Gqirana v S (CA&R 262/2009) [2010] ZAECGHC 36 (24 May 2010)

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Case No.: CA&R 262/2009 Date heard: 19 May 2010 Date delivered: 24 May 2010 In the matter between:

VUYO

GQIRANA Appellant and

THE

STATE Respondent

J U D G M E N T

DAMBUZA, J:

The appellant was convicted on a plea of guilty to a charge of sexual assault on a 15 year old boy. He had been charged in terms of The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. He was then sentenced to 8 years imprisonment, two of which were suspended for 4 years on condition that he is not convicted of the same offence, committed within the period of suspension. He now appeals against the sentence.

In his written plea the appellant admitted that on the day in question he unlawfully and intentionally sexually violated the complainant by rubbing his penis between the complainant’s buttocks without consent.

During argument it was submitted on behalf of the appellant that in sentencing him the magistrate overemphasized the interests of the community and did not attach due weight to the appellant’s personal circumstances. In mitigation of sentence before the court a quo the following was submitted:

[3.1] That the appellant was a first offender;

[3.2] The complainant had suffered no physical injuries;

[3.3] The appellant had pleaded guilty and had apologised to the complainant and his family;

[3.4] The complainant and his family had endorsed the suggestion that the appellant be sentenced to community service;

[3.5] The appellant was a good candidate for rehabilitation;

[3.6] The appellant had had an unstable upbringing; and

[3.7] That the appellant’s emotional state had been fragile since his mother’s death.

It further appears from the record that the complainant and appellant are relatives and that the incident in respect of which the appellant was convicted occurred when the complainant was visiting the appellant’s home.

A pre-sentence report which forms part of the record reveals that the appellant was 35 years old at the time of the incident. He was married and had a 14 year old daughter. His parents were never married and he never enjoyed a father-son relationship with his father. His mother who had been employed as a general worker at Livingstone Hospital died in 1983. The accused had been unemployed since 2004 and that his family experienced difficulty in meeting their monthly expenses. He experienced periods of depression about his inability to find employment and used alcohol to escape this challenge. He indulged excessively in alcohol. He went up to Grade 12 at school and had attempted some post matric certificates which he never completed.

According to the report the complainant was afraid of the appellant as a result of the incident.

Sexual assault (previously known as indecent assault) is a serious and prevalent offence in the South African communities. It often entails abuse of power and, as it happened in this case, is perpetrated against children and persons of lower standing or authority than the perpetrator. Members of the public are concerned about its prevalence and the safety of helpless children and other vulnerable persons. In cases comparable to this one, sentences imposed by courts have varied from correctional supervision to six years imprisonment. See S v Mohlakane 2003 (2) SACR 569 (O); S v R 1995 (2) SACR 590 (A); S v R 1990 (1) SACR 413 (ZS).

In sentencing the appellant the magistrate concluded that his personal circumstances and other mitigating factors were outweighed by the seriousness and prevalence of the offence. He found that although there was no evidence of negative effect of the incident on the complainant, there was no doubt as to the “effect an incident of this kind can have on him”.

It is trite that an Appeal Court may interfere with a sentence imposed by a trial Court where the trial Court has not properly and reasonably exercised its discretion in imposing the sentence. Where discretion is properly and reasonably exercised, the appeal Court has no power to interfere. S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W). Where, however, the sentence imposed by the trial Court can be said to be startlingly or disturbingly inappropriate or to induce a sense of shock or where there is a striking disparity between the sentence imposed and the sentence that the Court of Appeal would have imposed, the Appeal Court may interfere with the sentence imposed. S v Kgosimore 1999 (2) SACR 238.

Mr Naidu who appeared on behalf o the appellant submitted that, viewed against the pre-sentence report, the sentence imposed by the

magistrate is unduly harsh. He further submitted that in light of the reference, in the pre-sentence report, to the appellant’s

abuse of liquor we should have regard to the fact that the appellant was probably intoxicated when he committed the offence. I do not agree. Although there is reference in the pre-sentence report to the appellant having been intoxicated when the incident occurred, the purpose of the report is to give a general background to the appellant’s person. It is not an account of the incident or a portion thereof. Where in his written plea of guilty, the appellant chose to admit to the bare minimum facts he can not expand thereon by using the content of the pre-sentence report. There is no indication in the written plea as to how exactly, and in what circumstances the incident occurred. The plea is a bare admission of guilt.

Be that as it may, the pre-sentence report presents the appellant as a humble but troubled man who, it seems, at some stage could have made something of his life. He played table tennis for the Eastern Province Club from 1988 to 1996, earning several medallions for his participation. He immediately accepted responsibility for the offence and apologised to the complainant and his family. Without derogating from the seriousness of the offence committed by the appellant, it is relevant in my view that there is no evidence of injuries sustained by the complainant or lasting negative psychological effect of the incident on him.

Taking all these sentencing factors into consideration, it seems to me that a sentence of two years imprisonment, is more appropriate. Against this sentence, the sentence of eight years

imprisonment is strikingly disparate and I am satisfied on this basis, that there is ground to interfere with the sentence imposed

by the trial Court.

Consequently:

[13.1] The conviction is confirmed; and

[13.2] The sentence imposed by the trial Court is set aside and is substituted by the following sentence:

“Two years imprisonment, half of which is suspended for four years on condition that the accused is not convicted of contravening section 5(1) read with sections 1, 56(1), 57, 58, 59, 60 and 61 of Act 32 of 2007”.

[13.3] The sentence is antedated to 14 May 2009.

_____

N. DAMBUZA

JUDGE OF THE HIGH COURT

MAKAULA, AJ:

I agree.

M. MAKAULA

JUDGE OF THE HIGH COURT (ACTING)

Appearances:

For the appellant: Mr V. Naidu instructed by the Legal Aid Board

For the respondent: Adv. D. Els instructed by the Director of Public Prosecutions