S v Rudath (CA 109 of 1998) [1999] NAHC 13 (21 September 1999)

ERICH RUDATH v. THE STATE CASE NO. CA 1 0 9 / 98 1 9 9 8 / 0 9 / 21 Teek, J . P. et Maritz, J. CRIMMINAL PROCEDURE Sentence - r a pe - s e r i o u s n e ss of t he crime - interest of the victims, of women a nd of society in general in retributive, d e t e r r e nt a nd preventative s e n t e n c es - prevalence justifying e m p h a s is of society's interest. Appeal - Sentence - righteous anger clouding j u d g m e nt - r e s u l t a nt failure to consider certain mitigating factors - "mercy" as element in dispensing justice - requires t h at it should be done in a judicially balanced, soberly objective, morally elevated a nd h u m a ne fashion - severity of 17 year sentence reduced by s u s p e n d i ng 5 y e a rs thereof. THE HIGH COURT OF NAMIBIA CASE NO. CA 1 0 9 / 98 ERICH RUDATH Appellant a nd THE STATE R e s p o n d e nt CORAM: TEEK, J. P. et MARITZ, J. Heard on: 1999-08-20 Delivered on: 1999-09-21 JUDGMENT MARITZ, J.: The Regional C o u rt convicted t he appellant of t he crime of r a pe a nd s e n t e n c ed him to 17 y e a rs i m p r i s o n m e n t. This appeal is against t h at sentence. Mr. Mostert, who a p p e a r ed for t he appellant, contended t h at t he sentence w as totally inappropriate, shockingly disproportionate a nd inconsistent with s e n t e n c es generally imposed for crimes of t h at n a t u r e. In addition, he s u b m i t t ed t h at t he regional magistrate h ad not given d ue consideration to t he p e r s o n al c i r c u m s t a n c es of t he appellant; h ad placed too m u ch e m p h a s is on the interest of society and, as a c o n s e q u e n ce thereof, h ad failed to exercise his discretion judicially. The trial court, so he argued, should have given more weight to t he mitigating factors on record: The appellant w as at the time gainfully employed, married, t he father of three children, the sole breadwinner of the family a nd a first offender at the age of 3 5. Of course, the combined weight to be given to mitigating factors c a n n ot be determined in isolation. They m u st be weighed together with all aggravating factors to a s s e ss their comparative weight for p u r p o s es of sentence. All those factors should be considered as interrelated c o m p o n e n ts of Zinn's oft-applied triad (i.e. the crime, t he offender, a nd t he interest of society) in designing a suitable s e n t e n ce t h at satisfies t he objectives of p u n i s h m e n t. In t h is context, it is only a p p r o p r i a te t h at I refer to some of t he aggravating factors p r e s e nt in this case. Rape is, by its n a t u r e, generally regarded as a vile a nd serious crime. The b r u t al sexual violation of a fellow being's physical integrity, h u m an dignity, security of p e r s on a nd psychological well-being to satisfy the a s s a i l a n t 's m o st primitive a nd bestial u r g es of lust, sexual domination a nd power should not be tolerated in any society - least in o u r s, which h as constitutionally committed itself to the recognition a nd protection of t he dignity, freedom a nd equality of all its m e m b e r s. W o m e n, in g e n e r a l, h a ve b e en t he s u f f e r i ng p r ey of t h is c r i me for t oo l o ng a nd t oo often. T h o se w ho h a ve fallen v i c t im to it h a ve a l e g i t i m a te e x p e c t a t i on to s e ek j u st r e t r i b u t i on a g a i n st t he o f f e n d e rs t h o u gh o ur j u d i c i al s y s t e m. M o r e o v e r, as a c l a ss of p e r s o ns c o n s t i t u t i ng a s i g n i f i c a nt p o r t i on of s o c i e t y, w o m en h a ve t he m o st i m m e d i a t e, c o m p e l l i ng a nd d i r e ct i n t e r e st t h at t he c o u r ts of t h is c o u n t ry s h o u ld i m p o se d e t e r r e nt s e n t e n c es to d i s c o u r a ge p o t e n t i al o f f e n d e r s. T he N a m i b i an s o c i e ty s h a r es t h o se s e n t i m e n ts a nd d e m a n ds t h a t, in a p p r o p r i a te c a s e s, o f f e n d e rs be i n c a r c e r a t ed a nd r e h a b i l i t a t ed to p r e v e nt r e c u r r e n ce of t h e ir c r i m e s. I find m y s e lf in r e s p e c t f ul a g r e e m e nt w i th t he s t r o ng v i e ws e x p r e s s ed in S v Chapman, 1 9 97 (2) SACR 3 (SCA): "Rape is a very serious offence, constituting as it does a humiliating, degrading a nd b r u t al invasion of t he privacy, t he dignity a nd t he p e r s on of the victim. The rights to dignity, to privacy a nd t he integrity of every p e r s on are basic to the e t h os of t he Constitution a nd to a ny defensible civilisation. Women in t h is c o u n t ry are entitled to t he protection of t h e se rights. They have a legitimate claim to walk peacefully on t he streets, to enjoy their s h o p p i ng a nd their e n t e r t a i n m e n t, to go a nd come from work, a nd to enjoy t he peace a nd tranquillity of their h o m es w i t h o ut t he fear, t he a p p r e h e n s i on a nd t he insecurity which c o n s t a n t ly d i m i n i s h es t he quality a nd enjoyment of their lives." (at p 5A-C) a nd "The C o u r ts a re u n d er a d u ty to s e nd a clear m e s s a ge to t he a c c u s e d, to other potential r a p i s ts a nd to t he c o m m u n i t y: We are d e t e r m i n ed to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights." (at p 5E). To aggravate the already serious n a t u re of t he crime, it a nd other crimes manifesting a "blatant and flagrant want of respect for the life and property of fellow human beings", have become increasingly prevalent in this country. There is a public outcry for more effective a nd more stringent m e a s u r es to reduce the occurrence thereof. So universal a nd compelling h as public opinion rallied against perpetrators t h at legislation is presently u n d er consideration in Parliament to a d d r e ss a nd c o m b at crimes of t h at n a t u re more effectively. In the c i r c u m s t a n c es the trial m a g i s t r a te justifiably e m p h a s i s ed the interest of society as an i m p o r t a nt consideration in the determination of the appellant's sentence. S u ch e m p h a s is is also done in other jurisdictions: See for example t he a t t i t u de of Lombard, J. expressed in S v Matolo en 'nAnder, 1998 (1) SACR 2 06 (O): "In cases like the present the interests of society is a factor which plays a material role and which requires serious consideration. Our country at present suffers an unprecedented, uncontrolled and unacceptable wave of violence, murder, homicide, robbery and rape. A blatant and flagrant want of respect for the life and property of fellow human beings has become prevalent. The vocabulary of our courts to describe the barbaric and repulsive conduct of such unscrupulous criminals is being exhausted. The community craves the assistance of the courts: its members threaten, inter alia, to take the law into their own hands. The courts impose severe sentences, but the momentum of violence continues unabated. A court must be thoroughly aware of its responsibility to the community, and by acting steadfastly, impartially and fearlessly, announce to the world in unambiguous terms its utter repugnance and contempt of such conduct." F u r t h e r m o r e, the m a n n er in which the appellant committed t he r a pe h as several aggravating elements. The appellant, driving a vehicle, found the c o m p l a i n a nt walking to her father's h o u se early on a S a t u r d ay evening. He offered her a lift. When s he declined, he forcibly a nd unexpectedly pulled h er into t he vehicle a nd drove off. She loudly protested her a b d u c t i on a nd later in t e a rs pleaded with him to release or r e t u rn her, b ut to no avail. After m a k i ng one stop n e ar his brother's h o u s e, where the c o m p l a i n a n t 's cries for a s s i s t a n ce fell on the e a rs of a deaf or disinterested neighbourhood, t he appellant eventually stopped the vehicle somewhere in t he veldt on the o u t s k i r ts of Windhoek. There he dragged the c o m p l a i n a nt from the car, tore t he clothes off h er body a nd raped her. He did so whilst h er humiliation w as witnessed in the glow of the vehicle's p a r k i ng lights by two boys, aged 12 a nd 18 respectively, who were p a s s e n g e rs in t he car. Raping her w a s, however, not e n o u gh for t he appellant. He then, telling the boys t h at he h ad "torn h er u p" d e m a n d ed t h at they too s h o u ld r a pe her. They declined. The appellant collected a revolver from t he vehicle, cocked it a nd t h r e a t e n e d, in the c r u d e st of language, to shoot t h em should they persist with their refusal to comply with h is d e m a n d. The c o m p l a i n a nt tried to get b a ck into the vehicle b ut w as again pulled o ut of it by t he appellant. She t h en suffered t he devastating indignity of being r a p ed by a 12-year-old boy s he k n ew by n a me - he w as a t t e n d i ng the s a me school as her own child. Thereafter it was the other boy's t u r n. He w as similarly t h r e a t e n ed a nd at gunpoint h ad to violate h er again. The boy, afraid of t he c o n s e q u e n c e s, at first merely p r e t e n d ed to have intercourse with the complainant, b ut t he appellant, not to be denied m a c a b re satisfaction of his d e m a n d s, insisted a nd closely observed t h at he too violated her. To a dd insult to injury, the a p p e l l a nt t h en zipped up his fly a nd told the boys t h at they would not get into trouble b e c a u se the c o m p l a i n a nt was "rubbish". Distraught, s he eventually m a n a g ed to r un away to a not too d i s t a nt neighbourhood where an u n k n o wn S a m a r i t an eventually heeded her calls a nd took her to h er father's h o u s e. This brief s u m m a ry c a n n ot adequately describe the horrific experience suffered by t he complainant. The c o m p l a i n a nt w as also from time to time d u r i ng h er evidence at a loss for words to adequately relate h er ordeal at t he h a n ds of t he appellant a n d, on occasion, she could do no better t h an to compare his c o n d u ct to t h at of a "dog" a nd a "pig". The rape left the complainant, who w as described by the m a g i s t r a te as "a lady with good upbringing", emotionally devastated. So t o r m e n t ed was she by t he events t h at s he a t t e m p t ed suicide by taking an overdose of pills. To a certain extent, t he emotional c o n s e q u e n c es of the c o m p l a i n a n t 's ordeal is similar to t h o se described by Van Deventer, J. a nd Prest, A. J. in S v C, 1996(2) SACR 181 (C) at 186E: "A rapist does not murder his victim - he murders her self-respect and destroys her feeling of physical and mental integrity and security. His monstrous deed often haunts his victim and subjects her to mental torment for the rest of her life - a fate often worse than loss of life." And the appellant? He did not show a ny remorse. He s at smiling when the c o m p l a i n a nt tearfully related to t he court p a r t i c u l a rs of h er terrible experience at his h a n d s. On one occasion he h ad to be a d m o n i s h ed by the magistrate a nd on a n o t h er the c o m p l a i n a nt h ad to r e m a rk on his d e m e a n o ur in court. Even his legal representative, it a p p e a r s, h ad to a sk for an a d j o u r n m e nt to counsel the appellant a b o ut the callous impression c a u s ed by his conduct. His d e m e a n o ur m u st have given the magistrate some insight into his personality a nd character. The appellant showed a significant lack of appreciation for the gravity of the crime he h ad committed: He advanced in mitigation (through h is legal representative) t h at he w as going to be in a lot of trouble at work for being two d a ys a b s e nt from work b e c a u se of t he trial a nd suggested a total s u s p e n s i on of h is sentence! It is p e r h a ps the appellant's u n r e p e n t a nt a nd callous a t t i t u de t h a t, more t h an anything, s t u ng a n d, it a p p e a r s, angered the experienced a nd sensible regional magistrate. T h at m u ch a p p e a rs from the last part of the magistrate's j u d g m e nt on sentence: "I could n ot h e lp to observe t h is m o r n i ng t h at you were l a u g h i ng w h en t he c o m p l a i n a nt w as testifying. You were actually l a u g h i ng at her, so t h at s he h ad to t u rn to you a nd r e p r i m a nd you for t h a t. Now, a p e r s on who a p p r o a c h es a s e r i o us m a t t er like t h is l a u g h i ng n e e ds a serious r e p r i m a n d. A very s e r i o us o n e, otherwise you will t h i nk t h at you c an come away with jokes. This is a joke? It is n ot a joke. You are s e n t e n c e d, sir, to 17 y e a rs i m p r i s o n m e n t. Nothing is s u s p e n d e d ." T he a p p r o a ch to be a d o p t ed by t h is c o u rt in an a p p e al a g a i n st s e n t e n ce is t r i t e: " P u n i s h m e nt being pre-eminently a m a t t er for t he discretion of t he trial Court, t he powers of a Court on appeal to interfere with s e n t e n ce are limited. S u ch interference is only permissible w h e re t he trial C o u rt h as n ot exercised its discretion judicially or properly. This o c c u rs w h en it h as misdirected itself on facts material to s e n t e n c i ng or on legal principles relevant to sentencing. It will also be inferred t h at t he trial C o u rt acted u n r e a s o n a b ly if '(t)here exists s u ch a striking disparity between t he s e n t e n c es p a s s ed by t he l e a r n ed trial J u d ge a nd t he s e n t e n c es which t h is C o u rt would have p a s s ed (Berliner's case s u p ra at 200) - or, to pose t he enquiry in t he phraseology employed in other c a s e s, w h e t h er t he s e n t e n c es appealed a g a i n st a p p e ar to t h is Court to be so startlingly (S v Ivanisevic a nd Another (supra at 575)) or disturbingly (S v Letsolo 1970 (3) SA 4 76 (A) at 477) i n a p p r o p r i a te - as to w a r r a nt interference with t he exercise of t he learned J u d g e 's discretion regarding s e n t e n c e' S v W h i t e h e ad 1970 (4) SA 4 24 (A) at 436D-E. Compare also S v Anderson 1964 (3) SA 4 94 (A); S v Letsoko a nd O t h e rs 1964 (4) SA 7 68 (A) at 777D-H; S v Ivanisevic a nd Another 1967 (4) SA 5 72 (A) at 575G-H a nd S v Rabie 1975 (4) SA 8 55 (A) at 857D-F. which j u s t i ce should be d i s p e n s ed in a civilised a nd j u st society. (See R v V, 1972(3) SA 6 11 (AD) at 614D - F). "It is a b a l a n c ed a nd h u m a ne state of thought" a nd "eschews insensitive c e n s o r i o u s n e ss in sentencing a fellow-mortal, a nd so avoids severity in anger" - per Holmes, J. A. in S v Rabie, 1975 (4) SA 8 55 (A) at 6 8 2D - F. By its consideration, we remind ourselves t h at j u s t i ce should be d i s p e n s ed in a judicially balanced, soberly objective, morally elevated a nd h u m a ne fashion - a nd t h at t he c o u rt is neither a s l e d g e h a m m er to exact a victim's revenge nor a deity capable of absolving a p e r p e t r a t or of his or h er crimes. Anger, occasioned by the offender's d e m e a n o ur a nd c o n d u ct in or o ut of court, however righteous, justified or u n d e r s t a n d a b le it might be in the c i r c u m s t a n c e s, "should not becloud j u d g e m e n t" (R v Karg, 1961 (1) SA 231 (A) at 236B). Should t he trial c o u rt sentence in anger, it would be a misdirection justifying the court of appeal to consider t he sentence afresh. Having carefully considered the magistrate's j u d g m e nt on s e n t e n c e, I am left with the distinct impression t h a t, angered by t he a c c u s e d 's conduct, t he element of mercy w as not blended into t he other relevant considerations w h en meting o ut sentence to the appellant. F u r t h e r m o r e, it is not a p p a r e nt from the j u d g m e nt t h at t he m a g i s t r a te considered t he following mitigating factors at all: The a p p e l l a nt w a s, according to the accepted evidence of the c o m p l a i n a n t, heavily u n d er the influence of liquor at all relevant times d u r i ng the incident. Intoxication, as Holmes, J. A. h as said in S v Ndlovo (2), 1965(4) SA 692 (AD) at 695C-D, "is one of h u m a n i t y 's age-old frailties, which may, depending on the c i r c u m s t a n c e s, reduce t he moral blameworthiness of a crime, a nd m ay even evoke a t o u ch of compassion t h r o u gh the perceptive u n d e r s t a n d i ng t h at m a n, seeking solace or p l e a s u re in liquor, m ay easily over-indulge a nd thereby do the things which sober he would not do. On t he other h a nd intoxication may, again d e p e n d i ng on t he c i r c u m s t a n c e s, aggravate the a s p e ct of b l a m e w o r t h i n e ss ... a s, for example, w h en a m an deliberately fortifies himself with liquor to enable him insensitively to carry out a fell design." I should point out t h at there is no indication on record t h at the c o m p l a i n a n t 's a b d u c t i on a nd r a pe were p l a n n ed or t h at liquor w as c o n s u m ed to bolster the appellant's resolve with s u ch p u r p o s es in mind. Other factors a p p a r e n t ly not considered are t h at the revolver w as not u s ed as p a rt of a ny t h r e at m a de a g a i n st t he c o m p l a i n a nt a nd t h at there is no evidence of a ny real physical injuries s u s t a i n ed by h er as a result of h er t r e a t m e nt at t he h a n ds of t he appellant. I have no d o u bt t h at the imposition of a long t e rm of i m p r i s o n m e nt is appropriate in the c i r c u m s t a n c es of this case. However, i m p r i s o n m e nt for an effective period of 17 y e a rs is indeed a very long time. Although s e n t e n c es of s u ch (and longer) d u r a t i on are often fully justified, especially where it is n e c e s s a ry for the protection of society t h at the a c c u s ed be removed from its m i d st a nd be placed in preventative custody for s u ch a period, one should always be mindful of the c a u t i o n a ry r e m a r ks of Nicolas, J. A. in S i; Skenjana, 1985(3) SA 51 (AD) at 541 to 55D w h en it c o m es to the sentencing objectives of deterrence, retribution a nd rehabilitation: "My personal view is that the public interest is not necessarily best served by the imposition of very long sentences of imprisonment. So far as deterrence is concerned, there is no reason to believe that the deterrent effect of a prison sentence is always proportionate to its length. Indeed, it would seem to be likely that in this field there operates a law of diminishing returns: a point is reached after which additions to the length of a sentence produce progressively smaller increases in deterrent effect, so that, for example, the marginal deterrent value of a sentence of 20 years over one of say 15 years may not be significant. Similarly in regard to the aspect of retribution. This has tended to yield ground to the aspects of deterrence and reformation, but it is not wrong that, in determining a proper sentence, the Courts should give some recognition to the natural indignation and the fears and apprehensions of interested persons and the community at large. (See R v Karg 1961 (1) SA 231 (A) at 236A-B.)... But that demand may well be satisfied by the imposition of less than the most severe sentence. Nor is it in the public interest that potentially valuable human material should be seriously damaged by long incarceration. As I observed in S v Khumalo and Another 1984 (3) SA 327 (A) at 331, it is the experience of prison administrators that unduly prolonged imprisonment brings about the complete mental and physical deterioration of the prisoner. Wrongdoers "must not be visited with punishments to the point of being broken." (Per HOLMES JA in S v Sparks and Another 1972 (3) SA 396 (A) at 410G.)" As a first offender at the age of 35 who in all probability acted at the time with a diminished capacity to exhibit good j u d g e m e nt (due to h is state of intoxication), I would have s u s p e n d ed 5 y e a rs of his s e n t e n c e. S u ch a partial s u s p e n s i on will, in my view, benefit the a p p e l l a n t 's rehabilitation a nd serve as a deterrent not to commit a similar crime after his release from prison, yet, leave a sufficiently long effective term of i m p r i s o n m e nt to i m p r e ss u p on h im t he gravity of h is crime a nd to otherwise satisfy both the c o m p l a i n a n t 's a nd society's interest in j u st p u n i s h m e nt a nd the objectives thereof. B ut even if t he magistrate h as not misdirected himself in the m a n n er I have m e n t i o n ed earlier, I am nevertheless of the view t h at t he partial s u s p e n s i on of the appellant's s e n t e n ce I would have ordered, h ad t he m a t t er come before me in t he first i n s t a n c e, is sufficiently d i s p a r a te from the a c t u al sentence to justify interference by this court on appeal. I the result I would confirm the s e n t e n ce of 17 y e a rs i m p r i s o n m e nt b ut s u s p e nd 5 years thereof for a period of 5 years calculated from t he date of t he a c c u s e d 's release from prison on the condition t h at t he a c c u s ed is not convicted d u r i ng the period of s u s p e n s i on of t he crime of r a pe or indecent a s s a u lt or of the s t a t u t o ry offence of c a r n al intercourse with a girl u n d er t he age of 16 in contravention of s. 14(l)(a) of Act 21 of 1980. FOR THE APPELLANT: MR C MOSTERT INSTRUCTED BY: OLIVIER'S LAW OFFICE FOR THE RESPONDENT: ADV. V. T. BENZ INSTRUCTED BY: THE PROSECUTOR-GENERAL