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[2018] ZANCHC 6
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Moehi v S (CA&R 56/2017) [2018] ZANCHC 6 (23 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT, KIMBERLEY)
Case
no: CA&R 56/2017
HEARD ON: 09-10-2017
DELIVERED:
23-02-2018
In the matter between:
ltumeleng
Moehi
Applicant
And
The
State
Respondent
CORAM: WILLIAMS J et LEVER AJ
JUDGMENT
WILLIAMS J
1. The
appellant, Mr ltumeleng Moehi, pleaded guilty in the Regional Court,
Kuruman on a charge of rape read with the provisions of sec 51(1) of
Act 105 of 1997 (where the infliction of grievous bodily harm
is
involved), and was sentenced to life imprisonment.
2. The appeal is
preceded by an application for condonation for the late filing
of the
notice of appeal. The notice of appeal was filed 1 ½ months
late and the reasons for the delay are stated as the
appellant's
incarceration and general difficulty in getting hold of his attorney.
Added to the above usual explanation for delay,
the trial court at
the end of the trial, mistakenly informed the appellant that the
matter would be sent on automatic review. The
trial court then
reconvened some 3 months later to correct the position and inform the
appellant of his automatic right of appeal.
In these circumstances
the delay cannot be said to be unreasonable. Mr Rosenberg, who
appeared for the state in this appeal, readily
conceded this fact and
we therefore granted condonation for the delay.
3. The appeal
lies against the sentence imposed only, on the basis that the
court
a
quo
misdirected itself in not finding that the fact that the
appellant pleaded guilty, that he was intoxicated at the time of the
offence
and his personal circumstances, justified the imposition of a
lesser sentence than the prescribed life imprisonment.
4. The accepted
facts relevant for purposes of sentencing are the following:
4.1 The appellant a 28 year old
man, was on his way home from a tavern during the night of 28
March
2015 when he decided to first go to the complainant's home. The
complainant, a 64 year old woman, was asleep when the appellant
entered her home. She only woke up while the appellant was busy
raping her and started to scream. In order to subdue the complainant
the appellant struggled with her and stabbed her with a knife over
her back and the back of her neck. The complainant also sustained
lacerations over four fingers on her right hand and contusions over
her face.
4.2 The appellant is single but
has two minor children. At the time of his arrest he was employed
as
a bricklayer and earned R2000,00 every fortnight. He is not a first
offender and has previous convictions for riotous behaviour
(2008),
theft (2009), contravention of a protection order and intimidation
(2011), and rape (committed on 24 December 2013 and
for which he was
convicted on 21 October 2015).
In his plea explanation the appellant stated that on the
night in question he had shared a bottle of Jameson whiskey with two
friends
and had also consumed some beer.
5. The trial
court in a detailed judgment on sentence considered all the relevant
factors which come into play when deciding upon an appropriate
sentence - the serious nature of the offence, the interests of the
community against violence towards women, children and especially the
elderly, the personal circumstances of the appellant. Not
one of
these factors was overemphasised at the expense of another.
6. The appellant
was linked by his DNA to the offence and the State had a
very strong
case against him. His plea of guilty in such circumstances is not
necessarily a sign of remorse - but more likely an
acceptance of the
inevitable.
7. The appellant
furthermore, save to state in his plea explanation that he
had
consumed alcohol, failed to elaborate on his state of intoxication or
give evidence on how his intoxication influenced his
actions. See in
this regard
S vs Klassen
2017(2) SACR 119(SCA) para 8. It
would in these circumstances be mere speculation to find that his
actions had in any meaningful
way been influenced by his
intoxication.
8. Lastly and by
far the most aggravating factor
in casu
is the fact that the
appellant had committed a similar offence less than 1
Yi
years
prior to this offence. He is a repeat offender and there can be no
doubt in my mind that he is a danger to society.
9. In my view
there is no basis on which this court can interfere on sentence
and
as such the appeal must fail.
In the circumstances the following order is made:
The appeal against sentence is dismissed.
CC WILLIAMS
JUDGE
I concur
L LEVER
ACTING JUDGE
For Appellant: Mr
P Fourie
Legal
Aid
For Respondent: Adv
J Rosenberg
Office
of the OPP