S v Nkawu - Sentence (CC06/09) [2009] ZAECGHC 21 (3 April 2009)

S v Nkawu - Sentence (CC06/09) [2009] ZAECGHC 21 (3 April 2009)

The court found that, although the prescribed sentence for rape of a child under 16 is life imprisonment, the cumulative effect of the accused's youth, employment, family support, lack of serious or permanent physical injury to the complainant, and absence of extraordinary psychological trauma amounted to substantial and compelling circumstances justifying deviation from the minimum sentence. Section 51(3)(aA)(ii) of the Criminal Law Amendment Act should be interpreted in a manner consistent with the Constitution, allowing consideration of lack of physical injury as part of a cumulative assessment. The aggravating factors, including the complainant's tender age, abduction from her home,...

Citation
[2009] ZAECGHC 21
Parties
Applicant: The State; Respondent: Thobani Nkawu
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
3 April 2009
Case Number
CC06/09
Procedural Posture
Criminal Law / Sentencing After Conviction
Outcome
The accused was sentenced to three years imprisonment for housebreaking with intent to rape and twenty years imprisonment for rape, with the sentences to run concurrently.
Judges
Plasket
Legal Topics
Rape Sentencing, Minimum Sentences, Substantial and Compelling Circumstances, Constitutional Interpretation, Child Victim, Housebreaking
Criminal Law Rape Sentencing Minimum Sentences Substantial and Compelling Circumstances Constitutional Interpretation Child Victim Housebreaking

Case Brief

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Parties

The State

Applicant

Thobani Nkawu

Respondent

Procedural Posture

Criminal Law / Sentencing After Conviction

Legal Issues

  1. 1 Whether substantial and compelling circumstances exist to justify deviation from the prescribed minimum sentence of life imprisonment for rape of a child under 16 years.
  2. 2 How section 51(3)(aA)(ii) of the Criminal Law Amendment Act should be interpreted in light of constitutional principles.
  3. 3 What sentence is appropriate for housebreaking with intent to rape and rape under the circumstances.

Ratio Decidendi

The court found that, although the prescribed sentence for rape of a child under 16 is life imprisonment, the cumulative effect of the accused's youth, employment, family support, lack of serious or permanent physical injury to the complainant, and absence of extraordinary psychological trauma amounted to substantial and compelling circumstances justifying deviation from the minimum sentence. Section 51(3)(aA)(ii) of the Criminal Law Amendment Act should be interpreted in a manner consistent with the Constitution, allowing consideration of lack of physical injury as part of a cumulative assessment. The aggravating factors, including the complainant's tender age, abduction from her home,...

Court Disposition

The accused was sentenced to three years imprisonment for housebreaking with intent to rape and twenty years imprisonment for rape, with the sentences to run concurrently.

Orders

  • The accused is sentenced to three years imprisonment in respect of count 1 (housebreaking with intent to rape).
  • The accused is sentenced to twenty years imprisonment in respect of count 2 (rape).