Director of Public Prosecutions, Free State v Mashune

The respondent pleaded guilty to two counts of housebreaking with intent to rape and rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The first rape occurred on 6 October 2007 when the respondent, aged 28, broke into the dwelling of Nonqazi Matheatau at 02h00, raped her vaginally without a condom, and punched her in the face when she tried to escape. The second rape occurred on 26 December 2010 when the respondent, aged 32, broke into the dwelling of Dimakatso Masukela at 03h00, raped her vaginally wearing a condom, and punched her in the face to subdue her. The respondent was linked to both crimes through DNA evidence obtained after his conviction for a separate rape committed in February 2014. He had previous convictions for housebreaking (2002 and 2004) and rape (2015). The trial court sentenced him to nine years' imprisonment on each count to run concurrently. The State appealed on the grounds that the trial court materially misdirected itself and the sentences were disturbingly lenient.

• Whether the trial court materially misdirected itself in finding substantial and compelling circumstances to depart from minimum sentences
• Whether the trial court erred in accepting the respondent's remorse as genuine
• Whether the trial court erred in treating the respondent's age (28 and 32 at the time of offences) as youthfulness
• Whether the absence of serious physical injuries constituted substantial and compelling circumstances
• What the appropriate sentences should be for housebreaking with intent to rape and rape

The appeal succeeded. The sentences of nine years' imprisonment on each count (to run concurrently) imposed by the trial court were set aside and replaced with: (a) Count 1: fifteen years' imprisonment; (b) Count 2: fifteen years' imprisonment of which eight years shall run concurrently with count 1; (c) Sentences antedated to 20 April 2017. This resulted in an effective sentence of 22 years' imprisonment.

The binding legal principles established are: (1) Remorse as a mitigating factor requires genuine acceptance of responsibility; remorse expressed only after being confronted with strong DNA evidence, years after the offences, and following commission of further similar offences, cannot be regarded as genuine. (2) 'Youthfulness' as a mitigating factor cannot be applied to adults in their late twenties or early thirties without acceptable evidence of immaturity that operated as a mitigating factor. While persons under 18 may be regarded as naturally immature, adults of 20 years or more must demonstrate by acceptable evidence that their immaturity was such as to mitigate. (3) Section 51(3)(aA) of the Criminal Procedure Act provides that the absence of apparent physical injuries does not qualify as substantial and compelling circumstances for purposes of departing from minimum sentences in rape cases. While this does not preclude a court from considering absence of physical injuries in combination with other factors, on its own it does not suffice. (4) Subsequent criminal conduct (even if not technically a prior conviction due to timing) may be considered when assessing an accused's character, propensity for offending, prospects for rehabilitation and genuineness of remorse. (5) Where housebreaking with intent to rape and rape are charged as a single composite offence, previous convictions for housebreaking constitute aggravating features of that composite crime.

The court noted (obiter) that strictly speaking, each count in the case involved two distinct offences: (a) housebreaking with intent to commit rape; and (b) rape, following S v Zamisa 1990 (1) SACR 22 (N). However, since the indictment was framed as if each housebreaking and ensuing rape constituted a single offence, and the contrary was not argued, the court approached the case as involving two offences rather than four. The court also observed that while one never wishes to rule out rehabilitation as a possibility, in this case the prospect of rehabilitation did not rise to the level of a substantial and compelling circumstance, particularly given the respondent's previous convictions and failure to learn from milder punishment. The court noted that the first housebreaking and rape were perpetrated while the respondent was on parole for his second housebreaking conviction. In determining the appropriate sentence structure, the court observed that complete concurrency would not reflect the gravity of the offences, which were entirely unconnected in circumstances and time, while complete consecutiveness (totaling 30 years plus the existing 7-year sentence) would be disproportionate.

This case is significant for clarifying the principles applicable when courts consider departing from minimum sentences in rape cases. It reinforces that: (1) courts must carefully scrutinize claims of remorse, particularly where an accused only pleads guilty after being confronted with strong evidence; (2) youthfulness as a mitigating factor requires actual evidence of immaturity and cannot be applied loosely to adults in their late twenties or early thirties without such evidence; (3) the statutory prohibition in s 51(3)(aA) against treating absence of physical injuries as substantial and compelling circumstances in rape cases must be respected; (4) subsequent offending (even if not technically a prior conviction) can be considered when assessing character, propensity, rehabilitation prospects and genuineness of remorse (following R v Zonele). The case demonstrates the appellate court's willingness to intervene where trial courts impose disturbingly lenient sentences based on misdirections, particularly in serious sexual offences cases.