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Hekke v S (CA&R101/14) [2014] ZAECGHC 98 (6 November 2014)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                    CASE NO: CA&R101/14

                                                                                    DATE HEARD: 05/11/2014

                                                                                    DATE DELIVERED: 06/11/14

NOT REPORTABLE

In the matter between:

RICHARD HEKKE                                                                                                 APPELLANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

PLASKET J

[1] The appellant pleaded guilty to a charge of rape and was convicted in accordance with his plea in the Regional Court, Joubertina. He was sentenced to life imprisonment. He appeals against that sentence.

[2] Because the imposition of sentence is a function that lies within the discretion of the trial court, a court of appeal may only interfere with a sentence if its imposition is affected by material misdirection or, in the absence of any specific misdirection, if the sentence imposed is so severe (or lenient) as to induce a sense of shock. S v Malgas 2001 (1) SACR 469 (SCA) para 12.

[3] The victim of the rape was younger than 16 years of age when, between March 2008 and January 2011, she was raped on a number of occasions by the appellant. Because of her age and because the appellant raped her more than once, a sentence of life imprisonment is statutorily prescribed in the absence of substantial and compelling circumstances. See Criminal Law Amendment Act 105 of 1997, s 51(1) and (3) read with Part 1 of Schedule 2.

[4] The complainant is the appellant’s daughter. She was ten years old when the appellant first raped her and just short of her thirteenth birthday at the end of the period during which the rapes occurred. 

[5] In his statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, the appellant stated that during the period concerned he had experienced marriage problems, he was under financial stain because work in the building industry had reduced and he has suffered from depression. He concluded his statement by saying:

Ek wil nie hê [die klaagster] moet in die hof verneder word nie en ek het diepe berou dat ek van [die klaagster] my vrou gemaak het.’

[6] A victim impact report, compiled by a social worker, was placed before the magistrate. This revealed that, not surprisingly, the complainant suffers from deep and long-lasting psychological scarring as a result of her experience at the hands of her father. She experiences flashbacks and has nightmares relating to her experience. She fears men in general and is particularly scared of her father. She does not want to see him again. 

[7] In her judgment on sentence, the magistrate took into account the fact that the appellant was guilty of a grievous breach of trust; the effects of the rapes on the complainant; the personal circumstances of the appellant; and the fact that he was not a first offender (the last of his numerous previous convictions having been a murder conviction). She concluded that no substantial and compelling circumstances were present to justify a sentence other than life imprisonment. 

[8] The magistrate rejected the submission that the appellant was remorseful. In my view she was incorrect in this respect. She should have accorded some weight to the remorse shown by the appellant, as expressed in his s 112(2) statement. But, even if she had, this would not have changed the outcome. The devastating effect of the rapes on the complainant and the breach of trust inherent in a father raping his child are aggravating factors that make the appellant’s expression of remorse pale as a mitigatory factor. In other words, within the context of this case, the appellant’s remorse is not a substantial and compelling circumstance that can justify a departure from the sentence the legislature has decreed should ordinarily be imposed. The appellant’s personal circumstances do not avail him either. Indeed, his long list of previous convictions, even if many of them are dated, speak to the type of person he is.

[9] In the result, the sentence imposed by the magistrate is neither influenced by material misdirection and nor does it induce a sense of shock. This court may not interfere with it as a result.

[10] The appeal is dismissed.

 

_______________

C Plasket

Judge of the High Court

 

I agree.

 

______________

R Brooks

Acting Judge of the High Court

 

APPEARANCES:

Appellant: H Charles, Grahamstown Justice Centre

Respondent H Obermeyer, office of the Director of Public Prosecutions, Grahamstown