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Xhashimba v S (CA&R 256/17) [2019] ZAECGHC 51 (26 March 2019)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION GRAHAMSTOWN)

Case No: CA&R 256/17

Date heard: 06 March 2019

Date delivered: 26 March 2019

In the matter between:

YAMKELA XHASHIMBA                                                                              Appellant

and

THE STATE                                                                                                  Respondent

JUDGMENT

RUGUNANAN, AJ

[1]        This appeal emanates from section 84 of the Child Justice Act[1] (“the CJA”) read with the provisions of section 309B of the Criminal Procedure Act[2]. The appellant was convicted in the Regional Court, Queenstown on four counts of rape and one count of assault and sentenced to 8 years’ imprisonment on counts 1 and 2 each, 10 years’ imprisonment (taken as one) on counts 3 and 4, and 6 months’ imprisonment on count 5 (the assault). The appellant was a child offender aged 14-15 at the time of the commission of the offences.

  [2]        With all sentences being ordered to run concurrently, the result is an effective 10 years’ imprisonment against which this appeal is directed. The basis for the appellant’s challenge is that the sentence is unduly harsh in its cumulative effect.

  [3]        In summary, the allegations against the appellant on count 1 are that on various occasions during the period 2012 and January 2013 he unlawfully and intentionally committed acts of sexual penetration with the complainant AN a male child aged 8. The second count is identical except that the complainant is AvN, an 8 year old female child. The third and fourth counts are alleged to have been committed against an 11 year old female child, PS (“PS”) on 25 January 2013 and relate respectively to acts of sexual penetration involving vaginal and anal sexual intercourse without her consent. The fifth count related to an assault on AvN on 25 January 2013 when the appellant struck him with a fist and / or slapped him. All the offences are alleged to have been committed in Queenstown.

  [4]        The victims in the first and second counts are a brother and sister. Their parents were separated and the appellant lived with them and their mother in the same household. The appellant is related to the victims’ mother and is an uncle to them. He assumed oversight of them whenever their mother was not at home. In her absence the appellant would order them to do household chores that were reserved for him. He would also insist that they play wrestling games with him. The games usually ended up in him being abusive and raping AN vaginally and AvN anally. There were occasions when these acts were perpetrated in the presence of both victims. AN also recounted an occasion when the appellant forced him to suck the appellant’s nipples and thereafter perform oral sex on the appellant. A Victim Impact Report notes similar treatment of AvN except that she was vaginally raped. The incidents were also followed by threats of violence and death in the event either of the victims reporting the incidents to their mother. According to the report, the victims on the first and second counts were afraid to tell their mother about what was being done to them because she was very fond of the appellant. During January 2013 PS  and her mother came to live in the same household as the appellant and the others. On the afternoon of 24 January 2013 when PS had returned from school, the appellant found her sitting on a bed. After ordering her to undress he raped her vaginally and per anum. This was also followed by a threat of harm in the event she spoke up. In that same month AN also testified that he was assaulted in the face with a fist by the appellant after he dropped a drinking glass while doing the dishes with his sister. In the latter period of January 2013 when the victims’ father visited them at school he noticed a mark on AN’s face. His questioning about how it got there led to disclosure of the appellant’s behaviour.

  [5]        The Victim Impact Report reveals that the encounters experienced by the young victims impacted negatively on their cognitive and emotional development and distorted their individual self-image. They suffered mental anguish and trauma. AN had physiological complications associated with his bowels and testes. He displayed hostility to other children. AvN had flashbacks. Her schooling was affected. The report was handed in by agreement; its contents not being placed in issue. A similar report for PS could not be obtained because she and her mother relocated to another province before the appellant was sentenced.

  [6]        In considering an appeal against sentence imposed by a trial court, the court of appeal has to bear in mind that sentencing is a matter pre-eminently falling within the discretion of the trial court and that the latter enjoys a wide discretion (i) in deciding which factors should be allowed to influence it in determining a suitable punishment; and, (ii) in determining the value to be attached to each factor.[3]

  [7]        A sentence should only be interfered with on appeal where, (i) an irregularity occurred; (ii) the trial court materially misdirected itself on the question of sentence; or, (iii) the sentence could be described as so disturbing that it induces a sense of shock. In the latter respect, where there is a striking disparity between the sentence imposed by the trial court and the sentence that the appeal court considers appropriate, the disparity must be such that it can be inferred that the sentencing court did not exercise its discretion reasonably or at all.[4]

  [8]        In S v De Jager & Another [5] Holmes JA stated that:

It would not appear to be sufficiently recognised that a Court of appeal does not have a general discretion to ameliorate the sentences of trial Courts.  The matter is governed by principle. It is the trial court which has the discretion, and a Court of appeal cannot interfere unless the discretion was not judicially exercised, that is to say unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard an accepted test is whether the sentence induces a sense of shock, that is to say if there is a striking disparity between the sentence passed and that which the Court of appeal would have imposed. It should therefore be recognised that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

  [9]        The rape of each victim is undeniably despicable and aggravated by the fact that the victims were young children. In S v Jansen[6] the rape of a child was said to be “an appalling and perverse abuse of male power” and that society is entitled to demand that perpetrators be adequately punished. Underscoring the vulnerability of children, the court in S v D[7] went on to say:

Children are vulnerable to abuse, and the younger they are the more vulnerable they are. They are usually abused by those who think they can get away with it, and all too often do …

Appellant’s conduct in my view was sufficiently reprehensible to fall within the category of offences calling for a sentence both reflecting the court’s strong disapproval and hopefully acting as a strong deterrent to others minded to satisfy their carnal desires with helpless children.”

[10]        It is in the light of the aforegoing backdrop that this appeal must be considered.

[11]        It was contended on behalf of the appellant that the magistrate ought to have placed more emphasis on the appellant’s personal circumstances: (i) he was 19 years old at the time of being sentenced; (ii) he had no previous convictions; (iii) he was described as a respectful person and was still schooling in Grade 11 at the time of sentencing; (iv) the victims did not sustain major physical injuries; and (v) the incidents were not accompanied by gratuitous violence.

[12]        The appellant was placed in a position of trust. The offences were opportunistic and followed by threats of harm in the event of disclosure by the victims. The appellant refused to accept responsibility for his actions. This is also evident in a pre-sentencing report by a probation officer. The Victim Impact Report reflects a pitiful account of the trauma suffered by the victims. AN developed traits of aggression and hostile behaviour towards other children while AvN became depressed, experienced nightmares and repeated a grade at school. Although evidence indicates that there has been contact between the two victims and the appellant without incident, this evidence should not be allowed to create a misconception of the adverse psychological and emotional effects of the offences for the young victims.[8]

[13]        On sentencing the appellant the magistrate was mindful of the provisions of the CJA. The additional considerations to which the magistrate had regard included the appellant’s personal circumstances (also looked at in the context of the pre-sentencing report), the nature of the offences perpetrated on the victims and their consequential effects on their well-being, and the interests of the community. Although the magistrate had difficulty striking a balance between the appellant’s refusal to accept responsibility for his actions while at the same time demonstrating signs of rehabilitation, he was of the ultimate view that a sentence with a custodial element was not inappropriate. On this point the magistrate was cognisant that the Constitution does not prohibit the incarceration of a child but that the child may be detained as a last resort and only for the shortest appropriate period of time.[9] The judgment on sentence is indicative that in the view of the magistrate the imposition of concurrent sentences not only achieves the purpose envisaged by the Constitution but that it ameliorates the effects of a consecutive sentence on each count and is suggestive of having shown mercy[10] to the appellant.

[14]        In my view of the matter it cannot be argued with conviction that the magistrate misdirected himself upon imposing a cumulative sentence of imprisonment, or that the sentence on each count individually could be regarded as shockingly inappropriate that interference is warranted. It was submitted on behalf of the appellant, correctly so, that the appellant is unable to point out any misdirection apropos the individual sentences.

[15]        In the result the appeal against sentence is dismissed and the cumulative sentence of 10 years’ imprisonment imposed by the magistrate is confirmed.

__________________________

S RUGUNANAN

ACTING JUDGE OF THE HIGH COURT

I agree.

__________________________

G H BLOEM

JUDGE OF THE HIGH COURT

Appearances:

For Appellant:           Adv. D. P. Geldenhuys instructed by Legal Aid South Africa, Makhanda (Grahamstown)

For Respondent:      Adv. L. W. Sinclair of the Office of the National Director of Public Prosecutions, Makhanda (Grahamstown)

[1] Act No. 75 of 2008, as amended

[2] Act No. 51 of 1977, as amended

[3] S v Kibido 1998 (2) SACR 213 (SCA) at 216 g-h; S v Petkar 1998 (3) SA 571 (AD) at 574 C

[4] Nieuwenhuizen v S (20339/14) [2015] ZASCA 90 (29 May 2015) at paragraphs 5 & 6, and S v Grobler 2015 (2) SACR 210 (SCA) at paragraph 5

[5] 1965 (2) SA 616 (A) at 628H-629A

[6] 1999 (2) SACR 368 (CPD) at 378 g (quoted with approval in S v Kwanape 2014 (1) SACR 405 (SCA) at paragraph [17]

[7] 1995 (1) SACR 259 (A) at 260 f-i

[8] cf. S v Kwanape supra at paragraph [21]

[9] Section 28(1)(g) of the Constitution of the Republic of South Africa Act No. 108 of 1996, as amended

[10] S v Moswathupa 2012 (1) SACR 259 (SCA) at paragraph [8]