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A39-09_20-_20Judgement_20-_20Rampai_20J_20et_20VDMerwe_20J_20et_20Simelane_20AJ

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									IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)

                                          Appeal No.: A39/2009

In the appeal between:

DESMOND VAN SCHALKWYK                                  Appellant

and

THE STATE                                  Respondent
_____________________________________________________

CORAM: RAMPAI, J et VAN DER MERWE, J et SIMELANE, AJ
_____________________________________________________

JUDGMENT:       RAMPAI, J
_____________________________________________________

HEARD ON:       14 SEPTEMBER 2009
_____________________________________________________

DELIVERED ON: 25 SEPTEMBER 2009
_____________________________________________________


[1]    The appellant was convicted in the Bloemfontein Regional

       Court and sentenced to life imprisonment in this High

       Court. He now comes on appeal against the sentence.

       The charge against him was one of rape committed at

       Pieter Swart Square, Phase 2, Bloemfontein on 16 October

       1999. The victim was a 9 year old girl born on 26 January

       1996. She was mentally retarded.
                                                                 2

[2]   The appellant pleaded not guilty to the charge on the 6

      September 2000. The version of the state was narrated by

      4 witnesses, namely Ms L N Nakana, Dr T Bester of

      Pelenomi Hospital, Dr S D Lessing clinical assistant at the

      Free   State   Psychiatric    Complex   and   Inspector   M

      Thompson the forensic analyst from the forensic science

      laboratory.



[3]   On 17 September 2001, after the aforesaid prosecution

      witnesses had given evidence, the appellant changed his

      plea of not guilty to one of guilty. Ms M R Jacobs presided,

      Ms E Kraft prosecuted and Mr Jonase represented the

      appellant on that day. He handed in a written statement by

      the appellant, exhibit “G”.



[4]   On the same day the appellant was convicted on his plea

      as altered.     Thereupon the magistrate stopped the

      proceedings in the regional court and referred the case to

      the high court in terms of section 52(1)(a) of the Criminal

      Law Amendment Act, No. 105 of 1997 for sentence.
                                                                           3

[5]   The matter served before my retired brother, Beckley J, on

      the 1st February 2002. He confirmed the conviction of the

      appellant.   The appellant then testified in mitigation and

      also called his father, Mr Floos van Schalkwyk, to do

      likewise.     The state did not lead any evidence in

      aggravation. On the same day the court a quo imposed the

      sentence of life imprisonment on the appellant.



[6]   Six months later, on the 2nd August 2002, Beckley J

      dismissed the appellant‟s application for leave to appeal.

      Subsequently the appellant petitioned the President of the

      Supreme Court of Appeal for leave to appeal. His petition

      was considered by Lewis JA and Mhlantla AJA.



[7]   On the 5th December 2008 the SCA granted leave to

      appeal to the appellant. In terms of the petition order he

      now comes to this full bench on appeal against the

      sentence only.



[8]   The sentencing of an offender is a matter which primarily

      falls within the discretion of the trial court. This is trite law.
                                                                       4

[9]    The court with appellate jurisdiction will interfere with the

       exercise of such sentencing discretion only if it is of the

       opinion that such sentence is unreasonable, improper,

       unjust or vitiated by irregularities.

       (S v DE JAGER 1965 (2) SA 626 (AD) at 629 A - B.)



[10]   It has been authoritatively held that a mere misdirection is

       not by itself sufficient to justify appellate interference in the

       sentence imposed.        In order to justify interference the

       sentence appealed against must be of such a nature,

       degree or seriousness that it shows, directly or inferentially,

       that the court a quo did not exercise its discretion at all or

       that it exercised it improperly or unreasonably.

       (S v KIBIDO 1998 (2) SACR 207 SCA at 216g-h.)



[11]   Quite recently the misdirection rule was broadened.

       Nowadays even in the absence of material misdirection

       interference with the sentence by the court a quo may still

       be justified. It may be done when the disparity between the

       sentence actually imposed by the trial court and the

       sentence the appellate court would have imposed had it

       been the trial court, is so huge that it can properly be
                                                                    5

       described   as    shockingly,   startlingly   or   disturbingly

       inappropriate.

       (S v MALGAS 2001 (1) SACR 469 (SCA) at 478f-g.)



[12]   It is common cause that life imprisonment was the

       prescribed minimum sentence in this case. First, the victim

       was a girl below the age of 16. Second, the victim was a

       mentally ill woman. See Part 1, Schedule 2, Act No. 105 of

       1997.



[13]   The question in the case is whether the court a quo erred

       and thus misdirected itself in finding that no substantial and

       compelling circumstances existed to justify a sentence less

       than life imprisonment.



[14]   The appellant was 20 years of age. He had been drinking

       liquor for hours before he raped the victim. He was held in

       custody for 27 months before he was sentenced.

       Apparently he did not plan to rape the victim. He had a

       clean criminal record. Mr Skibi, on behalf of the appellant,

       argued that these factors, communicatively considered,

       constituted substantial and compelling circumstances to
                                                                   6

       justify a sentence less severe than the prescribed minimum

       sentence of life imprisonment. Accordingly he submitted

       that the court a quo erred in finding otherwise.



[15]   The victim was a gril, 9 years of age, 7 years below the

       statutory age of 16 years. Moreover, she was not a normal

       9 year old girl. She was mentally ill. The sentence of life

       imprisonment is an ordained punishment for any adult male

       who rapes a 9 year old girl. It is also ordained punishment

       for the rape of a mentally ill female irrespective of age. On

       behalf of the respondent, Mr Bontes argued that since the

       appellant was; firstly, aware that the victim was a minor girl

       child; secondly, since he knew that she was mentally ill;

       and thirdly, since he showed no remorse for molesting her

       – it could not be contended that the factors mentioned in

       the preceding paragraph were substantial and compelling

       to justify deviation from the prescribed minimum sentence

       of life imprisonment.



[16]   The appellant was a first offender. Contrary to the view

       expressed by the court a quo, I am of the firm view that this

       is a strong mitigating factor in favour of the appellant. The
                                                                        7

       court a quo also discounted the relatively young age of the

       appellant as an insignificant factor in the process of

       determining      whether           substantial   and   compelling

       circumstances existed or not.



[17]   Similarly the court a quo also disregarded the fact that the

       appellant had acknowledged his guilt, albeit, midway the

       prosecution case. At paragraph 122:15 – 23 the court a

       quo said the following about remorse:



            “Wat die berou betref, is dit so dat „n Hof met groter genade

            sal kyk na „n beskuldigde wat skuldig gepleit en berou toon

            indien dit opregte berou is. In die onderhawige geval het die

            beskuldigde aanvanklik sy skuld op „n valse wyse ontken en

            het hy te kenne gegee juis dat hy te veel gedrink het. Nadat

            hy die getuienis aangehoor het, wat verdoemend was, het hy

            klaarblyklik besef dat daar geen manier is waarop hy kan

            onskuldig bevind word nie en het hy toe besluit, ongelukkig te

            laat, om skuldig te pleit.”




[18]   I am not persuaded that the appellant‟s change of plea can

       completely be ignored as too belated. Where an accused

       person pleads not guilty and gives a false explanation his

       conviction is the price he pays for the false plea. When
                                                                     8

       sentencing an offender an impression must not be created

       that the sentence is otherwise loaded because his plea

       was premised on a false foundation. Whereas a plea of

       guilty raised upfront is often treated as a mitigating factor, a

       plea of not-guilty is never treated as an aggravating factor.

       Where such plea is altered along the way the situation

       should not be different. At worst for an accused it should

       be treated as a neutral factor.



[19]   When an accused pleas guilty, whether in the very

       beginning or later in the course of trial, he in a way

       acknowledges his misstep. Either way it is not always easy

       to determine whether such plea is a reliable indication of

       genuine remorse or not.



[20]   In his evidence in mitigation the appellant expressed

       remorse for what he did. During his cross-examination by

       a very seasoned counsel for the respondent, it was not put

       to him that his was not a genuine remorse. Moreover, he

       averred that he had consumed, intoxicating drinks

       throughout the night immediately preceding the incident.

       This aspect too was never challenged. In fact his original
                                                                     9

       plea was amended in writing – exhibit “G” – and formed the

       basis of his conviction.



[21]   In these circumstances it appears to me that it should have

       been accepted, firstly, that the appellant was to a certain

       extent intoxicated although he knew what he was doing at

       a time he violated the young and vulnerable girl, and

       secondly, that he was remorseful for what he did to her.

       This is an important mitigating factor.            It somehow

       indicates, though not conclusively, that the appellant is not

       an irretrievably lost soul in that, as a remorseful person with

       matric, he may still be rehabilitated.



[22]   Deciding which factors to allow to influence the measure of

       punishment and deciding what values to attach to such

       factors are decisions which fell within the discretion of the

       court a quo below.         However, dictates of justice have

       moved me to find its failure to take certain factors into

       account coupled with the inadequate values attached to the

       factors   taken   into     account   constituted   a   material

       misdirection. (S v KIBIDO surpa 216g.)
                                                                          10

[23]   At paragraph 169:1-12 the court a quo said the following

       about the test as regards substantial and compelling

       circumstances:



             “Die eenvoudige vraag dan is, wanneer daar gekyk word na

             die toets wat gestel is in S v Shongwe 1999 (2) SASV 220

             (OVS) by monde van Cillié R, of die oplegging van

             lewenslange gevangenisstraf „n onreg sal pleeg teen die

             beskuldigde, meen ek dat daar moet gekyk word na watter

             vonnis gepas sou wees indien dit nie vir die voorskrifte van die

             wet was    nie.   Ek meen dat „n gebalanseerde en ervare

             vonnisoplegger, die toets wat na my mening die korrekte toets

             is en waarna Cillié R verwys in Shongwe se saak, so „n

             vonnisoplegger sou noop om waarskynlik in ieder geval

             lewenslange gevangenisstraf op te lê of minstens „n vonnis

             van 20 of 25 jaar.”




[24]   The test as laid down in S v SHONGWE in 1999 was

       somewhat watered down in S v MALGAS 2001 (2) SA

       1222 (SCA) as further elucidated in S v VILAKAZI 2009 (1)

       SACR 552 SCA. To the extent that the court a quo relied

       on the decision in S v SHONGWE and made no reference

       to the then most authoritative decision it misdirected itself.

       Therefore we are at large to interfere.
                                                                   11




[25]   Mr Skibi contended, and in my view correctly so, that the

       court a quo over-emphasised the gravity of the crime

       offender. The improper emphasis led to the imbalanced

       assessment of the relevant factors. The end result was a

       sentence that was exceedingly retributive and deterrent. In

       my view the cumulative impact of all relevant factors as

       previously set out in paragraph 14 supra constituted

       substantial     and   compelling   circumstances   to   justify

       deviation from the prescribed minimum sentence of life

       imprisonment. The contrary finding of the court a quo is

       one which I, on appeal, cannot uphold. I would, therefore,

       interfere.     On the facts, the rehabilitative objective of

       sentencing needs to prevail over the retributive and

       deterrent objectives thereof which were overplayed by the

       court a quo.



[26]   Having reconsidered the sentence of life imprisonment in

       the light of the decisions of S v MALGA supra and S v

       VILAKAZI supra I am of the view that the sentence of 20

       less 2 years imprisonment was a fitting and appropriate
                                                                   12

       punishment for the appellant in the circumstances of this

       case.



[27]   Accordingly I make the following order:

       27.1    The conviction stands.

       27.2    The appeal as regards sentence succeeds.        The

               sentence of life imprisonment is set aside and it is

               substituted with the sentence as specified below.

       27.3    The   appellant   is     sentenced   to   18   years

               imprisonment.

       27.4    The substitute sentence must be deemed to have

               been imposed on the 1st February 2002.




                                              _________________
                                                 M. H. RAMPAI, J

I concur.
                                                        13

                               _________________________
                                C. H. G. VAN DER MERWE, J


I concur.




                                       ___________________
                                           A. SIMELANE, AJ

On behalf of the Appellant:    Adv. N. L. Skibi
                               Instructed by:
                               Justice Centre
                               BLOEMFONTEIN


On behalf of the Respondent:   Adv. D. W. Bontes
                               Instructed by:
                               The Director: Public
                               Prosecutions
                               BLOEMFONTEIN


/em

								
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