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[2010] ZAWCHC 445
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Ncoto v S (A253/2010) [2010] ZAWCHC 445 (20 August 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER
:
A253/2010
DATE:
20
AUGUST 2010
In the matter between:
THABO
NCOTO
….............................................................................
Appellant
and
THE
STATE
…...............................................................................
Respondent
JUDGMENT
FORTUIN,
J
:
On 5 June 2006 the
appellant, Mr Thabo Ncoto, was convicted of kidnapping, assault with
intent to do grievous bodily harm and
rape and sentenced as follows.
Two years imprisonment on count 1, three years imprisonment on count
2 and 12 years imprisonment
on count 3. The sentences on counts 1
and 3 was ordered to run concurrently, resulting in an effective
sentence of 15 years imprisonment.
Leave to appeal against sentence
was granted on petition.
The conviction was based
on the following facts. On 1 January 1999, in Kalkfontein in the
District of Kuils River, the appellant
assaulted Ms B P by striking
her several times in two different locations with his open hand and
fists and by kicking her several
times. He also abducting her in an
apparent search for his wife and then raped the complainant. It
appeared that the complainant
was raped on four separate occasions
and by at least two men. By reason of the injuries which she
sustained, she was unable to
identify the other person who raped
her.
The grounds of appeal
are in short that:
The minimum sentence
legislation was applied when, in the circumstances of the matter,
it should not have been.
The undue delay in the
finalising of the matter and the lengthy awaiting trial period when
the appellant was held in custody,
not properly taken into account
in the determination of sentence.
On behalf of the
appellant it was submitted that the magistrate wrongly applied the
minimum sentence legislation ("the Act")
when sentencing
the appellant, even though he declined to send the matter to the
High Court. It was further submitted that once
the magistrate had
determined that the Act's life sentence provisions were not
applicable, he ought not to have had regard to
these provisions at
all.
In the ordinary course
of events, the appellant qualified for a possible sentence of life
imprisonment since the evidence revealed
that the complainant had
been raped on more than one occasion and/or by more than one person.
There had, however, been no reference
at all to the provisions of
the minimum sentence legislation in the charge sheet and for large
parts of the trial, the appellant
had been unrepresented. For this
reason the magistrate advised the appellant that the matter would
not be referred to the High
Court for sentencing, but that he would
be sentenced in the regional court.
Even though he referred
to the Minimum Sentence Legislation on several occasions, I am
satisfied that the magistrate made it clear
that he regarded the
legislation as not applicable and that he was sentencing the
appellant in terms of the court's ordinary
jurisdiction. The
magistrate was entitled, in so sentencing the appellant, to have
regard to the existence of the minimum sentence
legislation. Insofar
as the sentences is provided for therein, indicated the seriousness
with which offences such as the rape
committed by the appellant were
viewed by the legislature and by extension, by the community.
There is in my view no
misdirection on this score, entitling this Court to interference
with sentence. What remains for determination
is whether the delays
in finalising the trial prejudiced the appellant and whether the
magistrate adequately took into account
the long period that he was
in custody as an awaiting trial prisoner when sentencing the
appellant. It is indeed so that there
was a lengthy delay in the
prosecution of this matter. It took from January 1999, when the
appellant was first arrested, to 5
June 2006 for him to be
convicted. Today, on the hearing of this appeal, it is ten and a
half years since he was first arrested
and appeared in court.
Delays of this order are
unacceptable. Regarding the delay post trial it appears that within
days of his conviction, the appellant
gave notice of the attention
to appeal and his application for leave to appeal was disposed of
within a few months. It is not
clear why it took another three years
for the appellant to launch his petition for leave to appeal, but
the fact that he enjoyed
no legal representation, in all probability
played a role therein. It was only in September 2009 that the
appellant petitioned
for leave to appeal and therefore this last
process was not being unduly prolonged.
Nonetheless the long
delay between conviction and the hearing of this appeal is to be
deplored and points to the need for convicted
prisoners to be made
aware of their rights to petition for leave to appeal and to be
assisted in exercising such a right. The
question that needs to be
answered, however, is whether the delays in the trial it self
affected the outcome thereof and, ultimately,
whether the
appellant's rights to a fair trial was prejudiced thereby. A good
number of delays, although by no means all, were
attributable to the
appellant himself. He changed his legal representative on more than
one occasion and for reasons, which on
the face thereof, did not
appear particular convincing.
Another substantial
delay was caused when the appellant was arrested and convicted on
another charge or charges after having been
released on bail in the
present matter. Towards the latter stages of the trial there were a
number of postponements while the
State sought to find witnesses
whom the appellant wished to call in his defence. The details of
these witnesses furnished by
the appellant was sketchy to say the
least and this led to further delays. Unfortunately it appears to be
the practice of the
regional court to often grant lengthy remands,
possibly as a result of the state of its roles. Throughout the
trial, it should
be said, the magistrate concluded the trial with
exemplary patience and concern for the rights of the appellant.
Against
this background, I am of the view that the delays did not result in
prejudice in relation to the fairness of the trial
of the appellant,
but that it should be considered during sentencing. In this regard
see
Sanderson
v Attorney-General Eastern Cape
1998(1)
SACR 227 (CC). The magistrate mentioned in his judgment on sentence
that the appellant had spent a long time in custody
awaiting trial
but in the same breath said that he had been mainly responsible for
the various delays. Although the magistrate
added that he took this
period into account in arriving at the sentences he imposed he did
not make it clear what weight he attached
thereto and the
indications are that it did not count for much.
In my view this was a
misdirection on the part of the magistrate. By any standards, a
period of some five years in custody awaiting
trial, that is six and
a half years between arrest and conviction, less some 18 months
while the appellant was free on bail,
is an extraordinarily long
period. If the awaiting trial period during which the appellant was
incarcerated is added to his effective
sentence the result is a
sentence of some 21 years, a severe sentence even for a first
offender convicted of serious rape.
As
regards the magistrate's reason for discounting this period, I
consider that at the sentencing stage the precise reasons why
a
trial is so long delayed are of lesser importance than the fact that
the accused has spent that period or a large portion thereof
in
custody awaiting trial. The issue of awaiting trial prisoners was
discussed in
S
v Brophv & Another
2007(2)
SACR 56 and in
S
v Steven & Another
1994(2)
SACR 163, and recently
S
v Sebeko
2009(2)
SACR 573 (NC). In all of these judgments, following the Canadian
decision of
Gravino
(70/71),
13 Crim LQ 434
(Quebec Court of Appeal) it is argued that the term
of imprisonment while awaiting trial is the equivalent of twice that
length
of time-.
It is trite that the
court of appeal can only interfere with the sentence imposed when a
trial court exercises its discretion
improperly or unreasonably. It
is now five years since the appellant's conviction and ten and a
half years since his arrest.
Rape is a serious crime and the rape
which the complainant endured was particularly brutal involving as
it did two persons and
multiple rapes. So terrified was the
complainant that she attempted to stab herself and drank paraffin
rather than be dragged
out into the night by the appellant. After
the rape she was so traumatised that she spent two days in hospital
and went into
a temporary psychological shutdown.
On
behalf of the State it was correctly submitted that the sentiments
expressed in
S
v Chapman
1997(2)
SACR 2 (SCA) must be borne in mind. It is clear therefore that,
notwithstanding the period the appellant spent in custody
awaiting
trial, the only appropriate punishment is long term imprisonment.
Taking all the
circumstances into account, I consider that an appropriate effective
sentence would be one of ten years imprisonment.
I propose then the
following order:
"The
appeal against sentence is upheld and the magistrate's order is
substituted with the following: The accused is sentenced
to
TWO
(2) YEARS IMPRISONMENT
on
count 1,
THREE
(3) YEARS IMPRISONMENT
on
count 2,
TEN
(10) YEARS IMPRISONMENT
on
count 3. In terms of
section 280
of the
Criminal Procedure Act 51 of
1977
the sentences imposed on counts 1 and 2 are to run concurrently
with the sentence imposed on count 3. The sentences are to be
antedated to 5 June 2006.
FORTUIN,
J
BOZALEK,
J
:
I agree
BOZALEK,
J