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[2023] ZAFSHC 69
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Likhethe v S (A144 /2022) [2023] ZAFSHC 69 (17 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: A144 /2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between: -
VINCENT
KAMOHELO LIKHETHE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
DANISO J & BOONZAAIER AJ
JUDGMENT
BY:
BOONZAAIER, AJ
HEARD
ON:
6 MARCH 2023
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and release to SAFLII
on 17th March 2023.
The date and time for hand-down is deemed to be 17 MACH 2023 at
11H00.
INTRODUCTION:
[1]
The Appellant, appeals against the sentence handed down by the
Regional Court Magistrate
Botshabelo on 1
4
th
May 2019.
(hereinafter called “the court
a quo”
).
FACTUAL
BACKGROUND:
[2]
The Appellant (in the court
a quo
was arraigned as Accused
number 2), was convicted and sentenced as follows:
2.1
Count
: Rape (contravention of
Section 3
read with
Sections 1, 56, 56A, 57, 58, 59, 60 and 61 of
Act 32 of 2007
,
read with provisions of
Sections 52(1)
of the
Criminal Law
Amendment Act 105 of 1997
. (hereinafter call the “CLAA”)
– An effective sentence of Life imprisonment.
[3]
The Appellant has an automatic right to Appeal.
3.1.
The Appellant`s grounds of appeal against sentence are summarized as
follows:
3.1.1
The Court
a quo
erred in finding that there were no
substantial and compelling circumstances to deviate from the
prescribed minimum sentence:
3.1.2
The Court
a quo
placed too much emphasis on the prevalence of
the offence as well as interest of the community.
3.1.3
The Court
a quo
over-emphasized the deterrence factor in
punishment.
3.1.4
The Court
a quo
did not consider the time spent in custody by
the Appellant.
3.1.5
The Court
a quo
erred in ordering the name of the Appellant to
be added into the National Register of sex offenders.
3.2
That the court erred by not imposing a shorter term of imprisonment
and that
the court
a quo
also:
3.2.1
Did not have regard for the personal circumstances of the Appellant.
3.2.2
Gave a different sentence for the co-Accused even though they were
found acting in common purpose.
3.2.3
Did not consider the element of rehabilitation.
3.3
That the court
overemphasized the principle of punishment, namely deterrence,
retribution
over the principle of rehabilitation, the interest of
society and the seriousness of the offences.
AD
SENTENCE:
[4]
In mitigation the personal circumstances of Appellant are as
follows:
4.1
The Appellant was 24 years old at the time of sentence.
4.2
He is not married and has no children.
4.3
He is a first offender.
4.4
His highest standard of Education is Grade 8.
4.4
He was arrested on 18 January 2017, and the matter was finalized on
14 May 2019.He spent 2(two) years 4(four)
months in custody awaiting
the finalization of the matter.
[5]
Aggravating circumstances are as follows:
5.1
Appellant was convicted of a very serious offence.
5.2
The complainant was physically violated.
5.3
The physiological emotional trauma suffered by the complainant.
5.4
The Appellant shows no remorse.
5.5
The complainant was raped by more than 2(two) assailants.
APPELLANTS
CASE:
[6]
It is the Appellant`s case that the Court
a quo
:
6.1
Erred in finding that no substantial and compelling circumstances
exists in order to deviate from the prescribed
minimum sentence of
Life imprisonment in respect of the charge.
6.2
When considering whether the Court
a quo
erred in
finding that there were no substantial and compelling reasons, a
different approach must be adopted and not only whether
there was a
material misdirection by the court
a quo
.
6.3
The correct approach on appeal upon considering whether the court a
quo was correct to find no substantial
and compelling reasons, is not
only one of whether there was material misdirection or not but, also
whether the facts which were
considered by the sentencing court are
substantial and compelling or not.
6.4
The Appellant propose that the following circumstances are sufficient
for the court to deviate from the prescribed minimum sentence
because
they are substantial and compelling:
6.4.1
Even though the complainant sustained physical injuries as a result
of being stabbed
with a knife by one of the assailants, the injuries
sustained by complainant were not severe.
6.4.2
The fact that the Appellant spent a period of two years and four
months awaiting
trial.
6.4.3
The fact that the Appellant is a first offender.
6.4.4
The fact that appellant is fairly young and there is prognosis for
his rehabilitation.
6.4.5
The factors mentioned as his personal circumstances together with the
factors mentioned
as substantial and compelling factors, are
cumulatively as well as individually, sufficient to constitute
substantial and compelling
circumstances.
FACTS
OF THE CASE
[7]
During the night of 18 December 2016 around 10pm the complainant and
her friend, P
[....] accompanied P [....]`s boyfriend
halfway home. On their return, the complainant was accosted by the
Appellant, former
co-accused and another male. They demanded
cellphones and money. The complainant did not have any money or a
cellphone. P
[....] was robbed of her cellphone by one Tsepo
(who was already convicted and sentenced by another court, because
this court could
not attend to this matter after having convicted and
sentenced Tsepo). Tsepo then grabbed complainant and took her to a
nearby
shack, where there was a toilet which door was fastened with a
wire. P [....] remained with the appellant and former
co-accused.
[8]
When she and Tsepo reached the toilet he stabbed her with a knife on
the left side
of her chest when she refused to undress. Tsepo then
raped her and after he has finished, he called the other two namely,
Appellant
and Accused 3 and ordered them to also have sexual
intercourse with her. P [....] was able to escape. At that
time, a detective`s
vehicle appeared and Accused 1 (Appellant) ran
away. At that stage Tsepo was still nearby watching as Accused 2 was
having forced
sexual intercourse with the complainant. She stood up
went home and told the family about her ordeal. Her clothes were
bloodstained.
They took her to the police station where P
[....] had already laid a charge. The complainant knows the Appellant
for a long
time. He also stays in the street where she lives.
[9]
Both Accused persons denied having sexual intercourse with the
complainant and put
all the blame on Tsepo.
LEGAL
PRINCIPLES:
[10]
The discretion of the court of Appeal
was dealt with in the
case of
S v
Malgas
[1]
,
where
Marais
JA
stated:
"B
Courts are
required to approach the imposition of sentence conscious that the
legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that
should
ordinarily
and
in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E
The legislature has however deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (“substantial
and compelling”) and must be such as cumulatively justify a
departure from the standardised response that the legislature
has
ordained.
[11]
ln
R
v S
[2]
,
the court stated with regards when a court would interfere:
"There
are well recognised grounds on which the court of appeal would
interfere with the sentence. Where the trial judge or
magistrate, as
the case may be, has misdirected himself from the law or
facts or has exercised his discretion capriciously
or upon a wrong
principle or so unreasonable as to induce a sense of shock."
[12]
ln
S
v Matyityi
[3]
,
the court increased the sentence which was originally imposed by the
trial court from 25 years to life imprisonment based on the
factor
that the respondents conduct themselves, was a flagrant disregard for
the sanctity of human life or individual physical
integrity. In the
case of the court stated that the case of
Matyityi,
supra shows
that:
"Where
people acted in a manner that was unacceptable in any civilised
society particularly one that ought to be committed
to the protection
of the rights of all persons including women",
no
mercy
should be
accepted.
[13]
In
R
v Zulu and Others
[4]
it
was stated:
"Where
no such grounds exist, the appeal court will not interfere merely
because the appeal judges considered that they themselves
will not
have imposed the sentence."
[14]
ln
R
v S
[5]
,
the court also stated when a Court of Appeal would interfere:
"There
are well recognised grounds on which the court of appeal would
interfere with the sentence. Where the trial judge or
magistrate, as
the case may be, has misdirected himself from the law or
facts or has exercised his discretion capriciously
or upon a wrong
principle or so unreasonable as to induce a sense of shock."
[15]
The seriousness of Rape is clearly emphisizes in the case of
S
v Chapman
[6]
where
the court sated as follows:
"Rape
is a very serious offence, constituting as it
does, a humiliating degrading and brutal invasion of
the
privacy, the dignity and the person of the victim. The rights to
dignity, and the dignity to privacy and the integrity of every
person
are basic to the ethos of the Constitution and to any defensible
civilisation. Women in this country are entitled to the
protection of
these rights. They have a legitimate claim to walk
peacefully in the streets, to enjoy their shopping,
and their
entertainment, to go and come from work and to enjoy the peace and
tranquility of their homes without the fear, the apprehension
and
insecurity which constantly diminishes the quality and enjoyment of
their lives."
[16]
ln
the case of
S
v C
[7]
the court further stated:
"Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim, he
murders her
self-respect and destroys her feeling of physical mental integrity
and security. His monstrous deed often haunts his
victim and subjects
her to mental torment for the rest of her life - a fate
often worse than loss of life. Serial rapists
and murderers are
regarded by society as inherently evil beings. They are the most
feared and loathed criminals in our community.
Society demands
protection in the form of heavy and deterrent sentences from the
courts against such atrocious crimes."
[17]
What make it serious
in casu
is that the complainant was known
to the Appellant. She expected the Appellant to protect her and not
abused her. She was raped
by three males. The sexual intercourse took
place after she was stabbed with a knife and in pain. She was a soft
target.
[18]
This
court was requested to deal with how courts treat
a
lengthy period in
custody
prior
to sentencing where the minimum sentencing provisions of
section
51 of the CLAA apply.
[8]
(Own
emphasis)
[19]
The Court
a
quo
did not specifically refer to the fact that the Appellant had been
held in custody for a period of 2(two) years 4(four) months
to
sentencing, but on an overall assessment concluded that there were no
substantial and compelling circumstances justifying a
lesser
sentence. The aforesaid assessment suffices in my opinion.
[9]
[20]
With
regards to the rehabilitation
it is important to mention that,
in
casu
the
importance of remorse, or the absence thereof, is to establish the
Appellant’s propensity for rehabilitation to which
an
acceptance that he acted in error and had a conscience is most
important. Absent such acceptance, the prospects of the crime
being
successfully addressed, and rehabilitation established are lessened.
This is relevant to an assessment of mitigation (not
aggravation) of
sentence.
In
casu
Appellant expressed no remorse whatsoever and gave no explanation,
failing to take the Court into his confidence.
[21]
The material consideration is whether the
Appellant can be expected to offend again. While that can never
be
confidently predicted, his circumstances might assist in making at
least some form of assessment. That is where remorse or the
absence
thereof plays a vital role.
CONCLUSION:
[22]
I agree with the statement of JA Curlewis in
S
v Monaheng
[10]
that Legislature has ordained life imprisonment as the sentence that
should ordinarily and in the absence of weighty justification
be
imposed for the offence committed by the Appellant and the courts’
obligation to respect and not pay mere lip service
to that view.
[23]
The Appellant asks this court to deviate, based on
the substantial and compelling factors listed.
On
a balanced consideration of the totality of the evidence, this court
finds no substantial and compelling circumstances to deviate
from the
minimum sentence and accords with the court
a
quo
that the sentence is
proportionate
to the crime, the criminal and the legitimate needs of society.
{own emphasis)
[24]
If one have a holistic approach and look at the
overall picture,even if the Appellant is a young and a first
offender
the sentence fits the crime.
[25]
Hence, having regard to the case law and how the
court a quo
applied the law, I can find no reason to deviate
from the sentence.
ORDER:
[26]
The appeal with regards to sentence is dismissed.
A.S.
BOONZAAIER, A J
I
agree. It so ordered.
N.S
DANISO, J
For
the Appellants:
ADV S Kruger
Legal Aid South Africa
BLOEMFONTEIN
For
the Respondent:
Adv S Tunzi
Instructed
by:
Director of Public Prosecutions
BLOEMFONTEIN
[1]
2001
(1) SACR 469
SCA at 478 B-G
[2]
1958
(3) SA 102
at 104
[3]
(2011)
SACR (1) 40 (SCA) para 13
6.1997
ZASCA 45
[1997] ZASCA 45
; ;
1997
(3) SA 341
(SCA) at 345 C-D:
[7]
1996
(2) SACR 181
(C) 186 D-F
[8]
The
period in custody prior to sentencing was referred to as
‘pre-sentence detention (S v Radebe and another
2013
(2) SACR 165
(SCA)
at [13]).
[9]
S
v Lucas (CC72/209{2022] ZAGPPHC 346(13 May 2022).
[10]
(590/06)
[2008] ZASCA 129
,
2009 1 ALL SA 237
(SCA) (1 October 2008
).