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2015
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[2015] ZAGPPHC 941
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Mthombeni v S (A729/14) [2015] ZAGPPHC 941 (14 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
14/7/15
CASE
NUMBER: A729 / 14
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MFANAFUTHI
AMOS
MTHOMBENI
APPELLPANT
and
THE
STATE
RESPONDENT
JUDGMEhlT
MOLOTO
AJ
Introduction
1.
The appellant, Mfanafuthi Amos Mthombeni,was on the 15th May 2014
convicted of the crime of rape by the Benoni Regional Court
and
sentenced to life imprisonment. :
2.
An accused sentenced to life imprisonment by a regional court, has an
automatic right of appeal (s309(1)(a) as read with
s309(8}(1)(a)
of
the
Criminal Procedure Act 51 of 1977
, In
casu,
the
appeal is against sentence only.
The
Issues
3.
Mr Moeng on behalf of the appellant argued that the learned regional
court magistrate misdlrected himself In that he should have
found
that substamial and compelling circumstances existed es envisaged by
Section 51
(3) (a) cf the Criminal Law Amendment Act 38 of 2007,
warranting the court a quo to impose a sentence less than the
prescribed
minimum of life imprisonment. It was also submitted that
the sentence invoked a sense of shock and was startlingly
inappropriate.
4.
Mr Moeng decried the fact that the personal circumstances of the
appellant which were placed on record by his legal representative
Vitas .scanned as it was from an affidavit used during
bailapplication thus inadequate and the regional magistrate shOuld
have
called for more information before metlng the out sentence of
life imprlsonment. Sited in support of this proposal were the cases
of
(i)
S v Samuels
2011 (1) SACR 9
(SCA)
(ii)
S v Van De Venter 2011(1) SACR (SCA)
(iv)
S v de Kock 1997(2) SACR 171 T
(iv)
S v Dlamini 200(2) SACR 266 T
(v)
S v Khumalo 1989(3) CPD
(vi)
S v Skenjana 1985{3) SA 51 A
(vii)
S v Mafu 1992(2) SACR 49 A
(viii)
S v Nkambule1993(1) SACR 138 A
(ix)
S v Mhlakaza 1997(1) SACR 515 SCA
(x)
S v Pieters 1987(3) 717 A
(xi)
S
v
Mafunya 1972(4)565 o
(xii)
S v Skutte1959(1) SACR 344
5.
The thrust of the appellants' argument was that when accused's
personal circumstances vis his age i.e 24 years, that he was a
first
offender, complainant didn't suffer physical injuries were fused to
the facts of the case, the court a
quo
should have found that
there were substantial and compelling circumstances, warranting
imposition of a lesser sentence, of at least
20 years' imprisonment.
Vide the case of sv Mthetwa and others
2015 (1) SACR 3Q2
GP where it
was stated that, it was one thing to recite the personal
circumstances of an accused and another to fuse those into
the
consideratlon of sentence. Those were all legittmate considerations
but our sentencing ethos enjoined a sentencing court to
carefully
balance thOse against the personal circumstances of the appellant
lest an imbalanced sentence result.
6.
The state counsel, Advocate GJC Maria: highlighted the facts of the
case, showing how the appellant abducted the victim form
the streets,
when walking with a friend, took her to his room, where he forced
himself on her, after he slapped her and threaten
her with a firearm.
She was raped three times virginally and once per anus. Intervention
by the victims' friends and appellanfs'
friend was to no avail. The
state counsel opined that there were no substantial and compelling
circumstances to make the court
a quo to deviate from the prescribed
minimum sentence of life imprisonment. Cases sited in support of the
respondents' argument
were the following
(i)
S v Rabie 1975(4) SA 855 A
(ii)
S v Chapman 1997(2)SACR 3 SCA
(iii)
S v SMM 2013(2) SACR 292 SCA
(iv)
S v Matyityi 2011(1) SACR 40 SCA
CASE
LAW
7.
It is trite that, in an appeal against sentence, the court of appeal
should be guided by the principle that punishment is pre-eminently
a
matter for the discretion of the trial court1 and the court of appeal
shOuld be careful not to erode that discretion.
8.
A sentenet;! imposed by a lower court should only be altered if:-
(i)
An irregularity took place during trial or sentencing stage.
(ii)
The trial court misdirected itself in respect of the imposition of
the sentence.
(iii)
The sentence imposed by the trial court would b described as
disturbingly or shockingly inappropriate.
Vide
(i) S v Mogaramedi
2015 (1) SACR 427
GP
(ii)
S v Chinridze 2015(1)SACR 364 GP
9.
In the case of S v GK 2013(2) SACR 505 WCC it was held that there is
nothing in the Act which fettered an appellate court's'
power to
reconsider the matter of subStantial and compelling circumstances.
The values of the constitution were better served by
an
interpretation which did not fetter the appellate court When it came
to the question of the presence or absence of substantial
and
compelling circumstances. To allow an appellate court to make its own
valuejudgment on appeal provided accused persons with
greater
safeguards against the imposition of disproportionate punishment
10.
Though Mr Moeng decried the fact that appelants personal
circumstances placed on record were not enough and the trial court
should have called for more, the record reflects that much was done.
This appears on page 117-119 of the record. This court is
of view
that information placed before the court a quo was enough for it to
decide on an appropriate sentence and there is no need
to call for
more information as suggested by Mr Moeng.
11.
In the S v Madlba
2015 (1) SACR 485
SCA the supreme court of appeal
held that all of the circumstances in mitigation paled into
insignificance when the brutality of
the rape perpetrated by the
appellant was considered.
12.
This case before us can be compared to the case of S v Mathuse
2014(2)SACR 38 GJ as with many others. In Mathuse's case the
appellant a 33 year old first offender, was convicted in a regional
court of rape and was sentenced to life sentence. He appealed
against
his sentence. The evidence indicated that the appellant knew her
complainant and was at some stage the boyfriend of the
complainant's
sister. He attacked the complainant in her own home and stabbed her
several times with a scrEWldriver in order to
subdue her. When she
managed to take away the weapon, he hit her wrth a bottle. On appeal,
the appeal court held that that the
trial court had not sufficiently
accentuated that the appellant was a 33 year old first offender
despite the fact that he had only
achieved a grade 5 level of
education, managed to make a living for himself and his family of
three dependants as a street vendor
even though there was a high
level of unemployment in the country as a whole. In the light of his
personal circumstances taken
cumulatively, the trial court ought to
have found, the existence of substantial and compelling
circumstances. Held further that
quite apart from the existence of
substantial and compelling circumstances a sentence of life
imprisonment was disproportionate
to the offence committed when
v!ewed with comparable cases
vide
other cases
(i)
S v Maswenganyi 2014(1)SACR 622 GP
(ii)
S v SM 2014(1) SACR 53 GNP
(iii)
S v Mabaso 2014(1) SACR 299 KZP
(iv)
S v EN 2014(1) SACR 198 SCA
13.
However Van der Heever JA tn S v Sinden1995(2) SACR 704 A at 708 a
observed:-
"Decided
cases dealing with
sentence may be
a
VBlue
as
providing a
guideline
for the
trial court
1
s exercise of its
discretion
(See
SvS 1977(3)SA830
(A)) and they
sometimes provide useful guidance where they show
a
succession
of
punishment imposed for
a
particular type of
crime(see
Sv
Karg 1961(1)SA 231(A)
235G).
But
it
is
an
idle
exercise
to
try
to
match
the
colours
of
the
case
at
hand
an
the
colours
of
other
cases
with
the object
of
arriving
at
an
appropriate sentence"
each case
should be dealt with on its facts
connected with
the crime and
the
criminal.,1
"
Vide
also S v Van Rensburg 2015(1)SACR 114 NCK
14.
In S v Mthethwa and others 2015(1)SACR 302 GI? the appeal court
decried the fact that the court a quo failed to take sufficiently
into consideration the personal circumstances cf the appellant, as
well as the circumstances of the commission Of the offences.
It was
one thing to recite the personal circumstances of an accused and
another to fuse those into the consideration of sentence.
The court
had paid lip service to this component of sentencing and nowhere had
the magistrate considered the poor socioweconomic
background of the
appellant In his judgement on sentence. Approximately 80% of the
judgement was devoted to the seriousness of
the offences and their
impact on the complainants. Those were all legitimate considerations
but our sentencing ethos enjoined a
sentencing court to carefully
balance those against the personal c[rcumstances of the appellants,
lest an in balance sentence results.
RATIONES
DECIDENDI
15.
Having looked at the records Ido not see how the court a quo fused
appellants' personal circumstances into the consideration
cf
sentence. Much emphasis was placed on the seriousness of this rape
offence, which of course is serious given the fact that the
victim
was abducted from the street, kept overnight and raped four times. It
is given that this 19 year old victim spumed the appellant's
love
proposition and advances before this. He was a first offender, and a
youth but this was not considered
or
given any weight when
considering the circumstances of the case and appropriate sentence to
be meted out. Failure to carefully consider
all this factors made the
sentence of life imprisonment disturbingly inappropriate.
ORDER
I
propose the followlng order.
1.
The appeal against sentence of life imprisonment succeeds.
2.
The sentence is set aside and replaced by the following: "The
accused is sentenced to 20 years' imprisonment"
3.
The sentenee is antedated to 16 May 2015.
_______________________
MOLOTO
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree and It fs so ordered.
_______________________
N
JANSE VAN NIEUWENHUIZEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVI
S
I
ON,
PRETORIA
ATTORNEY'S
DETAILS
Appearance
on behalf of the state: S MOENG
APPELLANT'S
ATTORNEY
PRETORIA
JUSTICE CENTRE
2
nd
FLOOR FNB BUILDING
CHURCH
SQUARE
PRETORIA
TEL:
012 104 9200
082
299 1644
Appearance
on behalf of the appellant : S MOENG
ATTORNEYS
FOR THE RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
PRIVATE
BAG X300 PRETORIA
0001
TELEPHONE
NUMBER: 012 351 6832/084 257 943S
Appearance
on behalf of the State: Advocate:G. J. C. Maritz