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FORM A

 

FILING SHEET FOR EASTERN HIGH COURT, GRAHAMSTOWN

 

Judgment

 

	KERNEELS MATOEWA
	vs
	THE STATE
CASE NUMBER:	CA 254/2008
DATE ARGUED	23 March 2009
DATE DELIVERED	:  25 March 2009
JUDGE(S)	:Jones J, Pickering J, Alkema J
LEGAL REPRESENTATIVES:
Appearances:
for the State/Applicant(s)/Appellant(s):	Adv. De Friendt
for the Accused/Respondent(s):	Adv. E. Theron
Instructing attorneys:
Applicant(s)/Appellant(s):
Respondent(s):
CASE INFORMATION:
Nature of proceedings
Topic:
Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

 

CASE NO: CA 254/2008

 

In the matter between
KERNEELS MATOEWA	Appellant
vs
THE STATE	Respondent

 

JUDGMENT

 

PICKERING J:

 

The appellant, a 29 year old man, was, together with a co-accused, charged in the Regional Court, Patensie, with the rape of the then 36 year old complainant.  He and his co-accused were convicted as charged and the matter was thereafter referred to the High Court for sentence in terms of section 52(1) of Act 105 of 1997, due to the fact that complainant was raped by more than one person.  They appeared in the High Court, Port Elizabeth, before Nepgen J.  The learned Judge was satisfied that substantial and compelling circumstances existed which justified the imposition by him of lesser sentences upon the accused than the prescribed minimum sentences of life imprisonment.  Appellant was given a sentence of 18 years imprisonment and his co-accused a sentence of 12 years imprisonment.

 

Appellant now appeals, with the leave of the learned Judge, to the Full Bench of this Division against his sentence only. 

 

The incident with which this case is concerned occurred on the night of the 23 October 2005.  It appears from the complainant’s evidence, which was accepted by the Regional magistrate, that she had been drinking during the course of that day to the extent that she was considerably intoxicated.  She and her partner went to sleep that evening but, during the night, they woke up and her partner sent her to go and buy more alcohol at a certain shebeen.  There she met up with the appellant and accused no 2.  She knew them both. They too had been drinking.  When she met up with them accused no 2 was asleep but appellant woke accused no 2 up and said that they should leave.  Because she knew the two men well and trusted them she decided to walk back with them, their homes being in the same direction as hers.

 

She was walking ahead of them when appellant suddenly grabbed her from behind.  He butted her with his head on the mouth so hard that he caused certain of her teeth to become loose.  (They were pulled out by her partner a week later).  He also strangled her.  She became dizzy and fell to the ground.  Whilst she was on the ground he bit her through her clothes on the left shoulder and also on the side of the left breast.  He told accused no 2 to pull off her trousers and panties and he thereafter raped her.  After he had finished he told accused no 2 to give him the knife which accused no 2 was carrying, saying that he wanted to cut her throat because “die teef gaan ons maar vang.” 

 

Fortunately for complainant accused no 2 refused to hand over the knife and instead hid it away.  His brief impersonation of a good Samaritan ended there, however, because he then also raped complainant.

 

After the matter had been reported to the police complainant was examined by a medical practitioner at 04h30 the same morning.  According to the findings of the medical practitioner, as recorded on form J88 (Exhibit A), complainant had two six centimetre round bruises, consistent with bite marks, on her left upper arm and left breast.  She had no other injuries to her body or private parts.

 

Complainant testified that at the time of the trial she still suffered from nightmares about the incident.  She stated that she would not be able to forget it until her death and said that she would never forgive the accused for what they had done to her. 

 

Ms. Theron, who appeared for appellant, submitted that whilst the Court a quo had correctly found the existence of substantial and compelling circumstances justifying the imposition of a lesser sentence than that of life imprisonment it had imposed a sentence on appellant which was shockingly inappropriate and harsh.  She submitted that Nepgen J had erred in not placing sufficient weight on the effect of the alcohol and dagga intake upon the appellant; that he came from a poor and illiterate socio-economic environment; that the rape was not planned or premeditated; that complainant had suffered no injuries to her private parts; that no evidence had been led as to whether complainant had suffered any psychological trauma as result of the rape; that appellant was still relatively youthful; and that he had been in custody awaiting trial for 1 year and 1 and a half months.  She submitted further that the learned Judge had erred in imposing a heavier sentence upon appellant than that imposed upon accused no 2.

 

Before turning to deal with these submissions it would be well to remind oneself of the principles applicable to an appeal against sentence in a matter such as the present.  In S v Malgas 2001 (1) SACR 469 (SCA) Marais JA stated as follows at 478D-G:

 

“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it.  To do so would be to usurp the sentencing discretion of the trial court.  Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh.  In doing so, it assesses a sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance.  As it is said, an appellate Court is at large.  However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court.  It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can  properly be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’.  It must be emphasised that in the latter situation the appellate Court is not at large in the sense in which it is at large in the former.  In the latter situation it may not substitute a sentence which it thinks appropriate merely because it does not accord with a sentence  imposed by the trial Court or because it prefers it to that sentence.  It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned.  No such limitation exists in the former situation.”

 

In my view Ms. Theron’s submissions to the effect that Nepgen J had failed to accord sufficient weight to the factors referred to by her cannot be upheld.

 

In sentencing the appellant, Nepgen J took into account all his personal circumstances including the fact that appellant had been raised by his grandmother and that, after leaving school in standard three, he had worked mostly as a farm labourer.  He has a number of relevant previous convictions.  During July 1996 he was convicted of assault with intent to do grievous bodily harm and was sentenced to a fine of R200,00 or 30 days imprisonment.  During 1997 he was convicted of rape and was sentenced to undergo 8 years imprisonment of which 2 years imprisonment was suspended on certain conditions.  During 2002 he was convicted of two counts of assault with intent to do grievous bodily harm and was sentenced to undergo 12 months imprisonment.  During 2003 he was again convicted of assault with intent to do grievous bodily harm and was sentenced to undergo 6 months imprisonment.

 

The learned Judge took into account the fact that appellant had consumed alcohol and had smoked dagga on the day in question and that his judgment had accordingly been affected thereby to some extent.  He found also in favour of appellant that the offence had not been premeditated or planned.  He concluded that in the light of the fact in particular that appellant had a previous conviction for rape and that he had been the one who had physically assaulted complainant by head butting and biting her, it would be appropriate for there to be a differentiation between the sentences opposed upon appellant and accused no 2 respectively. 

 

It is clear from the judgment, in my view, that the learned Judge carefully considered each of the factors referred to by Ms. Theron and took them into account in assessing an appropriate sentence.  Against these the learned Judge weighed the aggravating factors which were present namely, that appellant and his co-accused were known to complainant and that she trusted them and for this reason accompanied them on her way home; that appellant assaulted complainant severely by head butting, strangling and biting her; that he also threatened to cut her throat which must in itself have caused complainant considerable emotional trauma; that he has a previous conviction for rape for which he was sentenced to an effective 6 years imprisonment, a mere 8 years previously; and that he also has a number of previous convictions for assault with intent to cause grievous bodily harm.  Indeed, it is clear from his unenviable list of previous convictions that appellant is a man who has no regard for the physical integrity of others. 

 

Ms. Theron’s submission that there was no evidence to the effect that complainant had suffered any psychological trauma as a result of the rape can also not be sustained.  Although no expert evidence was adduced in this regard complainant’s evidence was that she was scared to go out at night after the incident and that she still suffered from nightmares as a result thereof.

 

Mr. Theron submitted, with reference to S v Vilakazi 2008 (4) SA 396 (SCA) at 413 that Nepgen J had erred in not adopting the course followed in that matter with regard to the period appellant spent in custody awaiting trial.  This submission overlooks the fact that whereas appellant was sentenced on 25 September 2007 the judgment in Vilakazi’s case was only delivered on 2 September 2008.

 

In any event Nepgen J expressly referred to the relevant period in the course of his judgment on sentence and clearly took it into account when assessing the appropriate sentence to be imposed upon appellant.

 

In my view, in all the circumstances, the sentence of 18 years imprisonment imposed by Nepgen J achieved a proper balance between the serious nature of the offence, the interests of the community and the personal circumstances of the accused.

 

I turn then to consider Ms. Theron’s further submission, namely, that there was a disturbing disparity between the sentence imposed upon appellant and that imposed on accused no 2.

 

In the well known case of S v Giannoulis 1975 (4) SA 867 (A) Holmes JA stated as follows at 871A-873H with regard to the question of disparity of sentences:

 

“1.      In general, sentence is a matter for the discretion of the trial court.  Disparity in the sentences imposed on participants in an offence (whether tried together or in separate courts) will not necessarily warrant interference on appeal.  Uniformity should not be elevated to a principle, at variance both with a flexible discretion in the trial court and with the accepted limitation of appellate interference therewith. 

 

2.       Where, however, there is a disturbing disparity in such sentences, and the degrees of participation are more or less equal, and there are not personal factors warranting such disparity, appellate interference with the sentence may, depending on the circumstances, be warranted.  The ground of interference would be that the sentence is disturbingly inappropriate.

 

3.       In ameliorating the offending sentence on appeal, the court does not necessarily equate the sentences: it does what it considers appropriate in the circumstances.”

 

In S v Marx 1989 (1) SA 222 (A) Smalberger JA stated, with reference to this passage, as follows at 225 G:

 

“Hieruit blyk dit dat ‘n Hof van Appèl nie ’n onbelemmerde diskresie het om in te meng met ongelyke vonnisse wat ten opsigte van ’n gelyke deelname aan dieselfde misdaad opgelê is nie.  Inmenging kan alleenlik geskied volgens die riglyne neergelê in Giannoulis se saak.  Soos blyk uit die tweede stelling, geskied inmenging waar die opgelegde vonnis onstellend onvanpas (“disturbingly inappropriate”) is.”

 

In S v Fakude and Others 1999 (2) SACR 720 (SCA) the following was stated at 722g:

 

“It goes without saying, of course, that truly significant distinctions between the roles played by, and the personal circumstances of, the accused persons whose positions are being compared with one another will obviate the need for parity and necessitate different treatment.” 

 

In imposing a lesser sentence on the second accused Nepgen J had regard to the fact that as opposed to appellant’s pervious convictions, especially that for rape, he had only one previous conviction for assault.  He took into account also that he had not in any way threatened complainant with violence or assaulted her.  Indeed, to this may be added the fact that he had hidden the knife when called upon by appellant to hand it over.  The circumstances personal to the second accused are, in my view, considerably more favourable than those of appellant.  In any event, as was stated in S v Giannoulis supra, the Court a quo had a wide discretion in determining the measure of punishment of appellant and his co-accused and this Court will not readily differ from it in its assessment, either of the factors to be had regard to or as to the value to be attached thereto.  As has been pointed out in a number of cases the essential enquiry is not whether the sentences were right or wrong but whether the trial court in imposing them exercised its discretion properly and judicially.  In my view Ms. Theron has not shown that Nepgen J misdirected himself in any way or acted unreasonably or arbitrarily in imposing a more severe sentence upon appellant. 

 

I would accordingly dismiss the appeal.

 

J.D. PICKERING

JUDGE OF THE HIGH COURT

 

I agree, and it is so ordered

 

R.J.W. JONES

JUDGE OF THE HIGH COURT

 

I agree,

 

S. ALKEMA

JUDGE OF THE HIGH COURT

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