About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 342
|
|
Masanabo v S (A477/2016) [2018] ZAGPPHC 342 (1 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES.
CASE NO: A477/2016
1/3/2018
In
the matter between:
MASANABO LUCKY
JABU
APPELANT
and
THE
STATE
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1] The
appellant, Jabu Lucky Masanabo, was arraigned in the regional
court
on three charges, namely, one count of rape of a 3 year old girl; one
count of assault with intent to do grievous bodily
harm and one count
of assault with intent to do grievous bodily harm of a child under
the age of 16 years. He pleaded guilty on
count 2 and tendered a
statement in terms of
s 112
(2) of the
Criminal Procedure Act 51 of
1977
. In respect of count 1 and 3 he pleaded not guilty.
[2] The
evidence tendered by the state in count 1 is that the complainant,
a
3 year old girl, went to the appellant's house looking for her
friend. At the house the complainant did not find her friend but
the
appellant. The appellant instructed her to go into the bedroom. He
followed her into the bedroom and ordered her to undress
and then
proceeded to rape her. After the rape he gave her an amount of 50
cents. When the little girl arrived back home her mother
saw the
money and enquired about it. The complainant told her mother what
happened. The appellant was subsequently arrested. He
was also
implicated in the commission of the offence in count 1 by the DNA
sample found on the underwear of the complainant.
[3] In
respect of count 2 and 3 the evidence is that on the day in question
T M, the mother of the complainant in count 1 and the complainant in
count 2, was standing outside in the street where she was
approached
by the appellant. She was holding her 18 month old child, S M , the
complainant in count 3, on her hip. When the appellant
reached her he
took out a sjambok and assaulted them both.
[4] On
the basis of this evidence the trial court found the appellant
guilty
of attempted rape in count 1 and convicted the appellant as charged
in count 3. He was consequently sentenced to: count
1 - 10 years
imprisonment; count 2 - 2 years imprisonment and count 3 - 3years
imprisonment. The sentence on count 3 was ordered
to run concurrently
with the sentence in count 1. The appellant was as a result sentenced
to an effective sentence of 12 years
imprisonment. He was also
declared unfit to possess a firearm in terms of
s 103
(1) of the
Firearms Control Act 60 of 2000
.
[5]
On 28 October 2015 the trial court dismissed the appellant's
application for leave
to appeal the conviction and sentence.
Nevertheless, the appellant was, on petition to this court, granted
leave to appeal sentence.
He is before us appealing the sentence
only.
[6] The
grounds of appeal stated in the appellant's heads of argument,
and in
argument before us, is that the trial court erred in sentencing the
appellant to an effective sentence of 12 years imprisonment.
In so
doing the trial court over-emphasised the seriousness of the offence
committed by the appellant and the interest of society
and
under-emphasised the personal circumstances of the appellant. The
submission is that the trial court ought to have considered
the time
spent by the appellant in custody awaiting trial - 2years and 8
months, together with the fact that he was a first offender.
As such,
the sentence of 12 years imprisonment is argued to be shockingly
harsh and induces a sense of shock.
[7] In
its heads of argument the submission by the respondent is that
the
sentence of 12 years imprisonment was arrived at by the trial court
on consideration of all the traditional sentencing guidelines.
The
trial court did consider the personal circumstances of the appellant
- that, he is 40 years old, has 4 minor children, he was
kept in
custody awaiting trial for 2 years and 8 months and is a first
offender. The aggravating factors are that the appellant
was
convicted of very serious offences and showed no remorse. He
attempted to rape a 3 year old girl and tried to convince the
trial
court that the evidence was planted by the family. The appellant also
assaulted the complainant in count 2 whilst she was
carrying an 18
month old baby on her hip. As such the sentence cannot be said to be
shockingly harsh and induces a sense of shock,
so it was argued.
[8] When
imposing sentence the trial court considered the personal
circumstances
of the appellant as they were placed before it . In
particular, the trail court took into account that the appellant was
kept in
custody awaiting trial for a period of 2 years, also that he
was relatively young and had no previous convictions together with
the extent of the injuries sustained by the complainants as
substantial and compelling circumstances justifying deviation from
the prescribed sentence. It should be mentioned that no evidence was
led about the injuries of the complainant in count 2. In count
3 the
complainant suffered very minimal injuries to his hand and foot.
[9] The
trial court could, however, not close its eyes to the prevalence
of
the type of the offence in count 1, that is, the rape of children at
the tender age of the complainant, in its area of jurisdiction;
the
seriousness of the offence in that the person involved was a 3 year
old child; and the interest of society which required protection
from
the courts particularly in respect of helpless children such as the
complainant. In count 2 and 3 the gravity of the offence
was
aggravated by the use of a sjambok and the fact that the assault was
aimed at intimidating or preventing the complainant in
count 2 to
come and testify in the case in count 1.
[10]
It is settled law that an
appeal court will not interfere with a sentence imposed, unless the
trial court materially misdirected
itself or the sentence is
shockingly inappropriate. A trial court exercises its judicial
discretion depending on the facts of each
particular case. Each and
every case must be judged on its own merits. Should the appeal court
find that the discretion was not
judicially exercised it will be at
large to interfere.
[1]
[11]
The accepted test whether
a sentence induces a sense of shock is whether there is a striking
disparity between the sentence passed
and that which the court of
appeal would have imposed.
[2]
[12]
The appellant contents that the sentence of 12 years imprisonment is
shockingly inappropriate
. What, however, is at issue in the main, is
the sentence of 10 years imposed in count 1. Before us his counsel
argued that the
appellant should be punished for what he has done,
namely, the attempted rape of a 3 year old girl. The suggestion is
that at least
a period of 5 to 6 years imprisonment ought to have
been imposed.
[13]
The question is whether the sentence of 10 years imprisonment imposed
by the trial
court for the attempted rape of a 3 year old girl is
shockingly inappropriate . I do not think so.
[14]
Section 55
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
provides that -
"55.
Attempt, conspiracy, incitement or inducing another person to commit
sexual offence
Any person who -
(a)
attempts;
(b)
…
To commit a sexual
offence in terms of this Act, is guilty of an offence and may be
liable on conviction to the punishment to which
a person convicted of
actually committing that offence would be liable."
[15] The
punishment, to which a person convicted of actually committing he
offence of rape of a 3 year old child, is
provided for in Schedule 2
of
Part 1
read with
s 51
(1) of the
Criminal Law Amendment Act 105 of
1997
and reads thus -
"
Section 51
(1)
(1)
Notwithstanding
any other law but subject to subsection (3) and (6), a regional court
or High Court shall sentence a person it has
convicted of an offence
referred to in
Part 1
of Schedule 2 to imprisonment for life."
Part 1
of Schedule
2, concerning rape reads as follows:
"Rape as
contemplated in section 3 of the Criminal Law (Sexual Offence and
Related Matters) Amendment Act, 2007, where a victim
is a girl under
the age of 16 years."
[16]
It is common cause that the complainant in this instance is a child
under the age of 16
years thus, life imprisonment is the minimum
sentence which the trial court ought to have imposed. The trial court
having found
substantial and compelling circumstances to exist
deviated from the imposition of the prescribed minimum sentence of
life imprisonment
and instead imposed a sentence of 10 years
imprisonment. The initial sentence, together with the other sentences
in count 2 and
count 3, was 15 years imprisonment but the trial court
ordered the sentence of 3 years in count 3 to run concurrently with
count
1 which reduced the sentence of 15 years imprisonment to 12
years imprisonment .
[17]
The sentence imposed is, in my
view,
appropriate as I am
unable to find any material misdirection on the part of the trial
court to justify interference. It is obvious
from the record that the
trial court, when passing sentence, did not overlook the personal
circumstances of the appellant, in particular
the period spent in
custody awaiting trial, his age and the fact that he was a first
offender. These are the personal circumstances
which the trial court
took into account when considering whether there are substantial and
compelling factors and it found such
to exist, thus, the deviation.
[18]
I find, as well, that the disparity between the sentence which I
would have imposed and
the one imposed is not striking nor is it
shocking. I would have found that the factors taken by the trial
court in aggravation
of sentence overshadow the appellant's personal
circumstances. The appeal on sentence, in my
view,
stands to
be dismissed.
[19] In
the premises I make the following order:
1.
The appeal is dismissed
2.
The conviction and sentence are confirmed
E. M. KUBUSHI,
JUDGE OF THE HIGH COURT
I concur
and it is so ordered
F.
DIEDERICKS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
On behalf
of the appellant: Adv
N.G. Botha
Instructed
by:
PRETORIA JUSTICE CENTRE
2
nd
Floor
FNB Building
206Church Street
PRETORIA 0001
On
behalf of the respondent:
Adv P. Vorster
Instructed by:
DIRECTOR OF PUBLIC PROSECUTIONS
Presidential Building
28 Church Square
PRETORIA 0001
[1]
See Nieuwenhuizen v S (20339/14)
[2015] ZASCA 90
(29 May 2015) para
5.
[2]
See S v De Jager & Another
1965 (2) SA 616
(A} at 628H -629.