S v Vilakazi

• Jurisdiction: South Africa
• Citation: 2009 (1) SACR 552 (SCA)

S v Vilakazi
2009 (1) SACR 552 (SCA)

2009 (1) SACR p552

Citation	2009 (1) SACR 552 (SCA)
Case No	576/07
Court	Supreme Court of Appeal
Judge	Streicher JA, Nugent JA, Mlambo JA, Maya JA and Hurt AJA
Heard	May 5, 2008; September 2, 2008
Judgment	September 3, 2008
Counsel	BC Bredenkamp SC (with HL Alberts) for the appellant.; AR de Meillon for the respondent.; W Trengove SC (with C Steinberg and I Goodman) as first amici curiae.; KD Moroka SC (with K Pillay) as second amici curiae.

Flynote : Sleutelwoorde

B Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — No gradation between ten years' imprisonment ordinarily prescribed for rape, and life imprisonment prescribed if any one of eight aggravating features present — This situation C posing real risk of incongruous and disproportionate sentences being imposed — Incumbent upon court to assess whether prescribed sentence indeed proportionate to particular offence — Prescribed sentences not to be assumed a priori to be either proportionate to offence or, indeed, constitutionally permissible — Notion that prescribed sentence to be imposed in 'typical' cases, and departed from only in 'atypical' ones, D without merit.

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Rape of girl under the age of 16 — Fact that complainant under 16 considered by legislature to warrant imposition of most severe sentence possible — This circumstance, E and others set out in Act, indeed aggravating — However, absence of such circumstances also capable of lessening culpability of offender — No suggestion that maximum sentence reserved only for extreme cases — Whether, and to what extent, absence of other aggravating circumstances diminishing offender's culpability depending upon circumstances of case — In casu no extraneous violence, or threat thereof, and no physical F injury other than that inherent in offence — Appellant minimising risk of pregnancy and transmission of disease by using condom — Emotional distress and damage accompanying rape might be extensive even if not manifested overtly — No woman, least of all a child, left unscathed by sexual assault; complainant indeed traumatised — However, evidence revealing nothing more specific than that — Life sentence set aside and G sentence of 15 years' imprisonment imposed.

Sentence — Imposition of — Factors to be taken into account — Rape of girl under the age of 16 — Once clear that substantial jail term appropriate, questions of whether or not accused married, or employed, or of how many children he had, largely immaterial — However, these questions H remaining relevant in assessing whether accused likely to offend again — Fact that appellant having reached age of 30 without any serious brushes with law, and having stable employment and family life, not indicative of inherently lawless character — Sentence of 15 years sufficient to bring home to appellant gravity of offence and to exact sufficient retribution — Making him pay for his crime with remainder of his life grossly disproportionate. I

Sentence — Imposition of — Factors to be taken into account — At time of sentencing appellant having been incarcerated for just over two years — Unjust if period of imprisonment awaiting trial not brought into account in any subsequent custodial sentence — Accordingly, ordered that sentence J to expire two years earlier than would ordinarily have been case.

2009 (1) SACR p553

Headnote : Kopnota

The appellant was convicted in a regional court of raping a girl under the age of A 16 years. In terms of s 52 of the Criminal Law Amendment Act 105 of 1997 (the Act), he was committed to the High Court for sentencing. That court found that no substantial and compelling circumstances existed that justified the imposition of a lesser sentence than that prescribed by the Act and, consequently, a sentence of life imprisonment was imposed. The appellant appealed against this sentence. Before considering the merits of B the appeal, the Court turned its attention to certain aspects of the Act's sentencing regime.

Held, that it was striking that there was no gradation between the 10 years' imprisonment ordinarily prescribed for rape, and the life imprisonment prescribed if any one of eight aggravating features was present. Thus, the C maximum sentence allowed in law was to be imposed irrespective of how many such features were present, or of the degree in which they were present, and irrespective of whether or not the criminal was a first or a repeat offender. This situation posed the real risk that incongruous and disproportionate sentences would be imposed. It was accordingly incumbent upon a court to assess whether the prescribed sentence was indeed D proportionate to a particular offence. If any circumstances were present that would render the prescribed sentence disproportionate to the offence, this would constitute weighty justification for the imposition of a lesser sentence. Thus, a prescribed sentence could not be assumed a priori to be either proportionate to the offence, or, indeed, constitutionally permissible. Proportionality was to be determined on the circumstances of the particular E case. Accordingly, the notion that the prescribed sentence was to be imposed in 'typical' cases, and departed from only in 'atypical' ones, was without merit. (Paragraphs [13]-[19] at 559e-562d.)

Held, further, that in the court a quo only very brief submissions had been made on behalf of the appellant, and the judgment had consisted mostly of a repetition of his personal circumstances. In addition, the judgment also F mentioned that the complainant had been 11 years old at the time of the rape, that she suffered from epilepsy, and that she was to a degree mentally impaired. All of these factors had been considered as aggravating. All three of these findings were misdirections. The evidence showed that the complainant had been at least 14, and possibly over 15, at the time of the rape. As to the epilepsy and the mental impairment, these findings were G based on an inaccurate reflection of the evidence of the district surgeon. He had not actually diagnosed either condition. In any event, to take account of the 'fact' that a complainant was 'a sufferer of epilepsy' without any indication of its relevance to the offence or the consequences thereof, was a misdirection. (Paragraphs [24]-[29] at 563f - 565h.) H

Held, further, that there was an even more fundamental misdirection. It was clear from the aforementioned misdirections, and from the tenor and brevity of the judgment, that the evaluation of the evidence had been, at most, superficial. The matter had been approached on the basis that the prescribed sentence would be imposed as a matter of course unless the appellant's personal circumstances disclosed it to be an exceptional case. I Such an approach was not permissible; the court was required to apply its mind to the question of whether the sentence was proportional to the offence, and this it had failed to do. Accordingly, the sentence could not stand. (Paragraphs [30] and [31] at 566a - 566d.)

Held, further [the Court having satisfied itself that the appellant's conviction was sound], that this was a case in which the objective features of the crime J

2009 (1) SACR p554

A came to the fore. The fact alone that the complainant was under 16 was considered by the legislature to warrant the imposition of the most severe sentence possible. That this circumstance and the others set out in the Act were indeed aggravating factors was beyond question. However, the absence of such circumstances was also capable of lessening the culpability of the offender. Such absence, of course, did not necessarily justify a B departure from the prescribed sentence, for that would be to suggest that the maximum sentence was reserved only for extreme cases. That was not the position prior to the Act, and nor was it now the case. Whether, and to what extent, the absence of other aggravating circumstances would diminish an offender's culpability would depend upon the particular circumstances C of the case. But that their absence might indeed have that effect was merely affirmation of the established theme in recent authority that none of the factors traditionally taken into account in sentencing was to be excluded at the outset in the sentencing process provided by the Act. (Paragraphs [53] and [54] at 572d-572i.)

Held, further, that there had been no extraneous violence, or threat thereof, and D no physical injury other than that inherent in the offence. The appellant had at least minimised the risk of pregnancy and transmission of disease by using a condom. There was very little upon which to measure the emotional impact on the complainant. The emotional distress and damage that accompanied rape might be extensive even if it was not manifested overtly. This was all the more so in the case of young girls. Even though the district E surgeon had observed no signs of stress it must be accepted that no woman, least of all a child, would be left unscathed by sexual assault, and that in casu the complainant must indeed have been traumatised. However, the evidence revealed nothing more specific than that. (Paragraphs [55]-[57] at 573a-574b.)

Held, further, that in cases of serious crime the personal circumstances of the F offender necessarily receded into the background. Once it was clear that a substantial jail term was appropriate, questions of whether or not the accused was married, or employed, or of how many children he had, were largely immaterial. However, they remained relevant in assessing whether the accused was likely to offend again. In the present case the appellant had...