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[2012] ZAFSHC 62
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Tshabalala v S (A138/2011) [2012] ZAFSHC 62 (5 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A138/2011
In the appeal between:-
THABISO JOSIA
TSHABALALA
….........................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
DAFFUE, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
19 MARCH 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
5 APRIL 2012
_____________________________________________________
[1] This is an appeal
against the sentence imposed by Moloi, J in the High Court sitting in
Harrismith, leave to appeal against
sentence having been granted by
the Court
a quo
.
[2] The appellant, a 16
year old male, was charged together with his co-accused, on four
counts, being:
Count 1 - housebreaking
with the intention to commit rape;
Counts 2 and 3 –
being contravention of
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
, in that
they broke into the complainants’ (Violet Makgauta Cindy and
Amelia Lebohang Mokoena) house and unlawfully and
intentionally had
sexual intercourse with them, without their consent.
The fourth count is one
of robbery with aggravating circumstances as envisaged in
section 1
of the
Criminal Procedure Act, 51 of 1977
.
[3] Both accused were
found not guilty on count 1 and they were both convicted on counts 2
and 3. On count 4, the court found that
no robbery was committed and
both accused were convicted of theft.
[4] On 14 September 2010,
both accused were each sentenced as follows: 9 (nine years
imprisonment on each of counts 2 and 3, and
2 (two) years
imprisonment on theft. The court then ordered the sentences to run
consecutively so that they each have to serve
20 (twenty) years
imprisonment.
[5] The facts of the case
are, briefly, that on 18 August 2008, the two complainants, Violet
Makgauta Cindy, who was 19 years of
age at the time of the commission
of the crime, and Lebohang Amelia Mokoena, who was 18 years old, were
sleeping on one bed, together
with a 13 year old boy, Morena Innocent
Mokoena.
[6] At approximately
midnight they woke up as the two accused forcibly opened the door and
entered the house that they were sleeping
in. Each one of the accused
was armed with a knife.
[7] Each of the accused
raped the complainants in the presence of the 13 year old boy, at
knife point. They thereafter took the
items from the house and left.
[8] The appellant was 15
years old at the time of the commission of the crimes.
[9] During sentencing,
the trial court correctly held that the provisions of the Minimum
Sentencing Act are not applicable in respect
of the appellant and
that is where it ends.
9.1 In respect of the
appellant’s personal circumstances, the court relied on the
probation officer’s report which was
handed in as an exhibit.
9.2 The learned judge
quotes at length from the report, but only factors that are adverse
to the appellant, which leads to the assumption
or conclusion that he
never applied his mind to the report as a whole.
9.3 He never mentioned
any mitigating circumstances in respect of the appellant, as set out
in the report.
9.4 The report states the
following:
9.4.1 The appellant was
raised by a single parent.
9.4.2 His father left his
mother whilst he was still a toddler and he consequently does not
know him.
9.4.3 He does not have
previous convictions.
9.4.4 There is a high
risk of juvenile delinquency in the area wherein he lived.
9.4.5 All his family
members are unemployed.
9.5 Amazingly, he did not
even mention and take into account the fact that the appellant was 15
years of age at the date of commission
of the crime, as a mitigating
factor. It is therefore not surprising that there is no distinction
made between the sentence of
the appellant and that of his co-accused
in the Court
a quo
. This is a serious misdirection which
enables the court of appeal to interfere with the sentence.
[10] The Court
a quo
further quotes with approval from the report, the fact that
“
the act in
question and the age does not correspond as he committed an offence
suitable to be committed by an adult.”
I do
not know of any offences that are suitable to only be committed by
adults, but I know that children do sometimes commit heinous
crimes.
This was so elegantly put by Cameron, J in the matter of
CENTRE
FOR CHILD LAW v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
AND OTHERS (NATIONAL INSTITUTE FOR CRIME PREVENTION AND
THE
RE-INTEGRATION OF OFFENDERS, AS AMICUS CURIAE)
2009 (2) SACR
477
(CC)
at pages 490 – 491 paragraphs [28]
and [29]:
“
[28] These
are the premises on which the Constitution requires the courts and
Parliament to differentiate child offenders from adults.
We
distinguish them because we recognise that children's crimes may stem
from immature judgment, from as yet unformed character,
from youthful
vulnerability to error, to impulse, and to influence. We recognise
that exacting full moral accountability for a
misdeed might be too
harsh because they are not yet adults. Hence we afford children some
leeway of hope and possibility.
[29] This is not to say that children
do not commit heinous crimes. They do. The courts, which deal with
child offenders every day,
recognise this no less than Parliament.
The affidavit on behalf of the Minister rightly points to
legislators' concern about violent
crimes committed by under-18s. The
Constitution does not prohibit Parliament from dealing effectively
with these offenders. The
children's rights provision itself
envisages that child offenders may have to be detained. The
constitutional injunction that '(a)
child's best interests are of
paramount importance in every matter concerning the child' does not
preclude sending child offenders
to jail. It means that the child's
interests are 'more important than anything else', but not that
everything else is unimportant:
the entire spectrum of considerations
relating to the child offender, the offence and the interests of
society may require incarceration
as the last resort of punishment.”
In
S v B
2006 (1) SACR 311
(SCA) at page 318 paragraph [14], the court stated
that
“
The
recognition that children accused of committing offences should be
treated differently to adults is now over a century old.”
[11]
In casu
, the
Court
a quo
correctly held that the appellant has committed
very serious crimes by attacking and raping the complainants in the
sanctity of
their homes, that broke into their home in the middle of
the night and raped one of the complainants in the presence of a 13
year
old boy. I have, however, already found that the learned judge
virtually ignored the appellant’s personal circumstances and
failed to recognise that the appellant, as a child, had to be treated
differently during sentencing.
[12] I am of the view
that this court should interfere with the sentence imposed by the
Court
a quo
. In the light of the seriousness of the crime, the
personal circumstances of the appellant, as set out in the report and
the fact
that the appellant was a child when the crimes were
committed, I am of the opinion that the sentences imposed by the
Court
a quo
, should run concurrently in such a way that the
appellant should serve an effective sentence of 15 (fifteen) years
imprisonment.
[13] I therefore make the
following orders;
1. The conviction
stands.
2. The appeal against
sentence succeeds.
3. The effective
sentence of twenty years imposed by the court
a quo
is set
aside and replaced with the following:
“
The
2 years imprisonment imposed in respect of count 4 and 3 years of the
9 years imprisonment imposed in respect of count 3, shall
run
concurrently with the 9 years imprisonment imposed in respect of
count 2 in such a way that the appellant shall serve an effective
sentence of 15 years imprisonment.
4. The sentences are
antedated to 14 September 2010.
_________________
N.W. PHALATSI, AJ
I concur.
________________
M.H. RAMPAI, AJP
I concur.
_____________
J.P. DAFFUE, J
On
behalf of appellant: Mr. J.D. Reyneke
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv. E. Liebenberg
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp