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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 82/2015

Date Heard: 9 September 2015

Date Delivered: 11 September 2015

In the matter between

SIPHO PATRICK BARI                                                                                               Appellant

And

THE STATE                                                                                                            Respondent

Appeal against sentence imposed on charge of rape – Prescribed minimum sentence applicable - no substantial and compelling circumstances found to exist – appellant treated as first offender – sentenced to 15 years’ imprisonment – trial court misdirecting itself as to applicable section of Act 105 of 1997 – no misdirection regarding absence of substantial and compelling circumstances – appeal upheld – sentence of 15 years’ imprisonment set aside and replaced with sentence of 10 years’ imprisonment.

JUDGMENT

GOOSEN, J.

[1] The appellant was convicted of rape by the Regional Court in Port Elizabeth and sentenced to 15 years imprisonment. He appeals against his sentence, with leave of the trial court.

[2] The appellant was 35 years of age at the time of the commission of the offence. Although he has a previous conviction. He was a first offender. In relation to a sexual offence. In relation to this matter. It was common cause that s 51 (2) of Act 105 of 1997 (hereinafter “the Act”) is applicable. That section, read with Part III of Schedule 2 prescribes a minimum sentence of 10 years for rape where the perpetrator is a first offender.

[3] The magistrate, during the plea proceedings and prior to recording the appellant’s plea of not guilty, drew the attention of the appellant to the provisions of s 51 (2). In doing so the magistrate stated that in the event of being found guilty the appellant would face a sentence of imprisonment of 15 years if he was a first offender; 20 years’ imprisonment as a second offender; and 25 years’ imprisonment as a third or subsequent offender. The magistrate was clearly referring to s 51 (2) (a) of the Act, which sets out the sentences applicable to offences in Part II of Schedule 2. In this regard the magistrate clearly misdirected herself since the applicable section is s 51 (2) (b), which sets out the sentences to be applied in the case of a conviction for rape committed other than in the circumstances contemplated in Part I of the Schedule. Part III prescribes a sentence of 10 years for a first offender; 15 years for a second offender and 20 years for a third or subsequent offender.

[4] This misdirection continued into the sentencing proceedings which followed the appellant’s conviction. The magistrate stated in her judgment on sentence that the provisions of s 51 (2) had been explained to the appellant and that, as a first offender, the effect of these provisions is that the court must impose a sentence of 15 years’ imprisonment if not satisfied that substantial and compelling circumstances exist to justify a lesser sentence.

[5] The heads of argument filed by the appellant’s counsel do not address this issue. They proceed from the premise that the magistrate erred in not finding that there are substantial and compelling circumstances present. In argument presented on behalf of the state it is conceded that the magistrate misdirected herself and that this court must interfere with the sentence. It was however argued that the magistrate did not misdirect herself in relation to the finding that no substantial and compelling circumstances are present.

[6] It was common cause that the appellant had sexual intercourse with the complainant, at his house, on the night of 2 May 2014. The appellant had pleaded not guilty on the basis that the sexual intercourse occurred with the consent of the complainant. The complainant’s evidence was that on the night of the incident she had been in the company of friends and that they had been drinking. She had an arrangement to sleep over at her friend’s house. In the early hours of the morning she went to her friend S.’s house. She called out to her when she was outside the house. The appellant, who lives alongside S., came outside. He told her that S. had left but had said she should wait for her at his house. He invited her inside. He made some food for her to eat. After she had eaten he came out of his bedroom naked. When she asked what was going on he said she shouldn’t ask too much. He then grabbed her by the arm and twisted it whilst dragging her into the bedroom. There he placed on the bed and raped her.

[7] The magistrate found the complainant to be a credible and reliable witness. While taking into account that she had been drinking on that night. The magistrate found that the medical evidence in the form of the J 88, which records that her left forearm was tender to the touch suggestive of a forearm sprain, was consistent with the complainant’s version of events. The magistrate rejected the evidence of the appellant, noting in the judgment that on his own version of events he admitted to “holding” her by the arm and that there were indications that she did not want to have sexual intercourse with him.

[8] In evaluating an appropriate sentence to be imposed the magistrate rightly had regard to the extremely serious nature of the offence and its prevalence. The trial court noted that the circumstances in which the offence was committed was indicative of a disturbing attitude towards women, namely one that appeared to accept that an expression of unwillingness to engage in sexual intercourse does not necessarily mean that the woman does not want to have sexual intercourse. In my view the magistrate’s comments in this regard cannot be criticised.

[9] In considering whether or not substantial and compelling circumstances are present the magistrate took into account that the appellant was 35 years of age; that he was employed as a general labourer earning approximately R6000 per month. The magistrate took into account that the appellant was supporting a six-year-old child. The appellant’s previous conviction for an unrelated offence of assault was regarded as irrelevant for purposes of sentence. For present purposes it is unnecessary to make any comment on the correctness of this approach since, in relation to the application of the prescribed minimum sentence, the magistrate correctly treated the appellant is a first offender.

[10] The magistrate came to the conclusion, correctly in my view, that at term of imprisonment is the only appropriate sentence to be imposed. In relation to the presence of substantial and telling circumstances reference was made to S v Vilakazi [1] where the court held that:

In cases of serious crime, the personal circumstances of the offender by themselves will necessarily recede into the background and once it becomes clear that the crime is deserving a substantial period of imprisonment, the question of whether the accused is married or he is single or he has got children to look after all, whether or not. He is employed or not employed, in themselves largely immaterial to what the period should be in those seem to be the kind of flimsy grounds that ace the mouth us said should be avoided by the courts.

[11] Taking these principles into account and having regard to the circumstances of the case, the magistrate concluded that no substantial and compelling circumstances exist which warrant a departure from the prescribed sentence. This finding cannot be faulted. The magistrate, however, proceeded to impose the prescribed sentence, which she, wrongly, considered to apply. This court is at large therefore to impose a sentence which it considers to be appropriate. In doing so it must be accepted that no substantial and compelling circumstances exist which warrant a departure from the prescribed minimum sentence. Counsel for the appellant could advance no argument to suggest that this court should impose a sentence other than that which is prescribed by the applicable provision of the Act.

[12] In the result the appeal must succeed only to the extent that the imposed sentence is replaced with the sentence which applies in terms of s 51 (2) (b) of the Act.

[13] I therefore make the following order:

1. The appeal against sentence is upheld.

2. The sentence imposed by the magistrate is replaced with the following:

“The accused is sentenced to undergo 10 years imprisonment and, in terms of Section 103 (1) of Act 60 of 2000, the accused is deemed unfit to possess a firearm.”

3. The above sentence is antedated to 2 December 2014.

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G. GOOSEN

JUDGE OF THE HIGH COURT

 

LOWE, J.

I agree.

___________________________

M. LOWE

JUDGE OF THE HIGH COURT

 

 

APPEARANCES:               

For the Appellant

M. T. Solani

Grahamstown Justice Centre

 

For the Respondent

S. S. Mtsila

Director of Public Prosecutions

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