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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: CA & R 168/2014

Date heard: 15 October 2014

Date delivered: 17 October 2014

In the matter between

LEKESE MQULWANA                                                                                                Appellant

and

THE STATE                                                                                                            Respondent

Criminal appeal – against sentence of life imprisonment – appellant convicted of rape of 5 year old child – imposition of sentence a matter of trial court’s discretion with which appeal court will not readily interfere – principles restated – no basis for finding that trial court had wrongly exercised its discretion or that sentence inappropriate or shockingly disproportionate - appeal dismissed.

JUDGMENT

GOOSEN, J.

[1] The appellant, who was […..] years of age at the time of the commission of the offence, was convicted of the rape of a 5-year-old child. He was sentenced to life imprisonment. He appeals, with leave of the court a quo, against his sentence.

[2] It is necessary briefly to set out the circumstances in which the offence was committed before dealing with the basis of the appeal.

[3] At the time of the offence, on or about 30 or 31 May 2012, the appellant was living in a backyard shack on the property where the complainant was living with her grandmother. The appellant had been living there for approximately 1 ½ years. On the day in question the complainant was playing with friends before going to the crèche. The appellant called her and gave her some money with which to buy a balloon. When the balloon burst he called her again. He then took her to his room. He undressed himself and when she did not want to undress herself, he undressed her. He then raped her. He threatened to stab her with a knife if she made a noise. After he had raped the child she left. She went to the crèche. Later that day her aunt saw her returning from the crèche. She noticed that the child was walking awkwardly. Her aunt asked why she was walking as if in pain, to which the child did not initially reply. The aunt then examined her and noticed that her vagina was red and looked painful. When asked who had touched her there she named the appellant. The aunt spoke to her teacher to ask whether she had noticed anything that morning. The complainant was then taken to her grandmother. When they arrived there was a man seated outside on a chair. They went into the house and spoke to the grandmother. When asked who had done this to her she again named the appellant who was the person seated outside.

[4] A medical examination was conducted by Dr Richards. Her evidence established the presence of a diffuse red bruise on the labia minora. The hymen was not intact. Dr Richards’ conclusion was that a sexual assault could not be excluded.

[5] The magistrate accepted the evidence of the complainant and rejected that of the appellant and convicted him of rape. That finding is not in issue in this appeal.

[6] In respect of the sentence of life imprisonment it is submitted that the trial court failed to place sufficient weight on the fact that the appellant was [……] years of age at the time of the commission of the offence and that he was a first offender. It was also submitted that although the rape of a child is undoubtedly very serious the circumstances of the case suggest that it is not one that falls into the so-called “worst category of cases”. Based on this it was submitted that the court ought to have found that that there are substantial and compelling circumstances present which justify imposition of a sentence other than life imprisonment.

[7] There is, in my view, no merit in the submission. In the first instance the imposition of sentence is quintessentially a matter in the discretion of the trial court. A court of appeal will not readily interfere with the sentence imposed by the trial court. In S v Anderson, 1964 (3) SA 494 (A) it was stated, at 495D-E, that:

Over the years our Courts of appeal have attempted to set out various principles by which they seek to be guided when they are asked to alter a sentence imposed by the trial court. These include the following: the sentence will not be altered unless it is held that no reasonable man ought to have imposed such a sentence, or that the sentence is out of all proportion to the gravity or magnitude of the offence, or that the sentence induces a sense of shock or outrage, or that the sentence is grossly excessive or inadequate, or that there is an improper exercise of his discretion by the trial Judge, or that the interests of justice require it.

[8] In the present instance the appellant does not point to any alleged misdirection on the part of the trial court. Nor is it suggested that the sentence induces shock and outrage or that it is grossly disproportionate or excessive having regard to the nature of the offence. It is submitted only that the case is not so serious as to justify the imposition of life imprisonment. When regard is had to the seriousness of the offence and its devastating consequences as compared to the personal circumstances of the appellant I, with respect, fail to see why that is so. There can be no doubt that the rape of a particularly young child is an offence which, rightly, evinces revulsion in the community at large.

[9] The magistrate gave a very detailed judgment on sentence in which all of the factors relevant to determining an appropriate sentence are carefully considered. Consideration was given to a wealth of relevant case law. The approach to weighing the many competing factors and interests is entirely consistent with the authorities. Not only did the trial court take into account those factors which ordinarily mitigate sentence in coming to the conclusion that no substantial and compelling circumstances present, the court also considered the overriding question as to whether the prescribed sentence would be disproportionate to the crime. The trial court concluded that it was not. This reasoning cannot be faulted. It is apparent that the trial court was alive to the discretion vested in it and exercised that discretion reasonably. When consideration is given to the nature of the crime and the circumstances in which it was committed I am not persuaded that no reasonable court ought to have sentenced the appellant to life imprisonment.

[10] The appeal must therefore fail. I therefore make the following order:

The appeal is dismissed.

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G. GOOSEN

JUDGE OF THE HIGH COURT

 

NEPGEN, J.

I agree.

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J. NEPGEN

JUDGE OF THE HIGH COURT

 

APPEARANCES:                

For the Appellant

Adv. D. P. Geldenhuys

Grahamstown Justice Centre

 

For the Respondent

Adv. H. L. Obermeyer

Director of Public Prosecutions

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