---

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

PARTIES:

THE STATE

and

THOBANI NKAWU

Registrar: CASE NO: CC06/09

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 2/4/09

DATE DELIVERED: 3/4/09

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES –

Appearances:

• for the Appellant(s)/State: Mr H. Obermeyer

• for the Respondent(s): Mr C. Schuring

Instructing attorneys:

Appellant(s)/State: DPP, Grahamstown

Respondent(s): Legal Aid Board

CASE INFORMATION -

• Nature of proceedings : Housebreaking with the intent to rape and rape

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CC06/09

DATE HEARD: 2/4/09

DATE DELIVERED: 3/4/09

NOT REPORTABLE

THE STATE

and

THOBANI NKAWU

JUDGMENT: SENTENCE

PLASKET, J:

[1] I convicted the accused of housebreaking with the intent to rape and rape. I must now impose appropriate sentences for these crimes.

[2] The provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 apply to the rape conviction. In terms of s 51(1), read with Part I of Schedule 2, the prescribed sentence for the rape of a person younger than 16 years of age is life imprisonment.

[3] It is necessary, at the outset, to make a few observations about the imposition of sentence when the Act applies. First, it has been emphasised in S v Malgas 2001 (1) SACR 469 (SCA), at paragraph 8 that when sentencing for crimes specified in the Act, a court is 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 …’. While the Act shifted the emphasis to ‘the objective gravity of the type of crime and the public’s need for effective sanctions against it’ discretion to deviate from the prescribed sentence was granted to courts ‘in recognition of the easily foreseeable injustices which would result from obliging them to pass the specified sentences come what may’.

[4] A court may deviate from the sentences prescribed if ‘substantial and compelling circumstances’ are present. In Malgas, at paragraph 9, it was held that it is impermissible to deviate from the prescribed sentence ‘lightly and for flimsy reasons which could not withstand scrutiny’. Apart from this, however, all factors relevant to determining sentence remain relevant when the Act applies and a sentencing court must look to the ‘ultimate cumulative impact’ of all of these factors in order to determine whether a departure from the prescribed sentence is justified.

[5] In Malgas, at paragraph 22, the court held that when a court is convinced that the imposition of the prescribed sentence would be unjust or ‘disproportionate to the crime, the criminal and the legitimate needs of society’ that in itself constitutes substantial and compelling circumstances. See too S v Fatyi 2001 (1) SACR 485 (SCA), at paragraph 5.

[6] The effect of Malgas (and the related decision of the Constitutional Court in S v Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC)) was examined by Nugent JA in S v Vilakazi [2008] ZASCA 87. At paragraph 14 he observed that it is ‘only by approaching sentencing under the Act in the manner that was laid down by this court in S v Malgas … that incongruous and disproportionate sentences are capable of being avoided’ and that by ‘avoiding sentences that are disproportionate a court necessarily safe-guards against the risk … that sentences will be imposed in some cases that are so disproportionate as to be unconstitutional’.

[7] Nugent JA set out how a court is to approach the imposition of sentence when the Act applies, stating, at paragraph 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. The Constitutional Court made it clear that what is meant by the “offence” in the context … “consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender”. If a court is indeed satisfied that a lesser sentence is called for in the particular case, thus justifying a departure from the prescribed sentence, then it hardly needs saying that the court is bound to impose that lesser sentence.’

[8] I turn now to consider the factors of relevance to sentencing -- usually expressed as a triad of factors comprising of the interests of society, the nature and seriousness of the crime and the personal circumstances of the accused.

[9] It goes without saying that society considers rape, and particularly the rape of a child as young as the complainant in this case, to be a very serious matter indeed and one in respect of which a proper measure of retribution is called for. See in this regard S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA); S v Jansen 1999 (2) SACR 368 (C); S v Blaauw 2001 (2) SACR 255 (C); S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W).

[10] As a general rule, it can be said that a rape will be progressively more serious the younger the victim, if only because the younger the victim, the more vulnerable she will be and the greater the chance of serious injury. In this instance the victim was a ten year old girl. She was abducted from the sanctity of her home, taken to a secluded spot and raped per anum.

[11] The physical injuries suffered by the complainant were not serious. They are indicative of a relatively minor degree of force being used. They are not permanent in nature. There is evidence that she suffered discomfort and pain for a while. A clinical psychologist, Ms Karen Andrews, gave evidence of the psychological impact of the rape on the complainant. I do not intend dealing with her evidence in any detail. Suffice it to say that, serious as the adverse impact on the complainant was, it was of the nature and severity that one would expect in a case such as this: in essence, the psychological trauma suffered by the complainant is not out of the ordinary.

[12] The accused is 21 years of age. He lives with his parents, his brothers and sister. He is employed on an orange farm and earns R300.00 to R400.00 per month. This money contributes to the support of his family and of his one year old child. He left school having completed grade 7. He has one previous conviction. It is for housebreaking with the intent to steal and theft. He admits that he was on bail in that case when he committed the offences with which this trial is concerned.

[13] It is argued by Mr Schuring, who appeared for the accused, that substantial and compelling circumstances are present. They are, he says, the cumulative effect of the following: the fact that the physical injuries suffered by the complainant were not serious or permanent; that she suffered no extraordinary psychological trauma; the age of the accused; and the fact that he supports his family.

[14] It was argued by Mr Obermeyer, who appeared for the State, that I am not entitled to take the first factor into account because s 51(3)(aA)(ii) of the Criminal Law Amendment Act provides that when a court imposes sentence for rape ‘an apparent lack of physical injury to the complainant’ shall not be regarded as a substantial and compelling circumstance.

[15] If this provision is interpreted literally, I have no doubt that it is unconstitutional. It would amount to Parliament seeking to direct judges to ignore factors that are relevant to sentence and requiring them to impose sentences which are consequently unjust. To the extent that the provision restricts the discretion to deviate from a prescribed sentence in order to ensure a proportional and just sentence it would infringe the fair trial right of accused persons against whom the provision was applied.

[16] When interpreting a provision such as this, however, a court must prefer any reasonable interpretation that would harmonise it with the Constitution. After all, one is entitled to assume that Parliament did not intend to enact provisions that are unconstitutional. In Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others: In re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others [2000] ZACC 12; 2001 (1) SA 545 (CC), Langa DP held, at paragraph 22, that the Constitution requires judicial officers to ‘read legislation, where possible, in ways which give effect to its fundamental values’ and ‘when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution’.

[16] I am of the view that it is possible to read s 51(3)(aA)(ii) in a way that would render it constitutional. That is to interpret it, and the other provisions of s 51(3)(aA), to mean that any one of them on their own may not be regarded as a substantial and compelling circumstance justifying a departure from the prescribed sentence but that each one of them may be considered along with other factors cumulatively to amount to substantial and compelling circumstances. On this interpretation, I am not precluded from considering the fact that the complainant suffered injuries that were neither serious or permanent along with a basket of other factors, in order to arrive at a just and proportionate sentence.

[17] I am mindful of the following aggravating factors, namely the tender age of the complainant, that the accused broke into her house and abducted her, that he was known to her and in this sense breached the trust that she was entitled to repose in him and that the accused was on bail in respect of a charge of housebreaking at the time. I consider his previous conviction to be relevant only to count 1.

[18] On the other hand, I take into account that the accused is young, that he was gainfully employed and supported his family and his child, that the injuries he caused to the complainant by his act of raping her were not serious or permanent and that she experienced no psychological trauma that was out of the ordinary and that cannot be treated. I consider that these factors, taken cumulatively, amount to substantial and compelling circumstances that justify the imposition of a sentence other than life imprisonment. Despite this finding, the offence of rape of which the accused has been convicted remains an extremely serious one. He is deserving of a long term of imprisonment to take into account, in particular, the gravity of the offence and the aggravating factors that I have referred to. In respect of the conviction for housebreaking with intent to rape, I take into account the accused’s previous conviction for housebreaking with intent to steal and theft.

[20] In the result, I sentence the accused to three years imprisonment in respect of count 1 and 20 years imprisonment in respect of count 2. These sentences shall run concurrently.

___________________

C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For the State: Mr H. Obermeyer of the office of the Director of Public Prosecutions, Grahamstown

For the accused: Mr C. Schuring, instructed by the Legal Aid Board

---