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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 24/2019

Date heard: 10 February 2020

Date delivered: 11 February 2020

In the matter between:

LUXOLO MANDITA MPONGOSHE                                                                 Appellant

and

THE STATE                                                                                                   Respondent

JUDGMENT

LOWE, J

INTRODUCTION

[1]          In this matter Appellant was charged with, and convicted of the rape of an 8 year old female child on 15 September 2015, per vaginum.

[2]          Appellant was sentenced to life imprisonment.

[3]          The appeal is against sentence only with the leave of the trial Judge.

[4]          Appellant pleaded guilty and gave no plea explanation.

[5]          For the purpose of the appeal, it is necessary to address two main issues being firstly whether or not, having regard to the minimum sentencing legislation, there were substantial and compelling circumstances which entitled the learned trial Judge to impose a discretionary sentence of less than life imprisonment (being the prescribed minimum in the Legislation) and secondly, and in any event, whether the sentence imposed by the learned trial Judge was appropriate and in accordance with justice and equity, put otherwise was a just sentence.

[6]          Perhaps it is worth setting out that the crux of the argument is whether in fact Appellant was “highly intoxicated” [1] at the time, and to what extent.  If so, this impacts, on both substantial and compelling circumstances (taken together with the remaining relevant factors) and an appropriate and just sentence. 

THE RELEVANT FACTS

[7]          The young complainant was raped inside a toilet at a place called the Mission.  The gynaecological examination disclosed bruises on the labia minora, transverse and vertical openings of the hymen of 0,5mm both ways – in fact the Doctor said there was in fact the total absence of a hymen – an abnormality.

[8]          Appellant undressed complainant against her will forcing himself on her.  It was painful for her.   Before doing so he had chased her friends away by throwing stones at them, the rape being thus clearly premeditated.  Appellant said to complainant after the rape that if she told anyone he would kill her. 

[9]          As correctly pointed out in the judgment on conviction, Appellant claimed no knowledge of the alleged incident.  His evidence was that he had drunk several litres of wine and eventually passed out on the day in question. 

[10]       This started at a ceremony in the morning being mildly drunk (“average”).  He went to a shebeen where he eventually passed out on having consumed a further 1½ litres of Paarl Perle wine.  He came to and ordered another 2 litres of wine. 

[11]       In the end his version was that this drinking was unusual for him as he did not drink unless in the rural area and never before to this extent.  He said finally that he had no knowledge of the rape due to his “condition”, could not deny that he might be the person involved, but this was because he was drunk, as he did not know what (if anything) had happened.

[12]       Complainant in cross-examination said that Appellant never drinks and did not do so at the ceremony, and that she did not see him drinking, but denied that he passed out.

[13]       A further State witness, complainant’s friend A[…], 11 years of age, who had been with her and was chased away by Appellant when close to the Mission, said that Appellant was indeed drunk that afternoon, though she did not see him drinking, and said his eyes were bloodshot and that he was staggering. 

[14]       This evidence was given in her evidence in chief, as to the fact that Appellant was “drunk” and had “passed out”, though it was clear that she did not know what the latter meant.   She said he was “sleeping” on that day after he had been with them.   In cross-examination she said that he drank liquor and was drunk. 

[15]       In the light of the above the Judge a quo correctly accepted that the State witness A[…] confirmed Appellant’s evidence as to the consumption of alcohol and, it must be said accordingly, was “drunk” (and staggering). 

[16]       The end result of this, as to his use of alcohol, is plain to see.  Appellant must be found to have consumed liquor, being “drunk” and staggering, this however was clearly exaggerated by Appellant, and correctly assessed by the Judge a quo as a cunning attempt to avoid liability entirely. 

[17]       His state of intoxication is nevertheless clearly a factor to be assessed in sentencing as relevant to moral blameworthiness. 

INTOXICATION IN SENTENCING

[18]       The effects of the intake of alcohol on an Appellant (Accused) have always been considered when imposing sentence.  This requires a consideration of, and the evaluation in every case of the particular facts relating to alcohol and not only when the Appellant reaches a certain degree of intoxication.

[19]       Wessels J (as he then was) stated in Fowlie v Rex[2]: 

“It would be absurd to say that if a man in his cold, sober senses did the act he should be punished with no greater severity than the man who did it whilst under the influence of liquor.   That there should be a difference in the degree of punishment has been recognised in almost every system of jurisprudence.  In the Digest, (48, 19, 11), we find the distinctions drawn between the punishment of a sober man and of a man who had been drinking; and Matthaeus says:  Ebrius aliquo mitius puniri debet quia non proposito sed impetu delinquit.  Although a man may not be so drunk as to be excused the commission of a crime requiring special intent, yet he may have been so affected with liquor that his punishment should be softened.”

[20]       In S v Babada[3] the Court held:

“’n Verhoorhof wat homself regtens gedwonge ag om sekere feite van oorweging uit te sluit, wat regtens nie uitgesluit behoort te word nie, began ’n mistasting.  So-ook, wat invloed van drank betref, wanneer ’n Verhoorhof by die uitoefening van sy funksie sy bevoegdheid beperk deur ’n assumpsie dat regtens ’n bepaalde graad van beskonkenheid vereis word alvorens die beskonkenheid as versagtende omstandigheid kan dien, begaan so ’n hof ’n mistasting omdat regtens geen bepaalde graad vasgestel is nie.”

[21]       In S v Ndhlovu (2)[4] the (then) Appeal Court stated:

“Intoxication is one of humanity’s age-old frailties, which may, depending on the circumstances, reduce the moral blameworthiness of a crime, and may even evoke a touch of compassion through the perceptive understanding that man, seeking solace or pleasure in liquor, may easily over-indulge and thereby do the things which sober he would not do.”

[22]       In S v Sigwahla[5] the Court stated:

“Furthermore, in regard to the latter, the Court took into account against him his evidence that he was unaffected by the liquor.  This seems to me an imperative approach, for it overlooks the human tendency to deny the consumption of liquor or to deny or be unaware of the effects of its consumption.  It seems to me probable that the liquor in question did play some part in the appellant’s lawless conduct that evening.   In considering the relevance of intoxicating liquor to extenuating circumstances the approach of a trial Court should be one of perceptive understanding of the accused’s human frailties, balancing them against the evil of his deed.”

[23]       It is not in dispute that Appellant was rightly convicted as having had the necessary culpability at the time of the offence.  However culpability must be evaluated on a continuum rather than just as two concepts of being culpable or not culpable.  It must be accepted on the facts in this matter that Appellant’s mental faculties were impaired to some extent. His blameworthiness must then be considered to determine whether this was diminished at the time[6].  This is so, even if an accused had not presented any evidence as such, as the Court must look at all the evidence holistically to determine mitigating circumstances[7].

[24]     In Guide to Sentencing in South Africa [8] Terblanche sets out that:

“7.3.9   Liquor and drugs

The intake of alcohol or drugs is not necessarily a mitigating factor; the circumstances of the case will determine whether it is.[9]  Generally, however, once the court is satisfied that the offender was intoxicated, his intoxication will be a mitigating factor.[10]  The reason for this is that “[liquor] can arouse sense and inhibit sensibilities”,[11] which may diminish the responsibility of the offender.[12]   However, it has to be shown that the intoxication actually impaired the mental faculties of the offender; only then can his blameworthiness be regarded as diminished.[13]

[25]       It seems to me that on the acceptable evidence, as set out above, it has to be accepted that Appellant was moderately intoxicated to the extent that he staggered at the relevant time, with a concomitant effect on his mental faculties and thus somewhat diminishing his moral blameworthiness even in respect of this shockingly heinous crime upon a child. 

THE COURT A QUO ON INTOXICATION AT SENTENCING

[26]        As to intoxication as a relevant sentencing factor the learned Judge effectively dismissed this completely on the basis that this was an opportunistic contrived defence of criminal incapacity.  Crucially having correctly noted the above, the learned Judge continued as follows:

“Whilst it is so that there was evidence that you consumed alcohol and that it affected your faculties to a limited extent, in my view it did not make any appreciable difference to your moral reprehensibility.”

[27]       In my view it is in this conclusion that the learned Judge underemphasized the role which alcohol played in this event.  It must be accepted on the overall evidence that Appellant was moderately drunk to the extent that he was staggering at the time having consumed quite a considerable quantity of Paarl Perle alcoholic drink.  The question is the extent to which this reduced his moral blameworthiness. 

SENTENCE ON APPEAL

[28]       Sentencing is within the discretion of the trial court, the court of appeal interfering only if there is a clear misdirection on the part of the trial court or the sentence is shockingly severe.

[29]       In S v Kgosimore[14] Scott JA said the following with respect to an appeal court’s powers to interfere with sentence:

“It is trite law that sentence is a matter for the discretion of the court burdened with the task of imposing the sentence.  Various tests have been formulated as to when a Court of appeal may interfere.  These include whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed.  All these formulations, however, are aimed at determining the same thing:  viz whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence.  In the ultimate analysis this is the true inquiry.  ………………….  Either the discretion was properly and reasonably exercised or it was not.  If it was, a Court of appeal has no power to interfere; if it was not, it is free to do so.”

[30]       The Court of Appeal is in any event able to interfere with the trial Court on sentence in respect of a finding, as to substantial and compelling circumstances even in the absence of material misdirection or a failure of the exercise of discretion[15].

MINIMUM SENTENCE LEGISLATION

[31]       The charge is subject to the minimum sentencing provisions of the Criminal Law (Sentencing) Amendment Act 38 of 2007, relating to a minimum sentence of life imprisonment.   

[32]       In considering the minimum sentences prescribed for the purposes of sentencing it is,  of course, necessary to have regard to all the factors relevant to both aggravation and mitigation of sentence and particularly in matters such as this where the State seeks the minimum sentence provided in Act 105 of 1997, and to put all the relevant factors into the melting pot, to determine whether life imprisonment would be a sentence which accords with and is a just sentence, having regard to the crime, the accused and public interests and taking into account all aggravating and the relevant mitigating factors and circumstances.

[33]       A Court may only impose a lesser sentence if satisfied that there are substantial and compelling circumstances which justify same (section 51(3)(a)).

[34]       In S v Malgas[16] the correct approach to establishing whether or not substantial and compelling circumstances exist was set out inter alia as follows:

“[7]        … The very fact that this amending legislation has been enacted indicates that parliament was not content with that and that it was no longer to be “business as usual” when sentencing for the commission of the specified crimes.

[8]         In what respects was it no longer to be business as usual?  First, a court was not to be given a clean slate on which to inscribe whatever sentence it thought fit.  Instead, it was required to approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances.  In short, the legislature aimed at ensuring a severe, standardised, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response.  When considering sentence the emphasis was to be shifted to the objective gravity of the type of crime and the public’s need for effective sanctions against it.  But that did not mean that all other considerations were to be ignored.  The residual discretion to decline to pass the sentence which the commission of such an office would ordinarily attract plainly was given to the courts in recognition of the easily foreseeable injustices which could result from obliging them to pass the specified sentences come what may.

[9]         Secondly, a court was required to spell out and enter on the record the circumstances which is considered justified a refusal to impose the specified sentence.  As was observed in Flannery v Halifax Estate Agencies Ltd by the Court of Appeal, “a requirement to give reasons concentrates the mind, if it is fulfilled the resulting decision is much more likely to be soundly based – than if it is not”.  Moreover, those circumstances had to be substantial and compelling.  Whatever nuances of meaning may lurk in those words, their central thrust seems obvious.  The specified sentences were not to be departed form lightly and for flimsy reasons which could not withstand scrutiny.  Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first time offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances.  Nor were marginal differences in the person circumstances or degrees of participation of co-offenders which, but for the provisions, might have justified differentiating between them.  But for the rest I can see no warrant for deducing that the legislature intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders.” [17]

[35]       This approach was endorsed by the Constitutional Court in S v Dodo[18].  More recently, in S v Vilakazi [19] the Court explained that particular factors, whether aggravating or mitigating, should not be taken individually and in isolation as substantial compelling circumstances, but viewed cumulatively.

[36]       In the result, the minimum sentence falls to be imposed unless a court finds on all the relevant facts that there are indeed substantial and compelling circumstances, within the meaning of the section 51(3)(a), justifying the imposition of a lesser sentence, or where the resultant sentence is clearly not a just sentence.

REMORSE

[37]       Dealing with remorse as a mitigating factor, Ponnan, JA made the following statement in S v Matyityi[20]:

“There is, moreover, a chasm between regret and remorse.  Many accused persons might well regret their conduct, but that does not without more translate into genuine remorse.  Remorse is a gnawing pain of conscience for the plight of another.  Thus genuine contrition can only come from an appreciation and acknowledgment of the extent of one’s error.  Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at 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 persons is genuinely remorseful, it need to have a proper appreciation of, inter 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.”

[38]       In this matter the importance of remorse, or the absence thereof, is to establish the Appellant’s propensity for rehabilitation to which an acceptance that he acted in error and had a conscience is most important.  Absent such acceptance, the prospects of the crime being successfully addressed and rehabilitation established are lessened.  This is relevant to an assessment of mitigation (not aggravation) of sentence.   In this matter Appellant expressed no remorse whatsoever and gave no explanation failing to take the Court into his confidence. 

[39]       That Appellant is effectively a first offender in this matter, pales into insignificance and is of little moment in consideration of the penalty he must sustain.

APPELLANT’S PERSONAL CIRCUMSTANCES

[40]       Appellant’s personal circumstances are as follows: 

[40.1]   He was 34 years of age at the time of the offences (now 36).

[40.2]   He has one child, 15 years of age living with her mother.

[40.3]   His standard of education is Grade 11.

[40.4]   He was raised by his grandmother and has no relationship with his father.

[40.5]   He was doing odd jobs earning R1,500.00 per month and to that extent at least, is a useful member of society.

[40.6]   He has a previous conviction for theft more than 10 years ago.

[40.7]   He had been awaiting trial for 1 year and 8 months.

THE RESULT

[41]       The learned trial Judge correctly analysed and applied the remaining factors relevant to aggravation and mitigation (excluding the intoxication issue), as well as the Appellant’s personal circumstances. 

[42]       This was a violent and abhorrent crime upon a fragile 8 year old child, which has had, and will still have devastating lifelong psychological consequences.  The child was related to Appellant and he grossly abused his position of trust.   He did so with cunning and premeditation.  He threatened her life were she to disclose the rape.  He showed no remorse whatsoever. She was injured gynaecologically in the rape. 

[43]       However to the above must now be added the issue of intoxication.  All the factors including the traditional and otherwise, must be assessed both to establish whether there are, or are not, substantial and compelling circumstances, as also whether life imprisonment is in any event a fair and just sentence. 

[44]       As pointed out above Appellant’s state of moderate intoxication does not detract from the moral reprehensibility of the offence but is such as requiring to be taken into account (at the sentencing stage) as relevant to moral blameworthiness and thus also relevant to both substantial and compelling circumstances, and sentence. 

[45]       In my view, taken cumulatively, these factors when including intoxication, viewed correctly, establish the presence of substantial and compelling circumstances, entitling this Court to intervene for the reasons set out above.  This is also such as to establish life imprisonment to be other than a just sentence. 

THE SENTENCE

[46]       Once substantial circumstances are found to exist all the relevant factors referred to above must be considered cumulatively to establish an appropriate and just sentence. 

[47]       In my view, the learned Judge a quo correctly emphasized the abhorrent crime and its dreadful consequences for an innocent child, quite correctly taking into account Appellant’s personal mitigating factors.

[48]       There are, however, no substantial mitigating factors of consequence other than the reduction of moral blameworthiness (somewhat) due to Appellant’s state of intoxication.  I do not overlook the fact that Appellant was awaiting trial for 1 year and 8 months.  This was however largely due to his dishonest defence and putting the State to the proof of guilt.  The proper approach in assessing a period of imprisonment awaiting trial is set out in Radebe & Another v S [21]:

“[13] In my view there should be no rule of thumb in respect of the calculation of the weight to be given to the period spent by an accused awaiting trial. (See also S v Seboko  2009 (2) SACR 573 (NCK) para 22). A mechanical formula to determine the extent to which the proposed sentence should be reduced, by reason of the period of detention prior to conviction, is unhelpful. The circumstances of an individual accused must be assessed in each case in determining the extent to which the sentence proposed should be reduced. (It should be noted that this court left open the question of how to approach the matter in S v Dlamini  2012 (2) SACR 1 (SCA) para 41.)

[14] A better approach, in my view, is that the period in detention pre-sentencing is but one of the factors that should be taken into account in determining whether the effective period of imprisonment to be imposed is justified: whether it is proportionate to the crime committed. Such an approach would take into account the conditions affecting the accused in detention and the reason for a prolonged period of detention. And accordingly, in determining, in respect of the charge of robbery with aggravating circumstances, whether substantial and compelling circumstances warrant a lesser sentence than that prescribed by the Criminal Law Amendment Act 105 of 1997 (15 years’ imprisonment for robbery), the test is not whether on its own that period of detention constitutes a substantial or compelling circumstance, but whether the effective sentence proposed is proportionate to the crime or crimes committed: whether the sentence in all the circumstances, including the period spent in detention prior to conviction and sentencing, is a just one.

[15] That general principle was expressed, first, in relation to the way to assess whether substantial and compelling circumstances exist where a minimum sentence has been prescribed by the Criminal Law Amendment Act, in S v Malgas 2001 (2) SA 1222; 2001 (1) SACR 469 (SCA) where Marais JA said (para 25):

‘If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.’

That approach was endorsed by the Constitutional Court in S v Dodo  [2001] ZACC 16;  2001 (3) SA 382;  2001 (1) SACR 594 (CC). More recently, in S v Vilakazi  2012 (6) SA 353;  2009 (1) SACR 552 (SCA) this court explained that particular factors, whether aggravating or mitigating, should not be taken individually and in isolation as substantial or compelling circumstances. Nugent JA said (para 15):

‘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.’”

[49]       In my view, the crime is extremely serious and abhorrent, as set out above, with devastating effect and consequence for an innocent complainant and which warrants a heavy sentence of imprisonment of 20 years, taking all relevant mitigating and aggravating factors into account, including the time spent awaiting trial.   

ORDE

[50]     The following order issues:

1.        Appellant’s appeal against sentence is upheld, the conviction of Appellant being confirmed, and the sentence set aside to the extent set out below;

2.        Appellant’s sentence of life imprisonment is replaced with a sentence of 20 years’ imprisonment;

3.        The sentence is backdated to 22 August 2017.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

DAWOOD, J:

I agree.

__________________________

F.B.A. DAWOOD

JUDGE OF THE HIGH COURT

MNQANDI, AJ:

I agree.

_________________________

 P.N. MNQANDI

JUDGE OF THE HIGH COURT (ACTING)

Obo Appellant:        Adv N Dyantyi

Instructed by:          Legal Aid South Africa, King William’s Town Justice Centre

Obo Respondent:    Adv N Tokota

Instructed by:          Director of Public Prosecutions, Bhisho

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