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2012
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[2012] ZANCHC 19
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S v Mohale (K/S 4/10) [2012] ZANCHC 19 (8 June 2012)
5
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE HIGH
COURT, KIMBERLEY)
Case No K/S 4/10
Date heard: 29 May
2012
Date delivered: 8 June
2012
In
the matter between
THE
STATE
V
ANDRIES
MOHALE
___________________________________________________________________
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________________
PAKATI J
The applicant, Mr
Andries Mohale, is represented by Mr A Van Tonder. He applies for
leave to appeal against his sentence. He was
convicted on 10 June
2010 of rape in count 1, robbery with aggravating circumstances in
count 2 and in count 3, murder. He was
sentenced to ten years
imprisonment for the rape, fifteen years for the robbery and life
imprisonment for murder. The sentences
were ordered to run
concurrently.
In his notice of
Appeal filed on 24 June 2010 he listed the following grounds:
“
That
there exists a reasonable possibility that another court on appeal
may find that:
Compelling and
substantial circumstances exist which could justify a deviation from
the prescribed minimum sentence;
The totality of the
personal circumstances of the applicant amounts to substantial and
compelling circumstances; especially his
youthful age and the fact
that he spent 1 year, 4 months and 20 days in custody awaiting the
finalisation of his trial; and
The imposition of
the minimum sentence on all of the counts is so severe a sentence
that it amounts to an injustice to the applicant.”
The provisions of
Section 51
of the
Criminal Law Amendment Act, 105 of 1997
, are
applicable in respect of the offences that the applicant was found
guilty of.
Mr Van Tonder for the
applicant argued that the personal circumstances of the applicant
taken cumulatively amount to substantial
and compelling
circumstances. State counsel Ms AH Van Heerden submitted that the
sentences does not induce a sense of shock and
should therefore
stand. She submitted further that there are no prospects of success
in this application.
The personal
circumstances placed on record by Mr Van Tonder were the following:
“
The
accused is currently 23 years old. At the time of the commission of
the offence, or offences, he was 22 years old. He is not
married, but
has one dependent child, a daughter of 3 years. The accused enjoys
good health. He is not suffering from any illness.
At the time of the
commission of the offence, the accused was unemployed. The accused’s
mother is still alive and he has
no siblings. He is the only child.
He succeeded standard 5 at school. He was arrested on the 20
th
of January 2009 and has been in custody since that time. The period
that he has been in custody is 1 year, 4 months and 20 days.
The
accused is also a member of the Union Express Church”.
When
considering whether substantial and compelling circumstances exist
during imposition of an appropriate sentence the following
passage
is of importance in
S v MALGAS
2001 (1) SACR 469
(SAC)
at
477D-E.
“
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances”.
The following passage
at 477 F is also worthy of consideration:
“
But
for the rest I can see no warrant for deducing that the legislature
intended a court to exclude from consideration, ante omnia
as it
were, any or all of the many factors traditionally and rightly taken
into account by courts when sentencing offenders”.
During the trial the
applicant did not show immaturity nor was it evident that he was
subjected to peer pressure by anyone. On
the contrary the manner in
which the deceased was assaulted by the applicant was testified to
by Dr Surtie. He testified that
the injuries on the body of the
deceased, a 72 years old lady, were compatible with the use of a
blunt object like a stone, with
which the deceased was dealt several
blows. He confirmed that the bruising of the face of the deceased in
a zig-zag pattern also
needed a significant
amount of force. The
assault on the deceased was vicious if one looks at the multiple
abrasions, anterior neck with bruising of
deep tissue and fracture of
the right hyoid bone which was suggestive of strangulation.
The applicant
maintained his innocence throughout the trial. He did not testify in
mitigation of sentence. He was content to have
his legal
representative, Mr Van Tonder, state his personal circumstances of
which none explained remorse.
In
S v MATYITYI
2011 (1) SACR 40
(SCA)
at 47g- 48c Ponnan JA held:
“
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 rule out
immaturity. Although the exact extent of the mitigation will
depend
on all of the circumstances of the case, in general a court will not
punish an immature young person as severely as it would
an adult. It
is well established that, the younger the offender, the clearer the
evidence needs to be about his or her background,
education, level of
intelligence and mental capacity, in order to enable a court to
determine the level of maturity and therefore
moral blameworthiness.
The question,
in
the final analysis, is whether the offender’s immaturity, lack
of experience, indiscretion and susceptibility to being
influenced by
others reduce his blameworthiness. Thus, whilst someone under the age
of 18 years is to be regarded as naturally
immature, the same does
not hold true for an adult. In my view a person of 20 years or more
must show by acceptable evidence that
he was immature to such an
extent that his immaturity can operate as a mitigating factor. At the
age of 27 the respondent could
hardly be described as a callow youth.
At best for him, his chronological age was a neutral factor. Nothing
in it served, without
more, to reduce his moral blameworthiness. He
chose not to go into the box, and we have been told nothing about his
level of immaturity
or any other influence that may have been brought
to bear on him, to have caused him to act in the manner in which he
did”.
Courts are expected to
dispense justice. This kind of brutality is regrettably too
regularly a part of life in South Africa. Courts
are expected to
send out clear messages that such behaviour will be met with full
force and effect of the law. The legislature
is covered and so too
should we be. See
DIRECTOR OF PUBLIC PROSECUTIONS, KWAZULU-NATAL
V NGOBO AND OTHERS
2009 (2) SACR 361
(SCA)
at para 26.
In imposing a suitable
sentence in the instant case the court took into consideration the
personal circumstances of the appellant,
the nature and the gravity
of the offences and the interest of society. I found that there were
no substantial and compelling
circumstances justifying a departure
from the prescribed sentences.The aggravating circumstances
outweighed the applicant’s
personal circumstances. None of
these factors were singled out for exclusion from consideration. See
S v ZINN
1969 (2) SA 537
A at 540G.
In my view there are
no reasonable prospects of success on appeal and also no reasonable
possibility that another court may arrive
at a different decision.
The application must therefore fail.
Order
Application for
leave to appeal is dismissed.
___________
BM PAKATI
JUDGE
For the State : Adv.
Van Heerden
For the Accused : Adv.
Van Tonder