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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case No: CC 23/2008

Date heard: 30.8.2010

Date delivered:22.9.10

Not reportable

In the matter between:

MARK JOHN LA BERCENSIE …...................................................Appellant

and

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

The appellant had pleaded guilty to the offences of robbery with aggravating circumstances and rape, and had been convicted on the basis of his plea. He was sentenced to 15 years’ imprisonment in respect of the robbery and life imprisonment in respect of the rape. It was argued on appeal that his personal circumstances and the remorse that he expressed were substantial and compelling circumstances to justify less severe sentences than those prescribed by the Criminal Law Amendment Act 105 of 1997. The court held that the personal circumstances relied upon were not mitigatory and that, when viewed in the context of all of the factors relevant to sentence – particularly the seriousness of the offences – the remorse expressed by the appellant paled in its significance. The appeal was dismissed and the sentences were confirmed.

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JUDGMENT

PLASKET, J:

[1] The appellant was, pursuant of his plea of guilty, convicted by Chetty J sitting in the High Court, Port Elizabeth, of robbery with aggravating circumstances and rape. He was sentenced to 15 years’ imprisonment in respect of the robbery with aggravating circumstances and to life imprisonment in respect of the rape. He now appeals against these sentences.

[2] On the evening of 14 December 2006, the complainant, who was about 18 years old at the time, was walking home from work when the appellant and an accomplice accosted her. He ordered the complainant, at knife point, to hand over her handbag and to continue walking with them. As they walked, the appellant ordered her to remove her rings. Perhaps because she did not do so quickly enough, the accomplice removed the rings.

[3] When they arrived at an open piece of veld in an area of Missionvale, Port Elizabeth called Smartietown, the appellant ordered his accomplice to go and sell the items that had been taken from the complainant. The appellant then proceeded to rape the complainant. Before he had finished doing so, the accomplice returned and also raped the complainant. Both of them then escorted the complainant back to the place where they had accosted her. They left her there.

[4] Mr Naidu, who appeared for the appellant, argued that the court below misdirected itself in concluding that no substantial and compelling circumstances were present to justify a less severe sentence than those prescribed by s 51 of the Criminal Law Amendment Act 105 of 1997. He placed reliance, in particular, on the well-known dictum in S v Malgas¹ that when the Criminal Law Amendment Act applies ‘[a]ll factors … 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’. On the strength of this, he argued that a number of personal circumstances of the appellant, taken cumulatively, constitute substantial and compelling circumstances.

[5] The factors relied on by Mr Naidu are: the age of the appellant – he was 28 years old – and the fact that he is the father of a minor child; that, at the time of his arrest, he was employed; that he pleaded guilty and that this was a sign of remorse; that the complainant suffered no physical injuries apart from the rape itself; that the offences were not premeditated; and that the appellant was willing to testify against his accomplice. These factors, to the extent that they are valid – and I shall return to that in due course -- are not to be viewed in isolation: they must be considered along with the seriousness of the offences, the interests of society and the personal circumstances of the appellant that are aggravating in nature.

[6] Before proceeding further, however, it is necessary to make the point that a court of appeal may only interfere with the sentencing discretion of a trial court if its sentence is vitiated by a specific misdirection or if the sentence it imposed can be assumed to have been influenced by a misdirection because it is shockingly inappropriate: it may not simply replace the trial court’s sentence with a sentence that it prefers in the absence of misdirection in the two senses outlined above.²

[7] I return now to the personal circumstances that are relied upon by the appellant. The first is his age. He, at 28 years of age, is a mature adult and not a callow youth. In any event, no attempt was made to draw a connection between his age and any immaturity on his part which is, after all, the very rationale for youthfulness as a mitigatory factor.³

[8] At best for the appellant, the fact that he was employed, when viewed against the fact that he must have acted out of greed when he robbed the complainant at knife point – and then gratuitously raped her – is a neutral factor. So too is the fact that he is the father of a minor child, especially as he does not support her. As for the assertion that the appellant inflicted no physical injuries on the complainant apart from the rape itself, I am of the view that this too is a neutral fact: if he had assaulted her during the course of the rape, that would have been an aggravating factor. In any event, as I shall show, the complainant suffered grievous psychological trauma as a result of the actions of the appellant and his henchman.

[9] Chetty J took into account the personal circumstances of the appellant, including the fact that he was not a first offender. Indeed, in October 2006, he had been convicted of robbery and attempted robbery and sentenced to 12 months imprisonment, suspended for five years. Two months later, he robbed and raped the complainant and about six weeks thereafter he committed another robbery and was sentenced to four years imprisonment. Even if, strictly speaking, the last conviction was not a previous conviction, Chetty J held that it was nonetheless relevant as it showed a ‘gedragspatroon’ on the part of the appellant, having earlier said that the appellant had a tendency to commit robberies.

[10] All that is left of the personal circumstances relied upon by the appellant is remorse, expressed in three forms. First, in his s 112 statement, the appellant said that he was sorry for what he had done. Secondly, it is argued that his plea of guilty was a sign of his remorse. Thirdly, it is also argued that his willingness to testify against his accomplice is also a sign of remorse. I accept that the appellant has shown that he is remorseful but that on its own does not necessarily mean that a deviation from the prescribed sentences is justified. The appellant’s remorse must, like every other factor relevant to sentence, be considered in the light of all of the facts. It must also be viewed in the light of why remorse is a mitigating factor: its relevance lies in it being an indication that the offender has the potential for rehabilitation because ‘a truly remorseful offender is unlikely ever to repeat the crime’.⁴

[11] There are a number of facts that make the appellant’s crimes -- and the rape in particular -- especially serious. In the first place, the complainant was in effect kidnapped when she was robbed. Secondly, the fact that, after her handbag was taken, she was forced to accompany the appellant and his accomplice to the piece of open veld where she was raped indicates a degree of premeditation and prior planning at least on the part of the appellant. Thirdly, it is clear from the appellant’s own s 112 statement that he directed the actions of his henchman and was the leader throughout the robbery and rapes of the complainant. Fourthly, the appellant’s previous convictions for robbery and attempted robbery, and the conviction for robbery committed after the offences in this matter, speak very clearly of the contempt that the appellant has for the rights of others, for his predilection for violence and for his limited prospects of rehabilitation, despite his expression of remorse.

[12] Fifthly, the rape had a devastating effect on the complainant belied, perhaps, by the understated tone of her evidence. Chetty J said the following of the trauma that she endured:

‘Uit die klaagster se getuienis blyk dit dat die insident haar tot so ‘n mate affekteer het dat sy verhuis het na ‘n ander woonbuurt. Ofskoon die feit dat die voorval ongeveer 18 maande gelede plaasgevind het, herleef sy dit nog steeds. Uit skaamte vir wat sy ondergaan het, het sy probeer om sover moontlik dit te verberg deur selfs nie eers vir sielkundige behandeling te gaan nie. Sedert die voorval is sy bang vir manspersone en ly sy nog aan nagmerries. Wat haar erg verneder het is dat sy ten tye van die voorval ‘n maagd was. Dit is duidelik uit haar hele voorkoms in die getuiebank dat sy aan ernstige sielkundige letsels ly.’

[13] Finally, the interests of society require proper recognition. In his judgment, Chetty J took this aspect into account when he observed that the courts have warned repeatedly that ‘barbaarse gedrag teenoor veral die vrouegeslag nie geduld gaan word nie’. He concluded:

‘’n Weerlose dame op pad van haar werksplek was eintlik summier ontvoer, beroof en in die ope veld in die donkerte van die aand verkrag. Die feit dat sy nie liggaamlik beseer is nie bied geen versagting nie. Soos tevore na verwys, is die jong dame erg psigies beskadig. Die beskuldigde se hele gedragspatroon soos uit sy misdaadloopbaan voorkom bewys ongetwyfeld dat hy ‘n gevaar vir die gemeenskap daarstel. Na my mening is daar geen wesenlike en dwingende omstandighede nie.’

[14] As stated above, I accept that the appellant has indicated that he is remorseful for what he has done. When this is put in the scales along with his personal circumstances, the seriousness of his crimes and the interests of society, however, I am of the view that his remorse pales to the extent that it carries little weight as a mitigating factor.⁵

[15] In these circumstances, it cannot be said that Chetty J misdirected himself in deciding that no substantial and compelling circumstances were present to justify a deviation from the prescribed sentences and neither can it be said that the sentences imposed are shockingly inappropriate.

[16] The appeal is accordingly dismissed and the sentences imposed upon the appellant are confirmed.

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C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

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J. ROBERSON

JUDGE OF THE HIGH COURT

I agree.

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J. SMITH

JUDGE OF THE HIGH COURT

Appearances:

For the appellant: Mr V. Naidu of the Port Elizabeth Justice Centre

For the respondent: Mr M.M. Sandan of the office of the Director of Public Prosecutions, Port Elizabeth

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