31] In the Matyityi case it was held [at para 14] with regards to remorse and contrition as factors for mitigation:

“There is, moreover, a chasm between regret and remorse. ¹¹ Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse.¹² 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.¹³ 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.¹⁴ 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.¹⁵ 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. There is no indication that any of this, all of which was peculiarly within the respondent's knowledge, was explored in this case.”

[32] It was also submitted on behalf of the appellant that the trial court erred by failing to take into consideration the time that the appellant was in custody prior to his conviction. The evidence however shows that the appellant was convicted and sentenced on the other unrelated matter on 5 May 2009. The appellant was arrested in connection with this matter only on 7 January 2009. The appellant therefore only spent approximately 4 months in custody on the rape charge where after he started to serve his prison term. That is not an inordinate delay and in context to the other elements of sentencing it is not a substantial and compelling circumstance.

[33] The appellant stood before court during the sentencing phase as a convicted person having to serve a long-term prison sentence of effectively 10 years. The effect of the sentence would form part of his personal circumstances. This aspect was neither argued as a personal circumstance that the trial court had to consider, nor did the court below appreciate that it should consider it as such. In order to evaluate whether this factor would justify a lesser sentence when weighed singularly or cumulatively or whether it may be relevant in terms of section 280(2) of the Act, all the other relevant elements of sentencing must be evaluated and balanced.

[34] The court correctly emphasised the seriousness of the offence. At present sexual offences against women are rife. The psychological injuries that the complainant suffered need no speculation. The complainant tried unsuccessfully to commit suicide that same fateful evening. She carried the burden on her own for several days. She was humiliated, marginalised and stripped of her right of security of her person and privacy. The complainant had to face her rapist in order to identify him. She had to recount the events of her ordeal in court which was clearly (and understandable) a very emotional experience for her.

[35] The court in Matyityi supra with reference in para 10 to what was said in S v De Beer [SCA Case No 121/04, 12 November 2004, unreported judgment para 18] confirmed the relevance of these considerations:

“Rape is a topic that abounds with myths and misconceptions.¹⁶ It is a serious social problem about which, fortunately, we are at last becoming concerned. The increasing attention given to it has raised our national consciousness about what is always and foremost an aggressive act. It is a violation that is invasive and dehumanising. The consequences for the rape victim are severe and permanent. For many rape victims the process of investigation and prosecution is almost as traumatic as the rape itself.”

and further in para 17:

“Furthermore, courts generally do not have the necessary experience to generalise or draw conclusions about the effects and consequences of a rape for a rape victim.¹⁷ As Muller & Van der Merwe put it: ‘It is extremely difficult for any individual, even a highly trained person such as a magistrate or a judge, to comprehend fully the range of emotions and suffering a particular victim of sexual violence may have experienced. Each individual brings with himself or herself a different background, a different support system and, therefore, a different manner of coping with the trauma flowing from the abuse’.”¹⁸

[36] The Supreme Court of Appeal reiterated the strong message to perpetrators of these crimes [at para 20]:

“As this court has previously sought to make clear, women in this country ‘have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives’ (S v Chapman). [1997] ZASCA 45; [1997 (2) SACR 3 (SCA)].”

[37] In light of the above it follows that the personal circumstances and other mitigating factors, even when weighed cumulatively, does not constitute substantial and compelling circumstances in the present matter that justified a departure from the prescribed minimum sentence. It is after all not business as usual. The court below correctly found that substantial and compelling circumstances were absent. It imposed the minimum sentence of 10 years imprisonment. Having regard to all of the circumstances encountered in this matter, the minimum sentence is a manifestly fair and just one. That is however not the end of the matter in this instance.

[38] As stated at the outset, the Magistrate dismissed an application in terms of section 280(2) of the Act that she should order that the sentence or part thereof should run concurrently with the prison term that the appellant is already serving.

[39] As mentioned above the appellant was sentenced on 5 May 2009 to an effective 10 years imprisonment.

[40] The Magistrate held that due to the fact that the offences were totally separate and did not appear to have any bearing on one another she could not make any order as requested. She therefore failed to exercise any discretion whatsoever.

[41] The pertinent part of Section 280 reads as follows:

“280 Cumulative or concurrent sentences

(1) When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to such several punishments for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to impose.

(2) Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such sentences of imprisonment shall run concurrently.”

[Sub-s. (2) substituted by s. 47 (a) of Act 129 of 1993.]

[42] Clearly the trial court misdirected itself regarding the discretion it had to consider whether on the facts of the matter it would be justified to order that the sentence or part thereof run concurrently with the sentence that the appellant was serving.

[43] The present crime of which the appellant was convicted was committed a mere 11 months after the date on which the substance of the previous conviction occurred. The appellant’s actions, as the court below held, showed a propensity towards violence. The accused did not deduce any evidence to displace this conclusion. An even more aggravating factor is the fact that the appellant committed this crime whilst the criminal proceedings in the other matter had already begun.

[44] On the other hand it needs to be considered what the effect of the sentences would be if it runs consecutively. The appellant will serve an effective term of 20 years imprisonment.

[45] The fact that the term of the sentence that the appellant is presently undergoing does not in the circumstances justify a lesser sentence, does not by necessary implication mean that the court should not in light of this personal circumstance consider ameliorating the effect of the sentences by ordering that part of it be served concurrently with the term being served.

[46] All facts considered it will not be disproportionate to the crime or the interest of society if it be ordered that 2 years of the minimum sentence imposed run concurrently with the sentence that the appellant is serving. The appellant will effectively serve a term of 18 years.

[47] In the result:

1. The appeal succeeds;

2. The sentence of 10 years imprisonment is confirmed. It is however ordered that 2 years thereof should run concurrently with the sentence that the appellant is currently serving.

______________________

N. SNELLENBURG, AJ

I concur.

______________________

C J MUSI, J

On behalf of the appellant: Adv. M. Strauss

Instructed by:

The Director: Public Prosecutions

BLOEMFONTEIN

On behalf of the respondent: Me S. Kruger

Instructed by:

Legal Aid SA

BLOEMFONTEIN

NS/eb

---