(i)
Nature of proceedings
:
APPEAL
Not reportable
In the High Court of South Africa
(Eastern Cape Division)
Delivered:
(Grahamstown High Court)
CA&R 45/08
In the matter between
IGNATIUS KUMAN
Appellant
and
THE STATE
Respondent
JUDGMENT
Summary
Appeal – sentence – prescribed sentence – whether substantial and compelling circumstances exist for the imposition
of a lesser sentence than the sentences prescribed by law – no misdirection relating to the magistrate’s finding of fact
that there were no such circumstances – the cumulative effect of a10 year and 15 year sentence was not on the facts of the
case a substantial and compelling circumstance resulting in an unjust sentence – appeal dismissed.
JONES J
[1]
The appellant was convicted by the regional magistrate of Port Elizabeth, sitting in Joubertina,
of three counts – rape, attempted murder and murder. The provisions of section 51 of Act No 105 of 1997 required the imposition
of a sentence of no less than 10 years’ imprisonment for the rape on count 1 and 15 years’ imprisonment for murder on
count 3 unless the presence of substantial and compelling circumstances justified the imposition of a lesser sentence. The magistrate
held that there were no substantial and compelling circumstances. He imposed the minimum statutory sentences on counts 1 and 3, and
a sentence of 5 years’ imprisonment on count 2 (attempted murder). In order to alleviate the harshness of the cumulative effect
of these three sentences he ordered that the sentence on count 2 should run concurrently with the sentence on count 3. The effective
sentence to be served by the appellant was 25 years’ imprisonment.
[2]
An application for leave to appeal against the convictions and sentences was dismissed, but the
appellant was given leave to appeal against the sentences by this court. That appeal is now before us.
[3]
The three offences were committed on the same date – Saturday, 20 August 2005. The rape, which
occurred first, was unconnected with counts 2 and 3. The appellant was alleged to have accosted the complainant and a companion,
and to have assaulted the complainant and forced her companion at knife-point to hand him the keys to her home. He then took both
women back to the companion’s home, took the complainant inside, and raped her. The defence conceded that the appellant assaulted
the complainant and took her to her friend’s home, but denied that he had had sexual intercourse with her. This defence was
properly rejected in the face of overwhelming evidence, including DNA evidence, in support of the complainant’s story.
[4]
The defence to the attempted murder and murder charges – self defence on count 2 and a suggestion
that complainant on count 2 killed the deceased on count 3, the complainant’s father, in the course of knife between the appellant
and the complainant – was also properly rejected. It was common cause that there had been a previous altercation between the
appellant and the complainant on count 2, one Kapank. The court found that in the course of the altercation the appellant assaulted
Kapank, and threatened him with a knife. They then went their separate ways. Immediately before the commission of the offences, the
appellant came upon Kapank while he was in conversation with the State witness. He went up to them and stabbed the complainant a
number of times in the back from behind. The deceased shouted at the appellant to stop the assault, and both he and Kapank then ran
away with the appellant in hot pursuit. Kapank collapsed and lost consciousness during the chase. The only reasonable inference from
all the known facts is that the appellant delivered the fatal injury to the deceased while he was running away. His version that
he did not inflict the fatal injury and cannot account for it, and that it must have been Kapank who did so while they were fighting,
does not leave room for any other possible inference.
[5]
The magistrate was unable to find that there were substantial and compelling circumstances arising
out of or connected with the commission of the rape or the murder to permit the imposition of a lesser sentence. I am not able to
fault his conclusion. There is no basis for finding that his evaluation of the oral evidence was wrong. He has not misdirected himself
on the facts, or misunderstood the authorities laying down how the legislation prescribing the compulsory sentences should be applied.
On the day in question the appellant committed three of the most serious offences than can be committed. The magistrate correctly
held that the proved facts do not reveal any extenuating circumstances attendant upon their commission. The appellant was not able
to offer any kind of reason or excuse for his conduct. The rape was an unprovoked act of degradation. The complainant on the attempted
murder did his best to run away. He sustained stab wounds to the back, and so did the deceased. They posed no threat to the appellant.
He showed no remorse for his conduct. Indeed, his conduct that day and his attitude in witness box displayed a measure of arrogance
and a disregard for the rights of others that can only be regarded as aggravating. Although the appellant had taken liquor on the
day in question, there is no reason to believe that it played a role in the commission of these offences, or that its use can properly
be regarded as a mitigating factor. It was raised almost in passing, as if of no or little consequence.
[6]
The personal circumstances advanced on the appellant’s behalf do not provide weighty justification
or convincing reasons for not applying the compulsory sentence legislation. The appellant is a young man, only 22 years old, but
not so young that youthful immaturity by itself can on the facts of this case be regarded as a sufficient reason. He comes from a
deprived rural background, with little education, no training to equip him to earn a living, and no steady employment. Though unmarried,
he has three children to whom he owes a duty of support, but there is no suggestion that he in fact contributed to their maintenance.
He has a previous conviction for malicious injury to property for which he was sentenced to a fine of R800 or 4 months’ imprisonment,
and also one for robbery, for which he served a sentence of 6 months’ imprisonment. The combined effect of these considerations,
some helpful to him and others not, would amount to no more than the flimsiest of grounds for departing from the sentences ordained
by the legislature. They cannot be regarded as reasons of substance.
[7]
Counsel for the appellant concentrated on two points in argument before us. First, he argued that
the rape was not an aggravated case of rape, and suggested, with reference to S v Mahomotsa 2002 SACR 435 (SCA), that the fact that this case belongs in the category of less serious rapes is a substantial and compelling basis for imposing
less than 10 years’ imprisonment. He pointed to the lack of serious physical injury and the absence of evidence of serious
psychological injury. I do not see how this argument assists the appellant. It is so that dicta in the Mahomotsa case enjoin the courts to impose the ultimate penalty – life imprisonment – only in the worst category of rape case.
This is not a case for the compulsory imposition of life imprisonment. It was also not a trivial case of little importance (rape
can never be thought to be trivial), or a case of technical rape. It was an ordinary rape case for which the legislature requires
the imposition of a standard sentence of 10 years’ imprisonment unless there is good reason for not imposing it. The absence
of serious aggravation may be good reason for not imposing a more severe sentence but I do not see how it can operate as a good reason
for departing from the standard sentence. The absence of aggravation is not mitigation; it is not per se a substantial and compelling circumstance and it does not per se make the prescribed sentence an unjust sentence.
[8]
The second point was that the cumulative effect of a sentence of 10 years’ imprisonment on
count 1 and 15 years’ imprisonment on count 3 – 25 years’ in all – is in the circumstances of this case an
unjust sentence. According to S v Malgas 2001 (1) SACR 469 (SCA) at 482e-f, if the imposition of a prescribed sentence produces an unjust result the imposition of a lesser sentence is justified. In my view,
however, the imposition of an effective sentence of 25 years’ imprisonment for three serious offences – rape, attempted
murder, and murder – does not amount to an unjust sentence which the legislature could not have intended. I do not regard this
sentence as disproportionate to the gravity of these crimes, or to the interests of the criminal, or to the needs of society. The
cumulative effect of the sentences is, accordingly, not a substantial and compelling circumstance permitting the imposition of a
lesser sentence. As it is, the magistrate applied his mind to the harshness of the combined effect of a sentence of 30 years, and
he decided, in his discretion, to alleviate it by ordering the sentence of 5 years’ imprisonment for attempted murder to be
served concurrently with the sentence on count 3.
[9]
In the result the appeal is dismissed.
RJW JONES
Judge of the High Court
8 August 2008
GROGAN AJ
I agree.
J GROGAN
Judge of the High Court (Acting)
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