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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

CASE NO. CC96/09

DATE HEARD: 22/2/10

DATE DELIVERED: 1/3/10

NOT REPORTABLE

In the matter between:

THE STATE

and

CLAYTON DONOVAN ARENDS

KEVIN CAMPBELL

ELVIS NELSON

JUDGMENT: SENTENCE

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PLASKET, J:

[1] I convicted the three accused of the offences of rape and attempted robbery with aggravating circumstances. I am now required to sentence them for these crimes.

[2] The facts, in brief, are the following. On 15 February 2009, the complainant in count 1 (who I shall refer to simply as the complainant in the rest of this judgment) and a companion, one Patrick French, went to the Station Hill area of Port Alfred late at night so that French could buy drugs. While they were outside the house of a drug dealer, the three accused ran towards them. The complainant ran and hid in a bush and saw the accused attack and attempt to rob French.

[3] When the accused attacked French, accused 1 was armed with a panga. Accused 2 and 3 took hold of French’s arms and threw him to his knees. They demanded to know whether he had any drugs or money. Accused 3 threatened him with death but also said that if he did not give them what they wanted they would cut off his arms. Accused 1 hit him with the blunt edge of the panga, realised his mistake and turned it around to hit him with the sharp edge. Before he got the chance to do so, French got to his feet, punched accused 1 in the face and ran. The accused chased him for a while and accused 1 chopped at him with the panga, grazing his shoulder and cutting a finger on his left hand. It required about 15 stitches. He also had two small scratch marks on his back and abrasions on his knees.

[4] After French had got away from them, the accused began to search for the complainant, referring to her as a bitch as they did so. They found her in the bush and dragged her out. They dragged her towards the SPCA building. At a point, as she was dragged, she tried to sit down. Accused 2, throttled her in order to overcome her resistance. They dragged her down a path into a clearing in thick bush. There one of the men threw a trench coat onto the ground. Accused 2 held her down while accused 3 pulled off her jeans and underwear. Before he commenced to rape her she begged him to wear a condom. She believes that he did so. She informed the accused that she was pregnant and pleaded with them not to rape her. Her pleas fell on deaf ears.

[5] Accused 3 raped her while the other two watched. At one stage, while accused 3 was raping her from behind, accused 2 inserted his penis into her mouth. When accused 3 had finished raping her accused 2 proceeded to rape her. Accused 3 then raped her a second time. While this was happening she was throttled from time to time by accused 2 when she made too much noise. She was also throttled once by accused 3. Finally, accused 1, who was armed with a panga for most of the time, raped her. He first penetrated her vaginally and then anally. While he was raping her, accused 2 and 3 left to investigate the noise of dogs barking, believing that the police may be on their way.

[6] When accused 1 had raped the complaint she dressed herself. Accused 1 apologised for what they had done to her, attributing their actions to what he termed ‘the ghetto life’. He said that this was ‘the only way we can get a white bitch’. He started walking out of the clearing and told her to follow him. He said he would show her how to get out of the bush. When she emerged from the bush she ran away. When she got to a road, she saw a vehicle approaching. It was a police vehicle which stopped for her. She reported to the police personnel in the vehicle that she had been gang raped. She was taken to hospital where she was medically examined. Photographs were also taken of her injuries.

[7] The imposition of sentence is not a mechanical process in which predetermined sentences are imposed for specific crimes. It is a nuanced process in which the court is required to weigh and balance a variety of factors to determine a measure of the moral, as opposed to legal, blameworthiness of an accused. That measure is achieved by a consideration, and an appropriate balancing, of what the well-known case of S v Zinn 1969 (2) SA 537 (A), at 540G-H described as a ‘triad consisting of the crime, the offender and the interests of society’.

[8] A sentencing court does not always have an untrammelled discretion to determine sentence – a clean slate on which to work. In certain cases – and this applies to the rape conviction of accused 2 and 3 for reasons that I shall deal with below – a prescribed sentence is provided for by the Criminal Law Amendment Act 105 of 1997.

[9] Accused 1 is in a different position. He was 17 years of age when these offences were committed. This means that, in respect of the conviction of rape, a different sentencing regime applies to him because the Constitutional Court, in Centre for Child Law v Minister of Justice and Constitutional Development and others (NICRO as Amicus Curiae) 2009 (11) BCLR 1105 (CC), held that the so-called minimum sentence provisions of the Criminal Law Amendment Act were unconstitutional insofar as they applied to children of 16 and 17 years of age. Consequently, the Act does not apply to accused 1.

[10] The proper approach to sentencing a child offender was set out as follows by Cameron J in the Centre for Child Law case (at paragraph 31):

‘But while the Bill of Rights envisages that detention of child offenders may be appropriate, it mitigates the circumstances. Detention must be a last, not a first, or even intermediate, resort; and when the child is detained, detention must be “only for the shortest appropriate period of time”. The principles of “last resort” and “shortest appropriate period” bear not only on whether prison is a proper sentencing option, but also on the nature of the incarceration imposed. If there is an appropriate option other than imprisonment, the Bill of Rights requires that it be chosen. In this sense, incarceration must be the sole appropriate option. But if incarceration is unavoidable, its form and duration must also be tempered, so as to ensure detention for the shortest possible period of time.’

Subject to the above qualification, the triad consisting of ‘the child offender, the offence and the interests of society’ continue to be of relevance to the sentencing process (at paragraph 29).

[11] Section 51(1) of the Criminal Law Amendment Act applies, as I have said, to the rape convictions of accused 2 and 3 because they were older than 17 years when the offence was committed. This means that, as the complainant was raped by ‘more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy’, in the words of Part 1 of Schedule 2 of the Act, they are liable to be sentenced to life imprisonment for this offence unless, in terms of s 51(3), substantial and compelling circumstances exist that justify a less severe sentence.

[12] The approach of the courts to sentence when the Criminal Law Amendment Act applies is now well developed. It has been emphasised in S v Malgas 2001 (1) SACR 469 (SCA), at paragraph 8, that when sentencing for crimes specified in the Act, a court is required to ‘approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed …’. Even though the Act has placed emphasis on ‘the objective gravity of the type of crime and the public’s need for effective sanctions against it’ discretion to deviate from the prescribed sentence was granted to courts ‘in recognition of the easily foreseeable injustices which would result from obliging them to pass the specified sentences come what may’.

[13] As indicated above, a court may deviate from the sentences prescribed by the Act if ‘substantial and compelling circumstances’ are present. In Malgas, at paragraph 9, it was held that it is impermissible to deviate from the prescribed sentence ‘lightly and for flimsy reasons which could not withstand scrutiny’ but, this apart, all factors relevant to determining sentence remain relevant when the Act applies and a sentencing court must look to the ‘ultimate cumulative impact’ of all of these factors in order to determine whether a departure from the prescribed sentence is justified.

[14] In Malgas, at paragraph 22, the court held that when a court is convinced that the imposition of the prescribed sentence would be unjust or ‘disproportionate to the crime, the criminal and the legitimate needs of society’ that in itself constitutes substantial and compelling circumstances. See too S v Fatyi 2001 (1) SACR 485 (SCA), at paragraph 5.

[15] The effect of Malgas was examined by Nugent JA in S v Vilakazi 2009 (1) SACR 552 (SCA). At paragraph 14 he observed that it is ‘only by approaching sentencing under the Act in the manner that was laid down by this court in S v Malgas … that incongruous and disproportionate sentences are capable of being avoided’ and that by ‘avoiding sentences that are disproportionate a court necessarily safe-guards against the risk … that sentences will be imposed in some cases that are so disproportionate as to be unconstitutional’.

[16] Nugent JA set out how a court is to approach the imposition of sentence when the Act applies, stating, at paragraph 15:

‘It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence. The Constitutional Court made it clear that what is meant by the “offence” in the context … “consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender”. If a court is indeed satisfied that a lesser sentence is called for in the particular case, thus justifying a departure from the prescribed sentence, then it hardly needs saying that the court is bound to impose that lesser sentence.’

[17] I turn now to consider the factors of relevance to sentencing – the so-called Zinn triad of factors that I have mentioned comprising of the interests of society, the nature and seriousness of the crime and the personal circumstances of the accused.

[18] It goes without saying that society considers rape to be a very serious matter indeed -- particularly as it is so prevalent an offence -- and one in respect of which a proper measure of retribution is called for. This is so because it constitutes ‘a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim’ in the words of Mahomed CJ, Van Heerden JA and Olivier JA in S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA), at 5a-b; The evil of rape and the interest of society in the effective combating of the crime of rape was emphasised by Goldstein J in S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W), at paragraph 35, when he described rape as ‘an appalling and utterly outrageous crime, gaining nothing of any worth for the perpetrator and inflicting terrible and horrific suffering and outrage on the victim and her family’. He proceeded to state that a ‘woman’s body is sacrosanct and anyone who violates it does so at his peril and our Legislature, and the community at large, correctly expect our courts to punish rapists very severely’. See too S v Jansen 1999 (2) SACR 368 (C); S v Blaauw 2001 (2) SACR 255 (C);

[19] The second offence of which the accused have been convicted is also a serious one, albeit that they did not manage to complete it. The offence of robbery with aggravating circumstances is also, like the offence of rape, all too prevalent, causing grave harm to the physical, psychological and economic interests of victims of this form of predatory conduct. All too often, the offence is committed at the same time as rape, as in this case, and murder. Society’s interest in the effective punishment of this offence by the courts is obvious.

[20] I deal now with the nature and seriousness of the crimes committed by the accused. Both offences display a number of aggravating factors that render them particularly serious.

[21] The attempted robbery involved a degree of premeditation and planning: the accused’s plan was to target people they saw going to the drug dealer’s house because they were sure these people would be in possession of money, drugs or both. The attempted robbery was effected with the use of a panga which was wielded by accused 1 and was used to inflict injuries on French. He was also manhandled by accused 2 and 3 and threatened by accused 3. French suffered injuries to his hand requiring about 15 stitches. He described the experience as frightening.

[22] As with the attempted robbery, the rape of the complainant displays a measure of premeditation and planning. The accused, after French had escaped from them, went in search of the complainant. When they found her they took her to a clearing in the bush. It was in this secluded place that she was raped repeatedly. In order to overcome her resistance, she was throttled more than once. She was also manhandled and assaulted. The photographs that were handed in show her face and neck to be a mass of bruises and abrasions. The attitude of the accused to the complainant was displayed most obviously and unambiguously in the way they treated her and in how they referred to her: while they searched for her, they referred to her as a bitch and after accused 1 had finished raping her, he told her that ‘this is the only way we can get a white bitch’.

[23] The way in which the complainant was treated was further compounded by the additional sexual assaults perpetrated on her while she was being raped. In my view, however, perhaps the most serious aggravating feature of what happened to the complainant was that when she told the accused that she was pregnant and begged them not to rape her, they callously ignored her pleas and raped her repeatedly. She subsequently lost the child she was carrying. That, in itself, caused her great anguish and trauma but the experience of being raped has also left long-lasting psychological scars. To compound her anguish, the complainant was informed by the police that accused 3 was HIV positive. This required her to be placed on anti-retroviral treatment and to endure the anxiety of wondering whether she had contracted the virus. (She has since been informed that she has not contracted the virus.) She said in her evidence that as a result of her experience she has nightmares every night of her life. She often wakes up screaming and in a cold sweat. When she walks in the street, she is anxious and liable to panic.

[24] The features of the rape that I have mentioned as well as its consequences for the complainant places the rape in the category of what Mpati JA referred to in S v Mahomotsa 2002 (2) SACR 435 (SCA), at paragraph 17, as ‘the worst category of rape’ – and thus the type of rape for which life imprisonment would ordinarily be the appropriate sentence.

[25] Having considered the interests of society and the nature and seriousness of the offences, I now turn to the personal circumstances of the accused.

[26] Accused 1 was 17 years old when he committed the offences in this matter. He is not a first offender. He has previous convictions for theft and for housebreaking with intent to steal and theft. According to the probation officer’s report, the contents of which were admitted, accused 1 was also referred to a diversion program for another offence of housebreaking and for assault. He completed the program for these offences but defaulted in respect of the offences listed in his SAP69.

[27] He is, to put it at its kindest, under-educated. He left school without completing grade 3, having been expelled for assaulting a fellow pupil. He is not interested in going back to school. While his mother says, according to the probation officer, that he is an honest person who always tells the truth, that opinion must be treated sceptically in the light of the mendacious evidence he gave in this trial.

[28] The probation officer also expressed the view that accused 1 may have been influenced by his co-accused to commit the offences of which he has been convicted. No evidence that I heard would tend to support this opinion. Indeed, his behaviour, particularly in relation to the attempted robbery, would tend to gainsay that opinion. He played a leading, and violent, role in it. He was armed with a panga and used it. He struck French with the blunt side of the panga, realised his mistake, and tried to hit French again with the sharp side. French was fortunate to break free before he was struck again. Accused 1 chased French and struck at him again, causing injuries to his hand. Throughout the rape, he was armed with the panga.

[29] Despite what I have said above, I accept that accused 1 is, to an extent, the victim of his environment. His father does not appear to be a good role-model. He is currently in prison on a charge of housebreaking. The area in which accused 1 lives is described by the probation officer as a ‘hot spot for crime, alcohol abuse and drug abuse’. These factors and the immaturity of accused 1 are mitigatory factors that I take into account.

[30] Accused 2 was 23 years old when the offences were committed. He is a first offender. He holds no formal employment but makes a living by selling clothes and drugs. He has two children who he supports. He lives with them and their mother.

[31] He and accused 3 took hold of French during the attempted robbery and forced him to his knees. He played an active and particularly vicious role in the rape, throttling the complainant on a number of occasions. His evidence was that the complainant had wanted to buy drugs from him and had offered him sex for the drugs, as she had no cash. I rejected this version as being false beyond reasonable doubt but it is indicative of the type of person accused 2 is: having heard the harrowing testimony of the complainant as well as her evidence of the profound effects of the rape on her, he chose to compound the complainant’s anguish by, in effect, laying the blame on her.

[32] It was argued on accused 2’s behalf that his youthfulness and the fact that he is a first offender are substantial and compelling circumstances. There was not indication at all when accused 2 gave evidence that he was influenced by immaturity or poor judgment as a result of youth when he committed the offences. On the contrary, he struck me as a cold and calculating individual. His age is thus not a substantial and compelling circumstance and neither is the fact that he is a first offender when these factors are weighed against the barbaric nature of the rape in which he played a leading role. See S v Ngwalo-Ngwalo and another ECD 1 June 2009 (case no. CA 06/09) unreported, at paragraph 16.

[33] Accused 3 was 20 years old at the time the offences were committed. He is not a first offender. He has an unenviable list of previous convictions from September 2002 until August 2008 – a mere six months before the current offences. He has been convicted of assault with intent to commit grievous bodily harm twice, common assault once, theft six times and malicious injury to property twice. His history of conflict with the law establishes that he is a person who has scant regard for the dignity and security of the person of others and for their property. This is directly relevant to sentence in this case.

[34] Accused 3 threatened to kill French and also to cut off his arms. He and accused 2 took hold of French and forced him to his knees. He played a leading role in the rape of the complainant in that he, like accused 2, throttled her, but only on one occasion, and he raped her twice.

[35] He chose to testify in mitigation. From his evidence it emerged that he left school in grade 4, he has one child and that he was a casual labourer before his arrest. When he was asked by his counsel about the attempted robbery and the rape, he said that he maintained that he did not rape the complainant. He stated that he was not in the witness box to explain what happened, but to ask for mercy. In effect, he was given the opportunity by his counsel to express remorse for what he had done and deliberately chose not to do so.

[36] It will be noted from what I have said that all of the accused played active roles in the commission of both offences, that their behaviour may justifiably be described as barbaric and none of them expressed any remorse for what they did.

[37] Applying the approach to the sentencing of offenders younger than 18 years, as set out in the Centre for Child Law case, I am of the view that given the seriousness of the offences committed by accused 1 as well as the aggravating factors that I have listed, imprisonment is the only appropriate sentence for him. I am mindful too of the fact that I must sentence him to the shortest term of imprisonment that I can justify. In the circumstances that I have set out – and taking into account in particular the barbarity of his conduct – the sentence for the rape of necessity must be a long one.

[38] Given the role he played in the attempted robbery with aggravating circumstances, and his previous convictions are relevant in this regard, I am of the view that a shorter term of imprisonment, to run concurrently, is appropriate for this offence. On the rape conviction a sentence of 16 years imprisonment will achieve the balance required by the Centre for Child Law case, within the context of the balance of the interests of society, the nature and seriousness of accused 1’s crimes and his personal circumstances. A sentence of five years imprisonment in respect of the conviction of attempted robbery with aggravating circumstances is, in my view, appropriate.

[39] As for accused 2 and 3, I have concluded that, in respect of their rape convictions, no substantial and compelling circumstances exist that would justify a sentence less severe than the prescribed sentence of life imprisonment. In any event, I consider that sentence to be proportionate. In respect of the conviction of attempted robbery with aggravating circumstances, I am of the view that a distinction should be drawn between the accused to reflect the previous convictions of accused 3 for assault with intent to do grievous bodily harm, common assault, theft and malicious injury to property. I consider eight years imprisonment to be an appropriate sentence for accused 2 and ten years imprisonment to be an appropriate sentence for accused 3.

[40] In the result:

1. Accused 1 is sentenced to 16 years imprisonment in respect of the conviction of rape and five years imprisonment in respect of the conviction of attempted robbery with aggravating circumstances, the second sentence to run concurrently with the first.

2. Accused 2 is sentenced to life imprisonment in respect of the conviction of rape and eight years imprisonment in respect of the conviction of attempted robbery with aggravating circumstances.

3. Accused 3 is sentenced to life imprisonment in respect of the conviction of rape and ten years imprisonment in respect of the conviction of attempted robbery with aggravating circumstances.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES:

For the State: Ms H. Obermeyer of the office of the Director of Public Prosecutions, Grahamstown.

For accused 1: Mr G. Joubert, instructed by Legal Aid South Africa

For accused 2: Mr S. Bhurhwana, instructed by Legal Aid South Africa

For accused 3: Mr M. Xozwa, instructed by Legal Aid South Africa

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