IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO: CA 253/2009 DATE HEARD: 10 May 2010 DATE DELIVERED: 20 May 2010 JUDGMENT

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO: CA 253/2009 DATE HEARD: 10 May 2010 DATE DELIVERED: 20 May 2010 In the matter between BILLY NGINDANA APPELLANT VS THE STATE RESPONDENT JUDGMENT ROBERSON J: [1] The appellant pleaded guilty to and was convicted of attempted rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of The complainant was a five year old girl and the attempted rape was per anum. The appellant was sentenced to ten years imprisonment and now appeals against this sentence. [2] An appeal court s power to interfere in the sentence of the trial court is limited to instances where there has been a material misdirection by the trial court or the sentence imposed is disturbingly inappropriate or induces a sense of shock. [3] The circumstances of the attempted rape were set out in the appellant s statement in terms of s 112(2) Act 51 of 1977, which read as follows: 1. I, the undersigned, BILLY NGINDANA, do hereby state as follows:

2 2 2. I am the accused in this matter. 3. The contents of the docket and the indictment have been fully explained to me and I understand the contents thereof. The relevant provisions of the so called Minimum Sentences have also been explained to me. 4. I plead guilty to the count of attempted rape. 5. I wish to explain what happened prior to the attempted rape incident which eventually led to the incident of attempted rape itself. 6. On the previous Friday evening, the 28 th of November 2008, I went out to a place in Xholorha Location, Stutterheim, which is called Sityi s Tavern. I spent the evening there and whilst at Sityi s Tavern I drank a lot of liquor. 7. I was too drunk to return to my house which is in Mlungisi Tonship, also in Stutterheim and I therefore slept over at friend s house in Xholorha Location. 8. I woke up during the course of the following day which was the 29 th of November 2008 and returned to my home. My home is on the same premises at that of the complainant. I live in a shack which is situated on the same plot of land as the RDP house that the complainant lives in. 9. Back at my house I met up with a lady by the name of Grace Falibongwa, who also stays on the same plot of land. There are 3 houses on this plot of land and Grace, the complainant and myself all live separately in these three houses. 10. I obtained a 1 litre bottle of Paarl Perle from Grace Falibongwa and shared 2

3 3 that with another lady called Nomtibiliza Dinala. 11. At a stage I started to feel unwell as a result of the previous night s drinking and now drinking again soon thereafter and I told Nomtibiliza Dinala that I am not going to drink anymore and that I am going to my shack to sleep. This I did. 12. At a stage I was awoken by the noise of the children outside that were naughty. I got up and chased them. The complainant, Somali Mali, was part of this group of children. As I did so I tripped and fell over Somali Mali. I proceeded to pick her up and took her inside her RDP house. 13. Once inside the house I put her down on a bed and it was at that stage that I became overcome by my sexual urges. I pulled down her pants and panties, as well as my own pants and attempted to penetrate her anally. 14. I realized that she was hurting and I stopped immediately and dressed Somali Mali and myself. 15. Somali Mali then screamed and Grace Falibongwa entered. Somali Mali and myself were fully clothed at that stage that Grace Falibongwa enered the room where we were. 16. I know that my actions were wrong and I regret every minute of it. I wish to state further that I never assaulted the complainant during the incident. 17. Whilst I had consumed a substantial amount of liquor I was, at the time of the incident, able to distinguish between right and wrong and to act in accordance thereof. I realised at the time of the incident that my actions were wrong.

4 4 18. I admit that Somali Mali was born on 8 October 2003 and that she was therefore 5 years old at the time of the attempted rape. [4] Dr. Roy Zachariah examined the complainant the day after the attempted rape and recorded his examination and findings in the J88 form, which was handed in as an exhibit. The clinical findings in the J88 form were recorded as bruising, redness, swelling, and abrasions, in the anal region. No other injuries were recorded. In his testimony, Dr. Zachariah agreed that the anal injury was slight and did not require medical treatment but said that treatment in the form of social counseling was required. [5] A report by a clinical psychologist, Ms Pumza Sakaza, was admitted by agreement. She assessed the complainant some four months after the incident, for the purpose of establishing whether or not the complainant would be able to testify in court. Ms Sakaza recorded that during the assessment the complainant giggled uncontrollably and became emotionally numb when relating the incident. In her conclusion that the complainant would be able to testify, Ms Sakaza said that the complainant had been affected significantly by the incident and her clinical presentation was indicative of an unresolved emotional sequel. [6] The addresses of counsel on sentence were not recorded but the personal circumstances of the appellant were recounted in the learned Judge a quo s judgment on sentence. 4

5 5 [7] The appellant was 34 years old at the time of the offence and had three dependent children, who were in the custody of their mother. He came from a disadvantaged socioeconomic background and was uneducated. He did not have fixed employment and performed casual work as a gardener, earning a small sum per job. He had two previous convictions for theft, one in 2003 and the other in 2004, for which he was sentenced to fines with an alternative of imprisonment. [8] In mitigation, the learned Judge took into account that the appellant had shown remorse, had pleaded guilty, had not wasted the court s time, and had co-operated with the police. He also took into account that the appellant was under the influence of alcohol when he committed the offence, that the offence was not planned, that the appellant had shown restraint and refrained from continuing with the assault on the complainant after she had expressed pain, and had spared the complainant the ordeal of testifying in court. In his view it also counted in the appellant s favour that his previous convictions were not relevant to the offence of attempted rape. [9] In considering the impact of the offence on the complainant, the learned Judge referred to the report of Ms Sakaza, which he said showed that the crime caused the complainant some emotional and behavioural damages which will remain with her for a long time to come. It is stated in the report that the complainant remains vulnerable to abusers. [10] Ms Sakaza did not go so far as to say that the damage would remain for a long

6 6 time to come. She said that the clinical presentation of the complainant was indicative of an unresolved emotional sequel. She also did not say in the report that the complainant remained vulnerable to abusers. This misinterpretation of Ms Sakaza s report amounts in my view to a misdirection. [11] The learned Judge said that the appellant had a moral duty to protect the child and not to destroy her in the manner as he did. Again this statement amounts to a misdirection. There was no evidence that the complainant had been destroyed. [12] The learned Judge also said that he had been informed that the appellant visited the residence of the complainant frequently and therefore would pose a serious threat to her safety, in which case removal from society was the answer. There was no evidence in the record that the appellant visited the complainant frequently. Mr. Zantsi, who appeared for the State at the trial and in the appeal, could not recall having given this information from the bar, and conceded that the learned Judge s statement was a misdirection. [13] In view of these misdirections, which reflect on the impact of the offence on the complainant and the degree of seriousness of the offence, this court is entitled to interfere with the sentence imposed. [14] At the trial the State had suggested a term of imprisonment of seven years, while the appellant s counsel had suggested eight years. In deciding on an appropriate term of 6

7 7 imprisonment, the learned Judge had regard to the sentences imposed in other attempted rape cases, in which the complainants had been adults. In S v Boy 1992 (1) SACR 449 (ECD), a sentence of ten years imprisonment was reduced on appeal to seven years. The appellant had dragged the complainant to her bedroom, forced her to undress and threatened to stab her. He had ignored her pleas to leave her alone. In S v M 1997 (1) SACR 276 (WLD), a sentence of ten years imprisonment was reduced on appeal to seven years. The crime was pre-meditated, the complainant was threatened with a sharp instrument, and the appellant showed no remorse. [15] Counsel for the appellant referred to S v Marais 2009 (1) SACR 299 (E), also a case of attempted rape, where a sentence of eight years imprisonment three of which were suspended, was confirmed on appeal. The appellant had abused his position of authority as employer and lured the complainant on a false pretext to get into his vehicle. He threatened her with a rifle, threatened to kill her, assaulted her, undressed her and after she escaped she ran naked for about two kilometers before she found help. The appellant showed no insight into the seriousness of what he had done and the harm he had caused the complainant. [16] The learned Judge in the present matter was of the view that the appellant was more morally blameworthy than in cases of adult complainants, because the complainant was a five year old child who was unable to defend herself. While it is certainly an aggravating feature that the complainant in this case was very young and defenceless, other cases also have their own aggravating features, peculiar to the particular case,

8 8 which affect the degree of seriousness of the offence and the moral blameworthiness of the perpetrator. The cases referred to above demonstrate such features. Each case must be determined on its own circumstances, with regard to both mitigating and aggravating factors. In the present case the age of the complainant does not in my view automatically elevate the offence into a more serious category than cases of adult complainants. It is a factor to be considered in the totality of all the circumstances. [17] A term of imprisonment was certainly an appropriate sentence, given the seriousness of the offence. However the complainant was not seriously physically injured and there was no evidence of long term psychological and emotional damage. This is not to discount that there was damage done but its extent is a factor to be taken into account. The appellant s remorse was genuine and he made no attempt to conceal what he had done. His conduct was not premeditated and he realised almost immediately that what he was doing was wrong. [18] In all these circumstances, I am of the view that the sentence of ten years imprisonment was unduly harsh, and that a sentence of seven years imprisonment adequately meets the offence. Order [19] The following order is made: 8

9 9 [19.1] The appeal succeeds. [19.2] The sentence of ten years imprisonment is set aside and substituted with a sentence of seven years imprisonment, ante-dated to 24 June J.M. ROBERSON JUDGE OF THE HIGH COURT I agree, and it is so ordered, J.J. NEPGEN JUDGE OF THE HIGH COURT I agree, B.J. PIENAAR ACTING JUDGE OF THE HIGH COURT Appearances: For the Appellant: Mr A de Jager, instructed by Justice Centre, Grahamstown For the Respondent: Adv Zantsi, DPP, Grahamstown