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2014
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[2014] ZAGPJHC 148
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Phosha v S (A933/2007) [2014] ZAGPJHC 148 (17 July 2014)
IN THE NORTH
GAUTENG HIGH COURT OF SOUTH AFRICA
PRETORIA
CASE
NO: A933/2007
DATE:
17 JULY 2014
In the matter
between:
LAWRENCE MPHO
PHOSHA
…........................................
Appellant
And
THE
STATE
.......................................................................
Respondent
J U
D G M E N T
C. J. CLAASSEN J:
[1] This is an
appeal against sentence only. In the court a quo the appellant was
convicted of one charge of rape and one charge
of attempted robbery
with aggravating circumstances.
[2] The facts are
shortly that the complainant was walking in the veld on the day in
question. She was approached by the appellant
who drew a knife and
demanded money and a cellphone from the complainant. She did not
possess any such items, whereupon he decided
to rape her, holding the
knife against her throat.
[3] The sentence on
the rape charge was the minimum of fifteen years’ imprisonment.
The appropriateness of this sentence was
not in any way questioned by
counsel for the appellant. The court a quo, however, sentenced the
appellant on the second count of
attempted robbery with aggravating
circumstances to a period of ten years’ imprisonment, half of
which was ordered to run
concurrently with the serving of the
sentence on the first count of rape.
[4] In effect that
meant that the appellant was sentenced to a total period of twenty
years’ imprisonment. Counsel for the
appellant submitted that
because the rape and the attempted robbery with aggravating
circumstances were committed in close proximity
as to time and place,
the entire period of ten years’ imprisonment on the second
count should have been ordered to run concurrently
with the sentence
on the first count of rape.
[5] I agree with
that submission and counsel for the State was not able to argue to
the contrary with the result that we are of
the view that the court a
quo misdirected itself in not ordering the entire period of ten
years’ imprisonment to run concurrently
with the sentence on
the first charge.
[6] For that reason,
we are of the view that the sentence should be set aside on count 2
and should be substituted with the following:
“The accused
is sentenced to ten years’ imprisonment on count 2 which is
ordered to run concurrently with the sentence
of fifteen years’
imprisonment on the first count. In effect the accused is sentenced
to a period of fifteen years’
imprisonment.”
DATED THE 17th
DAY OF July 2014
AT JOHANNESBURG
C. J. CLAASSEN
JUDGE OF THE HIGH
COURT
I agree
PP MOLEFE J
JUDGE OF THE HIGH
COURT
It is so ordered.