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[2017] ZAFSHC 17
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Sithole v S (A165/2016) [2017] ZAFSHC 17 (20 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A165/2016
In
the appeal between:
MADIDI
PATRICK SITHOLE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
NICHOLSON,
AJ
JUDGEMENT
BY:
REINDERS,
J
HEARD
ON:
6
FEBRUARY 2017
DELIVERED
ON:
20
FEBRUARY 2017
[1]
On 19 May 2014 before the Regional Court, Kroonstad, the appellant
pleaded guilty to three counts, to wit:
Count
1: Housebreaking with the intent to commit robbery.
Count 2: Rape by
contravening Sec 3 of the the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
read with the provisions of
section 51
of the
Criminal Law Amendment Act 105 of 1997
.
Count
3: Robbery with aggravating circumstances.
[2]
On the same date appellant was convicted as charged and sentenced as
follows:
Count 1: 5 years
imprisonment.
Count 2: Life
imprisonment.
Count 3:15 years
imprisonment.
[3]
The appellant appealed only against the sentences imposed upon him by
the trial court by virtue of his automatic right to appeal
in terms
of Sec 10 of the Judicial Matters Amendment Act 42 of 2013. His only
ground for appeal lies therein that the sentence
imposed is
inappropriate and out of proportion to the totality of the accepted
facts in mitigation.
[4]
In sentencing, the learned magistrate conducted a thorough weighing
up o all the factors to be taken into account in order to
arrive at a
just sentence. This included the following:
·
The
personal circumstances of the appellant;
·
the
fact that he pleaded guilty (though linked positively via DNA);
·
that
fact that he was not a first offender, and that the crimes to which
he pleaded guilty were committed whilst he was still under
correctional supervision for robbery and assault, which is indicative
of his disrespect for the law and it’s not deterring
appellant
from committing serious crimes;
·
the
seriousness of the offences committed and the circumstances under
which they were committed: the complainant was attacked in
the safety
of her home whilst her minor child was present in their home,
threatened with death and penetrated vaginally and
anally.
Hereafter the appellant continued with his rampage and robbed the
complainant of her cell phone and laptop;
·
the
Victim Impact Report of the complainant which indicated that she was
severely traumatised by the incident,
inter
alia
to the extent that she lost her employ which resulted in financial
difficulties and relocated due to her fear as a result of the
incident;
·
the
interests of the community, looking up to the courts to pass
sentences that would protect the entire community.
[5]
After careful consideration the trial court found no cause to deviate
from the prescribed minimum sentences in respect of the
convictions
on rape (more than once by appellant) and robbery with aggravating
circumstances.
[6]
It is trite law that the power of this court sitting on appeal, are
limited when it comes to the sentence in so far as interference
with
same is only warranted where the sentencing court committed a
material misdirection, or the sentence imposed is not proportionate,
or such a court did not exercise its discretion properly or at all.
See:
S v Pieters
1987(3) SA 717 (A).
[7]
Ms Kruger opined that the sentences imposed on counts 1 and 3 had to
be treated as one for purposes of sentence, or alternatively
be
ordered to run concurrently. Counsel for the respondent, Ms Moroka,
aligned herself with the first proposal of Ms Kruger.
[8]
Although the
Criminal Procedure Act 51 of 1977
nowhere expressly
provides that charges can be taken together for the purposes of
sentence, they may indeed and often are taken
together –
vide
Hiemstra’s
Criminal Procedure
[Issue 6] at 28-41.
[9]
It is trite law that any determinate sentence of imprisonment runs
concurrently with a sentence of life imprisonment. In
S v
Mashava
2014 (1) SACR 541(SCA)
Saldukar JA, with
reference to
Sec 39
(2) of the
Correctional Services Act 111 of 1998
articulated in par [7] that:
“
Any
determinate sentence of incarceration, imposed in addition to life
imprisonment, is subsumed by the latter. This is logical
and
practical. A person only has one life and a sentence of life
imprisonment is the ultimate penal provision.”
Following
these directions there are no reasons to order on appeal that the
sentences in counts 1 and 3 should run concurrently.
[10]
From the judgment by the court a
quo
,
it is clear that the learned magistrate appreciated his function in
coming to a just and appropriate sentence and exercised it
responsibly and diligently. I am not convinced that he erred or
misdirected himself in imposing sentence and find no reason to
interfere therewith.
[11]
Ms Kruger criticised the convictions and submitted that it would have
been more “appropriate for the court a
quo
to convict the appellant in respect of counts 1 and 3 on a single
count of robbery with the intent to commit robbery and robbery
with
aggravating circumstances”. Ms Kruger referred us to
S
v Zimisa
1990 (1) SACR 22
(N
)
where Thirion, J (at 23 d-e) articulated as follows:
“
It
is settled practise to charge as one count the crime of housebreaking
with intent to commit a crime and the crime itself, which
was
committed in consequence of the breaking in and for the purpose of
the commission of which the breaking in was committed. So
much so is
the practise that only one sentence is imposed in respect of
housebreaking with the intent to commit a crime and the
further
crime, to commit which the breaking was effected.”
[12]
No appeal was lodged against the convictions of the appellant.
I am not called upon to adjudicate upon the correctness
of the
conviction by the trial court and consequently do not do so. The
magistrate was in any event not afforded the opportunity
to respond
or furnish reasons for his convictions.
[13] I
would therefore make the following order:
The
appeal is dismissed.
______________
C.
REINDERS, J
I
concur.
_________________
C.
NICHOLSON, AJ
ORDER:
The
appeal is dismissed.
On
behalf of the appellant: Ms S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv M.M.M. Moroka
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN