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[2016] ZAGPPHC 329
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Masilela v S (A634/15) [2016] ZAGPPHC 329 (19 April 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG PROVINCIAL DIVISION,
PRETORIA
19/4/2016
CASE NO: A634/15
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED
In the matter between:
SOLOMON FELANI
MASILELA Appellant
and
STATE Respondent
JUDGMENT
MPHAHLELE J
[1] The appellant was arraigned in the
Regional Court, Pretoria on 3 counts, namely:
1. robbery with aggravating
circumstances as intended in section 1 of Act 51 of 1977 read with
section 51 (2) of Act 105 of 1997;
2. attempted rape in contravention of
section 55(a) read with sections 1, 3, 56(1), 57, 58, 59, 60 and 61
of Act 32 of 2000; and
3. Kidnapping.
The appellant pleaded not guilty to
all the charges.
[2] At the end of the testimony of the
complainant, the appellant tendered admissions in terms of section
220 of Act 51 of 1977.
He admitted that he assaulted and robbed the
complainant of R50-00 cash, a laptop and a bag. He had a knife in his
possession during
the robbery. He also admitted that he attempted to
rape the complainant.
[3] In respect of counts 1 and 3, the
trial court found that there was a duplication of charges and
therefore acquitted the appellant
of count 3, the kidnapping charge.
The appellant was accordingly convicted of armed robbery with
aggravating circumstances and
attempted rape.
[4] According to the SAP 69 record,
the appellant was on 02 December 1999 convicted of rape, robbery and
attempted murder and was
sentenced to 29 years imprisonment. He was
released on parole in 2012 after serving 12 years of the 29 years'
term. He is currently
serving the remaining 17 years of his term.
[5] The appellant was sentenced to 20
years' imprisonment on the count of robbery with aggravating
circumstances and 15 years on
the count of attempted rape. The
sentences in respect of both counts were ordered to run concurrently.
He was effectively sentenced
to 20 years' imprisonment.
[6] The trial court granted the
appellant leave to appeal to this court against sentence only.
[7] The issue that arise in this
appeal 1s that the sentence imposed was shockingly inappropriate.
[8] It is trite law that sentencing
falls within the discretion of the trial court and that the court of
appeal's right to interfere
with a sentence is limited to instances
where the court
a quo
materially misdirects itself or commits
a serious irregularity in evaluating all the relevant factors with
regard to sentence.
[9] The trial court is silent on the
reasons for the imposition of the 20 years' imprisonment for the
robbery with aggravating circumstances
conviction. The term of twenty
years' imprisonment on this conviction could have been imposed in one
of these two instances:
[1] the discretion afforded the
regional magistrate on the maximum term in terms of section 51 (2) of
the Act 105 of 1997; or
[2] the jurisdictional fact or
requirement that the appellant was a second offender of any such
offence in terms of section 51(2)
of the Act 105 of 1997.
[10] Whilst it is appreciated that
there were no constraints on its discretion to impose a sentence far
in excess of the ordained
minimum, the trial court was supposed to
properly motivate the sentence imposed, which was not done.
[11] The State correctly conceded that
under the circumstances of this case, the appellant could not have
been regarded as a second
offender for the purposes of sentencing in
relation to the robbery with aggravating circumstances conviction.
Due to the nature
of the previous convictions, the appellant is to be
regarded as a first offender for the purposes of section 51(2) of Act
105 of
1997.
[12] Under the circumstances this
court is at large to interfere with the sentence imposed by the trial
court. Therefore the appropriate
sentence to be imposed herein is the
minimum sentence of 15 years as stipulated in section 51(2) of Act
105 of 1997 in the absence
of any substantial and compelling
circumstances.
[13] The judgment on sentence is
likewise silent on the reason for imposing the 15 years' imprisonment
in respect of the conviction
for attempted rape. The provisions of
section 55(a) of Act 32 of 2007 provides that:
“
Any person who-
(a)
attempts;
...
to commit
a
sexual
offence in terms of this Act, is guilty of an offence and may be
liable on conviction to the punishment to which
a
person
convicted of actually committing that offence would be liable."
Therefore the provisions of section
51(2) of Act 105 of 1997 finds application in this matter. As
mentioned, the appellant has a
previous conviction of rape. On this
basis the appellant, as a second offender, is subject to be sentenced
to 15 years' imprisonment
as stipulated in section 51(2)(b)(ii) of
Act 105 of 1997 in the absence of any substantial and compelling
circumstances.
[14] The trial court, in determining
the sentence to be imposed herein, took into account the personal
circumstances of the appellant,
the nature of the offence and the
interest of the society into consideration. However the trial court
failed to make a determination
on whether there were compelling and
substantial circumstances justifying a lesser sentences than the ones
stipulated in section
51 of Act 105 of 1997.
[15] In considering whether or not
there are substantial and compelling circumstances in this matter
justifying a lesser sentence
than the prescribed minimum sentences, I
take queue from S v Nkomo
2007 (2) SACR 198.
The court mentioned at
paragraph 3:
"......
it is for the court
imposing sentence to decide whether the particular circumstances call
for the imposition of
a
lesser sentence. Such circumstances
may include those factors traditionally taken into account in
sentencing
-
mitigating factors
-
that lessen the
accused moral guilt. These might include the age of the accused or
whether he or she has previous convictions. Of
these must be weighed
together with aggravating factors."
[16] The appellant was born on 02 July
1972, thus he was 43 years old as at the date of sentencing. He is
single. He is a father
of three children. The ages of these children
born of different mothers are 22 years, 18 years and 5 months
respectively. He derived
a weekly income of R500-00 from his job as a
taxi driver.
[17] The two offences the appellant
has been convicted of are serious in nature. During the attack, the
complainant sustained the
following injuries: bruises on her neck, a
scratch on her arm and a swollen lip. The appellant elected to remain
silent and did
not call any witnesses during the proceedings.
Nevertheless during the cross-examination of the complainant, the
appellant put
a version to the complainant denying the commission of
the offences. The admissions tendered by the appellant in terms of
section
220 of Act 51 of 1977 were only made after the testimony of
the complainant. Nonetheless the admissions were mere repetition of
the contents of the charge sheet.
[18] Even though the appellant is said
to have apologized to the complainant during the ordeal, he pleaded
not guilty during the
hearing and maintained his innocence. It must
be appreciated that the actual rape did not take place due to the
pleas of the complainant.
She had to demonstrate to the appellant
that she was indeed menstruating. She further indicated to the
appellant that the rape
would cause her to fall sick. This was indeed
not due to the change of heart on the part of the appellant.
[19] The appellant is well known to
the complainant, used to be employed by complainant's grandmother as
a taxi driver. The attack
took place at the complainant's home.
[20] The appellant was released on
parole in 2012 after serving 12 years of the 29 years' term. He
committed the crimes on 13 March
2013, shortly after his release on
parole. The appellant having been given a "second chance"
at life, has violated not
only his parole conditions but the rights
of the complainant and the interest of society in the re-integration
process.
[21] It is my considered view that
there are no substantial and compelling circumstances justifying
lesser sentences than the prescribed
minimum sentences. The
circumstances of this matter are such that the aggravating factors
far outweigh the mitigating factors.
[22] I am therefore not persuaded that
the prescribed minimum sentences in respect of both counts are
disproportionate to the appellant,
the crimes and the interest of
society.
[23] In the result, I hereby propose
the following order:
1. the appeal against sentence in
respect of count 1 is hereby upheld;
2. the appeal against sentence in
respect of count 2 is hereby dismissed;
3. the order of the trial order is
hereby replaced with the following:
3.1.
on count 1 the appellant is sentenced to 15 years' imprisonment;
3.2.
on count 2 the appellant is sentenced to 15 years' imprisonment
3.3.
the sentences in respect of counts 1 and 2 will run concurrently.
___________________________
S S MPHAHLELE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION HIGH COURT, PRETORIA
I agree
________________________
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION HIGH, PRETORIA
APPEARANCES:
Counsel for the appellant
:Masete MMP (Miss)
Instructing attorneys
:Legal Aid Board of South Africa
Counsel for the respondent
:L Williams
Instructing attorneys
:The Director of Public Prosecutions
Date of the Hearing
:18 April 2016
Date of Judgment
:19 April 2016