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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No.: A172/2010

In the appeal between:

PHILLIP KULA …......................................................................Appellant

and

THE STATE …......................................................................Respondent

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CORAM: H.M. MUSI, JP et JORDAAN, J et

RADEBE, AJ

JUDGEMENT: H.M. MUSI, JP

HEARD ON: 22 NOVEMBER 2010

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DELIVERED ON: 2 DECEMBER 2010

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[1] This is an appeal against sentence. The appellant was convicted by the regional court in Bloemfontein on a charge of rape of a minor child of 10 years. The matter was then referred to this court in terms of section 52 of the Criminal Law Amendment Act, 105 of 1997 as amended (“the Act”) for sentence. This is because in terms of section 51(1), read with part I of schedule II of the Act, the conviction was subject to a minimum sentence of life imprisonment and the regional court did not at that stage have jurisdiction to impose such sentence. The matter came before Molemela AJ (as she then was) who found that there were substantial and compelling circumstances that justified the imposition of a sentence less than life imprisonment (subsection 3 of the Act). She then imposed a sentence of 20 years imprisonment on the appellant. The learned judge dismissed the appellant’s application for leave to appeal against both conviction and sentence and a petition was subsequently lodged with the president of the Supreme Court of Appeal. On the 9^th of October 2009 the latter court granted the applicant leave to appeal to the full bench of this court against sentence only. This is how the appeal comes before us.

[2] It is trite that sentence is a matter that is eminently within the discretion of the trial court and the court of appeal will interfere therewith only if the sentence imposed is vitiated by misdirection or irregularity or it is otherwise startlingly impropriate. Mr Reyneke, who argued the appeal on behalf of the appellant, submitted that the learned trial judge misdirected herself by taking into account as aggravating factors the very jurisdictional facts that triggered the application of the minimum sentence provisions, namely, that the victim was a minor child under the age of 16 and that she was raped more than once.

[3] Mr Reyneke referred to an unreported judgement of this court in the matter of A T WATSON v THE STATE, appeal case number A261/2009 delivered on 19 April 2010. In this case my brother Jordaan made the following interesting remarks:

“Wat betref die klaagster se jeugdigheid en die feit dat sy ten minste twee keer verkrag is, meen ek dat die verhoorhof het hom wanvoorgelig deur dit as verswarende faktore te beklemtoon. Dié twee faktore vorm juis die basis van die voorgeskrywe minimum vonnis en boort nie addisioneel daartoe weer in oorweging geneem te word nie.

Dieselfde geld vir die klem op die klaagster se grondwetlike regte en die inbreuk daarop. Dit is bykans ondenkbaar dat daar ‘n misdaad bestaan wat nie op een of ander grondwetlike reg van ‘n slagoffer inbreuk maak nie. Dit is die wese van misdaad om inbreuk te maak op mense se regte en dit kom my voor onlogies te wees om die feit dat die pleging van die misdaad sekere grondwetlike regte geskend het, weer bykomend tot die skuldigbevinding as verswarend te beskou.”

I agree fully with these remarks.

[4] However, the remarks should not be taken out of context. In the WATSON-case supra the prescribed minimum sentence of life imprisonment had been imposed. In considering the question of the existence or not of substantial and compelling circumstances, the trial court had included as part of the aggravating factors the very fact that the rape victim was a child under the age of 16 years, that she had been raped more than once and further that her constitutional rights to dignity and the like had been violated. This was clearly a misdirection on the part of the trial court. That the victim was a child under the age of 16 and that she had been raped more than once formed the very basis for the imposition of life imprisonment and was part of the description of the delineated crime. And to take into account as an aggravating factor the fact that the rape victim’s constitutional rights to dignity etc. have been violated is to miss the point that commission of the crime already entails a violation of those rights.

[5] The instant case stands on a different footing. Here the trial court found that there were substantial and compelling circumstances that justified a departure from the prescribed minimum sentence of life imprisonment. Once such a finding was made, the trial court was freed from the shackles of the minimum sentence provisions and was at liberty to impose any appropriate sentence (subject to this that it had to remain mindful of the fact that the legislature has marked out the particular offence for severe punishment). But the trial court no longer operated within the parameters of the minimum sentences provisions and in considering an appropriate sentence it could take into account in aggravation of sentence the fact that the victim was a minor child and that she had been raped more than once. That is precisely what happened in casu and it does not constitute a misdirection. Mr Reyneke correctly conceded this in argument.

[6] Mr Reyneke was thus constrained to rely solely on the ground that the sentence of 20 years imprisonment was, in the circumstances of this case, shockingly inappropriate. He submitted that the trial court overemphasised the aggravating factors and did not give sufficient weight to the mitigating factors in the case. He highlighted the following mitigating factors:

6.1 that the appellant was a 36 year old married man with dependent children, who had been employed and provided for his family.

6.2 that save for a minor conviction of assault, the appellant had no previous convictions.

6.3 that the appellant had spent nine months in custody whilst awaiting trial.

6.4 that the complainant did not suffer any serious injuries as a result of the rape and that she had fully recovered from the ordeal (this is supported by the report of the social worker).

Mr. Reyneke referred us in particular to WATSON supra wherein in similar circumstances a sentence of 15 years was imposed. He submitted that 20 years imprisonment was excessive and urged us to reduce it.

[7] Mr Chalale, for the state, urged us to take the following factors into account which he submitted distinguished the instant case from WATSON:

7.1 the complainant was a much younger child than the 13 years old complainant in WATSON.

7.2 the appellant also penetrated the complainant’s anus and hit her with a stone after the rape in an attempt to intimidate her so that she does not report the incident.

7.3 the appellant’s previous conviction for assault shows that he has a propensity for violence.

Counsel submitted that, in the circumstances, the sentence of 20 years imprisonment is not shockingly inappropriate.

[8] I have perused a number of reported SCA judgments on sentence imposed where the rape victim was a girl under the age of 16 years and the picture that emerges is that the sentences run from about 10 years to 20 years imprisonment. The disparity in the sentences is not surprising because each case is decided on its peculiar facts. The matter was succinctly put as follows by Mpati, JA (as he then was) in S v MAHOMOTSA 2002 (2) SACR 435 (SCA) at 444 a – c:

“Even in cases falling within the categories delineated in the Act there are bound to be differences in the degree of their seriousness. There should be no misunderstanding about this: they will all be serious but some will be more serious than others and, subject to the caveat that follows, it is only right that the differences in seriousness should receive recognition when it comes to the meting out of punishment.”

[9] The case that seems to be on all fours with the instant matter is that of STATE v SIKHIPHA 2006 (2) SACR 435 (SCA). There the complainant was a 13 year old girl who was raped by her neighbour, an adult man of 31 years. The appellant had asked the complainant to bring him water and when she did so the appellant grabbed her and dragged her, whilst screaming, to a spot next to his house and raped her. The appellant was, just like the appellant herein, a married man who earned a living as a bricklayer and supported his wife and dependent children. He was a first offender. The complainant had been raped once, had not sustained any serious injuries and appeared to have fully recovered from the ordeal. The appellant was sentenced to 20 years imprisonment.

[10] In my view, the instant rape is worse than that in SIKHIPHA supra. The appellant herein was a 10 year old child who was raped the whole night, certainly more than once. The appellant had meticulously planned the rape because he had during the day chased his wife away in order to create space for himself to abuse a child who was visiting his homestead and had been playing with his own children. The appellant has a previous conviction involving violence and the record shows that there was in existence at the time a protection order issued against him in terms of the Domestic Violence Act. He clearly has a propensity for violence and seems to have been in the habit harassing his family.

This matter is distinguishable from the WATSON-judgment in two respects. Firstly, the complainant there was older. Secondly, and most importantly, the appellant there had been in custody whilst awaiting trial for 2 years, a much longer period than the nine months that the appellant herein spent in custody whilst awaiting trial.

[11] In my view, the sentence imposed may be stiff but it is not startlingly inappropriate. In the premises, there is no basis for interfering therewith.

[12] The appeal is dismissed.

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H. M. MUSI, JP

I concur.

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A. F. JORDAAN, J

I concur.

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N. H. RADEBE, AJ

On behalf of appellant: Mr. J. D. Reyneke

Instructed by:

Bloemfontein Justice Centre

Legal Aid SA

BLOEMFONTEIN

On behalf of respondent: Adv. S. Chalale

Instructed by:

Director of Public Prosecutions

BLOEMFONTEIN

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