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[2015] ZAGPPHC 270
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Tivane v S (A758/2014) [2015] ZAGPPHC 270 (11 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO. A758/2014
DATE:
11 MAY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
PHILLIP
TIVANE
.............................................................................................................................
Appellant
and
THE
STATE
....................................................................................................................................
Respondent
JUDGEMENT
DE VOS J:
[1] On the 29
th
August 2013 the Appellant was convicted at Sebokeng Regional Court by
the Learned Magistrate Mrs T E Simpson on the following charges:
1.1 Count 1,
Robbery;
1.2 Count 2, Rape;
1.3 Count 3, Robbery
with aggravating circumstances; and
1.4 Count 4, Rape.
The Act on Minimum
Sentences is applicable on Counts 2, 3 and 4 as set out in the charge
sheet. The Sexual Offences Act is applicable
on Counts 2 and 4.
[2] On the 2
nd
October 2013 the Appellant was sentenced as follows:
2.1 On Count 1: 8
(eight) years imprisonment;
2.2 On Count 2: 10
(ten) years imprisonment;
2.3 On Count 3: 15
(fifteen) years imprisonment; and
2.4 On Count 4: 20
(twenty) years imprisonment.
The sentence on
Count 1 was ordered to run concurrently with the sentence on Count 3,
and the sentence on Count 2 was ordered to
run concurrently with the
sentence imposed on Count 4. The effective sentence is 35 (thirty
five) years imprisonment. The Appellant
was also declared unfit to
possess a firearm.
[3] On the 15
th
October 2013 the Appellant applied for leave to appeal against both
his conviction and the sentence imposed. Leave to appeal against
the
conviction was refused, but leave was granted to appeal against the
sentence.
[4] The Appellant
was legally represented throughout the trial and before us a legal
representative employed by Legal Aid South
Africa appears on his
behalf.
[5] The Appellant’s
personal and mitigating circumstances were placed on record as
follows:
5.1 He was 33 years
old;
5.2 He is married;
5.3 He has three
minor children;
5.4 He never went to
school;
5.5 He owned a hair
salon;
5.6 The cell phone
on Count 1 has been recovered;
5.7 He has spent
about two years and four months in custody awaiting trial;
5.8 He was
supporting his family in South Africa and Mozambique; and
5.9 He is a first
offender.
[6]
Before dealing with the merits of the appeal, I keep in mind that the
decision as to what an appropriate punishment would be
is
pre-eminently a matter for the discretion of the trial court. The
court hearing the appeal should therefore be careful not to
erode
that discretion and would be justified to interfere if the trial
court’s discretion was not judicially and properly
exercised,
which will be the case
“
if
the sentence that was imposed is vitiated by irregularity or
misdirection or is disturbingly inappropriate".
See
S
v
Rabie,
1975(4) SA 855 (A)
at
p857 d - f.
[7] The court a quo
found that there are substantial and compelling circumstances to
deviate from the prescribed minimum sentences.
Counsel on behalf of
the Appellant contends that the court a quo has misdirected itself in
not deviating from the prescribed minimum
sentences on Counts 2 and
3. The minimum sentence on Count 2 is 10 (ten) years imprisonment and
on Count 3 is 15 (fifteen) years
imprisonment. The court a quo has
imposed the minimum sentences on both counts. It is further contended
on behalf of the Appellant
that the sentences imposed evokes a sense
of shock and is despairingly disproportionate. It is submitted that
the sentence should
be set aside and be replaced with a suitable
sentence.
[8]
On behalf of the Appellant it is argued that the trial court
misdirected itself in imposing an effective sentence of 35 years
imprisonment. It is contended that the trial court erred in
over-emphasising the seriousness of the offences which the Appellant
has committed and the interest of the society, whilst the personal
circumstances of the Appellant were under-emphasised. By imposing
such a lengthy period of imprisonment the trial court erred as the
sentence is harsh and induces as sense of shock. See in this
regard
S
v Khumalo,
1973(3)
SA 697 (A)
where
the Appeal court held that the punishment must fit the criminal as
well as the crime, be fair to society and be blended with
a measure
of mercy according to the circumstances. In the present case the
court a quo ordered the sentence imposed on Count 1
to run
concurrently with the sentence imposed on Count 3, and the sentence
on Count 2 to run concurrently with the sentence on
Count 4. It is
contended that the court a quo failed to seek an appropriate sentence
for all offences taken together. See in this
regard
S
v Moswathupa,
2012(1)
SACR 259 (SCA)
where
it was held that
“
when
dealing with multiple offences a court must not lose sight of the
fact that the aggregate penalty must not be unduly severe".
It
is submitted that the court a quo further disregarded the fact that
the Appellant has already spent some time in jail whilst
awaiting the
finalisation of the matter against him.
[9] The State
contends that the trial Magistrate took all the relevant aspects into
consideration when considering an appropriate
sentence, as the
offences are serious. It is further contended that the Magistrate
also took into consideration the cumulative
effect of the sentences
and therefore ordered the sentences imposed on Counts 1 and 3 and
also Counts 2 and 4 to run concurrently.
[10] The court a quo
found in its judgement that substantial and compelling circumstances
do exist in the present matter. The court
also took into account that
the Appellant was awaiting trial for two years and four months before
finalisation of the case. It
is the Appellant’s contention that
once a finding of the existence of substantial and compelling
circumstances is made, a
court should impose a lesser sentence than
the prescribed minimum sentence. I do not agree with this submission.
A court is entitled
to impose a higher sentence than the prescribed
minimum sentence even if there exists compelling and substantial
circumstances,
depending on the facts of each matter. The Magistrate
gave a well-reasoned judgement on sentence. He carefully weighed up
the mitigating
circumstances as referred to above, as well as the
aggravating circumstances against each other. For record purposes,
the aggravating
circumstances are:
10.1 All four
charges involve violent and serious crimes;
10.2 On the rape
charge referred to in Count 2, the complainant was only 17 years old
at the time and she was also a virgin. The
Appellant took away
something that was supposed to be lovely and precious and she was
supposed to have loving memories of her first
sexual experience. The
Appellant changed it into something very ugly and severely
traumatised the victim;
10.3 On the second
rape charge referred to in Count 4, the complainant was 22 years old
at the time and she was 4 months pregnant.
She was gang-raped by the
Appellant and his two friends;
10.4 The complainant
on Count 4 was taken away by force and at gunpoint and even after she
told her assailants that she was pregnant,
they decided to proceed
with their terrible deeds. The Appellant and his co-assailants did
not care and were cruel;
10.5 Both of the
complainants were mentally and emotionally traumatised;
10.6 Both
complainants in the rape charges suffered vaginal injuries.
10.7 The Appellant
was the gang leader when the complainant on Count 4 was raped, and he
threatened the complainant with a gun which
was in his possession.
To
this may be added that the Appellant showed no remorse, deliberately
lied to the court, is a Mozambiquan citizen who was allowed
to make a
living in South Africa, ignoring the basic rights and dignity of
South African women living a clean and healthy life.
In my view the
Magistrate did not misdirect himself and the sentences imposed,
cumulatively spoken, do not induce a sense of shock.
In the case of
S
v Mafoho,
2013(2)
SACR 179 (SCA)
the
Supreme Court of Appeal upheld a Methuselah effective sentence,
emanating from the Regional Court, Polokwane, of 275 years.
The SCA
held in paragraph 21:
“
The
Appellant is entitled to be considered for parole once he has served
25 (twenty five) years of his term of imprisonment. There
is
accordingly no need to interfere with the sentence imposed in order
to ameliorate its effect... To interfere with it would,
in the
circumstances of this case, be purely academic because, as I have
already indicated, the legislature has stepped in to ameliorate
the
position of the person subjected to that sentence by directing that
he or she will be considered for parole once 25 years of
the sentence
has been served”.
In
practice, whether one has received one or twenty terms of life
imprisonment, effectively, it will be regarded by the relevant
authorities as only one sentence of life imprisonment. This is more
specifically set out in section 73(6)(a) of the Correctional
Services
Act, Act 111 of 1998, which provides that when the sentencing court
makes no order regarding parole, the non-parole period
is usually
half of the sentence; but, parole must in all cases (regardless of
whether the relevant prisoner is serving individual
sentences or
cumulative sentences) be considered after the expiry of 25 years. The
Mafoho decision overturned earlier decisions
of the SCA where it was
held that a sentencing court should not consider the possibility of
release on parole when determining
an appropriate sentence. Before
the Mafoho decision, parole was considered to be a function of the
executive arm of government
and it was held that courts should not
likely interfere with a sentence based on when a prisoner will
qualify for parole. It appears
from the Mafoho decision that this
principle is no longer applicable. See in this regard
S
v Botha,
2006(2)
SACR 110 (SCA)
at
paragraphs 25(/26),
see
also
S
v
Madlala,
2003(1) SACR 80
(SCA).
[11] The Magistrate,
in my view, properly exercised his discretion when considering a
proper sentence to be imposed, did not misdirect
himself and imposed
a sentence which is appropriate to the facts of the case and does not
induce a sense of shock.
[12] I therefore
propose that the appeal against the sentence be dismissed.
DE VOS J
JUDGE OF THE
GAUTENG
DIVISION OF THE
HIGH COURT
I agree.
BAQWA J
JUDGE OF THE
GAUTENG
DIVISION OF THE
HIGH COURT
It is so ordered.