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[2010] ZAWCHC 437
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Tom v S (A210/2010) [2010] ZAWCHC 437 (6 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:A210/2010
DATE:6
AUGUST 2010
In
the matter between:
MZUKSI
TOM
…............................................................................................
Appellant
and
THE
STATE
…..................................................................................
Respondent
JUDGMENT
COETSEE,
AJ:
The
appellant in this appeal was convicted in the Oudtshoorn Regional
Court on 5 February 2010 on a charge of attempted rape in
contravention of the provisions of section 55 of the Criminal Law
Sexual & Related Matters Amendment Act 32 of 2007 and sentenced
to seven years imprisonment. The conviction relates to the events
that took place on 1 November 2008 when, on the evidence, the
appellant assaulted and attempted to rape Ms Stolmeester, a 19 year
old woman who was at the time walking home. The appellant
pleaded
not guilty to the charge and disputed any involvement in the
incident.
The
appellant was duly convicted. The correctness of the appellant's
conviction is not in issue in this appeal. The appellant
appeals
with leave of the trial court against his sentence. Mr
Burgers
,
who appeared on behalf of the appellant, submitted that the trial
court erred in exercising its judicial discretion to sentence
the
appellant to seven years imprisonment, in that firstly, it failed to
take into consideration the fact that the appellant
had spent a
period of one year and four months in custody awaiting trial.
Secondly,
that it misdirected itself in finding that the appellant's record of
previous convictions constituted the only mitigating
circumstances.
Thirdly, that it failed to properly consider each and every factor
in determining a proper sentence, thereby failing
to exercise its
sentencing discretion properly, and fourthly, that the sentence
imposed was, in all the circumstances, particularly
the appellant's
personal circumstances, shockingly unjust. Mr
Burgers
did
concede that the nature of the offence and the circumstances
demanded a lengthy term of imprisonment as an appropriate sentence.
These
grounds of appeal and the criticisms of the trial court are to be
evaluated. A proper reading of the judgment and sentence
imposed by
the trial court show that the appellant was at all times duly
represented by an attorney. That the appellant's attorney
was
granted the opportunity to address the trial court in mitigation of
sentence and did so with reference of the appellant's
personal
circumstances, and that the trial court considered these facts
adduced in mitigation by the appellant's attorney.
In
assessing the submissions made on behalf of the appellant, it is
apposite to bear in mind the dictum of
Trollip
,
JA
S
v Pillav
,
1977(4) SA 529 (AD) at 535 that I referred to earlier, to the effect
that the mere fact that a relevant factor has not been
mentioned in
a judgment on sentence, does not necessarily mean that it has been
overlooked, as no judgment can be perfect and
all embracing. A court
of appeal will not readily differ with a trial court in its
assessment of the factors to be had regard
to and the value to be
attached to them.
In
S
v Sadler
2000
(1) SACR 331
(SCA) at 334,
Marais
.
JA
quoted
with approval the dictum of
Nicholas
,
AJA in
S
v Shapiro
1994(1)
SACR 112 (A) at 119J-120 as follows:
"It
may well be that this Court would have imposed on the accused a
heavier sentence than that imposed by the trial Judge.
But even if
that be assumed to be the fact, that would not in itself justify
interference with the sentence. The principle is
clear: it is
encapsulated in the statement by
Holmes
,
JA in
S
v Rabie
1975(4)
SA 855 (A) at 857D-F:
'1.
In every appeal against sentence, whether imposed by a magistrate or
a judge, the court
hearing
the appeal -
should
be guided by the principle that punishment is "pre-eminently a
matter for the discretion of the trial Court"
and
should
be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion has not been "judicially and properly exercised".
2.
The test under (b) is whether the sentence vitiated by irregularity
or misdirection or is disturbingly inappropriate."
The
essential inquiry in an appeal against sentence, is not whether the
sentence was right or wrong, but whether the trial court
in imposing
it, exercised its discretion properly and judicially. In
S
v Berliner
1967(2)
SA 193 (A) at 200D,
Van
Winsen,
AJA
said:
A210/2010
"Where,
however, the dictates of justice are such as clearly to make it
appear that the trial court ought to have regard
to certain factors
and that it failed to do so, or that it ought to have assessed the
value of these factors differently from
what it did, then such
action by the trial court will be regarded as a misdirection on its
part, entitling thi court to consider
the sentence afresh."
Not
every misdirection by itself is, however, sufficient to entitle a
court of appeal to interfere with sentence. It must be of
such a
nature, degree and seriousness that it shows directly or
inferentially that the court did not exercise its discretion
at all
discretion at all or that it exercised it improperly and and
unreasonably.
Bearing
these principles in mind, I turn to consider the contentions
advanced on behalf of the appellant. The record of proceedings
shows
that the offence was committed on 1 November 2008 and that the
appellant was apprehended the same evening. On 19 January
2009 at
the first appearance, it is recorded that the appellant's bail was
extended. On 23 February 2009 a warrant for the appellant's
arrest
was issued as he failed to appear at court. Thereafter, and on 26
February,
the warrant was cancelled. The matter was remanded thereafter on a
number of occasions,
inter
alia
as
the appellant's representative withdrew and the appellant sought
legal aid, during which period the appellant's bail was duly
extended.
The
record further records that on 20 May 2009 the appellant was held in
custody on other charges and was serving a sentence of
18 months on
another conviction, and that his bail was once again restored.
Thereafter the trial commenced on 15 October 2009.
The contention
that the appellant spent one year and four months, or differently
put, a considerable amount of time in custody
awaiting the trial in
this matter and that the trial court should have taken this into
consideration and failed to do so, is
therefore unfounded. In my
view, the submission that the trial court found as a matter of fact
that the only mitigating circumstances
with the appellant's criminal
record, is also not justified.
Having
considered the appropriate factors in assessing a proper sentence
and having recorded that the appellant's attorney addressed
the
Court on the appellant's personal circumstances, the influence of
the liquor taken by the appellant, the fact that the appellant
was
for a period in custody, as well as the appellant's previous
convictions, the trial court duly considered in the appellant's
favour, that the appellant's previous convictions show that the
appellant never served a long term of imprisonment for violence.
No
facts were adduced in mitigation regarding the so called needs of
the appellant's child, his alleged support for his alleged
extended
family or his fulltime employment. In the light thereof the trial
court can hardly be criticised for having erred in
this regard.
It
follows that the only basis left for the appellant is the contention
that the sentence handed down is in the circumstances
of the case
shockingly unjust as it is put. Section 55 of the Criminal Law
Amendment Act 2007 provides that any person who attempts
to commits
a sexual offence in terms of that act, is liable on conviction to
the punishment to which a person convicted of actually
committing
the offence, would be liable. In this regard the trial court, in my
view, correctly held that the fact that the appellant's
attempt to
rape the complainant was not successful, cannot be credited to his
benefit, that the appellant failed to show any
remorse and denied
his involvement.
In
my view a sentence of seven years imprisonment for the crime
committed, does not induce a sense of shock and the appeal is
without merit. I propose that it be dismissed and the sentence of
the trial court be confirmed.
COETSEE, AJ
TRAVERSO,
DJP
:
I agree and it is so ordered.
TRAVERSO, DJP