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[2016] ZAFSHC 96
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Mofokeng and Another v S (A38/2015) [2016] ZAFSHC 96 (22 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A38/2015
In
the appeal between:-
MORENA
ERICK MOFOKENG
1
st
Appellant
LEBOHANG
DAN SIBISI
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
et
VAN ZYL, J
et
JORDAAN,
J
JUDGMENT
BY:
MOLEMELA, JP
HEARD
ON:
18 APRIL 2016
DELIVERED
ON:
22 APRIL
2016
[1]
The first and second appellants were indicted on two counts, namely
count 1: housebreaking with intent to rape and rape and
count 2:
robbery with aggravating circumstances. They were both found guilty
on count 1 and sentenced to life imprisonment.
In respect of
count 2, they were convicted of robbery and sentenced to 10 years
imprisonment. Pursuant to an unsuccessful bid to
the Supreme Court of
Appeal to appeal against their conviction, they are, with leave of
the court
a
quo,
now appealing against their sentence.
[2]
The appellants’ prosecution and conviction was triggered by the
events that happened in Bethlehem on the morning of 28
November 2009.
The extent of the complainant’s evidence is that when she went
to bed after celebrating her birthday, she
secured all doors and
windows of her shanty. In the early hours of the morning she woke up
to relieve herself. It was at that state
that she heard a noise in
the kitchen. She proceeded to the inter-leading door to investigate
what was happening and was in time
to see a man, whom she later
identified as Appellant 1, entering the kitchen through the window.
This person immediately started
swearing at her and threatened to
assault her if she screamed. He advanced towards her very quickly and
she was unable to flee.
He immediately punched her and pushed her
onto the bed. He undressed her. She struggled to keep him off and
closed her thighs tightly
in an attempt to prevent penetration, but
he threatened to stab her with a screwdriver and repeatedly punched
her on the face and
thighs until he succeeded in having his way. He
proceeded to rape her. When he was done, he got off her and then
called his accomplice
by saying: “Gazi, it’s your turn.”
His accomplice also raped her.
[3]
Her cellular phone was on the bedside table and the two assailants
took it and demanded money. She told them to look for it
in the
basket knowing fully well that it was not there. This angered the
first appellant and he suggested that they stab her with
a
screwdriver but his accomplice was against the idea. The duo then
left. She called her mother, who in turn summoned the police.
She
made a statement to the police,
inter
alia
giving a description of Appellant 1, who was already known to her by
sight.
[4]
On 31 December 2009 she went to the shops and saw Appellant 1 hanging
around the area and immediately recognised him as her
assailant.
Before leaving the shop, she made enquiries as to his name and
address. She then phoned the police to notify them and
they advised
her to wait at a nearby garage. Upon the police’s arrival, she
directed them to Appellant 1 and he was arrested.
The arrest of
Appellant 2 was through the diligent work of a police officer who was
investigating a series of rapes in the area.
Having discerned that
the
modus
operandi
was similar to the one adopted in another rape incident in respect of
which a suspect was already in custody, he had the presence
of mind
to arrange for a blood sample to be taken to the forensic laboratory
for testing to see whether there could be a DNA link
to the
complainant’s sample. There was a match and that perpetrator
turned out to be Appellant 2. Both appellants were subsequently
prosecuted for burgling the complainant’s house and raping her,
as well as for the robbery of her cellular phone. Since the
complainant had not seen the screwdriver that Appellant 1 had
threatened to stab her with, the court
a
quo
found
that their robbery was not with aggravating circumstances and
therefore did not attract a minimum sentence.
[5]
The essence of the appellants’ grounds of appeal is that the
court
a
quo
misdirected
itself by not finding the existence of substantial and compelling
circumstances warranting deviation from the prescribed
minimum
sentence. They submit that the court
a
quo
erred by over-emphasising the seriousness of the offences, attaching
insufficient weight to the appellants’ personal circumstances
and failing to consider the period spent by the appellants in custody
while awaiting trial, resulting in the imposition of a sentence
that
is shockingly high and inappropriate.
[6]
At the beginning of the hearing counsel for the appellants departed
from the written arguments by conceding that the rape the
appellants
were convicted of was not incorrectly categorised as one committed
with a common purpose and acknowledged that the applicable
minimum
sentence is life imprisonment. This concession was correctly
made, considering that cogent evidence proved this common
purpose:
firstly, Appellant 2 obliged when Appellant 1 indicated that it was
his turn to rape the complainant and, secondly, after
the two of them
had concluded the rape act, they conferred about the way forward and
thereafter left the scene together.
[7]
Counsel for the appellants, in line with the written heads of
argument, persisted in arguing that the rape committed by the
appellants could not be categorised as one of the worst kinds of
rapes. She further argued that the appellants’ mitigating
factors, cumulatively viewed, constitute substantial and mitigating
factors that warrant deviation from the applicable minimum
sentence
of life imprisonment. She contended that the court
a
quo
had materially misdirected itself by failing to address itself to one
of the considerations applicable to sentencing, namely the
period
spent by the appellants in custody while awaiting conclusion of their
trial. She emphasised that appellant 2’s
age at the time
of commission of the offence was a strong mitigating factor in this
regard. The respondent’s counsel supported
sentences imposed in
respect of both appellants and maintained that the sentences were not
disproportionate to the gravity of the
offences committed.
[8]
The sentencing principles are trite and need not be restated here.
The authorities on the application of the minimum sentence
legislation are clear. In the case of
S
v Malgas
[1]
the court stated as follows:
“
The
specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender, undue sympathy, aversion to imprisoning first offenders,
personal doubts as to the efficiency of the policy underlying
the
legislation and marginal differences in personal circumstances or
degrees of participation between co-offenders are to be excluded.”
[9]
In the case of
DPP
North Gauteng Pretoria v Thusi & Others
[2]
three accused persons broke into the house of an elderly woman.
One of them raped her, she suffered severe injuries.
A sentence
of life imprisonment was imposed on the perpetrator of the rape even
though he was only 20 years old at the time of
commission of the
offence.
[10]
In the case of
Maile
v S
[3]
a sentence of life imprisonment was confirmed in respect of the 22
year old first offender who had committed the rape at the
complainant’s
house. In
S
v Nkunkuma & Others
[4]
a sentence of life imprisonment was confirmed on appeal despite the
fact that the two appellants were 21 and 22 years respectively.
Both of them had previous convictions.
[11]
The appellants’ personal circumstances are as follows:
Appellant
1 was 24 years old at the time of commission of the offence.
Appellant 2 was 20 years old at the time of the commission
of the
offence. Both of them are single and have no dependants.
Appellant 1’s highest standard of education is
grade 8.
As at the time of his incarceration he made a living from being a
traditional dancer. Appellant No 2’s
highest standard of
education is Standard 7. Prior to his incarceration he earned a
living from doing odd jobs.
[12]
The aggravating factors are as follows: The seriousness of the
offence. In
S
v C
[5]
,
the court aptly described seriousness of the offence of rape in the
following terms:
“
Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim – he
murders
her self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deeds thereafter
haunts his
victim and subjects her to mental torment for the rest of her life –
a fate often worse than loss of life”.
[13]
Rape, being a life-altering experience, does not only adversely
affect its victims’ quality of life, it affects their
families
too and impacts on the society as a whole. Given the prevalence of
the scourge of gender-based violence in this country,
the public’s
need for effective sanctions for rape and related offences must be
recognised.
[6]
Another serious aggravating factor is that the complainant was raped
in her own home, where she would have been expected to be
safe.
She was brutally assaulted before and after the robbery, as a result
of which she sustained the following injuries:
she had a swollen
face; her bottom teeth became loose; she had a laceration on the lip;
her forearms and thighs were tender.
The complainant was
threatened that she would be stabbed with a screwdriver. At the
time of her testimony she still suffered
severe psychological
trauma. The appellants at no stage showed any remorse.
[14] Counsel for
the appellants argued that notwithstanding all these aggravating
circumstances the rape committed by the appellants
was not the worst
kind of rape. As authority for this view, she relied on a number of
judgments of the Supreme Court of Appeal
which held that life
imprisonment must be reserved for rapes falling into the category of
the worst kind of rapes
[7]
.
I agree that there are bound to be differences in the degree of
seriousness of rapes.
I
do not understand these authorities to suggest that life imprisonment
should never be imposed if more horrendous rapes than the
one
committed by the accused persons are imaginable. I am of the view
that where, on the particular set of facts, life imprisonment
is
proportionate to the gravity of the particular offence, then it ought
to be imposed. I am fortified in this view by the remarks
made by the
court in
S
v Vilakazi
[8]
,
where it stated that
“
[t]here
comes a stage at which the maximum sentence is proportionate to an
offence and the fact that the same sentence will be attracted
by an
even greater horror means only that the law can offer nothing more.”
I have no doubt
that this is indeed a case where life imprisonment is proportionate
to the crime committed.
[15]
Counsel for the appellants made much of the appellants’
youthfulness, particularly that of Appellant 2. The appellants’
youthfulness cannot be considered in isolation. Both appellants
made critical decisions during the commission of the offences;
while
appellant 1 played a leading role in respect of count 1, appellant 2
played a leading role in count 2, having suggested that
they should
be content with the complainant’s cellular phone despite having
not found any money. Both appellants had
serious previous
convictions for which custodial sentence had been imposed.
Against this background and without any evidence
having been adduced
to show their alleged immaturity, there is no basis for finding that
the commission of their offences could
have been influenced by their
immaturity on account of their youthfulness.
[16]
Turning to the contention that the court
a
quo
did not take the time spent by the appellants in custody into
account, I acknowledge that the period spent in custody while
awaiting
trial is one of the factors to be take into account when
determining the appropriate sentence. The circumstances which led to
the
accused person spending time in custody while awaiting trial are
also an important consideration.
[9]
It must be borne in mind that appellant 1 in his evidence alluded to
the fact that he was in custody in respect of two other matters
unrelated to the incident involving the present complainant and that
he was released from custody after his acquittal in those
matters.
His trial in respect of the present charges was concluded within a
month of the date on which he was re-arrested.
The rest of the period
he spent in custody while awaiting other trials need not be taken
into consideration for purposes of the
matter at hand.
[17]
With regards to appellant no 2, it is common cause that his
correctional supervision was withdrawn due to his failure to comply
with its conditions. The exchange on p 167 of the record is
instructive:
“
Mr
Nel: Did you breach any parole conditions and then you were
re-arrested?
Appellant
2: Yes
Mr
Nel: Until when do you have to be in custody in Kroonstad?
Appellant
2: Until the year 2013”
It
is therefore clear that the reason Appellant 2’s incarceration
for the duration of the trial cannot be attributed to this
particular
case as he was in custody as a result of the withdrawal of his
parole. As the evidence showed, he was in any event already
in
custody in respect of another charge when he was linked by DNA to the
complainant’s rape. I am of the view that under
these
circumstances, the fact that the court
a
quo
did not expressly deal with the appellants’ incarceration for
the duration of the trial is inconsequential and the court
a
quo
neither erred nor misdirected itself by not expressly addressing
itself to the appellants’ period of detention.
[18]
Counsel for the appellant argued that the appellants’ personal
circumstances, cumulatively viewed constitute substantial
and
compelling circumstances that warrant a deviation from the applicable
minimum sentence of life imprisonment. I disagree with
this
contention because it is clear that the mitigating factors are
substantially outweighed by the aggravating factors attendant
on the
crime committed. In
S
v Vilakazi
[10]
the court stated as follows
:
“In the case of serious crime the personal circumstances of the
offender will by themselves recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment, the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment are in themselves largely immaterial
to what the period
should be,
and
those seem to me to be the kind of ‘flimsy’ grounds that
Malgas
said should be avoided.
”
I
align myself with these sentiments. The court correctly found that
there were no substantial and compelling circumstances in respect
of
count 1. Furthermore, the conspectus of the record reveals that
the sentence of life imprisonment is not disproportionate
to the
crime committed. There is therefore no reason to interfere with the
sentence imposed by the court
a
quo
in respect of count 1.
[19]
With regards to the robbery conviction, it is common cause that there
is no applicable minimum sentence in respect of this
offence.
It is also common cause that the only item stolen during the robbery
is a cellular phone of unknown value.
It is clear from the
record that the court
a
quo
was alive to these aspects. The question is whether the
appellants’ counsel is correct in her submission that the ten
year imprisonment sentence imposed in respect of this charge induces
a sense of shock. It is apposite to refer to the case
of
S
v Malgas
[11]
,
where the court stated as follows on this aspect:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its exercise
of that discretion, an appellate court is of course entitled to
consider the question of sentence afresh. In
doing so, it
assesses sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance.
As it is
said, an appellate court is at large.
However,
even in the absence of material misdirection, an appellate court may
yet be justified in interfering with the sentence
imposed by the
trial court. It may do so when the disparity between the
sentence of the trial court and the sentence which
the appellate
court would have imposed had it been the trial court is so marked
that it can properly be described as “shocking”,
“startling” or “disturbingly inappropriate”.
It
must be emphasised that in the latter situation the appellate court
is not at large in the sense in which it is at large in the
former.
In the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord
with the
sentence imposed by the trial court or because it prefers it to that
sentence. It may do so only where the difference
is so substantial
that it attracts epithets of the kind I have mentioned.”
(My emphasis).
[20]
In
assessing whether the difference in the sentence imposed by the trial
court and that considered appropriate by the appeal court
is
substantial, it is permissible to consider the sentences imposed by
other courts in comparable circumstances but being mindful
of the
fact that every case must be decided on its own facts
[12]
.
There are many decided cases with similar facts but it is not
necessary to overburden the judgment by embarking on a lengthy
discussion of these cases. It seems to me that the average sentence
where circumstances bear similarities to the present is four
to five
years imprisonment. The sentence imposed is twice as long as the
going rate. In my view, a difference of that magnitude
is substantial
enough to warrant interference with the imposed sentence. Under such
circumstances this court, as the court of appeal,
is at large to
interfere with the sentence imposed by the court
a
quo
.
Sentence in respect of count 2 will therefore be considered afresh.
[21]
The well-known triad of sentence, namely the nature of the offence,
the personal circumstances of the appellants and the interests
of
society
[13]
have already been canvassed earlier in this judgment. I have taken
into account that the main aggravating factors in the case at
hand
are the prevalence of the offence and the fact that both appellants
have related previous convictions. Having taken
all the
principles applicable to sentencing into account, I am of the view
that the appropriate sentence in respect of count 2
is five years’
imprisonment.
[12]
In the result, the following order is given:
1.
The appellants’ appeal against sentence in respect of count 1
fails and
the sentence of life imprisonment is confirmed.
2.
The appeal against sentence in respect of count 2 succeeds in respect
of both
appellants. The sentence of 10 years’
imprisonment imposed by the court
a
quo
is set aside and is replaced with the following: 5 years’
imprisonment.
3.
The sentence in respect of count 2 is antedated to 18 August 2011 and
is to run
concurrently with the sentence in respect of count 1.
__________________
M.B.
MOLEMELA, JP
I
concur.
______________
C.
VAN ZYL, J
I
concur.
_______________
A.F.
JORDAAN, J
On
behalf of appellants:
Adv. P.W.
Nel
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of respondent:
Adv. E. Liebenberg
Instructed by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb
[1]
S v Malgas 2001(1)
SACR 469 (SCA) at 481j – 482a.
[2]
[2011] JOL 28015
(SCA).
[3]
[2013] JOL 29883
FB.
[4]
[2013] JOL 30832
(SCA).
[5]
1996(2)
SACR 181C at 186D.
[6]
In
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5e.
[7]
See S v Abrahams
2002 (1) SACR 116
(SCA); S v Mahomotsa
2002 (2) SACR 435
(SCA);
Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA).
[8]
2009 (1) SACR
(SCA) 552 at para 54.
[9]
In
S
v Radebe
2013 (2) SACR
165
(SCA) the court
a quo
had granted leave to appeal against sentence on the basis that it
had not taken account of the two and a half year period spent
in
detention awaiting trial. The Supreme Court of Appeal warned against
applying a mechanical formula in the consideration of
the extent to
which the period spent in detention pre-sentencing may have a
bearing on the determination of an appropriate sentence.
It
considered a better approach to be one that took cognizance of the
fact that such detention period is but one of the factors
that
should be taken into account when determining whether the effective
period of imprisonment to be imposed is justified. It
found that
“the test is not whether on its own that period of detention
constitutes a substantial or compelling circumstance,
but whether
the effective sentence proposed is proportionate to the crime or
crimes committed: whether the sentence in all the
circumstances,
including the period spent in detention prior to conviction and
sentence, is a just one.” Having considered
all the
circumstances, including the trial court’s finding that part
of the delay was as a result of the accused persons’
own
conduct during the course of the trial, that court found that the
prescribed minimum sentence was justified and dismissed
the appeal.
[10]
Supra at para 58
[11]
Supra at para 12
[12]
S v Malgas
(supra)
at para 21.
[13]
R v Zinn
1946 AD 346.