IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 46/2014
Date Heard:  3 August 2015
Date Delivered:  7 September 2015

In the matter between

THEMBALANI NTOZINI							     	     Appellant

And

THE STATE										Respondent

Criminal appeal – against sentence of life imprisonment – appellant convicted of rape of child – trial court failing to consider proportionality of prescribed sentence - sentence considered afresh – imposition of life imprisonment would be disproportionate in circumstances of case - appeal allowed – sentence altered to imprisonment for twenty years.

JUDGMENT

GOOSEN, J.

[1]	The appellant was convicted of the rape of a 10-year-old child in the High Court, Grahamstown and was sentenced to life imprisonment. He appeals against the sentence with the leave of the trial court. The appeal was based on the submission that the trial court had erred in finding that no substantial and compelling circumstances exist which entitled the court to impose a sentence other than that prescribed. In the alternative, it was argued that the trial court had erred in not finding that the sentence of life imprisonment is disproportionate in the circumstances of this case.

[2]	On the evening of 11 January 2013 the appellant returned home after he had spent some time after work drinking at a tavern. He was living in a separate dwelling on the same premises where the complainant lived with her mother. According to the complainant’s mother the appellant asked her to charge his cell phone. He had been drinking, but did not appear to her to be “too drunk”. She was unable to assist him in charging the phone. He gave the complainant’s mother money to purchase electricity. When she went to the shop the appellant went outside and sat near the gate. When she returned a little while later both the appellant and her 10-year-old daughter were gone. She was told that the appellant had left with the complainant. She alerted various persons and a search ensued. A while later she was informed that the complainant had been found. She hurried to the place. It was then about 21h30. She found the complainant in a state of shock and she was crying. The appellant was also there. He had been handcuffed by Dawid Meisner, one of the persons who had been asked to assist in locating the child. The appellant was arrested by the police who had been called to the scene. 

[3]	Dawid’s testimony was that he and his mother and Mabel, a friend of complainant’s mother, went looking for the complainant. When they passed a bushy area near the road they heard the complainant crying. On investigation the complainant was found. The appellant was found hiding under a tree. The complainant had no trousers or panty on when she was found and she was crying. The appellant was found with his trousers below his knees. Dawid tried to apprehend the appellant who attempted to flee. Dawid then overpowered him and used his handcuffs, which he had by virtue of being a security officer, to restrain the appellant until he was arrested by the police.

[4]	Dawid’s testimony was corroborated by that of Evelyn Meisner, his mother. It was not in any event placed in dispute at trial.

[5]	The complainant also testified. She stated that the appellant had asked her to accompany him to the shop. He promised to buy her toys. Her younger brother Riaan was present. The appellant did not allow him to accompany them. When they were walking near a bushy area alongside the road the appellant grabbed her and forced her into the bushes. He undressed her and pulled his pants down to below his knees. He then lay down on top of her and raped her. Her evidence was that he did so twice. Later, when she heard Mabel calling her name she was able to shout out and raise an alarm. It was then that the appellant was caught while attempting to run away.

[6]	The medical evidence presented at trial, indicated that the complainant suffered injuries to her genitals. These, it was found, were consistent with sexual assault.

[7]	The appellant’s version was that on the evening in question he had been drinking heavily. He stated that he asked the complainant’s mother to load airtime on his phone. He later noticed that some of the airtime had been used and he had an argument with the complainant’s mother about this. She then left to go to the shop and he went to sit outside. According to him he “passed out” and had no recollection of how he came to be where he was apprehended later that evening. He was being assaulted by members of the complainant’s family. He was shocked by the allegation that he had sexually assaulted the complainant. During his testimony he sought to suggest that the allegation of sexual assault was fabricated. 

[8]	The trial court rejected his version that he was so intoxicated that he did not know what he had done as being false. The version of the complainant, as supported by the evidence of the other state witnesses and the medical evidence, was accepted.

[9]	In seeking to establish the existence of substantial and compelling circumstances the defence relied upon the fact that the appellant was 29 years old and that he had no previous convictions. It was submitted that the appellant was heavily intoxicated on the night in question. The evidence was that he had on previous occasions, when heavily intoxicated, also experienced a loss of memory as to what might have occurred. In support of this the defence presented the evidence of his wife, who confirmed that this had occurred on previous occasions. His actions were described as being out of character. Evidence was also led that the appellant, upon realising what he had done, had attempted to commit suicide whilst in custody. These factors, coupled with other personal circumstances, which included that he was gainfully employed and was supporting his family financially, pointed to some measure of diminished responsibility induced by his intake of alcohol on the night in question. All of these factors, it was submitted, when cumulatively considered constituted substantial and compelling circumstances which would warrant deviation from the prescribed minimum sentence. It was also argued that the appellant had displayed genuine remorse for his actions and that he established a basis for rehabilitation.

[10]	The trial court found that the appellant had not genuinely expressed remorse. The learned judge came to this conclusion on the basis that the version presented by him was inconsistent with an expression of remorse. Two factors weighed with the court, namely the apparent contradiction between not knowing what one has done, and taking responsibility for one’s actions. The second was the fact that the appellant had persisted with his innocence and had gone so far as to suggest that the allegations were as a result of an orchestrated effort to incriminate him by the complainant and mother. Based on this the court found that the expression of remorse was not a genuine one. The trial court relied on the dictum by Ponnan JA in S v Matyityi where the learned judge stated that:
Many accused persons might well regret their conduct, but that is not without more translated to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for him or herself as having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, into alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions. There is no indication that any of this, all of which was peculiarly within the respondent’s knowledge, was explored in this case.
[11]	In this matter the appellant could not offer an explanation for his conduct save to state that he was so intoxicated that he did not know what he was doing.  Although that version was rejected it does not mean that the trial court was obliged to ignore the evidence in so far as it concerned the assessment of an appropriate sentence.

[12]	It appears, on a reading of the evidence that it was common cause that the appellant had been consuming alcohol and that he was intoxicated although the extent of such intoxication was in dispute. It was the appellant’s case that he was so intoxicated that he effectively lost consciousness and had no recollection as to what had taken place until he was apprehended. Later that evening and was assaulted by members of the complainant’s family. It appears form his wife’s testimony that the appellant acted out of character. On previous occasions he had also suffered a loss of memory when intoxicated. There was no evidence to gainsay the allegation that the appellant was deeply shocked when he realised that he was been accused of sexually assaulting the complainant. It was not disputed that he had attempted to commit suicide in police custody. These facts point to an appreciation of the effect of the offence committed and suggest that the appellant is indeed remorseful. The trial court appears to have had scant regard to these factors in coming to the conclusion that it did. 

[13]	The passage in Matyityi indicates that a court must have regard to the surrounding conduct of an accused person and not only to what is said in court in determining whether an expression of remorse is genuine or not. It must of course also be remembered that an expression of remorse is not the only basis for determining whether there is a prospect of rehabilitation of the offender. The trial court referred to a passage from the judgment in S v Dyantyi  where Petse ADJP (as he then was) said:

But it is, however, my view that seeds of rehabilitation can, in a manner of speaking, germinate only if the convicted person him/herself has, first and foremost, expressed contrition for his/her criminal wrongdoing, thereby accepting the gravity of the criminal act of which he/she has been convicted, and commits to return to the path of rectitude. Without expression of contrition, any hope of rehabilitation becomes illusory and thus an unrealistic expectation, and not merely a speculative hypothesis, as the learned author Mujuzi sums up in his article on the prospect of rehabilitation in South Africa.

[14]	The comment by the learned judge occurs in the context of addressing an argument that the youth of an accused person itself suggests a prospect of rehabilitation. I do not understand the judgment to exclude consideration of the prospect of rehabilitation in the absence of what would amount to a confession at the stage of sentencing. Whether a convicted person may benefit from the rehabilitative process offered by imprisonment will depend on a range of factors and not exclusively whether the person concerned has expressed contrition. In like manner acceptance of responsibility for one’s conduct may be gleaned from the surrounding circumstances and conduct of an accused person and not exclusively from what the accused person says in court.

[15]	In this case the trial court found that the personal circumstances of the appellant do not amount to substantial and compelling circumstances and that given the seriousness of the offence, it is obliged to impose the prescribed sentence. It is appropriate to mention that the trial court expressed the view that had the appellant established that he is remorseful a different sentence would have been imposed.

[16]	The question that arises is whether the trial court considered the question of the proportionality of the sentence. In S v Vilakazi  the Supreme Court of Appeal held that: 
It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence. The Constitutional Court made it clear that what is meant by the ‘offence’ in that context (and that is the sense in which I will use the term throughout this judgment unless the context indicates otherwise)
	‘consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender.’

		(Emphasis added)

[17]	This passage from Vilakazi indicates that a sentencing court is required, notwithstanding the existence of a prescribed sentence, to give careful consideration to the proportionality of such sentence in the circumstances of the case. This requirement gives expression to the discretion exercised by a court in the imposition of sentence. A trial court faced with the imposition of sentence in circumstances where a prescribed sentence applies is required, in the first instance, to consider whether the facts establish substantial and compelling circumstances to warrant the imposition of a sentence other than the prescribed sentence. This requires consideration of the personal circumstances of the accused person, the nature of the crime and its impact upon the victim and the interests of society. The sentencing court is required to make a finding of fact in relation to the existence or otherwise of such substantial and compelling circumstances. In addition hereto, and as a further consideration, the trial court is required to consider the appropriateness of the sentence which is prescribed. This involves consideration of the proportionality of that sentence. As noted in Vilakazi, if the trial court comes to the conclusion that the imposition of a prescribed sentence in a particular matter would be disproportionate then a departure from the prescribed sentence is warranted.

[18]	It follows therefore that the trial court is required to keep in mind the question as to whether the sentence is proportionate or not. A failure to consider the proportionality of the sentence may give rise to a finding that the trial court failed to exercise its discretion reasonably in the circumstances.

[19]	In this instance, a reading of the judgment indicates that the trial court found that the personal circumstances of the appellant, when considered against the nature of the crime did not amount to substantial and compelling circumstances and, on that basis, the trial court concluded that it was obliged to impose the prescribed sentence of life imprisonment. The trial court came to this conclusion, without giving consideration to the question as to whether the sentence would, in the circumstances of the case, be proportionate. In this regard the trial court erred.

[20]	This court is accordingly at liberty to consider the question of the proportionality of life imprisonment afresh. It was argued on behalf of the appellant that the imposition of life imprisonment would not be proportionate in the circumstances of this case. The submission was founded upon the evidence, uncontested, that the appellant had been consuming intoxicating liquor during the course of the evening prior to the commission of the rape and that his conduct was entirely out of character. This was supported by his wife. She also testified that his consumption of alcohol occasionally resulted in him being unable to recall what he had done whilst intoxicated. It was not in dispute that he was deeply shocked when he realised what had taken place. Nor was it in dispute that he had, whilst in custody, attempted to commit suicide. All of these factors lend credence to the contention that alcohol had played a significant role in the commission of the offence and that the offence was committed by a person who acted out of character. That of course does not diminish the seriousness of the offence. The evidence of Ms. Andrews, a clinical psychologist who undertook an assessment of the complainant, establishes that the complainant has been left deeply traumatised by what occurred. She will no doubt suffer the consequences of such a terrible violation for many years to come.

[21]	The imposition of an appropriate sentence requires a careful balancing of interests. Due and proper regard must be given to the purpose of punishment which is not solely retributive. Imprisonment serves to secure the rehabilitation and reintegration an offenders into the community. In this instance there are clear indications that the appellant does take responsibility for his conduct and that he appreciates the consequences of his actions. This, in my view, suggests that life imprisonment, which is the most severe sentence that can be imposed, is not the only appropriate sentence. When appellant’s personal circumstances are taken into account and in particular the fact that he was a useful contributing member of society who was providing for his family and when regard is had to the circumstances in which the offence was committed, then, it seems to me, the imposition of the most severe form of punishment would be disproportionate and would bring about an injustice. The sentence must of course take proper account of the extremely serious nature of the offence and its horrific long-term consequences on the life of the victim. For this reason a significant period of imprisonment should be imposed.

[22]	In the circumstances it follows that the appellant’s appeal against sentence must succeed. I therefore make the following order:

1.	The appeal against sentence succeeds and the sentence of life imprisonment imposed by the trial court is set aside.

2.	The sentence imposed by the trial court is substituted by the following:
“The accused is sentenced to a period of 20 years’ imprisonment.”

3.	The sentence is antedated to 19 December 2013.

G. GOOSEN
JUDGE OF THE HIGH COURT

TSHIKI, J.

I agree.

P. TSHIKI
JUDGE OF THE HIGH COURT

COSSIE, AJ.

I agree.

C.T.S. COSSIE
ACTING JUDGE OF THE HIGH COURT

APPEARANCES:		For the Appellant
Adv. L. Crouse
Grahamstown Justice Centre

For the Respondent
Adv. S. S. Mtsila
Director of Public Prosecutions