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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

                                                                                 Case No.: A67/2021

In the matter between:

MOLOI ISAAC PHUTHANG                                                                                 Appellant

and

THE STATE                                                                                                           Respondent

Coram:                        Opperman, J et Daniso, J

Date of hearing:          18 October 2021

Delivered:                    The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 19 October 2021. The date and time for hand-down is deemed to be 19 October 2021 at 15h00

Summary:                   Appeal – rape – sentence – lack of injuries does not cause substantial and compelling circumstances

ORDER

On appeal against sentence by Regional Court Magistrate, Mr. B Mahlatsi, Welkom Regional Court, Free State on 1 October 2020. (Court a quo case no.: RC 295/2018)

Order: The appeal against the sentence is dismissed.

JUDGMENT

INTRODUCTION

[1]       Women and men may go to taverns and they may consume alcohol; this does not make them deservedly of rape or any violence. The mentality that a man has the right to sexual intercourse if he had bought a woman a beer must seize to exist. The mentality that an intoxicated woman is easy prey for rape must seize to be.

[2]       The act of rape is in itself a serious injury; it injures the body, the integrity, the privacy, the sense of security and the soul of the victim. An act of rape without “additional injuries” does not compound into compelling and substantial circumstances. Section 51(3)(aA)(ii) of the Criminal Law Amendment Act 105 of 1997 makes it patently clear that this fact cannot be used as compelling and substantial to cause a deviation from the prescribed minimum sentences. An alleged previous relationship the same.

(3)(a):   If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: Provided that if a regional court imposes such a lesser sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.

(aA)      When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence:

(i)             The complainant's previous sexual history;

(ii)            an apparent lack of physical injury to the complainant;

(iii)           an accused person's cultural or religious beliefs about rape; or

(iv)           any relationship between the accused person and the complainant prior to the offence being committed.

[3]       The appellant was convicted of rape read with the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997 and assault with the intent to do grievous bodily harm on the same victim. He noted an appeal against sentence only. He has an automatic right to appeal in terms of section 309(1) of the Criminal Procedure Act 51 of 1977 against the conviction and sentence. The appellant was sentenced to life imprisonment on the rape charge and three years’ imprisonment in terms of section 276(1)(b) of the Criminal Procedure Act 51 of 1977 on the assault with intent to do grievous bodily harm. The sentences were ordered to run concurrently.

[4]       The assault with the intent to do grievous bodily harm happened before the rape. The facts proven show that there is not a possibility of a finding of duplication of convictions. I have read the record and am satisfied that the proceedings are in accordance with justice and the convictions are in order.

THE FACTS PROVEN

[5]       The facts that caused the conviction and resultant sentence are:

1.        The appellant and the complainant were both at so-called “drinking places” on the night of the incident. The complainant walked alone to her residence from the tavern. As she wanted to enter her home, she realised the appellant was behind her. She was accosted by the appellant from behind. She managed to run into the house and he followed her.

2.        The appellant pushed the door open. Inside the house the appellant tried to stab her in her neck. She blocked the blow and sustained a cut on her hand.

3.        The complainant’s sister was in the house and there were also children and an elderly lady. The complainant’s sister tried to intervene.

4.        The appellant chased the complainant around in the house. He grabbed the complainant around her neck and dragged her out of the house. She tried to free herself. As the sister of the complainant put it: “There is nothing that she was doing, because her head was bending underneath the accused person’s armpit. Your Worship, at the time when she was trying to get loose from Phuthang she was uttering let go (sic) me, bearing in mind her head were bended Your Worship, so at that pointing (sic) time she (sic) a squeaking voice, bearing in mind her head is bended Your Worship.”[1]

5.        The appellant dragged the complainant out of the house; one arm around the neck of the complainant and the other hand holding the knife.

6.        One of the children in the house was awaken by the incident and the sister tried to keep him quiet. The child screamed that: “Mom the father is stabbing Moipone with the knife.”[2]

7.        At the place of the appellant, he attended to the wound on the hand of the complainant. He then proceeded to rape her twice.

8.        The court a quo remarked: “The court is of the opinion that what you did was at the most inhumane, you treated her like an object, secondly even by the intervention of her sister that did not scare you at all.”[3]

THE BASIS FOR THE APPEAL

[6]       The grounds for appeal relied upon by the appellant are:

1.              The court a quo over-emphasized the seriousness of the offence, interest of society and that of the complainant.

2.              The court a quo did not take into account the personal circumstances of the appellant.

3.              The court a quo erred in finding no compelling and substantial circumstances exist, which warrant a lesser sentence.

4.              The court a quo did not take into account that the appellant showed remorse, even though he did not plead guilty to the charges, because he tried to bandage the complainant’s hand.

5.              The complainant did not sustain serious physical injuries, that this is not the worst rape case ever encountered, therefor the appellant is deserving of a lesser sentence than the prescribed minimum sentence. The fact that the complainant did not suffer injuries is a relevant factor which the court must take into account in order to arrive at an appropriate sentence, as it is indicative of the lesser objective gravity of the offence.

OVEREMPHASIZING THE COMMUNITY’S INTEREST

[7]       The balancing of the factors by the court a quo was in accordance with the law and the inquiry into the existence of compelling and substantial factors proper. As Terblance^[4] noted:

It is regularly stated that balance is an important consideration in sentencing. Balance, in this context, has been said to mean that the trial court should consider all the relevant facts, factors and circumstances evenly, and strive for the attainment of all the purposes of punishment.

As long as balance is understood in these terms there is little objection to its use. This is not, however, balance in the ordinary sense of the word. The seriousness of the crime may totally outweigh the mitigating factors and the personal factors of the offender.  This cannot amount to balance, since the scales would be heavily weighed against the offender. It would therefore be more accurate to state, as in S v De Kock, that the three factors of the Zinn triad have to be considered in conjunction with one another and that each should be afforded a certain weight depending on the facts of the case.

THE TOOLS TO BE APPLIED WHEN BALANCING A SENTENCE & ADJUDICATION ON APPEAL

[8]       The vital substance of an effective sentence is that if the court can impose a sentence with the real potential to prevent future crime, such sentence will be in the interests of society.

1.              Retribution forms the current foundation of every sentence.

2.              The punishment should fit the crime. This is related to the retributive aspect of punishment.

3.              The punishment should fit the criminal as well.

4.              The sentence must serve the society. The demands of the time are important. Presiding officers should take cognizance of the times in which sentencing takes place. It takes place in reaction to a crime committed in the reality of the present, not of the past or the future. The prevailing crime situation in South Africa demands consistent and strict sentencing in an attempt to curb the onslaught against the people. The scourge of rape in South Africa is directive of the nature of the sentences. However, the demands of the times should not be equated to the demands of society, especially not the demands of uninformed members of society.[5] A civilized society reflects more; there are other factors such as the individualization of sentences and compassion or mercy towards the perpetrator.

5.              “[Mercy] has nothing in common with maudlin sympathy for the appellant. While recognizing that fair punishment may sometimes have to be robust, mercy is a balanced and humane quality of thought which tempers one’s approach when considering the basic factors of letting the punishment fit the criminal as well as the crime and being fair to society”.[6] An appropriate sentence is not reduced in order to make provision for mercy.

6.              Remorse dictates mercy. The perpetrator must have perception of his deeds. Remorse can only be genuine if the appellant declared it with sincerity. The appellant in casu showed no remorse at all. He denied culpability, he put all the witnesses through the trauma of a trial and never explained to the court that he is; or even if he is, why he is remorseful.

7.              The main purposes of punishment are deterrent, preventive, reformative and retributive.

8.              One should guard against allowing the heinousness of the crime to exclude all other relevant considerations. What is needed is a balanced and judicial assessment of all the factors. The most severe sentence is not necessarily the most appropriate.

9.              A sentence will only be regarded as shockingly harsh and inappropriate when it lies on appeal if it is in contradiction with the judgement of Rumpff JA in S v Anderson 1964 (3) SA 494 (A) at 495 wherein he captured the essence of the duty and power of a court on appeal concisely and precise:

Over the years our Courts of appeal have attempted to set out various principles by which they seek to be guided when they are asked to alter a sentence imposed by the trial court. These include the following: the sentence will not be altered unless it is held that no reasonable man ought to have imposed such a sentence, or that the sentence is out of all proportion to the gravity or magnitude of the offence, or that the sentence induces a sense of shock or outrage, or that the sentence is grossly excessive or inadequate, or that there was an improper exercise of his discretion by the trial Judge, or that the interests of justice require it. Some of the cases in which these principles are mentioned are referred to in the judgment of SELKE, J., in Rex v Zulu and Others, 1951 (1) SA 489 (N) at p. 490.

A Court that interferes with a sentence imposed by a lower court, itself exercises a discretion when it imposes a new sentence and there cannot, therefore, be a ready-made test in the strict sense of the word. Nor is it advisable to attempt to lay down a general rule as to when the Court's discretion to alter a sentence will be exercised, see Rex v Sandig, 1937 AD 296 and Rex v Ramanka, 1949 (1) SA 417 (AD). The decisions clearly indicate that a Court of appeal will not alter a determination arrived at by the exercise of a discretionary power merely because it would have exercised that discretion differently. There must be more than that. The Court of appeal, after careful consideration of all the relevant circumstances as to the nature of the offence committed and the person of the accused, will determine what it thinks the proper sentence ought to be, and if the difference between that sentence and the sentence actually imposed is so great that the inference can be made that the trial court acted unreasonably, and therefore improperly, the Court of appeal will alter the sentence. If there is not that degree of difference the sentence will not be interfered with.” (Accentuation added)

SUBSTANTIAL AND COMPELLING

[9]       Substantial and compelling circumstances are not the average day to day factors in an appellant’s life. There must be more. The appellant was 35 years old at the time of the offence, he has three minor children (10, 8 and 3 years old) and there is no evidence before this court that he is the primary caregiver. He is not married. He does part time jobs and earned about R400-00 per month. His highest educational level is grade 9. He is a first offender. I align myself with the statement by Justice Bosielo and as was concurred with by Brand JA, Heher JA, Malan JA and Pillay JA in S v PB 2013 (2) SACR 533 SCA at paragraphs [19] and [20]:

[20] What then is the correct approach by a court on appeal against a sentence imposed in terms of the Act? Can the appellate court interfere with such a sentence imposed by the trial court's exercising its discretion properly, simply because it is not the sentence which it would have imposed or that it finds shocking? The approach to an appeal on sentence imposed in terms of the Act should, in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime. This, in my view, is so because the minimum sentences to be imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling, or not. (Emphasis added)

[10]     “For circumstances to qualify as substantial and compelling, they need not be ‘exceptional’ in the sense that they are seldom encountered or rare, nor are they limited to those which diminish the moral guilt of the offender.”[7]

[11]     The minimum sentence promulgated by the Legislator to serve the interest of the community and the victim tips the scale against the appellant. Rape is a serious offence, the appellant stabbed the complainant to force her into submission, the attack of the stabbing and abduction took place in front of a child, the complainant was abducted from the safety of her own home and notwithstanding the endeavours of her sister to admonish and prevent the appellant from hurting her sister, he raped her twice and showed no remorse whatsoever.

[12]        ORDER

              The appeal against the sentence is denied.

M. OPPERMAN, J

I concur

      N.S. DANISO, J

APPEARANCES

Counsel for the Appellant                                         ADVOCATE PHINEAS MOKOENA

                                                                                                                             & S KRUGER

                                                                                                  LEGAL AID, SOUTH AFRICA

                                                                                                           4^th Floor, Fedsure Building

                                                                                                          49 Charlotte Maxeke Street

                                                                                                                     BLOEMFONTEIN

Counsel for Respondent                                                               ADVOCATE M LENCOE

                                                                                                                 OFFICE OF THE DIRECTOR:

                                                                                                                  PUBLIC PROSECUTIONS,

                                                                                                                              FREE STATE

                                                                                                                                     Ground Floor

                                                                                                                                Waterfall Centre

                                                                                                                     BLOEMFONTEIN

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