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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: AYANDA MATCHES

And

THE STATE

1. Registrar: CA&R 65/09

2. Magistrate:

3. High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 14/10/09

DATE DELIVERED: 04/11/09

JUDGE(S): JONES J, MAKAULA AJ

LEGAL REPRESENTATIVES –

Appearances:

• for the Appellant(s): ADV: J. Van der Spuy

• for the Respondent(s): ADV: P. Zantsi

Instructing attorneys:

1. for the Appellant(s): LEGAL AID BOARD (P.E.)

2. for the Respondent(s): DIRECTOR OF PUBLIC PROSECUTION (GHT)

CASE INFORMATION -

• Nature of proceedings : APPEAL

Not reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown

CA&R 65/09

In the matter between

AYANDA MATCHES Appellant

and

THE STATE Respondent

Coram JONES J and MAKAULA AJ

Summary Appeal – sentence for the rape of and indecent assault upon an 11 year old child – the trial court found that there were substantial and compelling circumstances in terms of section 51 (3) of Act 105 of 1997 which justified a lesser sentence than the mandatory sentence of life imprisonment – a sentence of 20 years’ imprisonment was substituted for the 24 year sentence imposed by the magistrate for rape.

JUDGMENT

JONES J

[1] The appellant was convicted in the regional court, Port Elizabeth of rape and indecent assault. The victim was an 11 year old little girl. The trial court found there were substantial and compelling circumstances within the meaning of section 51(3) of the Criminal Law Amendment Act No 105 of 1997 which justified a lesser sentence than the prescribed sentence of life imprisonment. He imposed a sentence of 24 years’ imprisonment for rape, and 4 years’ imprisonment for indecent assault. He ordered that the two sentences be served concurrently. The appellant now appeals against the sentences, with the leave of this Court.

[2] There is no appeal against the sentence on the second count (4 years’ imprisonment for indecent assault) and no basis for disturbing the order that it be served concurrently with the sentence on the first count. The correctness of the finding that there were substantial and compelling circumstances is not before us. The sole issue on appeal is whether or not the sentence of 24 years’ imprisonment for the rape is shockingly inappropriate, being the result of an improper approach by the magistrate in overemphasizing the seriousness of the offence and the interests of society at the expense of the interests of the offender.

[3] The power of a court of appeal to interfere with the sentence of the trial court is circumscribed. See S v Giannoulis 1975 (4) SA 867 (A) Holmes JA 868 and S v Kgosimore 1999 (2) SACR 238 (SCA) 241 para [10] where Scott JA is reported as follows:

It is trite law that sentence is a matter for the discretion of the court burdened with the task of imposing the sentence. Various tests have been formulated as to when a Court of appeal may interfere. These include whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed. All these formulations, however, are aimed at determining the same thing; viz whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence. In the ultimate analysis this is the true inquiry. (Compare S v Pieters 1987 (3) SA 717 (A) at 727G - I.) Either the discretion was properly and reasonably exercised or it was not. If it was, a Court of appeal has no power to interfere; if it was not, it is free to do so.

[4] We are therefore obliged to consider on appeal whether, in the light of all the facts and circumstances of the case relevant to sentence, the magistrate’s discretion on sentence was properly and reasonably exercised. If it was not, we are free to interfere with his sentence by replacing it with an appropriate sentence.

[5] The appellant was a 35 year old first offender who was gainfully employed at the time of the commission of the offence, which was during the first few months of 2005. The magistrate considered that these personal circumstances and the absence of any physical violence to the child other than the act of intercourse itself amounted to substantial and compelling circumstances which made a sentence of life imprisonment, which ‘should be reserved for the worst case scenario’, an unfair and unjustifiable sentence in all the circumstances of the case as a whole. As I have said, that finding stands. These same substantial and compelling circumstances must also be brought into the equation in balancing the mitigating and aggravating features of the case to determine the nature and duration of a just sentence.

[6] The most aggravating feature of the crime is the age of the complainant. She was only 11 years old at the time. The rape of a child of such tender years is so loathsome and repulsive an act that nothing other than long term imprisonment is appropriate. The question is the appropriate duration thereof. One of the relevant considerations here is the consequences of the rape to the victim. While all rapes are serious, and while all rapes inevitably result in some degree of long-standing psychological suffering, there is no evidence of the extent of this suffering in this case. The only information about the effect of the rape is that the child’s school work dropped off afterwards. There was no expert psychological assessment done of the impact of the crime on the life of this child, and of her prospects of making a sound psychological recovery. There was no medical assessment of the mental state of the child when the medical examination was conducted on 22 March 2005, other than a cryptic note in the doctor’s report that she was mentally and emotionally stable. Indeed, no viva voce medical evidence was led. The prosecution handed in a medical report, and left it at that. I will be failing in my duty if I were not to comment that the unexplained absence of medical and psychological evidence, particularly in the case of the rape of a small child, seems to me to be a dereliction of duty by the prosecution. Without this evidence, the court is unable to make an informed judgment of how serious and how aggravated the case really is. There are comments in the judgments of the Supreme Court of Appeal pointing to the duty of the prosecution, and also of the court, to ensure that there is proper medical and psychological information before the court in cases such as this. Those comments went unheeded in this case. In the absence of concrete evidence of the nature, extent and duration of psychological trauma, the court is hamstrung. It must assume in favour of the perpetrator of a revolting offence that the consequences of his conduct are less aggravated than they probably were (Vilakazi v S [2008] ZASCA 87; [2008] 4 All SA 396 SCA paras 56 and 57). The magistrate had no option but to conclude that in the general scheme of things this was not a case of ‘the worst scenario’ as far as physical and psychological damage was concerned (S v Mahomotsa 2002 (2) SACR 435 (SCA) 443).

[7] There is another highly aggravating feature that must be left out of consideration. That is the indecent assault, which was an act of anal penetration. What was done to this child on this fateful day was nothing short of unspeakable. Had this offence been committed after 16 December 2007 when the Criminal Law (Sexual Offence and Related Matters) Amendment Act No 32 of 2007 came into operation, this indecent assault would have been charged as rape and it would also have carried life imprisonment as its punishment. As it is, the sentence of 4 years’ imprisonment for indecent assault was in my view inadequate. But this cannot have any bearing on the issue now on appeal, namely the propriety of the sentence for rape on count 1. The adequacy of the sentence on count 2 is not before us on appeal, and, in any event, we have no jurisdiction to increase it. It would not be proper for us to increase it through the back door, so to speak, by allowing it to weigh with us in determining a proper sentence on count 1. The appellant has been punished for his act of anal penetration, and any aggravation it provides to the total picture of what was done to the complainant must therefore be ignored for present purposes.

[8] Counsel for the appellant raised as a mitigating feature that the appellant had used a condom, thereby ensuring that the child was not exposed to sexually transmitted diseases. That may be so. But there is in my view no merit in the further submission that the failure to use weapons is mitigating, especially where the victim is a child who has no capacity for resistance to a rape by an adult. No other mitigating features are suggested which arise out of the commission of the offence. But the fact that the appellant has lived a crime free life for 35 years counts considerably in his favour and so does the fact that he was a productive member of his community who has potential for rehabilitation.

[9] One of the tests referred to in the S v Kgosimore case supra for determining whether or not a sentence is so excessive as to warrant interference on appeal is to pose the question whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed. Thus, in Vilakazi v S supra (414 para 59), the Supreme Court of Appeal came to the conclusion that:

A substantial sentence of 15 years’ imprisonment seems to me to be sufficient to bring home to the appellant the gravity of his offence and to exact sufficient retribution for his crime [which was the rape of a girl of about 14 years old]. To make him pay for it for the remainder of his life would seem to me to be grossly disproportionate.

When I weigh the aggravating and mitigating circumstances it seems to me that a sentence of 20 years’ imprisonment for this rape in these circumstances is sufficient for the purposes of retribution, deterrence, rehabilitation in the sense of bringing home to the appellant the gravity of what he did, and the protection of society. A sentence of 24 years’, which is one-fifth more, is disproportionate and hence unjust. That being so, this court is free to set aside the sentence imposed on count 1, and to replace it with a sentence of 20 years’ imprisonment.

[10] In the result there will be the following order:

3. The appeal against the sentence on count 1 succeeds.

4. The sentence of 24 years’ imprisonment on count 1 is set aside and will be replaced with a sentence of 20 years’ imprisonment which is antedated to 25 September 2008.

5. For the rest, the proceedings are confirmed.

RJW JONES

Judge of the High Court

16 October 2009

MAKAULA AJ I agree.

M MAKAULA

Judge of the High Court (Acting)

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