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[2014] ZAGPJHC 17
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Kgabi v S (A384/2013) [2014] ZAGPJHC 17 (20 February 2014)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION JOHANNESBURG)
Case
No: A384/2013
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
20
February 2014
EJ
FRANCIS
In the matter between:
PUKANE,
KGABI Appellant
and
THE
STATE
Respondent
JUDGMENT
FRANCIS J
1.
On 28 July 2009 the appellant was sentenced to 15 years imprisonment
by the Protea Regional Court for rape. The court also
ordered
that the sentence should not run concurrently with any other sentence
that he was serving. At the time of sentencing,
the appellant
was serving a 26 year sentence for murder and being in possession of
an unlicensed firearm. The appellant’s
attorney when he
addressed the court on sentencing did not request that the sentence
imposed for the rape should run concurrently
with any other sentence
that he was serving.
2.
The appellant duly applied for leave to appeal against sentence and
was granted leave to appeal on the basis that the court
a
quo
was of the view that as far as the
running of the sentence that was imposed by the court was concerned,
another court could come
to a different conclusion.
3.
A succinct factual background of the facts of this case will serve to
elucidate this judgement. On 29 October 2005, the
appellant
came to the complainant’s place of residence in the morning.
He was the complainant’s boyfriend’s
friend
and had been there before and was known to her. She opened for
him and he requested if he could sleep there.
She told him that
he could not sleep at her place as she only had one room.
He then opened the cupboard, took out a
knife and threatened her and
ordered that she undress. She did so and he raped her.
After he had raped her he left.
She sent an SMS to her sister
who arrived with her aunt. She told them what had happened and
they went to the police station
to report the rape. This led to
the appellant’s arrest. The appellant’s version was
that the sexual encounter
was consensual and that the complainant had
initiated it.
4.
The appellant was charged with rape and was informed that the charge
of rape would attract a minimum sentence of 10 years imprisonment
if
he was found guilty and that if he was a second offender it would be
15 years and if a third offender it would be 20 years.
He was
represented at the criminal proceedings and was duly convicted.
During closing arguments on sentencing the state contended
that the
court should impose the minimum sentence since there were no
substantial or prevailing circumstances to deviate from the
minimum
sentence. His counsel had contended that as far as the rape
charge was concerned, he was a first offender and since
the
complainant did not suffer any injuries as a result of the rape that
the court should be lenient towards him.
5.
In sentencing the appellant, the court
a
quo
found that the aggravating factors
were that when he committed the offence of rape, the five year
robbery sentence was still pending.
Whilst he was out on bail
for rape he committed the crime of murder and being in possession of
unlicensed firearm in 2006.
The court found that all three
offences were serious in nature beside the violence part of it.
The court found that rape
is prevalent in the regional district of
Gauteng and that the appellant had used a knife to threaten the
complainant to succumb
to his actions but did not use it. The
court said that the fact that she did not sustain physical injuries
was not a factor
that the court would consider in his favour.
Rape involves the invasion of a person’s privacy and dignity.
The
most aggravating factor on the nature and the seriousness of the
offence was that he attacked the complainant at the place where
she
was supposed to feel protected and safe at her own place of
residence. He also knew her quite well and she trusted him
as a
friend of her boyfriend. She had opened the door for him
without hesitation since she had expected him to protect her.
The court said that section 51(2)(b) of the Criminal Law Amendment
Act Act 105 of 1997 (the CLA) provides for a minimum sentence
of ten
years imprisonment in the case of a first offender, unless the court
found compelling or substantial factor then the court
is to deviate
from the prescribe sentence and give a lesser sentence. The
court said that the state had placed on record
that there are no
factors that compels the court from deviating from the prescribed
sentence and that it agreed with the state.
The court said that
the defence did not place factors to be considered by the court to
reduce the prescribed sentence. The
court said that ten years
was the least that the courts are expected to give in a case of this
kind of an offence. The court
said that when weighing the
appellant’s pattern of committing those violent crimes, it was
persuaded to go beyond a term
of ten years as he had shown that he
was someone who did not respect the law and could not be
rehabilitated. The court said
that it was placed on record by
the appellant’s his legal representative that starting from
2008, he was serving a term of
26 years imprisonment. Further
that he was [….] years old and was [….] years at the
time of the commission
of the offence. The court said that he
was quite mature enough to face the consequences of his wrongful
deeds and was sentenced
to 15 years imprisonment and that the
sentence would not run concurrently with any other sentence that he
was serving.
6.
When the appellant’s counsel sought leave to appeal against
sentence, it was contended that the sentence imposed was shockingly
inappropriate in that the court had erred in finding that the
attorney did not mention any factors that could be considered by
the
court to reduce the prescribed sentence. It was further
contended that the court erred by not deviating from the prescribed
minimum sentence and thereby exercising its discretion and adding
five years to the prescribed minimum sentence of ten years without
considering that the appellant had not previous conviction of rape.
The appellant’s representative was asked whether
the court
should have made any order that the 15 year sentence should run
concurrently with any other sentence that was imposed.
The
legal representative stated that it would be difficult to find that
the court had erred by not making such an order since the
offences
were not committed at the same time and place but he left it in the
court’s discretion and that is why no
submissions were
made about it. That was not one of the grounds for leave to
appeal.
7.
The grounds of appeal are that the trial court misdirected itself by
taking into account the appellant’s previous conviction
for
murder volunteered by the appellant’s legal representative and
by over-emphasising the seriousness of the offence at
the expense of
the appellant’s personal circumstances.
8.
Sentencing is inherently within the discretion of a trial court.
This court’s powers to interfere with the trial’s
court’s
discretion in imposing sentence are limited unless the trial court’s
discretion was exercised wrongly.
The essential enquiry in an
appeal against sentence is not whether the sentence was right or
wrong, but whether the court exercised
its discretion properly and
judicially. If the discretion was exercised wrongly, this court
will interfere with the sentence
imposed. There must be either
a material misdirection by the trial court or a gross disparity
between the sentence which
the appeal court would have imposed had it
been the trial court. This Court can interfere with a sentence
of a trial court
in a case where the sentence imposed was
disturbingly
inappropriate. In this regard see
S
v Salzwedel and others
1999 (2) SACR
586
at 588 A – B.
9.
The rape charge falls within the provisions of section 51(2)(b) of
the CLA. The minimum prescribed sentence for such an
offence is
life imprisonment unless the court found substantial and compelling
circumstances. It is trite that when a court
considers an
appropriate sentence the seriousness of the offence, the interest of
the accused, as well as the interest of the society
ought to be taken
into account.
10.
The issue that arises in this appeal is whether the court a quo
misdirected itself when it sentenced the appellant to 15 years
imprisonment instead of 10 years imprisonment. The appellant
was informed in the charge sheet that the offence that he was
charged
with carries a minimum sentence as prescribed by section 51(2)(b) of
the CLA, to the effect of ten years in the case of
a first offender,
15 years imprisonment in the case of a second offender and 20 years
imprisonment in the case of a third or subsequent
offender. The
appellant’s counsel submitted that the appellant was 31 years
old, single with three children aged 10,
9 and 4 years respectively.
He passed standard 10 in 1994 and was before his arrest employed as a
driver’s assistance and
was earning a salary of R800.00 per
week. The complainant did not suffer any injuries. He had
a previous conviction
for armed robbery and was sentenced to 22 years
imprisonment for murder and four year imprisonment for being in
possession of an
unlicensed firearm.
11.
The learned magistrate clearly failed to appreciate that he could
only deviate from the minimum sentence provided in the CLA
if it was
found that there were no substantial and compelling circumstances to
do so. The appellant was a first offender
in the rape
conviction and should have been sentenced to ten year imprisonment.
It would appear that the five year imprisonment
that was imposed on
the appellant was because of his previous conviction for robbery and
murder. This is clearly impermissible
to do so and in doing so
the court committed a serious misdirection. It was not clear
whether the rape was committed before
the murder or the murder before
the rape. The trial court was required to provide cogent
reasons for imposing a 15 year imprisonment
sentence and failed to do
so. The reasons advanced by the appellant as mitigating
factors were not sufficient to allow
the trial court to impose a
lesser sentence than what is prescribed in the CLA. The appeal
against sentence is granted.
12.
During arguments before this court, the appellant’s counsel
argued that the trial court should have ordered that part
of the
sentence imposed for the rape should run concurrently with the
sentence imposed for murder. This was not a ground
for leave to
appeal nor was this raised by the appellant in his heads of
arguments. As stated previously when the appellant
was afforded
an opportunity to deal with this issue in the application for leave
to appeal, it was made clear that this was not
a ground for leave to
appeal. Since this was not part of the ground for leave to appeal,
there is no need for this court to consider
it. However the
trial court appeared to have granted leave to appeal
on
whether the sentence it imposed should have run concurrently with the
other sentences. Even if this court could consider
it, it
should fail since the principles applicable in considering whether
sentences should run concurrently finds no application
here. In
S v Motswathupa
2012
(1) SACR 259
(SCA) at paragraph 8 at page 263, it was held that a
court must not lose sight of the fact that the aggregate penalty must
not
be unduly severe, when dealing with multiple offences. It is
trite that sentencing courts in all the divisions of our courts have
been enjoined to have regard to the nature of the offences and
where there is a close connection or similarity
between the offences involved or where there is a close connection in
time and place
and in intention with regard to the offences involved,
then usually the counts are taken as one for purpose of sentence or
the
sentences are ordered to run concurrently. In the present
case the appellant was charged with rape. There was as such
no
overlap between the murder charge and being in possession of an
unlicensed firearm. There was also no conjoining as to
time and
place of the offences. The incidents did not flow from the same
incident and the appellant was sentenced by different
courts.
It is also unclear what factors were taken into account when the
appellant was sentenced by those courts. This
ground of appeal
should fail.
13.
For the above reasons the following order is made:
13.1
The appeal is upheld.
13.2
The sentence imposed by the trial court are set aside and replaced
with the following:
“
(a)
The accused is sentenced to 10 years imprisonment on count 1.
(b)
The sentence is not to run concurrently with any other sentence that
the accused is
serving.”
___________
FRANCIS J
JUDGE OF THE HIGH COURT
I agree
________
JULY AJ
JUDGE OF THE HIGH COURT
FOR APPELLANT
:
ADV E
TLAKE
FOR RESPONDENT
:
ADV VT
MUSHWANA
DATE OF HEARING
:
18
FEBRUARY 2014
DATE OF JUDGMENT
: 20
FEBRUARY 2014