About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 71
|
|
Nthako v S (277/2013) [2014] ZAFSHC 71 (15 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: 277/2013
In
the matter between:
MOEKETSI
DAVID NTHAKO
….......................................................................................
Appellant
and
THE
STATE
…....................................................................................................................
Respondent
CORAM:
VAN DER MERWE, J
et
JAJI, AJ
HEARD
ON:
12 MAY 2014
JUDGMENT
BY:
JAJI, AJ
DELIVERED
ON:
15 MAY 2014
[1]
The appellant has been convicted and sentenced by the court
a
quo
to life imprisonment.
[2]
The appellant raped an eight year old minor and was sentenced on 3
November 2008.
[3]
The appellant was legally represented in the court
a
quo
. The aforesaid conviction and
sentence followed from his plea of guilty.
[4]
As the appellant raped a child below the age of sixteen years, the
offence falls within the
Criminal Law Amendment Act 105 of 1997
.
Article 51(1) of the Act obliges the court to impose a life
imprisonment sentence if it finds that there were no substantial
and
compelling circumstances that justify deviation from the prescribed
sentence.
[5]
The grounds of appeal which the appellant relies upon can be
summarised as set out in the heads of argument of Mr Van der Merwe,
on behalf of the appellant:
5.1
The court
a quo
overemphasised the aggravating factors;
5.2
No weight was attached to mitigating factors;
5.3
Complainant did not sustain any serious injuries;
5.4
Court’s sentence induced a sense of shock;
5.5
Sentence was shockingly inappropriate and a sentence of 15 – 20
years was a more appropriate sentence.
[6]
The appellant is before court as a result of an automatic right to
appeal. The appeal is only against sentence.
[7]
The following mitigating factors and personal circumstances of
appellant, which were considered by the court
a
quo
, were as follows:
(i)
Appellant is a
first offender, relatively young and spent five months awaiting
trial;
(ii)
Appellant is a
Lesotho citizen and passed matric;
(iii)
He pleaded
guilty and asked for forgiveness from the complainant’s father;
(iv)
Complainant
did not suffer any serious injuries.
[8]
The aggravating circumstances are evident from the record:
(i)
that the
victim was helpless and defenceless;
(ii)
she was a
young girl of eight years old;
(iii)
the appellant
knew her;
(iv)
there is
evidence of psychological trauma, although there is no evidence of
serious lasting mental injury.
[9]
The court, in passing sentence, stated that as far as evidence is
concerned and the facts of the case, that there were no substantial
and compelling circumstances that warranted deviation from the
prescribed sentence. The essential question in this appeal
is
whether this finding is correct.
[10]
Appellant quoted
S v Wood
1973 (4) SA 95
(RA) 96 H – 97 B:
“
The
question of the appropriate sentence in the case of the first
offender almost always presents a judicial officer with problems
of
particular difficulty…. The publicity of the trial, his
exposure as a criminal, the far-reaching and often devastating
effect
of imprisonment on his social, family and economic life are, in the
case of a first offender, aspects of punishment which
should never be
over-looked or under-estimated.”
It
was argued on behalf of the respondent that the court was alive to
the settled authority that prescribes how personal circumstances
must
be weighed: they constitute one of the triad of circumstances that
must be considered, each set be given its due weight without
over- or
underemphasising one at the expense of the others.
[11]
Appellant submitted that the court
a quo
overemphasised the aggravating factors over the personal mitigating
circumstances of the appellant.
In
the case of
S v Phulwane and Others
2003 (1) SACR 631
(T):
“
It
is true that where a crime is serious and prevalent, particularly
where it threatens the well-being of society, that courts should
impose appropriate sentences. However, it remains a trite principle
of sentencing that each case has to be decided on its own merits…..
A sentencing officer must never allow the seriousness of the offence
and the interests of the community to receive undue weight
at the
expense of the personal circumstances of the accused. This will
inevitably lead to a sentence which is flawed.”
[12]
There is no doubt that the offence committed by the appellant is a
serious one - rape of an eight year old minor. This
is a
significant aggravating factor.
The
court in as much as it also takes into account the interests of the
society, same should not be overemphasised at the expense
of the
accused. In
S v Toms
,
S v Bruce
[1990] ZASCA 38
;
1990 (2) SA 802
(A) at 806, Smalberger JA gave some reasons for the
exercise of sentencing discretion:
“
Such
discretion permits a balance and fair sentencing which is a hallmark
of enlightened criminal justice. The second and
somewhat
related principle is that of individualisation of punishment.”
[13]
I am of the view that life imprisonment of this young appellant takes
away the possibility of rehabilitation of the offender.
The
appellant clearly was remorseful. He pleaded guilty and had
asked for forgiveness. The court has to take
into account all
the relevant mitigating factors in favour of the accused and also the
aggravating factors in assessing an appropriate
sentence.
Cumulatively, the factors of youthfulness, first offence, plea of
guilty and forgiveness and the fact that appellant
passed matric, all
these should be considered in favour of the appellant. There is
a real possibility of rehabilitation of
the appellant. He is
clearly somebody with the potential to make something of his life.
In the particular circumstances
of this case the sentence of life
imprisonment is unjust.
Cumulatively
I am of the view that these amounted to substantial and compelling
circumstances to deviate from the prescribed sentence.
In the
case of
Malgas
it was held that
“
if
the sentence of the court on consideration of the circumstances of
the particular case is satisfied that they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society so that an injustice would
be
done by imposing that sentence, it is entitled to impose a lesser
sentence.”
The
fair sentence when looking at all factors in totality would be twenty
(20) years.
[14]
I would therefore make the following order:
1.
The appeal against sentence succeeds.
2.
The sentence imposed by the court
a
quo
is set aside and replaced with the
following:
“
Twenty
(20) years imprisonment.”
3.
This sentence must be deemed to have been
imposed on 3 November 2008.
___________
N.P. JAJI, AJ
I
concur and it so ordered.
_______________________
C.H.G.
VAN DER MERWE, J
On behalf of
appellant: Mr P.L. van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv W.J. Harrington
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN