Director of Public Prosecutions: Transkei v Dubo (CA&R 37/09) [2010] ZAECMHC 7; 2011 (1) SACR 191 (ECM) (1 April 2010)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE: MTHATHA

CASE NO.: CA & R37/09

In the matter between:-

THE DIRECTOR OF PUBLIC

PROSECUTIONS: TRANSKEI Appellant

And

SABELO DUBO Respondent

APPEAL JUDGMENT

PAKADE, J.:

[1] This is an appeal by the Director of Public Prosecutions against the suspended sentence of (10) ten years imprisonment imposed on the respondent subsequent to a conviction for rape. The appeal is with the leave of a judge of this Division granted in terms of section 310 A of the Criminal Procedure Act, 51 of 1977.

[3] The sentence is challenged on the ground, inter alia, that it is irregular, unreasonable unbalanced and is based on an improper exercise of discretion which has brought about a miscarriage of justice.

[4] The respondent, after pleading guilty to raping a 14 year old girl in her home, made a plea explanation in which he confirmed the commission of the offence. The medical report from the doctor who examined the complainant after the rape, shows that the girl sustained multiple scratches and bruises all over the body, a bruised tongue, bruises on the floor of the mouth and inflamed tonsils. The gynaecological findings are that her para- urethral folds were slightly hypermecial. The fossa navicularis was friable and slightly oozing blood. The doctor `s conclusion is that the pattern of injuries are consistent with a struggle and dragging over a rough surface. The doctor also opined that the mouth injuries are consistent of having been caused with a blunt object.

[5] These findings and conclusions made by the doctor were accepted by the respondent and the Attorney who was representing him on Legal Aid Board instructions.

[6] It is clear from the injuries sustained by the complainant that this was a violent and brutal rape on her. The court a quo also observed and made a note of this in its judgment on sentence.

[7] Though the court a quo does not make a specific finding that the respondent is a young first offender who was born on 8 August 1989, it can be assumed, nevertheless that it had those factors in mind when it passed sentence. Those are the factors which were dictated to the court by the defence Attorney and which the court a quo appears to have accepted his ipse dicit in this respect and also in the other respect concerning the respondent `s age at the time of the commission of the offence on 3 February 2007. A simple arithmetic calculation shows that the learned Magistrate was wrong in his finding that the respondent was 16 years old as he was already 17 years 5 months old at the time of the commission of the offence and 19 years 4 months at the time of the hearing. The court a quo took into consideration, erroneously, as already stated above, that he was 16 years old and concluded on that factor alone that a wholly suspended sentence was appropriate in those circumstances. The Magistrate has, in my view, committed a misdirection of the nature which vitiated his proper exercise of the discretion on the assessment of a proper punishment to be imposed on this brutal premeditated rape on a 14 year old child.

[8] In an appeal brought under section 310A the Director of Public Prosecutions must show that the trial court exercised its discretion on sentence irregularly , unreasonably improperly or in an unbalanced manner vitiating the exercise of the discretion. A mere difference between the sentence imposed by the trial court and the sentence the appeal court would have imposed is not a sufficient ground for interference with the sentence of the trial court. The difference between the two sentences must be of such a nature and degree that it appears that the trial court exercised penal discretion unreasonably. Similarly under-or overemphasis of relevant factors must result in an unreasonable or improper exercise of the penal discretion by the trial court before an appeal against sentence by the Director of Public Prosecution can succeed (S v Sadler 2000 (1) SASV 331 (A) at 334 par 8–335 par 10; S v Swart 2000 (2) SASV 566 (A).

[9] In S v Salzwedel & Others 1999(2) SACR 586 (SCA) the Appeal Court increased a sentence where the trial court, as in casu, had overestimated the personal circumstances of the accused and underestimated the gravity of the offence. Again in S v Sadler (supra) the Appeal Court substituted a suspended sentence of imprisonment with one of direct imprisonment because the suspended sentence was held to be inappropriate and contrary to the interests of justice.

[10] The sentence imposed by the court a quo is not the culmination of a balancing exercise of the basic triads of sentencing (S v Zinn 1969 (2) SA 537 (A) at page 540 G-H)). There is no indication in the record of the proceedings before the court a quo that apart from the personal circumstances of the respondent which the trial court appears to have overemphasised, the gravity of the offence and the interests of society were ever taken into consideration as factors also affecting the imposition of sentence. Our courts require these factors to be taken into consideration on an equal basis without over or under emphasising the one against the other. The seriousness of the offence and the protection of society should be considered on an equal basis with the mitigating factors. This, regrettably, is what the sentencing court did not do.

[11] That the victim was 14 years old at the time of the incident is a factor which alone would, but for the age of the respondent (for which see Centre for Child Law v Minister for Justice & Constitutional Development & Others 2009 (11) BCLR 1105 (CC)), obviously have aggravated the type of sentence to be imposed and would then have cautioned the court a quo to meticulously analyse every aspect of the sentencing criteria. The type of rape committed by the respondent falls, by reason of the age of the victim and the infliction of grievous bodily harm on her, within the purview of Schedule 2 of Part 1 of the Criminal Law Amendment Act, 105 of 1997, section 51 (1) or (2) of which provides for a prescribed punishment. These two sub-sections were, however, declared unconstitutional in the Centre for Child Law case, supra, and as a result thereof the prescribed punishment which was hitherto provided in those sub sections to a child of 16 and 17 years old no longer applies. To this extent I partially agree with both counsel that even on a proper age assessment, the sentence would not have been any different from that imposed by the court a quo. However, the declaration of constitutional invalidity of these sub sections left the sentencing court with other sentencing options provided for by the Criminal Procedure Act, 1977. This is what the court a quo has failed to investigate.

[12] The Appeal Court has two options upon finding that the misdirection of the court a quo is of the nature which vitiated its discretion as to warrant interference with the sentence. First, it may set aside the sentence and remit the case to the court a quo to reopen the case and exercise its discretion on sentence anew after considering the factors it had omitted to consider in the first instance. The second option is for the Appeal Court to substitute the sentence of the court a quo for its own sentence (section 310 (5). Mrs Van Drunick submitted that this Court is in a better position to adopt the former but Mr Du Toit submitted in support of the latter option. The basis for the submission in support of the former option is that this Court is in the same position as the court a quo because the same material on which the court a quo should have exercised its discretion on sentence is before the Appeal Court. This material, so goes the submission, will serve as a guide to this Court in the assessment of a proper sentence.

[13] This submission, in my view, overlooks the fact that in reconsidering the sentence, the Magistrate has a wide discretion and may even hear evidence from the victim and the doctor on the gravity of the offence. He may even resort to acquiring a probation officer` s informative report on the background of the respondent . As a judicial officer tasked with the sentencing of a juvenile offender he has a responsibility to obtain all the relevant information pertaining to such a juvenile in order to structure a sentence that will best suit the needs and interests of the youth. It is indeed his duty to ensure that the sentence he decides to impose will promote the rehabilitation of the respondent in order to encourage his reintegration back into his family and community.

[14] Mr Du Toit submitted that the stance of the appellant is not understandable because it is diametrically opposed to that of the prosecutor in the court a quo who had argued in support of the suspended sentence. It does appear from the record of the court a quo that the prosecutor did not apply his mind on whether to support the suspended sentence or not. This is indicated by the ambivalent submissions he made on sentence. He started by aggressively highlighting the aggravating circumstances but concluded by submitting that his juvenile status should keep the respondent out of jail. He then argued for a deterrent sentence to be imposed but once again called for a sentence which would hang on the respondent for the rest of his life. A suspended sentence does not hang on an accused person for the rest of his life, it has limited operation. Therefore, in my view, the submission of the prosecutor did not properly guide the court which should, in any event, have applied its mind to the triads of sentencing (S v Zinn supra).

[15) On the issue of the deterrent effect of the suspended sentence, Mr Du Toit submitted that it would have that effect because of the respondent`s poor background. As observed by Legodi J in S v Chipane 2010 (1) SACR 245 (GNP) at 255 e-g, a suspended sentence serves as a reminder to an offender flashing in his mind each time he thinks to commit an offence. In this way it acts as a deterrence. But in casu , there is no evidence of the background from which the Magistrate exercised his discretion to impose the suspended sentence .

[16] In the result, we are of the opinion that it will better serve the interest of justice if we were to remit the case to the court a quo for fresh sentencing by the Magistrate after taking into consideration the proper age of the respondent, the gravity of the offence and the interests of society. The Magistrate may call such evidence as he deems necessary in order to properly exercise his discretion on sentence.

ORDER

1 .That the Appeal succeeds;

2. That the sentence is set aside and the matter is remitted to the

court a quo to exercise its discretion on sentence anew after

considering the age of the respondent the gravity of the offence and

the interests of society.

__________________________

L.P. Pakade

JUDGE OF THE HIGH COURT

CAWE AJ : I AGREE

_________________________________

N. Cawe

ACTING JUDGE OF THE HIGH COURT

Counsel for Appellant : Adv Van Drunick

Counsel for Respondent : Adv Du Toit

Matter heard on : 19 March 2010

Judgment delivered on : 01 April 2010