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[2019] ZAFSHC 89
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Mphuthi v S (A288/2018) [2019] ZAFSHC 89 (16 May 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: A288/2018
In
the matter between:-
MOHAU
SAMUEL
MPHUTHI
Appellant
and
THE
STATE
Respondent
CORAM
:
NAIDOO, J
et
MOLITSOANE, J
HEARD
:
11 MARCH 2019
JUDGMENT
BY
:
MOLITSOANE,
J
DELIVERED:
16 MAY 2019
[1]
The appellant stood trial in the Regional Court sitting in Kroonstad
on a charge of rape of a 13 year old victim. He was convicted
as
charged and sentenced to life imprisonment. He has an automatic right
to appeal and he appeals only against the sentence.
[2]
After the charges were put to him the accused tendered a plea of not
guilty. In a plea explanation he denied all the allegations
levelled
against him. After the plea explanation the state handed in a
statement in terms of s212 of the Criminal Procedure Act
51 of 1997
being the results of the analysis of swab taken from the cervix and
vestibule of the complainant that matched the DNA
result from the
appellant.
[3]
After the DNA analysis was handed in evidence the defence requested a
remand presumably to consult further on the course of
action to be
taken. Upon resumption of the case on the next hearing date the
defence made the following admissions in terms of
s220 of the CPA:
1.
The appellant admitted that on the 27
th
October 2012 and in Maokeng he had sexual intercourse once with the
complainant without her consent;
2.
He
further admitted that at the time of the incident the complainant was
13 years of old;
3.
He
further admitted that on the day of the incident he met the
complainant at a tavern. He thereafter took her out of the tavern
and
had sexual intercourse with her at a nearby shack not far from the
tavern.
[4]
After the admissions were formally noted the appellant was convicted
as charged and sentenced.
[5]
The following are the grounds of appeal the appellant relies upon:
1.
An
effective sentence of life imprisonment is strikingly inappropriate
in that it is out of proportion to the totality of the accepted
facts
in mitigation.
2.
The Court a
quo
erred by finding that there were no substantial and compelling
circumstances to deviate from the prescribed minimum sentence, more
particularly in view of the following facts:
2.1
The absence of planning;
2.2
The age and personal circumstances of the
Appellant;
2.3
The Court did not take in consideration the time
the appellant spend in custody awaiting the finalization of the
trial.
2.4
The fact that the Appellant did not have any
previous convictions of a sexual nature.
3.
The Court a quo further erred in
over-emphasizing* the following factors:
3.1
The seriousness of the offence;
3.2
The interest of the society;
3.3
The prevalence of the offence;
3.4
The deterrent effect of the sentence;
3.5
The retributive element of sentencing.
[6]
Sentencing lies predominantly in the discretion of the trial court.
It is now settled that an appeal court will only interfere
with the
sentence imposed by the trial court if the trial court has
misdirected itself in the imposition of the sentence and thus
imposed
a sentence which is shockingly inappropriate or that induces a sense
of shock or outrage. The court in
S
v Malgas
[1]
laid the test as follows:
“
[13] The test for interference
with sentences on appeal were evolved in order to avoid subverting
basic principles that are fundamental
in our law of criminal
procedure, namely, that the imposition of sentence is the prerogative
of the trial court for good reason
and that it is not for appellate
courts to interfere with that exercise of discretion unless it is
convincingly shown that it has
not been properly exercised.”
[7]
It is contended that the trial court erred in finding that there were
no compelling and substantial circumstances warranting
the imposition
of a lesser sentence.
In
assessing whether there are compelling and substantial circumstances
justifying the imposition of a lesser sentence this court
is guided
by the approach as laid down in
S
v Malgas
[2]
that
,
“if the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and needs of society, so that an injustice would
be done by
imposing that sentence, it is entitled to impose a lesser sentence.”
[8]
It is contended in particular that the trial court erred in not
taking properly into account the following factors:
1.
That the
appellant was a first offender in respect of the offence of rape.
First
offenders are not necessarily entitled to non-custodial sentences in
circumstances where serious offences have been committed.
The court
in
S v Kekana
2013(1) SACR 101(SCA) said the following:
“
It is
true that the appellant has an unblemished record and that he was a
useful member of society in gainful employment at the
relevant time.
Those circumstances, however, have to be weighed against the nature
and severity of the offence and the requirements
of society.
Notwithstanding those mitigating factors being present, the
seriousness of the offence makes it necessary to send out
a clear
message that behaviour of the kind encountered in this case cannot be
countenanced. The natural indignation that the community
would feel
at conduct of this kind warrants recognition in the determination of
an appropriate sentence.”
Rape,
whether committed for the first time or not remains a heinous crime.
Violence against women and children is a painful societal
scourge
that must be eradicated at all costs. This should also include first
offenders. While each case must be adjudicated on
its own merits it
has to be borne in mind that in circumstances of a serious crime like
the one before us, there is nothing untoward
to send even first
offenders to long terms of imprisonment.
2.
The appellant was
32 years at the time of the commission of the offence and the
possibility and the possibility of the rehabilitation
of the
offender.
Rehabilitation
is one of the aims of punishment. In the case of
Mhlakaza
and Another
[3]
the court pointed out that rehabilitation becomes less important when
the seriousness of the crime demands a long term of imprisonment,
amongst other things in order to remove the offender from society. In
this case the appellant was 32 years of age at the time of
the
commission of the offence. It has not been demonstrated that he was
immature. It is so that he had a child and maintained the
said child
and his grandmother from the odd jobs he was making.
In
Vilakazi
v The State
[4]
the court said the following:
“
[58]
In cases of serious crime the perceived circumstances of the offender
by themselves, will necessarily recede into the background
.Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the question whether the accused has
two children or
three, whether or not he is in employment, are themselves largely
immaterial to what period should be, as those
seem to me to be the
kind of ‘flimsy ’grounds that
Malgas
said should be avoided
.”
However,
notwithstanding the seriousness of the offence, rehabilitation still
remains an important sentencing consideration if the
sentence has the
potential to achieve it.[See
S
v Nkambule
[5]
.I
am of the view that rehabilitation should recede to the background in
this case.
3.
The fact that the
complainant did not suffer any serious injuries
.
When
considering whether substantial and compelling circumstances are
present, an apparent lack of physical injury to the complainant
shall
not be taken into account-See s51(3)(aA)(iii) of Act 105 of 1997.It
is indeed so that some rapes can be categorised as being
more serious
than others but that does not detract from the fact that all rapes
are inherently serious.
Williamson J in
N
v T
[6]
said:
“
Rape is a horrifying crime and
is a cruel and selfish act in which the aggressor treats with utter
contempt the dignity and feelings
of his victims.”
In
S v
Chapman
[7]
the court said that rape is ‘a humiliating degrading and brutal
invasion of the privacy, the dignity and the person of the
victim’.
Even
in circumstances where there are no physical injuries it cannot be
argued that such a rape is not serious. This 13 year old
suffered
emotional trauma.
[9]
I am not convinced that the trial court committed any misdirections
or that the sentence imposed is inappropriate. In the result
the
appeal against the sentence cannot succeed.
[10]
ORDER:
1. The appeal against the
sentence is dismissed and the sentence is confirmed;
2. The order in terms of
s103
(1) of the
Firearms Control Act 60 of 2000
is confirmed.
__________________
P.E.
MOLITSOANE, J
I
agree.
_____________
S.
NAIDOO, J
On
behalf of the appellant: Mr P L Van der Merwe
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent: Adv. Harrington
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
2001(1) SACR 469 (SCA).
[2]
Supra
.
[3]
1997(1) SACR 515(SCA) at 519 h-i.
[4]
(576/07)
[2008] ZASCA 87
(2 September 2008).
[5]
1993(1) SACR 136(A) 147.
[6]
1994(1)SA 862 CPD g-h.
[7]
1997(2) SACR 3 (SCA).