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[2013] ZAFSHC 136
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Mpindo v S (A317/2011) [2013] ZAFSHC 136 (1 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A317/2011
In the matter between:-
MPHO
MPINDO
....................................................................................
Appellant
and
THE
STATE
......................................................................................
Respondent
___________________________________________________
CORAM:
MOCUMIE
et
MOLEMELA,
JJ
___________________________________________________
HEARD
ON:
29
JULY 2013
___________________________________________________
DELIVERED
ON:
1
AUGUST 2013
___________________________________________________
MOCUMIE, J
[1]
This is an appeal from the regional court sitting at Viljoenskroon.
The appellant was convicted of two counts. One count of
rape read
with the provisions of section 3 of Act 32 of 2007, the Sexual
Offences Amendment Act, and one of assault with intent
to do grievous
bodily harm. He was sentenced to fifteen years’ imprisonment on
rape and five years’ imprisonment on
assault with intent to do
grievous bodily harm. The appeal is against the sentence only with
the leave of the court
a
quo.
[2] The proven facts of
this case are that the appellant and a second person not before the
trial court met the first and the second
complainant who are a couple
walking leisurely together in the street just after 00h00. The
appellant then stabbed the second complainant
(the man) on his head,
and hit him with a panga over his shoulders and head which made him
to lose consciousness and left him with
a fractured skull . The
second complainant (the woman) on seeing the vicious attack on her
companion fled to a nearby house for
help. The appellant followed her
to that house and took her forcibly to his home where he raped her
repeatedly.
[3] The appellant’s
attack on the judgment on sentence is that the effective sentence of
twenty years’ imprisonment
is too harsh taking into account the
mitigating factors proffered in on his behalf, that:
2.1. At the time of the
commission of these offences the appellant was 20 years of age; which
is relatively young;
2.2 He was in custody
awaiting trial for nine months; and
2.3 He was a first
offender.
2.4 He had passed
standard 7 at school.
[4] In his defence, the
appellant had called his brother who informed the trial court that
although the appellant was indeed young,
at that young age, he was
disrespectful towards his family, in particular his mother and
brother. The brother depicted him as a
person who did what he wished
to do regardless of whether his own mother approved or not. For
instance, as he made an example,
the appellant came to his parental
home at any time of the day including during the night with different
girlfriends and slept
with those girlfriends, that’s why at his
age he had already fathered one child. Thus, correctly so as observed
by the trial
court, the appellant was not conducting himself as
youthful as he wanted to portray himself during the trial and during
the hearing
of this appeal.
[5] The aggravating
factors of this case are the following:. The second complainant was
badly injured to the extent that he sustained
a fractured skull. The
first complainant was raped repeatedly. An older man at the house
where the first complainant fled to just
after their encounter with
the appellant, tried to persuade the appellant from forcing himself
on the first complainant as was
evident he had all the intention to
do. He ignored this man and took the complainant away to his home.
This means the appellant
had at least two distinct opportunities to
withdraw from proceeding with this unlawful conduct but he simply
continued. The appellant
was not remorseful throughout the trial. The
appellant’s conduct was so brazen that after raping the
complainant the next
day he took her to a house she pointed out as
her home and threatened to deal with her if she reported the incident
to the police.
[6] What the trial court
can be faulted on, perhaps, is the fact that it is not clear on
record that it took into account the fact
that the appellant had
spent almost nine months awaiting trial. It is now settled that a
sentencing court has to take this factor
into account when it imposes
sentence.
[7] However, in my view,
taking into account all the aggravating factors of this case,
particularly the fact that the second complainant
was assaulted so
badly just so that his girlfriend could be taken from him and be
raped repeatedly, justified the imposition of
severe sentences in
respect of both counts. The circumstances of this case are such that,
even if the nine months awaiting trial
period was taken into account,
the sentence which was imposed was still appropriate not only to send
the right message to the appellant
but to society at large that in
cases such as these, courts will not shirk their responsibility to
protect society, particularly
women, against rape and any form of
violence. In my view, the sentence was not only appropriate but
fitted the crime(s) and the
appellant’s personal circumstances.
[8] There is no
justifiable reason to temper with the sentences imposed on any of the
grounds relied on. This appeal stands to be
dismissed.
[9] It
bears to be repeated that the prosecution as the
dominis
litis
has
a responsibility to ensure that charge sheets/indictments are
properly drafted. The failure of the prosecutor in this matter
to
include the provision of s51 of Act 105 of 1997 left the trial court
with no option but to avoid imposing life imprisonment
in this case,
which was a case that really justified life imprisonment to be
imposed. The second complainant was seriously injured
after being
stabbed on the head with a knife and hit over the shoulders and head
with a panga until he lost consciousness. That
was clearly an attempt
to kill the second complainant, yet, instead the prosecutor
concerned, charged the appellant with assault
with intent to do
grievous bodily harm. That also restrained the trial court from
imposing the appropriate sentence for attempted
murder which could
range between eight and ten years’ imprisonment.
[10] In the event, I make
the following order:
ORDER
The
conviction and sentence of the court
a
quo
are
confirmed.
The
appeal against sentence is dismissed.
_________________
B. C. MOCUMIE, J
I
concur.
_________________
M. B. MOLEMELA, J
On behalf of the
appellant: K. Pretorius
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. L. Zweni
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb