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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

In the matter between: Case No: 273/2009

SIMPHIWO LUGOGWANA Appellant

And

THE STATE Respondent

Coram: Chetty and Dambuza JJ, Makaula AJ

Date Heard: 17 May 2010

Date Delivered: 21 May 2010

Summary: Rape – Sentence – Imposition of – Appellant sentence to three life sentences – Worst rape case scenario – Whether substantial and compelling circumstances present – Circumstances surrounding pre-eminently calling for imposition of ordained sentence – Appeal dismissed

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JUDGMENT

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Chetty, J

[1] The appellant was arraigned for trial in the court below, Somyalo JP, on three counts of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act¹ and robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act². He was duly convicted on the rape counts but in respect of the robbery charge convicted merely of theft. He was sentenced to life imprisonment on each of the rape charges and to one years imprisonment on the theft conviction. He now appeals, with the requisite leave, against the three life sentences imposed upon him.

[2] The principal submission advanced on behalf of the appellant was that factually the rapes could not be classified as “the worst category of cases” justifying the imposition of the ordained sentence. In support of his submission, counsel referred to the cases of S v Mahomotsa³ and S v Nkomo⁴ as authority for his proposition that a sentence of life imprisonment be reserved for the worst category of rapes. Reliance on Mahomotsa and Nkomo for the proposition advanced is, in my view, entirely misplaced. Both judgments recognized that there are, as in any other offence, degrees of seriousness but as Mpati JA was at pains to point out⁵ in Mahomotsa: -

“[19] Of course, one must guard against the notion that because still more serious cases than the one under consideration are imaginable, it must follow inexorably that something should be kept in reserve for such cases and therefore that the sentence imposed in the case at hand should be correspondingly lighter than the severer sentences that such hypothetical cases would merit. There is always an upper limit in all sentencing jurisdictions, be it death, life or some lengthy term of imprisonment, and there will always be cases which, although differing in their respective degrees of seriousness, nonetheless all call for the maximum penalty imposable. The fact that the crimes under consideration are not all equally horrendous may not matter if the least horrendous of them is horrendous enough to justify the imposition of the maximum penalty.”

[3] Although the majority in Nkomo referred with approval to the remarks of Cameron JA in S v Abrahams⁶, I do not understand the judgment to lay down, as a general rule, that a sentence of life imprisonment be reserved for the worst case rape scenario. What Abrahams in fact held was that “life imprisonment should be reserved for cases devoid of substantial factors compelling the conclusion that such a sentence is inappropriate and unjust”. That is a far cry from saying that a sentence of life imprisonment should only be imposed in the worst imaginable cases of rape.

[4] As in any appeal against sentence, it is incumbent on the appellant to establish that the trial court either misdirected itself or there exists a striking disparity between the sentence imposed by the court below and the sentence which a court of appeal would have imposed or the sentence is startlingly or disturbingly inappropriate.

[5] The crimes of rape of which the appellant was convicted obligated the trial judge to impose the mandatory sentence of life imprisonment absent a finding of substantial and compelling circumstances which justified the imposition of a lesser sentence. The trial court’s finding, so it is submitted, constitutes a misdirection entitling this court to interfere and ameliorate the sentence. What constitutes substantial and compelling circumstances has engendered learned judicial discourse. What emerges from the case law and emphasized in S v Malgas⁷ is that the entire spectrum of relevant circumstances, including the nature of the crime, the offender, the interests of society and the legislative prescripts must be considered and if, at the conclusion of that exercise, the imposition of the ordained sentence is manifestly unjust then a departure from the prescribed sentence is warranted. As Marais JA trenchantly summarized in paragraph [25]: -

“[25] What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed. In summary -

A. Section 51 has limited but not eliminated the courts' discretion in imposing sentence in respect of offences referred to in Part I of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

B. Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the Legislature has provided.”

[6] The circumstances surrounding the commission of these offences inexorably lead to the conclusion that the trial judge’s rejection of the contention that there were substantial and compelling circumstances present was undoubtedly correct and that the imposition of the ordained sentence cannot be construed as amounting to an injustice.

[7] The record vindicates the trial court’s factual findings and although comprehensively adverted to in the judgment, it is necessary for purposes of this judgment to restate the facts found proved. The appellant, a close relative of all the complainants and a self acknowledged HIV carrier, arrived at the complainants’ home, knocked on the door and was let in by the complainant on count 1, Ms Lugogwana. He immediately went to the bedroom normally occupied by the complainants on counts 2 and 3 (the children), and fell asleep on the bed in a drunken stupor. Ms Lugogwana retired to her grandmother’s bedroom, locked the door and fell asleep until disturbed by banging on the door. She arose and attempted to add her weight to the door to prevent it from opening but to no avail. The appellant barged into the bedroom and informed Ms Lugogwana that he wanted to have sexual intercourse with her.

[8] Petrified at this sudden turn of events Ms Lugogwana feigned a need to leave the room to urinate but the appellant refused to allow her to do so. Instead he broke a glass bottle which he found in the room and executed a stabbing motion towards Ms Lugogwana. He forced her towards the bed and demanded she remove her nightdress and undergarments. When she complied with his demands he forced her to lie on the bed and commanded her to lift her legs whereafter he raped her. At some point his hand was cut by the broken bottle and when he had finished raping Ms Lugogwana he demanded that she wash the bloodstained duvet. Once she had completed this task he forced her to escort him to the room in which the complainants on counts 2 and 3 were sleeping. At the time the children were eight years of age and resided with their grandmother in the house, their respective mothers’ having died several years ago. These children were not however in the same room in which they had been left and Ms Lugogwana requested that she be allowed to search for them in the house. The appellant steadfastly refused and ordered her to lie on the bed whereupon he once more raped her.

[9] After her second rape ordeal Ms Lugogwana once more sought the appellant’s permission to search for the children. Before he could respond the children appeared. The appellant told them to fetch some paper for him to roll a cigarette. After he finished smoking he called out to the complainant on count 2 to come to him. When she desisted he threatened to assault her with a vase. He grabbed hold of her by the neck and took her to the kitchen where she drank water. He dragged her back to the room in which Ms Lugogwana was seated and removed her panties prior to taking her to the dining room where he forced her onto a mat on the floor and raped her. When he had finished he called the complainant on count 3 and raped her as well. Throughout this terrifying ordeal all the complainant’s cried out.

[10] After raping the complainants, he ordered them to bring him food and once he had consumed it demanded more paper to roll another cigarette. After smoking he once more ordered Ms Lugogwana to lie down and raped her for the third time in the presence of the children and prior to leaving the home, he took Ms Lugogwana’s cell phone.

[11] The rape ordeal continued for several hours before the appellant left the home. Its aftermath has, not unexpectedly had devastating consequences for the three complainants. Each of them received counselling from a clinical psychologist, Ms Sakasa, prior to them testifying and the import of the reports compiled by her voices the psychological trauma each victim suffered in consequence of the rape and long term psychotherapy was specifically advocated.

[12] There is in my view no basis upon which this court may interfere with the sentences imposed. In the result the appeal is dismissed.

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D. CHETTY

JUDGE OF THE HIGH COURT

Dambuza, J

I agree.

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N. DAMBUZA

JUDGE OF THE HIGH COURT

Makaula, AJ

I agree.

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M. MAKAULA

ACTING JUDGE OF THE HIGH COURT

On behalf of the Appellant: Adv D.P Geldenhuys

Instructed by Justice Centre

69 High Street

Grahamstown

On behalf of the Respondent: Adv S. Mgenge

Instructed by the National Director of Public Prosecutions

94 High Street

Grahamstown

Tel: 046-6023000

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