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[2013] ZAFSHC 211
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Mohala v S (A25/2013) [2013] ZAFSHC 211 (21 November 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No. : A25/2013
In the matter between:
LEROTHODI
MOHALA
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J et
VAN ROOYEN, AJ
HEARD ON:
22 APRIL 2013
JUDGMENT
BY: VAN
ZYL, J
DELIVERED ON:
21 NOVEMBER 2013
[1]
The appellant has been convicted and sentenced by the Court
a quo
as follows:
1.1
Count
1 - Rape, read with the provisions of section 51(1) of
Act 105 of 1997 – life imprisonment.
1.2
Count
2 - Attempted robbery – seven (7) years
imprisonment.
It was
ordered that the sentences are to run concurrently.
[2]
The appellant was legally represented in the Court
a quo
.
The aforesaid convictions followed from his plea of guilty on both
counts. The appellant applied for leave to appeal
from the
Court
a quo
only against the sentence of life imprisonment
imposed on count 1, which leave was granted on 28 September 2012.
[3]
The finding by the Court
a quo
that the appellant inflicted
grievous bodily harm to the complainant during the rape and that
count 1 therefore falls within the
ambit of Part 1 of Schedule II to
Act 105 of 1997 which makes life imprisonment compulsory in the
absence of substantial and compelling
circumstances which justify the
imposition of a lesser sentence, is not challenged on appeal, in my
view rightly so. The
grounds of appeal which the appellant
relies on can be summarised as set out in the heads of argument of Me
Kruger, on behalf of
the appellant:
“
1.4.1
that the court
a
quo
erred
by finding that no substantial and compelling circumstances exists;
1.4.2
that the court
a
quo
should
have imposed a shorter term of imprisonment due to the personal
circumstances of the appellant together with the time spent
in
custody awaiting trial and the fact that appellant pleaded guilty.”
[4]
From the Section 112(2) statement of the appellant it was apparent
that the complainant offered the
appellant garden work for the day.
The appellant described the subsequent events as follows in his
aforesaid statement:
“
I
took the offer and worked in the garden. The lady then gave me
food to eat, I ate, we talked and then I grabbed her, assaulted
her
by hitting her in the face and strangled her. I threw her on
the ground, undressed her pants and underwear and inserted
my penis
into her vagina and had sexual intercourse with her, without her
consent. When I was finished I left.”
[5]
A victim report was obtained by the prosecutor in the Court
a quo
and it was submitted as evidence by agreement between the prosecution
and the defence and accepted by the court as exhibit “C”.
Photographs reflecting some of the injuries sustained by the
complainant and the J88-report pertaining to the injuries of the
complainant were similarly submitted in evidence by agreement between
the parties and received by the court as exhibits “E”
and
“F” respectively.
[6]
The following mitigating factors and personal circumstances of the
appellant are evident from the judgment
on sentence by the court
a
quo
, which factors and circumstances were clearly taken into
proper consideration by the court
a quo
:
6.1
Appellant was 26 years of age at the time of sentencing.
6.2
Appellant was staying with his brother and both his parents have
passed away.
6.3
Appellant was self-employed and earned an income of R150.00 per week.
6.4
Appellant is married with one child, who was one year old at the time
of sentencing. The child was staying
with the appellant’s
brother.
6.5
Appellant attended school up to Grade 8.
6.6
Appellant spent ten months in custody awaiting trial.
6.7
Appellant has one previous conviction relating to the possession of
dagga.
6.8
Appellant pleaded guilty, although he could not advance any reason
why he committed the offences.
[7]
The aggravating circumstances are very evident from the record,
especially from the contents of the
victim report. The
complainant was a senior citizen of […] years of age.
The complainant sustained serious non-genital
as well as genital
injuries. The incident clearly left serious long term physical
and emotional scars on her and was very
traumatising. The
appellant knew the complainant and he was in a position of trust
vis-à-vis
the complainant when he attacked her in her
house.
[8]
The Court
a quo
in my view wrote a very detailed and
well-reasoned judgment which cannot be faulted in any respect.
In the said judgment
the Court
a quo
,
inter alia
, came
to the following findings and conclusions, with which I respectfully
concur:
“
And in
weighing his personal circumstances against the seriousness of this
offence and its devastating consequences, the prevalence
of this
offence, the interests of society, the court finds that his personal
circumstances do not appear to constitute substantial
and compelling
circumstances. This is indeed a serious rape and in my view,
falling within the worst category of rape.
One can hardly
imagine a rape worse than this. And in consideration of Mrs M.
age, her physical ailments and the fact that
she was simply been kind
to the accused, who then entered her premises deviously and preyed on
her like a villain. Leaving
her to bare the pain and the scars,
both physical and emotional, the photo album speaks for itself.
To my mind this is precisely
the type of matter that the legislature
had in mind when it enacted the minimum sentence legislation…
In consideration
of the legislator’s view for such an offence,
as well as the consideration of the circumstances of this particular
case,
I am satisfied that they render the prescribed sentence of life
imprisonment to be a just sentence. And that it is
proportionate
to the crime, the criminal and the needs of society in
its protection and deterrence of such an offence.”
[9]
In the premises there is no basis upon which we can interfere with
the Court
a quo
’s finding that no substantial and
compelling circumstances exist in this instance.
[10]
Consequently the appellant’s appeal against his sentence is
dismissed.
____________
C.
VAN ZYL, J
I concur:
_____________________
P.C.F.
VAN ROOYEN, AJ
On behalf
of the appellant:
Me S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf
of the respondent: Me
M.M.M. Moroka
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp