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[2013] ZAFSHC 231
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Prince v S (A138/2013) [2013] ZAFSHC 231 (28 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A138/2013
In
the appeal of:
IVAN
PRINCE
...................................................................................................................
Appellant
and
THE
STATE
.....................................................................................................................
Respondent
CORAM:
VAN ZYL, J
et
MOLOI, J
HEARD
ON:
18 NOVEMBER 2013
DELIVERED
ON:
28 NOVEMBER 2013
MOLOI,
J
[1]
The appellant herein came before us appealing against the sentence of
twenty (20) years imprisonment imposed by the Regional
Court after
conviction on a charge of rape. The trial court granted the
appellant leave to appeal to this court.
[2]
At sentencing the appellant, the trial court had taken into
consideration the triad of factors to be balanced viz the crime,
the
criminal and the interests of the society, sufficiently –
S
v Banda and Others
1991 (2) SA BGD at 355A. The offence
of which the appellant was convicted warranted a sentence of life
imprisonment in terms
of the provisions of Part 1(b) of Schedule 2 of
The
Criminal Law Amendment Act, 105 of 1997
the complainant having
been only 15 years of age at the time of the rape. The trial
court had, however, found that substantial
and compelling
circumstances were present which entitled it to deviate from the
imposition of the life sentence.
[3]
It is trite, and was so contended by both counsel that a court of
appeal can only interfere with the sentencing discretion of
the trial
court in limited circumstances e.g. where the trial court misdirected
itself in the exercise of that discretion:
S
v Kibido
1998 (2) SACR 207
(SCA) at
216g – h and
S v Anderson
1964 (3) SA 494
(A). Both counsel submitted, and correctly so,
that the trial court misdirected itself in the exercise of its
sentencing
discretion by ignoring the provisions of
section 280
(2)
of the
Criminal Procedure Act No 51 of 1977
, as amended.
[4]
Section 280
(2) of the
Criminal Procedure Act No 51 of 1977
provides:
“
(1)
When a person is at any trial convicted of two offences or when a
person under sentence or undergoing sentence is convicted
of another
offence, the court may sentence him to such several punishments for
such offences or, as the case may be, to the punishment
for such
other offence, as the court is competent to impose.
(2)
Such punishments, when consisting of imprisonment, shall commence the
one after the expiration, setting aside or remission of
the other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently.
At
the time the sentence was imposed, the appellant was serving a
sentence of 16 years imprisonment for murder unrelated to the
present
offence. The effect of the sentence imposed is that the
appellant would serve first the 16 years imprisonment imposed
for
murder and only thereafter commence serving the 20 year imprisonment
for the rape offence which means in total, a period of
36 years
imprisonment. This would be so because the court overlooked the
cumulative effect of the sentences and would constitute
a
misdirection by the trial court:
Mokheseng
v S
(A247/2011)
[2012] ZAFSHC 103
(31 May 2012):
“
The
effect of the sentences, if it runs consecutively, had to be
considered as well.
In
Zondo v S
(627/2012) 2012 SCA 51 (28 March 2013) at page 5 where the following
was said:
“
It
is generally accepted that inordinately long terms of imprisonment do
not contribute to the reform of an accused person.
On the
contrary they have the negative effect of denuding the accused of all
hope of rehabilitation.”
and
also
S v Sparky and Another
1972 (3) SA 396
(A) at 410G where Holmes JA said:
“
Wrongdoers
must not be visited with punishments to the point of being broken.”
[5]
The failure of the trial court to order that the sentences run
concurrently would constitute a ‘misdirection and result
in
inducing a sense of shock –
Zondo’s
case
supra.
[6]
In the premises the appeal against the sentence must succeed.
ORDER:
[7] The following
order is made:
1.
The appeal against the sentence is upheld.
2.
The sentence of 20 years imprisonment is set aside and substituted as
follows:
Twenty
(20) years imprisonment of which ten (10) years imprisonment is
ordered to run concurrently with the sixteen (16) years imprisonment
being currently served by the appellant.
3. The sentence
above is antedated to 20 April 2012.
K. J. MOLOI, J
I concur and it is
so ordered.
C.
VAN ZYL, J
On
behalf of the appellant: Adv. S. Kruger
Instructed
by:
Legal
Aid
BLOEMFONTEIN
On
behalf of respondent: Adv. D.W. Bontes
Instructed
by:
The
Director of Public Prosecution
BLOEMFONTEIN