S v N

• Jurisdiction: South Africa
• Judge: Cameron JA, Maya JA and Cachalia JA
• Judgment Date: 28 March 2008
• Citation: 2008 (2) SACR 135 (SCA)
• Docket Number: 469/07
• Hearing Date: 19 February 2008
• Counsel: PHS Zilwa for the appellant. L Ngodwana for the State.
• Court: Supreme Court of Appeal

Maya JA:

[1] The appellant was convicted of rape in the regional court, East London (Mr IJC Kitching) and sentenced to undergo ten years' J

Maya JA

A imprisonment of which four years were conditionally suspended. An appeal against both the conviction and sentence was dismissed by the Grahamstown High Court (Froneman J, Mathee AJ concurring). With the leave of that court he appeals further but only against sentence.

[2] The essence of the appellant's attack on the sentence in this court is B that the magistrate's rejection of correctional supervision without a full investigation of the practical circumstances relating to such possible option was a vitiating, material misdirection and that the sentence is so excessive that it induces a sense of shock.

[3] The events giving rise to the charge are these. The appellant and the C complainant, both aged 17 years, attended the same high school and were friends. They lived in the same neighbourhood, about 300 m apart, and occasionally walked together from school. Sometimes the appellant visited the complainant at her home where she lived with her mother and a younger sister. The complainant had previously suffered serious D psychological problems seemingly arising from her parents' divorce and her mother's liaison with another man. She had even attempted suicide and consequently received treatment for depression, a fact which she had confided in the appellant.

[4] The appellant, on the other hand, was a highly popular and confident E pupil held in high esteem for his prowess at sport and hard work at his studies by teachers and fellow scholars alike at his school. His mother had, in 2003, left the country to pursue a nursing career in the United Kingdom leaving the appellant and his siblings in their father's care. A decision was, thereafter, taken to relocate the entire family to the United Kingdom. The appellant's father had recently joined his wife there, F leaving the children with their grandfather, to follow in due course, when the rape occurred.

[5] Shortly before 20h00 during the evening of 5 July 2004, the complainant was visiting a girlfriend's home when she received a message from the appellant on her cellular phone asking her to come to G his house as he 'needed to talk'. Against the advice of her friend and her mother, who did not consider it safe to go out so late, she went to see him. Her mother had relented but requested her to return home by 22h00. It is during that visit that the appellant assaulted the complainant into submission and raped her in his room despite her protestations. H Thereafter he drove her home in his parents' motor vehicle. Afraid to disclose her ordeal to her mother for fear of censure, the complainant merely called out to her that she was home. She washed her bloodied underwear and pants. The appellant sent her another message telling her that she should not get excited as there was nothing in it for her and that he did it to make her happy. Overwhelmed by these events, she cut her I wrist with a razor and took an overdose of pills but, fortunately, suffered no serious harm.

[6] She reported the incident to her friend on the following morning. She was distraught and, at the friend's urging, she told her mother that afternoon that she had been raped. A subsequent medical examination J revealed that in addition to neck bruises, her hymen was freshly torn and

Maya JA

that she had sustained injuries to her genital organs which were A consistent with forced penetration. The matter was reported to the police and the appellant was then arrested.

[7] Upon his conviction, two pre-sentence reports were obtained in respect of the appellant from a probation officer and a correctional officer. Both social workers reported that the appellant showed no B remorse for his action as he denied guilt. In the correctional officer's opinion, the appellant seemed to have no 'insight into the extent of harm he has inflicted on the victim' and she concluded that he would not benefit from correctional supervision. According to the probation officer's report the appellant refused to cooperate with her stating that 'he has C already informed the court [and] refused to repeat the same thing'. Her recommendation was that a sentence of imprisonment would be appropriate because of the seriousness of the crime but that the appellant could be 'referred to correctional supervision for assessment' if the court was so minded.

[8] The magistrate rejected the option of correctional supervision and D the suspended sentence requested by the appellant's representative. He concluded that a term of direct imprisonment, which would have been higher than the one he imposed but for the appellant's young age, was the only suitable sentence in the circumstances.

[9] The basis of the appeal against this conclusion in the court below was E that the magistrate erred in accepting the recommendations against correctional supervision in the pre-sentence reports which were premised on the appellant's refusal to admit his guilt even after conviction. Whilst the contention found favour with the court below, the court nonetheless F found that the magistrate had given 'proper, serious and anxious consideration' to the appellant's personal circumstances and held that there were present in the matter, other factors which justified the sentence imposed by the magistrate, including the possibility of the appellant continuing to live in close proximity to the complainant which would be intolerable to her, the seriousness of the offence, the appellant's G lack of remorse and the apparent lack of suitable persons to oversee a correctional supervision programme in view of his family's relocation.

[10] In this court, it was contended that the reasons cited by the court below for upholding the magistrate's decision did not warrant the H rejection of correctional supervision, particularly as the practicalities of such a sentence were never investigated, and that the sentence imposed by the magistrate was, in any event, excessive. It was further argued that the magistrate had materially misdirected himself in the exercise of his sentencing discretion by concluding, first, that the social workers found the appellant to be an unsuitable candidate for correctional supervision I when the correctional officer had, in fact, not ruled out the possibility of an exploration of this option and then blindly following that recommendation without exercising his own discretion by considering whether or not the option of correctional supervision was viable. It was urged upon us that any custodial sentence would be inappropriate and that only J

Maya JA

A correctional supervision in terms of s 276(1) (h) of the Criminal Procedure Act 51 of 1977 (the Act) would be the suitable sentence for the appellant.

[11] The well-established test for interference with a sentence on appeal was restated by this court in S v Malgas [1] where Marais JA said:

B A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its C exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked D that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate.

[12] It should be said at the outset that although the magistrate clearly gave due consideration to the findings set out in the pre-sentence reports relating to the appellant's personal circumstances, he misconceived the E import of the probation officer's recommendation. Whilst the probation officer obviously had misgivings about the appellant's attitude towards the offence, she nevertheless did not reject correctional supervision as a sentencing option. Furthermore, as the court below pointed out, the magistrate's seemingly unquestioning reliance on a negative recommendation in the reports based on the appellant's persistent denial of his guilt F was another misdirection on his part. I would add that the reference by the court below to the absence of the appellant's family from the country (and hence a lack of supervision) as a further reason for doubting the propriety of a non-custodial sentence was, in my view, wrong. Evidence showed that he had been left in the care of family friends and his G grandfather and remained close with his family despite the distance.

[13] That said, however, it must be borne in mind that an error committed by a court in determining or applying the facts for assessing the appropriate sentence does not necessarily spell the end of the enquiry. A mere misdirection is not by itself sufficient to entitle the H appeal court to interfere; it must be of such a nature, degree or seriousness that it shows directly or inferentially, that the court did not exercise its discretion at all or exercised it improperly or unreasonably such as to vitiate its decision on sentence. [2] Assuming, without deciding, that the misdirections are not of a vitiating nature when proper regard is had to all the relevant factors, it must nonetheless be considered whether I the sentence was appropriate in the circumstances of the case.

Maya JA

[14] The submissions advanced on the appellant's behalf for a A non-custodial punishment were...