SCA reduces life sentence of rapist to ten years for assault on eight-year-old

The Supreme Court of Appeal (SCA) discounted a convicted rapist’s life sentence to ten years imprisonment for the rape of an eight-year-old girl at a tavern toilet during 2010 or 2011. 

Charles Phogole, who entered into a plea agreement at trial, was convicted and sentenced by the Regional Court Johannesburg, held in Alexandra, during February 2015. The new sentence was antedated to 2015. 

According to Phogole’s counsel, who appealed against the conviction and sentence, also argued that the mother of the minor girl “influenced the complainant to falsely implicate him”.  

The SCA found sufficient cause to interfere with the sentence imposed by the trial court due to the fact that Phogole had not been informed that the minimum sentence of life imprisonment was applicable prior to entering his guilty plea.

It was the complainant’s version that Phogole undressed her, undressed himself and raped her with her back against the wall and “didn’t use a condom”. 

According to the complainant, the appellant lifted her, pressed her against the wall, and raped her. This happened inside the toilet, and it was daylight. After he had finished, he told her to go home. She went home and did not tell anyone because she was afraid ‘they will give me a hiding’

The SCA emphasised that it was not enough for the record merely to state that the applicability of the minimum sentence was explained to the appellant; the record must reflect that he was expressly warned of the penal provisions.

The reconstructed record failed to show that such a warning was given. The SCA regarded this as a serious misdirection, warranting the Court’s intervention to reconsider the sentence. 

In the majority SCA judgment, Justice Fikile Mokgohloa, said in the absence of the penal provisions explained to the accused, the sentence of life imprisonment imposed on the appellant was “shockingly inappropriate”.

“It is indeed desirable that the charge sheet refers to the relevant provisions of the Criminal Law Amendment Act (CLAA). Further desirable that this should also be explained to the accused at the time when he tenders his plea. This would enable the accused to appreciate and understand the nature and seriousness of the charge he is facing. It is not sufficient to state that this was explained to the appellant, the record of the proceedings has to show that he was indeed so warned. 

“Rape is a serious, cruel and heinous offence. It is degrading, humiliating and a brutal invasion of a person’s most intimate privacy. What I find more aggravating is the fact that the appellant took advantage of the age and vulnerability of the complainant. He abused the trust the complainant had in him as her mother’s friend.  His conduct, in my view, was sufficiently reprehensible to fall within the category of offences calling for a sentence both reflecting the court’s disapproval and hopefully acting as a deterrent to other like-minded people who satisfy their canal desires with helpless children,” said Mokgohloa.

In a minority and dissenting judgment, acting judge Tati Makgoka, said the complainant’s evidence was not satisfactory in all material respects, and therefore the State had failed to discharge the onus of proving the appellant’s guilt beyond a reasonable doubt. 

Makgoka identified material discrepancies in the complainant’s version of how the offence occurred and said the trial court’s failure to give appropriate weight to these contradictions amounted to a material misdirection.

The discrepancies pointed out was the position in which the child testified she was raped while the testimony of her mother contradicted such saying that she was raped with her back facing Phogole. 

“A court faced with a contradiction between the evidence of two witnesses must resolve it by critically examining the differences, with a view to establishing whether the complainant’s evidence was reliable. If the court prefers one version, it must explain why that version is preferable to the other, and what impact the contradiction has on the overall evidence. Simply put, the two versions cannot live side by side,” said Makgoka.

Cape Times