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2018
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[2018] ZAFSHC 142
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Valashiya v The State (A114/18) [2018] ZAFSHC 142 (20 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
number:
A114/18
In
the matter between:
SIMPHIWE
M VALASHIYA
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
CHESIWE, J
JUDGMENT
BY:
CHESIWE, J
HEARD
ON:
3 SEPTEMBER 2018
DELIVERED
ON:
20 SEPTEMBER 2018
JUDGEMENT
[1]
The appellant was convicted in the Regional Magistrate court in
Welkom on charges of theft, (the
original charge was that of robbery
with aggravating circumstances) and rape. He was sentenced to five
years imprisonment for
the theft and twenty years for the rape
charge. The five year jail term was wholly suspended on conditions.
[2] The
appellant was represented by Mrs Smith from the Legal Aid Board
Bloemfontein and
the respondent was represented by Advocate Botha
from the offices of the National Director of Public Prosecution.
[3]
The trial court refused appellant leave to appeal against conviction
and sentence. On petitioning
the Judge President of the above
Honourable court, the appellant was granted leave to appeal against
his sentence. Leave
to appeal lies against the sentence of
twenty years.
[4] The
complainant testified at the trial court that in the early morning
hours of the 4th April 2009,
she was asleep in her house with her
child when she was disturbed by two intruders who woke
her up. The two intruders
raped her, appellant being one
of the intruders. (Appellant was accused 2 at the trial
court). The
complainant also lost property
that was stolen by the intruders to the value of
seventeen thousand rand. The
appellant at the trial court
raised a defence that he and the complainant had a love affair since
2000, and that he had sex with
the complainant on 3rd April
2009 and not 4th April 2009 as claimed by the complainant. According
to the appellant the complainant
became angry with him because
he did not give her money for an identity document and shoes.
[5]
The appellant is positively to the rape of the complainant through
DNA.
[6]
Mrs Smith on behalf of the appellant submitted in oral argument that
the court erred in the application
of the prescribed minimum sentence
as the appellant had compelling and substantial circumstances, in
that the appellant is a first
time offender and he was in custody for
four years. She submitted that the sentence imposed cannot stand,
must be set aside and
a competent sentence be imposed. Counsel
submitted that sentence of seven (7) years will be more appropriate.
[7] Mr
Botha on behalf of the state conceded that the court need to
re-consider the appellant’s
sentence as the trial court has
erred by not taking into account the four years the appellant spent
in custody. Mr Botha
also conceded that the seven years will
be an appropriate sentence in this instance.
Ad
Sentence
[8]
As regards sentence the appellant based the appeal on the following
grounds: that
twenty years imprisonment is strikingly
inappropriate in that it is out of proportion and excessive in the
circumstances and induces
a sense of shock. The trial court
should have taken into account the period the appellant spent in
custody awaiting
trial the court and therefore the trial
court erred by not imposing a shorter term of
imprisonment in view
of the appellant’s personal circumstances,
prospects of rehabilitation, severity of the offence and the
interests
of society.
[9]
The respondent conceded that the court a quo erred in not finding
that compelling
and substantial circumstances existed and
therefore misdirected itself with regard to the approach it had
in terms
of the prescribed minimum sentence.
[10] It
is trite that a court of appeal will not lightly interfere with the
sentencing discretion of
the trial court unless the sentence imposed
was shockingly inappropriate. In
S v Makhando 2002 (1) SA
at 431 E-F SCA, the court contented that the appellant’s
incarceration for a period of two years awaiting trial is a factor
that must be considered by a court to deviate from the
prescribed minimum sentence. In
S v Stephen and
Another
1994
(2) SACR 163
(W)
the court was of the view
that the appellant was a first offender and productive member of the
community, and this should have
moved the court to a finding of the
existence of substantial and compelling circumstance that would
empower the court to deviate
from the imposition of the prescribed
minimum sentence.
[11]
In order to determine whether in a particular case substantial and
compelling circumstances exists,
a court has to follow the
guidelines as set out in
S v Malgas
2001 SACR 469
SCA
at
482 and consider the trite triad factor propounded in
S v
Zinn 1969
(
2) SA 537
(A)
relevant to the sentence the
crime, the criminal and the interests of society.
[12] A
court of appeal may interfere with the sentence imposed by the trial
court only where
the sentence imposed is so disproportionate to the
crime committed that it is injust or where the trial court in
sentencing the
offender failed to exercise discretion properly or
exercised it unreasonably.
[13] In my
view, correctly submitted by the legal representative on behalf of
the appellant, the court approached the
sentencing of the offender
without taking into account the four years spent in custody
awaiting trial, the appellant
was a first offender, had a child
and he contributed to
the child’s maintenance, was relatively young at the time
of being sentence and thus
warrants this court to
tamper with the sentence imposed by the trial court.
[14] A
lengthy period in custody constitutes a substantial mitigating
factor warranting a departure
from the prescribed minimum sentence
.
(See S v Vilakazi
2009 (1) SACR 552
(SCA)
and
S v
Kruger
2012 (1) SACR 369
(SCA).)
[15]
It is only fair to consider the period spent in custody where it is
a lengthy
period. In the present case the appellant
was incarcerated this period into a the
sentence is by
ante-dating the sentence to the date on which
appellant was sentenced or by simply deducting the four years from
the imposed sentence.
I am therefore satisfied that overall,
if regard is had to the totality of aggravating and mitigating
circumstances,
including the lengthy period of four years in
custody, substantial and compelling circumstances are present to
reduce the
minimum sentence of 20 years imprisonment.
[16] In
view of the aforesaid, I am persuaded that the trial court
misdirected itself and the sentence
warrants to be tampered with
by this court.
[17] In
the circumstances I make the following order:
1.
The
appeal against sentence succeeds.
2.
The
sentence of twenty (20) years imprisonment imposed on the appellant
is set aside and is substituted with the following sentence:
2.1 The
accused is sentenced to 10 years imprisonment in respect of count 2.
2.2 The
sentence must be deemed to have been imposed on 11 December 2013 in
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
.
S
CHESIWE, J
On
behalf of appellant:
Instructed
by:
On
behalf of respondent:
Instructed
by: