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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CC20/2014

DATE HEARD: 22 MAY 2014

DATE DELIVERED: 23 MAY 2014

In the matter between

THE STATE

And

ABONGILE SEPTEMBER                                                                                           Accused

SENTENCE

GOOSEN, J.

[1] The accused stands convicted of rape and murder. The facts regarding the circumstances in which the offences were committed need not be repeated. It is sufficient to note however that those facts, as disclosed by the accused, speak of a disregard for life and the dignity of others. Rape is always a cruel and humiliating invasion of the dignity of another human being. It is a crime which, as is so often noted by the courts, strikes at the very fabric of our society which is founded upon equality, freedom and dignity. In this instance the rape was followed by the murder of the victim and the disposal of her body in a drain. If in life her dignity was taken from her, in death that violation was compounded.

[2] Murder too, of course, is a very serious crime which is also, shamefully, all too prevalent in our violence-wracked society. Murder by manual strangulation evokes a particular horror because of the intensity and immediacy of the physical violence required to achieve death by strangulation.

[3] It is of course not sufficient merely to note the very serious nature of the particular crimes. Regard must always be had to the particular effect that these crimes have had on the victim or her family. In this instance the deceased was a [….] mother of two children, a son aged […..] years and a daughter aged [….] years. The deceased’s […..] works in Gauteng. At the time of her death the children were living with her in Jamestown. The children have since relocated to W […….] to live with their […..] grandparents who will raise the children. The murder of the deceased has robbed the children of a mother and her husband of a wife. The damage wrought to the family is incalculable.

[4] The crimes for which the accused has been convicted fall within the ambit of section 51(1) of Act 105 of 1997. That section requires the imposition of life imprisonment if a person has been convicted of an offence referred to in Part I of Schedule 2 to the Act. Part I of the Schedule refers to the crime of murder when the “death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit rape” as contemplated by s3 the Criminal Law (Sexual Offences) Amendment Act 2007.

[5] The Schedule also refers to the crime of rape involving the infliction of grievous bodily harm. It is not immediately apparent whether what is contemplated is the infliction of grievous bodily harm in the commission of the rape as a circumstance wholly distinct from that contemplated as an aggravating feature in relation to murder.

[6] The grievous bodily harm upon which the prosecution relies is the strangulation and death of the deceased.

[7] Whatever the ambit of the provisions may be, the effect, it seems to me, is to bring about a situation where in every instance in which the crime of rape is committed and the victim of the rape is murdered, either during or after the commission of the rape, an accused person convicted of both the rape and the murder faces life imprisonment on account of each of the offences.

[8] This linkage by way of a prescribed, albeit discretionary minimum sentence necessarily has a dramatic effect upon the exercise of a court’s discretion in imposing sentence. Where an accused is convicted of rape other than as contemplated by Part 1 of Schedule 2, a first offender ordinarily faces imprisonment for a period of not less than 10 years. In the circumstances of this case the fact of the murder of the deceased escalates the minimum sentence from 10 years to life imprisonment. The linkage of the offences for sentencing purposes has a similar consequence in respect of the murder charge. In the circumstances of this case the prescribed sentence is escalated from 15 years to life imprisonment.

[9] In both of these instances the imposition of the prescribed sentence is of course subject to the court’s finding as to the existence of substantial and compelling circumstances which would justify a departure from the prescribed sentences.

[10] In determining whether there are substantial and compelling circumstances present which would justify a sentence other than the prescribed minimum sentences consideration must be given to all of the traditional mitigating factors taken into account. It is also necessary to consider carefully the overall objects of punishment and to consider whether in the particular circumstances of the case justice will be served by the imposition of the prescribed sentence.

[11] In this case the accused tendered a plea which, although not accepted by the prosecution, nevertheless contained significant admissions as to his criminal liability. It is common cause, based on these admissions, that the accused also confessed to his role in these offences upon his arrest and it appears that he told others of what he had done before his arrest.

[12] He testified in mitigation. He stated that he is deeply remorseful about what he did. He said that from the outset he was remorseful and that he could not keep knowledge of what he had done to himself. He was challenged in cross examination about the circumstances that led to him being arrested and confessing what had occurred. It was suggested that he had done nothing for a period of two weeks and that this was not consistent with genuine remorse for what he done. He explained that he was afraid to go to the police. He said also that he wanted to tell his mother what he had done but that he did not have the courage to do so. It was only when his mother challenged him in the company of his sister and others that he was able to tell her what he had done. When his mother said they should go to the police he agreed and he went and told them what had happened.

[13] He was asked whether this extended to the fact that he had raped the deceased. He replied that he still maintained that they had had consensual sexual intercourse. It was therefore suggested to him that the fact that he maintained his innocence is inconsistent with an expression of remorse.

[14] That is indeed so. However in this matter it is clear that the accused, when he was placed under arrest made disclosures of facts which could not have been known to the police investigators. The advanced state of decomposition of the body meant that the cause of death could not be determined. Nor could it be determined whether the deceased had suffered sexual assault. The fact that he and the deceased had had sexual relations only became known in consequence of the disclosures made by the accused. As the evidence in the trial indicates too, the prosecution’s case was based upon the disclosures made by the accused.

[15] In my view it would be naïve to ignore the fact that the accused, as a very young man, would not have been deeply disturbed by what he had done. He says as much in his plea explanation. He stated that he did not know what to do after he had hidden the deceased’s body in the drain. He remained in the area for 1 to 2 hours before going home. He told his girlfriend the next day and thereafter a friend.

[16] These features all point to a person who, if he has not already fully taken responsibility for his conduct, certainly evidences a capacity to do so.

[17] The accused’s description of the night of the rape and murder indicates that he and his companions, as well as the deceased, had all been drinking significant amounts of alcohol. It can be accepted therefore that the events were, to some extent, fuelled by alcohol. Something that, tragically, is also all too often the case.

[18] The accused is also a first offender. He was [……] years of age at the time of the commission of the offences. He has completed grade [….]. He was unable to pursue tertiary studies because he only achieved a school leaving pass. He is employed as a […….] and could earn as much as R1000 per day when busy. He lives with his girlfriend and his minor child who is […..] months old. His girlfriend is unemployed and he supports her and his child.

[19] The prosecution argued that the aggravating features of the commission of the offences outweighs any mitigation that there may be and that the accused’s personal circumstances, including that he is a first offender do not constitute substantial and compelling circumstances which would justify a departure from the prescribed minimum sentences.

[20] When determining whether there are substantial and compelling circumstances present a court must take into consideration all relevant mitigating circumstances. In this instance those include the fact that the accused is still a very young man; they include also that he has, apart from the circumstance of committing these very serious offences set out to make a positive and valuable contribution to society. He was employed and had acquired valuable skills as a mechanic. He was living with his girlfriend and contributing to the care and welfare of his infant child. These, cumulatively considered are not insubstantial mitigating factors.

[21] I am unable to agree with the prosecution that the accused’s conduct does not evidence remorse. I have already dealt with this aspect fully above. A genuine expression of contrition and remorse is fundamental if there is to be any real prospect of rehabilitation. That expression need not be in the form only of the accused’s say-so. It can be inferred from his conduct, both during the investigation of the crime and at the stage of trial. The accused’s assertion that he told others because he could not keep what he had done to himself cannot be gainsaid. His explanation for why he did not tell his mother and why he did not immediately give himself up to the police is not unreasonable. He said he was afraid and did not have the courage to confess to his mother. When he did confess his involvement the admissions he made formed the very basis upon which the State has now been able to secure a conviction on both charges. Absent his admission of sexual intercourse and of strangulation it is likely that those facts would not have been discovered. The consequence of these admissions is that he now faces the prospect of two life imprisonment sentences.

[22] It seems to me that this is quintessentially an instance where there is remorse. That being so it must be accepted that there is a reasonable prospect that imprisonment may bring about rehabilitation.

[23] I have already adverted to the fact that the linkage between the two offences for which the accused has been convicted and the circumstances provided for in the Schedule to the Act has the effect that the accused, on both counts, is liable to be sentenced to life imprisonment. In S v Vilakazi 2009 (1) SACR 552 (SCA) at par 13 the court said the following regarding incongruities such as this:

What is striking about that regime is the absence of any gradation between ten years’ imprisonment and life imprisonment. The minimum sentence of ten years’ imprisonment progresses immediately to the maximum sentence that our law allows once any of the aggravating features is present, irrespective of how many of those features are present, irrespective of the degree in which the feature is present, and irrespective of whether the convicted person is a first or repeat offender. On the face of it a first-offending [….] year old boy who rapes his [….] old [….] on one occasion must receive the same sentence as a recidivist serial rapist who repeated gang rapes and beats senseless a disabled victim whom he consciously infects with HIV. The [….] year old boy who rapes his […] year old […] must also receive the same sentence as an adult recidivist who rapes an infant. The offender who imprisons and rapes his victim repeatedly every day for a week is considered to be no more culpable than one who rapes his victim twice within ten minutes. It requires only a cursory reading of the Act to reveal other startling incongruities. And when sentences that are prescribed for rape in various circumstances are related to sentences that are prescribed for other crimes even more incongruities emerge.

[24] The court went on to state that it is only by approaching the issue of prescribed sentences in the manner set out in S v Malgas 2001 (1) SACR 460 (SCA) as endorsed in S v Dodo [2001] ZACC 16; 2001 (1) SACR 594 (CC) that disproportionate sentences can be avoided. That approach requires that the sentencing court assess, upon a consideration of all the circumstances of the case, whether the imposition of the prescribed sentence is indeed proportionate to the particular offence (Vilakazi at 560g-h). If a court is satisfied that a lesser sentence is called for then the court is bound to impose such lesser sentence (Vilakazi at 561b).

[25] I have already set out factors relevant to the crimes and the particularly serious nature of those crimes. The interests of the society rightly require that severe punishments be meted out for offenders who commit crimes such as these. But it seems to me that the interests of society also require that the punishment does not destroy the offender and that where, as in this case, we are dealing with a young offender in whom there vests a prospect of rehabilitation then a court is required to carefully weigh the sentence to be imposed in order that it is indeed appropriate and just.

[26] In this instance I consider that the imposition of a life sentence for each of the offences for which the accused has been convicted would, in the light of the linkage of the offences, be strikingly disproportionate having regard to all of the relevant circumstances. I consider that a lesser sentence is called for and accordingly a departure from the prescribed minimum sentences is justified.

[27] The lesser sentence which in my view is called for is nevertheless a substantial and lengthy period of imprisonment. The period must necessarily take into consideration the underlying public policy which the Act seeks to advance in sentences imposed on persons who commit offences such as these. I shall, in imposing sentence, take into account that the two offences, although each requiring separate punishment, were committed as a single criminal act.

[28] The accused is accordingly sentenced as follows:

ON COUNT 1: RAPE – 20 YEARS IMPRISONMENT

ON COUNT 2: MURDER – 20 YEARS IMPRISONMENT

IT IS ORDERED THAT THE SENTENCES BE SERVED CONCURRENTLY

G. GOOSEN

JUDGE OF THE HIGH COURT

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