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[2013] ZAFSHC 57
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Nhlapo v S (A176/2012) [2013] ZAFSHC 57 (1 April 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A176/2012
In the appeal between:-
MOLEFE NHLAPO
...................................................................
Appellant
and
THE STATE
.........................................................................
Respondent
_____________________________________________________
CORAM:
MOLEMELA J,
et
DA ROCHA-BOTLNEY, AJ
_____________________________________________________
JUDGMENT
BY:
DA ROCHA-BOLTNEY, AJ
_____________________________________________________
HEARD
ON:
18 FEBRUARY 2013
_____________________________________________________
DELIVERED
ON:
_____________________________________________________
[1] The appellant was
convicted of Rape (sec 3 of Act 32 of 2007), in the Regional court of
Welkom and on the 25
th
October 2011, he was sentenced to
10 (ten) years imprisonment.
[2] With the leave of the
court a quo, the appellant appeals against the above-mentioned
sentence. It is trite that the court of
appeal may interfere with a
sentence of the trial court when it is considered shockingly
inappropriate and induces a sense of shock.
See
S v Pieters
1987 (3) SA 717
(A).
THE FACTS
[3] On the 5
th
May 2010, the complainant, a 32-year old female was visiting her
sister. The appellant was present and consumed alcohol with her
family members. Complainant was ill this night and did not partake in
the drinking spree. Complainant made a bed for herself on
the floor.
As the evening progressed, the appellant got into the complaint’s
blankets and requested her to have sexual intercourse
with him. The
complainant refused. Whereupon the appellant threatened her family
members with a broken bottle neck and subsequently
raped her in full
view of them. Complainant, who testified approximately five months
after the incident, was very emotional when
she related her ordeal to
the trial court.
[4] Initially the
appellant pleaded not guilty, but just before the closure of the
state’s case, he tendered section 220-
admissions and was
accordingly convicted.
ARGUMENTS
[5] Adv JS Makhene, who
appeared for the appellant was of the opinion that the trial court
erred in not finding any substantial
and compelling circumstances
which would justify the court deviating from the prescribed sentence
as per the provisions of The
Criminal Law Amendment Act no 105 0f
1997, as amended.
[6] He cited
S
v Rabbie
1975 (4) SA 875
(AD), to
substantiate his argument it is trite that,
“in every
appeal against sentence the court should be guided by the principle
that punishment is, pre-eminently a matter for
the discretion of the
trial court and (b) should be careful not to erode such discretion
hence the further principle that the sentence
should only be altered
if the discretion has not been ‘judicially and properly
exercised’. The test under (b) is whether
the sentence is
vitiated by irregularity or misdirection or is disturbingly
inappropriate”.
[7] It was submitted on
behalf of the appellant that viewed cumulatively the following should
have been considered as being substantial
and compelling:
Appellant was 18 years
and 9 months old when he committed the offence;
He is a first offender;
He had spent 17 months
in custody awaiting trial;
Although he wielded a
broken bottle, he did not inflict any injuries therewith on the
complainant;
No
psychological/psychiatric evidence of the effects of the rape on the
complainant was placed before the court.
[8] On behalf of the
appellant it was further contended that even though the trial court
dismissed drunkenness as a mitigating factor,
and considered it to be
an aggravating factor, it was submitted that no sober person, in his
full senses would rape a woman in
full view of the member’s of
her family. Furthermore the fact that the appellant changed his plea
to one of guilty and thereby
owning up to his wrongs is a sign of his
preparedness to be rehabilitated.
[9] Adv MA Mohlala, who
represented the respondent, argued that the appeal should be
dismissed. He submitted that the trial court
did not misdirect
itself, on the following grounds:
The personal
circumstances of the appellant was considered;
The interest of the
community were considered;
The offence is very
serious, it is a serious violation of the right to privacy;
The complainant was
humiliated in that she was raped in full view of other people
The appellant behaved
arrogantly towards the complainant and other people;
The offence is
prevalent.
EVALUATION
[10] This offence is
listed under Part III of Schedule 2 of the Minimum Sentence Act.
According to section 51(2) (b) read with subsection
3(a), it is
stated that:
“…
if
any court is satisfied that substantial and compelling circumstances
exist which justify the imposition of an lesser sentence
than the
sentence prescribed in that subsection, it shall enter these
circumstances on the record of the proceedings and may thereupon
impose such lesser sentence.”
[11] In
S v Malgas
2001 (1) SACR 469
(SCA) the guidelines are laid down as to what
constitutes compelling and substantial factors.
[12] With regards to the
age of the appellant, I wish to refer to
S v Matyityi
2011
(1) SACR 40
(SCA) p 47 at par [14] –
“
It is
trite that a teenager is prima facie to be regarded as immature and
that the
youthfulness of an offender will invariably be a mitigating factor,
unless it appears that
the
viciousness of his or her deeds rules out immaturity.”
[13] I am of the opinion
that as appellant tendered section 220 admissions just before the
closure of the state’s case to
be of little value as the
evidence against him at that stage was so overwhelming that no other
option was available to him and
it can then be considered a neutral
factor, and also that this should not be considered in isolation. See
S v Barnard
2004 (1) SACR 191
SCA at 197.
[14] An important factor
which was overlooked by the trial court was the time that the accused
spend in custody awaiting finalization
of his trial. In
S v
Brophy and Ano
2007 (2) SACR 56
(W), this scenario was
discussed. Schwartzman J at par 16, cited the following in his
judgement, which I have also followed -
In
S v Stephen
and Another
1994 (2) SACR 163
(W), it was said by Schutz
J at 168
f
that
“
'.
. . I would agree that there is force in Mr
Du
Plessis
'
submission, based on the Canadian decision of
Gravino
(70/71)
13 Crim LQ 434
(Quebec Court of Appeal): ‘Imprisonment
whilst awaiting trial is the equivalent of a sentence of twice that
length’.''
[15] I am therefore of
the opinion that the following factors cumulatively consitute
substantial and compelling circumstances;
Appellant was 18 years
old when he committed the offence.
He was a first offender.
He has spent 17 months
in custody awaiting trial.
He did not inflict
serious injuries on the complainant.
No
psychological/psychiatric evidence of the effects of the rape on the
complainant was placed before the court.
[16] Since
above-mentioned factors were overlooked by the court a quo, I find it
to be a misdirection on the part of the learned
regional court
magistrate and that it therefore entitles me to interfere with the
sentence and impose a sentence that I consider
to be proper.
[17] I accordingly make
the following order:
17.1 The appeal is
succeeds and the conviction confirmed:
17.2 The sentence is set
aside and replaced with the following:
The Appellant is
sentenced: 7 (seven) years imprisonment.
17.3 The sentence is
antedated to 25
th
October 2011.
___________________________
P. W. DA ROCHA
BOLTNEY, AJ
I concur.
___________________
M. J. MOLEMELA, J
On behalf of the
appellant: Adv. Makhene
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Mr. M A Mohala
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN