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[2017] ZAFSHC 2
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S v Molosi (46/2016) [2017] ZAFSHC 2 (17 January 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 46/2016
In
the matter between:
THE
STATE
and
JOHANNES
MOLITI PHEPENG MOLOSI
Accused
JUDGMENT
BY:
BOKWA,
AJ
DELIVERED
ON:
17
JANUARY 2017
SENTENCE
[1]
The accused was convicted on 16 January 2017 on one count of house
breaking with intent to rape, three counts of rape and two
counts of
armed robbery with aggravating circumstances.
[2]
The court has to impose an appropriate sentence in accordance with
the law. The purpose of sentence is to achieve the
following
objective: viz rehabilitation, deterrence, prevention and
retribution (see
S
v Rabie
1975
(4) SA 855
(A).
[3]
Rehabilitation is aimed at reforming an offender so that he/she may
change his/her criminal conducts. Deterrence is aimed
at
deterring future offenders from further involvement in crime.
Prevention is aimed at protecting the society from offenders.
The retributive element is aimed at punishing the offender so that
he/she can in a way feel the pain of the victim.
[4]
When deciding on an appropriate sentence I will take into
consideration the well-known triad of sentence, namely the personal
circumstances of the accused, the nature of the offence as well as
the interest of society. Regarding these three factors
I have
to strike a balance, so that one factor is not overemphasised at the
expense of the other.
[5]
The offences, the accused has been convicted of is of a very sever
nature, as it is a very serious invasion of a victims’
privacy. It is not only a crime which involves sexual
intercourse, but it is also an act of violence.
[6]
The legislature has deemed it fit to prescribe lengthy imprisonment
sentences as minimum sentences. If the court imposes
life
imprisonment upon conviction, it also must consider whether there
exists substantial and compelling circumstances justifying
a
departure therefrom.
[7]
In terms of section 51(1)(3) of Act 105 of 1997, if a court find that
these circumstances exist, it is duty bound to enter them
on record
and is then allowed to impose a lesser sentence than the prescribed.
[8]
Mr. Nel acting on behalf of the accused placed the following
circumstances on record for the accused:
8.1
He is 33 years of age and at the prime of his life. He stayed
with his parents before he was arrested
at nr. [...] F. S., Free
State Province and at the back of his parents’ house for 8
years. His highest educational
standard is Standard 7 / Grade
9. Regarding his employment he did odd jobs of plumbing firstly
for a period of one year.
For a few months before he was
arrested, he worked as a car watchman or car guard, earning an income
of R500.00 per month.
He is not married nor does he have any
dependants.
8.2
The accused still protests his innocence even after his conviction.
Despite his attitude, Mr. Nel request
the court to temper his
sentence with mercy.
8.3
In the present case the minimum sentences are applicable. The
crimes committed by the accused are not
only prevalent to this
country and the court’s area of jurisdiction but society
expects our courts to act firmly against
those who perpetrates these
crimes. Mr. Nel has placed at length on record the personal
circumstances of the accused.
In my view, the interest of
society far outweighs the personal circumstance of the accused.
The interest of society demands
that this scourge be addressed
effectively and that the court sends out a clear message that crime
will not be tolerated.
[9]
The accused has previous convictions some of which are relevant to
the offenses he has been convicted of. It is clear
that the
accused does not wish to take responsibility and accountability for
his actions. He has ignored the red lights which
had been
flickering for a long time and has persisted with a pattern of
unlawful activities unabated.
[10]
In my view I am satisfied that there are no substantial and
compelling circumstances warranting the departure from the applicable
minimum sentences.
[11]
In my view therefore the appropriate sentence is the following:
11.1
Count 1, life imprisonment.
Count
2, life imprisonment.
Count
3, 10 years imprisonment.
Count
4, life imprisonment.
Count
5, 10 years imprisonment
11.2
The sentences in count 1 – 5 will run concurrently.
_______________
I.R.O
BOKWA, AJ
On
behalf of the State:
Adv. Hoffman
Instructed
by:
Director of Public Prosecutions Free State
On
behalf of accused:
Adv. Nel
Instructed
by:
Justice Centre South Africa