Publications
Partners
Warning: This article contains graphic details
Convicted child rapist Nicholas Ninow won't have wiggle room in arguing for a deviation from a life sentence for rape after his version of events that he acted "impulsively" was rejected by the Gauteng High Court in Pretoria.
Following a guilty verdict of rape by the High Court on Monday, Ninow will now have to prepare for the pre-sentencing trial where he will in all likelihood argue for mitigation.
Ninow was found guilty of defeating the ends of justice, possession of an illegal substance and rape, which has a minimum prescribed sentence of life, which is 25 years without the possibility of early parole.
His defence team would have to show substantial and compelling circumstances if the court is to deviate from the minimum prescribed sentence.
Ninow’s version rejected
Ninow's chances of escaping a life sentence on the rape charge have further diminished following Judge Mokhine Mosopa’s judgment as well as the concession he made in his plea explanation.
Judge Mosopa rejected Ninow's version that he was in the women's bathroom, at a Dros restaurant in Silverton, Pretoria on September 22, 2018, snorting the drug CAT when the seven year-old girl came in, asking to urinate.
READ: Court rejects convicted Dros rapist Nicholas Ninow's version of events, finds him guilty on 3 counts
Ninow said he then acted "impulsively" by taking off her pants, forcing his penis into her mouth and inserting his fingers into her vagina.
In his judgment, Judge Mosopa found that Ninow’s actions were planned and deliberate.
"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," Judge Mosopa said.
Premeditation as an aggravating factor
In arguing for a life sentence, the fact that the court found Ninow’s actions to be deliberate and premeditated is an aggravating factor that the State will likely use to have the heaviest possible sentence imposed.
It also means that Ninow cannot use the excuse of "impulsiveness" as a mitigating factor.
His version, in which he painted himself as being drunk and high, and who made an impulsive mistake, cannot be accepted by the court during sentencing arguments if the court found it was premeditated.
As far as the judgment is concerned, which upheld the State's version of events, Ninow acted like a predator, getting closer to his prey, waiting for the right moment to strike.
He is now a convicted child rapist who did not concern himself with the well-being of his victim, but rather a sickly lust that he intended to satisfy.
Ninow's alcohol and drug use may also not be a factor in arguing for mitigation after he stated in his plea explanation that the substances had no bearing on his thought processes when he raped the girl.
READ MORE: Nicholas Ninow details rape in Dros bathroom
It was placed on record that while Ninow was under the influence of drugs and alcohol, he could still appreciate the wrongfulness of his actions and his culpability, adding he had acted intentionally when he raped the victim.
"I had no legal justification for penetrating the complainant in her mouth, or vagina; and at the time I knew my actions were wrong and I was committing an offence," Ninow said in his plea explanation.
"I had no right to penetrate the complainant's vagina and she did not consent thereto; and due to her age she was, anyway, incapable of consent."
Ninow said he was aware that his actions were unlawful while he was committing the offence.
Psychiatric observation
Ninow was also found sane and fit to stand trial, after he spent a month in Weskoppies Psychiatric Hospital, undergoing extensive evaluation in February this year, following a court order.
The report, which could come up in sentencing proceedings, diagnosed Ninow as a mixed substance abuser. However, the report further stated the diagnoses had no bearing on his ability to understand court proceedings and contribute to his defence.
"At the time of the alleged offence, the accused did not suffer from a mental illness or intellectual disability that affected his ability to distinguish between the rightful and wrongful nature of his deeds," the report stated.
ALSO READ: Ninow planned to rape someone at the restaurant - State
"A mental illness or intellectual disability did not affect his ability to act in accordance with the said appreciate (sic) of the rightful and wrongful nature of his deeds."
Ninow's history of substance abuse and depression may be led as a mitigating factor, but would fall short on being compelling enough, or even a justification for his actions, to deviate from the minimum sentence.
Before the trial, it was placed on record that Ninow was diagnosed with bipolar disorder in 2013, and had been using drugs since he was 14-years-old.
He has also previously undergone rehabilitation for substance abuse and attempted to commit suicide.
Given the judgment and Ninow's own concessions, it is highly unlikely that there can be any compelling reasons to deviate from a life sentence that he deserves.
