SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 979/2016

In the matter between:

SHAWN PALMER

APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:   Shawn Palmer v The State (599/2016) [2017] ZASCA
107 (13 September 2017)
Coram:
Shongwe AP, Seriti JA and Mokgohloa AJA

Heard:
16 August 2017

Delivered: 13 September 2017

Summary: Criminal Procedure – rape – sentence – life imprisonment –
minimum sentence in terms of Criminal Law Amendment Act 105 of
1997 – substantial and compelling circumstances – proper approach – to
require exceptional circumstances for the determination of whether
substantial and compelling circumstances exist, incorrect – sentence of
life imprisonment set aside and replaced with 15 years' imprisonment.

________
ORDER

___
On appeal from: Gauteng Local Division of the High Court,
Johannesburg (Wright and Keightley JJ sitting as court of appeal):

1 The appeal is upheld.
2 The order of the court below is set aside and replaced with the
following:
‘(a) The appeal is upheld.
The sentence imposed by the  trial court is set aside and replaced with a
sentence of 15 years’ imprisonment which is antedated in terms of s 282
of the Criminal Procedure Act 51 of 1977 to 30 October 2013.'

___
JUDGMENT

___
Seriti JA (Shongwe AP and Mokgohloa AJA concurring):

[1] The appellant Mr Shawn Palmer, appeared in the regional court,
Johannesburg on a charge of rape in contravention of the provisions of s 3
of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007, read with the provisions of s 51(1)(a) and Schedule 2 of
the Criminal Law Amendment Act 105 of 1997.

[2] The allegations levelled against the appellant were that on 21
August 2008 he unlawfully and intentionally sexually violated the
complainant (then 13 year old girl) by having sexual intercourse with her
against her will.

[3] On 6 September 2013 the appellant was convicted as charged and
sentenced to life imprisonment on 30 October. On 10 January 2014 the
trial court granted the appellant leave to appeal against the sentence
imposed. On 17 March 2016 the appellant’s appeal against his sentence
was dismissed by the Gauteng Local Division, Johannesburg. The
appellant with the special leave of this court now appeals against his
sentence.

[4] The issue in this appeal is whether the trial court erred in
concluding that there were no substantial and compelling circumstances
present that justified the imposition of a lesser sentence than the
prescribed minimum sentence of life imprisonment for the rape of a
person under the age of 16.

[5] The complainant RJ was 13 years old at the time of the offence and
she was staying at Abraham Kriel Children’s Home at Langlaagte. On 21
August 2008 the complainant and her 16 year old friend Amanda who
was also staying at the same children’s home, absconded from the
children’s home through the fence which they had cut open. According to
the complainant when they absconded from the children’s home they
intended going to her father’s house in Newlands, they instead ended up
at a soccer ground in the Crossby area. Prior to this incident, the
complainant had absconded from the children’s home on several
occasions and was admitted into a dagga rehabilitation program.

[6] At the soccer ground, the complainant and her friend met the
appellant and his friends namely Slo and Kenny. The three men
introduced themselves. The complainant and her friend met the three men
for the first time on that day. They had a discussion with the three men

and later Amanda said she was hungry, Kenny offered to buy them food
and they all went to a shop where they bought chips and bread. They then
went to a shebeen in the vicinity where they all ate the food and
consumed alcohol.

[7] After leaving the shebeen they made their way to one Michael’s
place where dagga was sold, which they then purchased and subsequently
smoked. At that stage it was late in the evening between 18h00 and 19h00
and they made arrangements for where they were going to sleep that
night. It was arranged that Amanda will go and sleep with Slo and the
complainant will go and sleep at the appellant’s place. Upon leaving
Michael’s place, Amanda left with Slo and the complainant left with the
appellant and they proceeded to the appellant’s place of abode. The
appellant took the complainant to his room in the backyard where he
stayed. In the said room, the appellant requested her to have sexual
intercourse with him, but she refused. She informed the appellant that she
wanted to go to where Amanda was after which the appellant agreed to
take her there.

[8]   They left the appellant’s place of abode and walked a long distance
to a certain block of flats. They passed the said block of flats and walked
into a veld where the appellant grabbed her, put her down on the grass,
loosened her trousers and raped her, without the use of any protection. At
this juncture it is also pertinent to mention that the appellant threatened
the complainant with a knife to her throat that if she screamed he would
kill her.

[9] After raping her, the appellant took her to the place where Slo
stayed. There they found Slo, Amanda and Kenny in front of Slo’s house

and they were chatting. She then informed both Amanda and Kenny that
the appellant had raped her.

[10] All five of them, namely the complainant, the appellant, Amanda,
Kenny and Slo then proceeded once again to Michael’s place. When they
arrived at Michael’s place, the appellant said that the complainant must
go with him but she refused. The appellant then tried to force her to go
with him, she screamed and Michael and two of his friends came out of
the house. At this point the appellant let go of her and the complainant
and Amanda then went into Michael’s flat. They slept at Michael’s place
and the following morning the complainant was taken to the children’s
home.

[11] In her evidence, the complainant testified that the act of sexual
penetration was painful and it felt like something tearing inside of her.
During the time he was raping her she called out aloud to God for help
and the appellant mockingly retorted and said that not even God can help
her. The complainant testified that she suffered severe pain not only
during the rape but also for a substantial period after the rape, stating
further that she could not walk properly for nearly two to three weeks
after the rape and that she no longer had any trust in men, including her
father.

[12] Dr Morgan examined the complainant on 22 August 2008. No
physical injuries were observed during the medical examination. The
doctor testified that the complainant, at the time of the alleged rape, was
sexually active.

[13] The pre-sentencing report was submitted to the trial court. The
report amongst others indicated that at the time of the commission of the
offence, the appellant was 29 years old and he was a first offender. He
was raised by his mother and stepfather since he was 10 years old. He
was raised in a stable home environment where morals and values were
instilled in him. He left school when he was in grade 11. He was
employed in the family taxi business. He was intoxicated on the day of
the commission of the offence but still remembered what transpired. He
still denied that he raped the complainant and stated that he had
consensual intercourse with the complainant.

[14] The appellant was arrested on 20 October 2008 and released on
bail on 25 March 2009. On 27 October 2011 his bail was withdrawn and
he was rearrested on 14 September 2012. In mitigation of sentence, the
appellant’s legal representative informed the trial court that the
compelling circumstance was that the appellant was under the influence
of dagga and alcohol at the time of the commission of the offence.

[15] The offence for which the appellant was convicted falls within the
ambit of s 51(1) of the Criminal Law Amendment Act 105 of 1997 which
prescribes that a sentence of imprisonment for life should be imposed in
the absence of substantial and compelling circumstances.

[16] When considering the sentence to be imposed, the trial court found
that there were mitigating factors present which included the following:
(a) that the appellant was employed; (b) he was a first offender; (c) that
he has a five year old son that he maintains; (d) that he was in detention
for some time and; (e) that the complainant did not sustain any serious
physical injuries. The trial court then considered the aggravating factors

and tabulated same as follows: (a) that rape is a serious offence,
particularly of minor girls; (b) that the legislature prescribed life
imprisonment for such offences; (c) that rape is rife in the country; (d)
that he threatened the complainant with violence and; (e) that the incident
took place at night in a deserted place.

[17] After considering both the mitigating and aggravating factors the
trial court held that the mitigating factors were of a general nature and
were not exceptional mitigating factors, and therefore concluded that
there were no substantial and compelling circumstances that justified the
imposition of a sentence lesser than the prescribed minimum sentence of
life imprisonment.

[18] In S v Mohomotsa 2002 (2) SACR 435 (SCA) para 10, this court
rejected the suggestion that for circumstances to qualify as substantial and
compelling they must be exceptional. In S v Sikhipha 2006 (2) SACR 439
(SCA) para 16, this court again stated that where substantial and
compelling circumstances exist that justify the imposition of a sentence
lesser than the prescribed minimum sentence, such circumstances need
not be exceptional. It is for the court imposing sentence to decide whether
the particular circumstances of the case warrant the imposition of a
sentence lesser than the prescribed sentence or not. In this process, factors
that are traditionally taken into account for purposes of determining an
appropriate sentence are considered.

[19] In my view the trial court committed a serious misdirection in
considering whether exceptional circumstances were present in order to
determine whether it can deviate from the prescribed minimum sentence.
The sentence of life imprisonment imposed by the trial court must

therefore be set aside and this court must consider what an appropriate
sentence would be in the circumstances of this case. When considering an
appropriate sentence the court must keep in mind the sentence that the
legislature considers appropriate in a case of this nature together with the
aggravating and mitigating factors. A court must also have regard to the
triad of factors relevant to sentence, which include the personal
circumstances of the appellant, the seriousness of the offence and the
interests of society (see S v Zinn 1969 (2) SA 537 (A) at 540G-H). S v
Sikhipha supra para 16 and S v Abrahams 2002 (1) SACR 116 (SCA)
para 13.

[20] In the present case, when the aggravating and mitigating factors are
taken into account, together with the facts of this case, my view is that the
prescribed minimum sentence of life imprisonment is not an appropriate
sentence. There were therefore substantial and compelling circumstances
justifying a sentence lesser than life sentence imposed.

[21] In my view, after taking into account all the circumstances of this
matter and the benchmark created by the Act, I consider a sentence of 15
years' imprisonment to be an appropriate sentence.

[22] In the circumstances I make the following order:
1 The appeal is upheld.
2 The order of the court below is set aside and replaced with the
following:
'(a) The appeal is upheld.
The sentence imposed by the trial court is set aside and replaced with a
sentence of 15 years’ imprisonment which is antedated in terms of s 282
of the Criminal Procedure Act 51 of 1977 to 30 October 2013.'

_________________
LW SERITI

JUDGE OF APPEAL

APPEARANCES:

For Appellant:

P du Plessis
Instructed by:
BDK Attorneys
David H Botha, Du Plessis & Kruger Inc,
Johannesburg

Symington & De Kok
Attorneys, Bloemfontein

For Respondent:

Mr P Schutte

Instructed by:
The Director of Public Prosecutions,
Johannesburg

The Director of Public Prosecution,
Bloemfontein