Convicted child rapist Nicholas Ninow has approached the Gauteng High Court in Pretoria for leave to appeal his rape conviction and sentence, arguing that Judge Mokhine Mosopa erred in finding that the crime was premeditated.

Ninow was sentenced to life after the court found that he followed a seven-year-old girl to the bathroom of a Dros restaurant in Pretoria and raped her in September 2018.

His attorney, Herman Alberts, argued on Thursday that another court could hold different views, leading to a deviation from the life sentence imposed on him in October 2019. Asking for leave to appeal the conviction, Alberts said that they weren’t appealing the entire conviction – only the finding that Ninow’s actions were premeditated.

Ninow pleaded guilty at the start of his trial but claimed that he used drugs in the bathroom and that the child walked in and asked to urinate. But News24 previously reported that Mosopa rejected this version and found that he stalked the victim, followed her into the bathroom and raped her, making his actions premeditated rather than impulsive.

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“The only reasonable inference the court can draw is that the accused saw the victim playing in the play area, saw her going to the bathroom, followed her and then undressed and raped her,” Mosopa found.

During the trial, the court heard evidence that Ninow changed seats several times, positioning himself closer to the children’s play area – allegations which Ninow disputed, but which the court accepted.

Alberts argued that these allegations could not be justified on the facts.

Prosecutor Dorah Ngobeni argued that it did not matter where Ninow was seated or why he was seated there.

She said rape was a process involving a certain state of mind, the following of the victim to the bathroom and the fact that the victim had to be undressed. Therefore, the act was premeditated.

Mitigating circumstances

Turning to the sentence, Alberts told the court that Mosopa had misdirected himself by not finding that substantial and compelling circumstances existed, justifying a deviation from the prescribed minimum sentence of life imprisonment for the rape.

He argued that Ninow’s age and background were compelling circumstances.

He said evidence that Ninow was a broken man and a drug addict, as well as testimony about his upbringing was not given sufficient consideration.

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Alberts also contended that Ninow’s state of intoxication at the time of the commission of the crime should also have been taken into account during sentencing. He argued that there was an element of diminished capacity.

Pointing out witness testimony, Alberts said Ninow was a different person when he wasn’t intoxicated.

He said the effects of the drugs played a role in the commission of the crime.

“I’m not saying he was so drunk that he didn’t know what he was doing,” Alberts said.

Sentence

Ninow was sentenced to life in prison for rape, five years for defeating the ends of justice and five years for the unlawful possession of an illegal substance.

Mosopa ordered that the sentences for rape and drug possession run concurrently, while the defeating the ends of justice sentence should run consecutively.

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Alberts argued that the court erred in ordering that one of the sentences run consecutively, saying all the sentences should run concurrently with the life sentence according to the Correctional Services Act.

Mosopa said all the sentences would run concurrently according to the Act, irrelevant of his judgment.

Ngobeni agreed with Mosopa, saying that the issue was immaterial because the sentence would automatically run concurrently with the life sentence.

Application should be dismissed

Ngobeni said the application should be dismissed because Mosopa had given sufficient thought to the matter and dealt with all the issues raised for leave to appeal during the trial.

She submitted that there was no prospect of success and that another court would not come to a different conclusion.

Alberts asked for leave to appeal to a full Bench of the Gauteng High Court in Pretoria.

Judgment is expected to be delivered on 10 March.