Esau and Others v S (CA&R01/16) [2016] ZANCHC 22 (13 May 2016)

Esau and Others v S (CA&R01/16) [2016] ZANCHC 22 (13 May 2016)

The court found that the Regional Magistrate had not misdirected herself in imposing the minimum sentence of 15 years' imprisonment on each appellant. The Magistrate had carefully considered the personal circumstances of each appellant, the seriousness of the offence, and the aggravating factors, including the psychological trauma suffered by the complainant and the gang-related nature of the crime. The court held that the appellants' intoxication was not sufficient to constitute substantial and compelling circumstances, nor was there any basis for differentiating between the sentences of the principal offender and the accomplices. The appeal against sentence was accordingly dismissed.

Citation
[2016] ZANCHC 22
Parties
Appellant: Willem Esau; Appellant: Anthoney Jonkers; Appellant: Nickel Steyner; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
13 May 2016
Case Number
CA&R01/16
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only, Following Conviction for Rape in the Regional Court
Outcome
Appeal dismissed; sentences confirmed.
Judges
Kgomo JP, Phatshoane J
Legal Topics
Rape, Minimum Sentences, Accomplice Liability, Substantial and Compelling Circumstances
Criminal Law Rape Minimum Sentences Accomplice Liability Substantial and Compelling Circumstances

Case Brief

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Parties

Willem Esau

Appellant

Anthoney Jonkers

Appellant

Nickel Steyner

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence Only, Following Conviction for Rape in the Regional Court

Legal Issues

  1. 1 Whether the Regional Magistrate misdirected herself in imposing the minimum sentence prescribed by the Criminal Law Amendment Act, 105 of 1997.
  2. 2 Whether substantial and compelling circumstances existed to justify a lesser sentence for any of the appellants.
  3. 3 Whether the sentences imposed should have distinguished between the principal offender and the accomplices.

Ratio Decidendi

The court found that the Regional Magistrate had not misdirected herself in imposing the minimum sentence of 15 years' imprisonment on each appellant. The Magistrate had carefully considered the personal circumstances of each appellant, the seriousness of the offence, and the aggravating factors, including the psychological trauma suffered by the complainant and the gang-related nature of the crime. The court held that the appellants' intoxication was not sufficient to constitute substantial and compelling circumstances, nor was there any basis for differentiating between the sentences of the principal offender and the accomplices. The appeal against sentence was accordingly dismissed.

Court Disposition

Appeal dismissed; sentences confirmed.

Orders

  • The appeal of all three appellants is dismissed.
  • It is recommended that the Provincial Commissioner of Police consider some form of recognition for Mr Jack Esau for summoning the police and saving the complainant from further harm.