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NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CA 26/2010

In the matter between:-

DANIELS ALLEN …..............................................................................Appellant

and

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

CRIMINAL APPEAL

GURA J; GUTTA J

DATE OF HEARING: 01 OCTOBER 2010

DATE OF JUDGMENT: 27 JANUARY 2011

COUNSEL FOR APPELLANT: ADV ZWIEGELAAR

COUNSEL FOR RESPONDENT: ADV RASAKANYA

JUDGMENT

GURA J

[1] The appellant was convicted in the Regional court for rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007. He was sentenced to twenty years imprisonment. The present appeal is directed against the sentence only.

[2] The facts of the case are as follows: The complainant, a twelve year old girl, was with her younger brother when the appellant sent the latter to buy a beer at the shop. He remained with her (complainant). The appellant then undressed her of her clothing and inserted his finger in her private parts. He instructed her to lick his penis which she did. When complainant‘s younger brother came back from the shop, the appellant instructed the victim to put on her clothes.

[3] The appellant is 58 years old and married. He does not have minor children of his own but he is responsible for the maintenance of his grand children. He earns a living by rendering services to the local university whenever he has won a bid to a tender. He is diabetic and takes medication thrice per day. Although he has previous convictions, they are more than ten years old and the court disregard them for the purpose of sentence. The trial court found that the cumulative effects of his personal circumstances constituted substantial and compelling reasons which justified a sentence other than life imprisonment.

[4] Ms Zwiegelaar argued that the sentence of twenty years was disproportionate to the seriousness of this crime. Ms Rasakanya conceded that the sentence was shockingly inappropriate and she suggested a sentence of ten years imprisonment half of which was to be suspended.

[5] In my view, although the offence of rape is a serious violation and is also prevalent, this is not one of those worst rape cases which one can think of. See S v Mahomotsa 2002 (2) SACR 435 (SCA). All the appellant did was to insert his finger in the victim’s private parts. Apart from that, she licked his private parts. There is clearly a marked disparity between the sentence which was imposed by the trial court and the sentence which this court would have imposed, had it been the trial court, See S v Malgas 2001(1) SACR 469 at 478 d-h.

[6] Consequently, the appeal is upheld and the sentence of twenty years is set aside and substituted with seven years imprisonment.

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SAMKELO GURA

JUDGE OF THE HIGH COURT

I concur.

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N.GUTTA

JUDGE OF THE HIGH COURT

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