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[2011] ZAFSHC 52
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Mofokeng v S [2011] ZAFSHC 52 (10 March 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A169/2010
In
the appeal between:-
MORENA
WASHINGTON MOFOKENG
…...................................
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM:
RAMPAI, J
et
MOCUMIE, J
et
JORDAAN, J
_______________________________________________________
HEARD
ON:
7 MARCH 2011
_______________________________________________________
DELIVERED ON:
10
MARCH 2011
APPEAL JUDGMENT
_______________________________________________________
MOCUMIE, J
[1]
The appellant was convicted in the Regional Court, Bloemfontein of
rape and assault with intent to do grievous bodily harm.
The case was
referred to the High Court for sentence in terms of section 52(1)(b)
of the Criminal Law Amendment Act, 51 of 1997
(“
the
Criminal Law Amendment Act”
>), as it was still
applicable in 2008. This Court confirmed his conviction on both
counts and sentenced him to life imprisonment.
He lodged an
application for leave to appeal against both conviction and sentence
which application was dismissed by the Court
a
quo
. He petitioned the President of the
Supreme Court of Appeal. His petition was upheld against his sentence
only.
[2]
The grounds of appeal are set out in the petition as follows:
2.1
That the sentence was shockingly inappropriate;
2.2
That the complainant sustained no injuries on her private parts;
2.3
That the Court
a quo
erred in overemphasising the seriousness
of the offence;
2.4
That the laceration on the complainant’s head was not an injury
constituting grievous bodily harm; and
2.5
That the Court
a quo
erred in not attaching enough weight to
the appellant’s personal circumstances,
inter alia
, that
he was relatively young;
2.6
That the appellant had spent two years awaiting trial.
[3]
Mr. Nkhahle, on behalf of the appellant, in his Heads of Argument and
in his oral argument submitted that the mitigating factors
of this
case and the personal circumstances of the appellant, cumulatively,
amounted to compelling and substantial circumstances,
which justified
the Court
a quo
to have deviated from the prescribed sentence.
He highlighted the following as such circumstances:
3.1
Appellant’s youthfulness at the time of commission of these
offences;
3.2
The fact that the appellant only completed Standard 8 at school (the
current Grade 10);
3.3
That the appellant had spent two years awaiting trial.
[4]
Mr. Nkhahle submitted further that the complainant did not sustain
serious physical injuries except the injury on the head,
which he
argued was not so serious. She was not as traumatised as in some
cases that come before the courts. The fact that she
did not receive
counselling and that she was still reliving this traumatic experience
was not as a result of any doing or omission
on the part of the
appellant.
[5]
Advocate Pretorius, on behalf of the respondent, in his Heads of
Argument, as regards Count 1 of rape, submitted that the Court
a
quo
did
not commit any misdirection taking into consideration the serious
nature of the offence. However during oral argument he submitted
that
upon revision of the relevant authorities such as
S
v Mahomotsa
2002 (2) SACR 435 (SCA);
Rammoko v Director
of Public Prosecutions
2003(1) SACR 200 (SCA) he was of the
view that this was not one of the worst cases of rape that came
before the courts. He submitted
further that the life imprisonment
imposed by the Court
a quo
was excessive and not appropriate
in the circumstances.
[6]
As regards Count 2 of assault with intent to do grievous bodily harm
he pointed out that the Court
a quo
did not impose any
sentence. He submitted that this Court was in the same position as
the trial court to impose such sentence it
deemed appropriate since
it had the appellant’s personal circumstances and all other
relevant sentencing factors on record.
[7]
The proven facts of this case are shortly that the complainant was
walking in the street in Botshabelo just after 19h00 when
two young
men confronted her. One of them was the appellant. After they made
several demands, including cigarettes and money and
a love
relationship, which the complainant spurned, the appellant took out a
knife, 20-30 cm long, and dragged her behind the butchery
store where
he raped her for the first time.
[8]
After he had raped her for the first time he instructed his
companion, who was at all times present and watching, to rape her.
The companion made as if he is raping her, but in actual fact just
made movements on top of her without penetrating her and whilst
he
was fully clad.
[9]
The appellant then instructed the two to take some other direction
opposite to the complainant’s home. When the complainant
refused to go along, he stabbed her once on the head with the 20-30
cm long knife he was carrying, instructed her to undress herself
and
raped her for the second time. He again instructed his companion “to
rape” her. He again simulated, as he previously
did, that he
was raping her, without actually raping her. They then left her on
her own to go to her parental home, which was not
far from there.
[10]
The complainant’s case was corroborated and bolstered by DNA
results, which pointed at the appellant as the only person
who had
sexual intercourse with the complainant, contrary to the appellant’s
bare denial of the allegations levelled against
him in respect of
both the assault and the rape.
[11]
As I have pointed out the fact that the complainant was raped twice
and was 15 years of age at the time of these incidents,
brought the
application of the
Criminal Law Amendment Act into
operation. The
authoritative case in the application of the
Criminal Law Amendment
Act is
S v Malgas
2001
(1) SACR 469
(SCA). In line with this decision on the one hand the
sentencing court should not depart from the prescribed minimum
sentence simply
because of flimsy reasons. On the other hand the
prescribed minimum sentence should not be
“shocking”
,
“startling”
or
“disturbingly
inappropriate”
. (See
S v
GN
2010 (1) SACR 93
(T) at 95 j –
96 a.)
[12]
It is trite that the notion
“compelling and substantial
circumstances”
differs from one case to another.
As is evidenced from the most instructive decisions subsequent to
S
v Malgas
,
supra
,
such as
S v Abrahams
2002
(1) SACR 116
(SCA);
S v Mahomotsa
supra
;
S
v Nkomo
2007 (2) SACR 198
(SCA), when
faced with a case in which a minimum sentence is prescribed, the
sentencing court must still have regard to all the
traditional
factors taken into account when considering sentence.
[13]
Du Plessis J
in
S v GN
supra
, in line
with the
Malgas
judgment propounds an approach which
courts should adopt in seeking to differentiate between sentences in
accordance with the dictates
of justice whenever faced with imposing
minimum prescribed sentences. He suggests at 97f, which suggestion is
correct and I agree
with, that where the Act [Criminal Law Amendment
Act] prescribed imprisonment for life as a minimum sentence, the fact
that it
(the imprisonment for life) is the ultimate sentence, must
also be taken into account.
[14]
In the same judgment at 97 f - g he continues:
“
Accordingly,
in its quest to do justice, a court will more readily impose a lesser
sentence where the prescribed minimum sentence
is imprisonment for
life. Put differently, where the prescribed minimum is life
imprisonment, a court will more readily conclude
that the
circumstances peculiar to the case are substantial and compelling, to
the extent that justice requires a lesser sentence
than life
imprisonment.”
[15]
In my view, the Court
a quo
did not follow the approach
sanctioned in
S v Malgas
and followed in subsequent
decisions referred to above properly by considering itself bound to
impose the prescribed minimum sentence
when it did not find that
compelling and substantial circumstance existed. It was still bound
to take a step further and consider
whether that prescribed sentence
was just or in accordance with justice. In that sense the Court
a
quo
did not exercise its discretion judiciously and in the result
misdirected itself. This Court is then enjoined to consider sentence
afresh.
[16]
The appellant was 24 years of age when he committed these offences.
He had two previous convictions of assault, which sent
him to prison
for two years and six months. He had spent two years in custody
awaiting trial He was not married nor was he employed.
The
complainant’s injuries were not so serious. Despite the
unquestionable emotional trauma that the rape clearly left on
her as
reported in the Victim Impact Report before the Court
a quo
,
she was reported to have almost overcome the incident except on her
birthday as the rape happened two days before it.
[17]
In my view, the fact that the appellant had two previous convictions
of assault, which circumstances were not placed before
the Court
a
quo
per se
does not mean that there is no room for the
appellant to rehabilitate if given the chance to do so. The
presentence report which
the Court
a quo
was provided with
indicates that there is such room. The appellant spent two years
awaiting trial which fact the Court
a quo
ignored or simply
did not take into account contrary to what is now trite that
“
...
it would be most unjust if the period of imprisonment while awaiting
trial is not then bought into account in any custodial
sentence that
is imposed.”
See
S v Vilakazi
2009(1) SACR 552 (SCA) at 575 a - b.
[18]
Rape is a very serious offence and must be punished severely.
However, a sentence of life imprisonment as the ultimate sentence
is
shockingly inappropriate. I am of the view that, considering cases
set out above, an appropriate sentence will be that of twenty
years
imprisonment.
[19]
Lastly as the Court
a quo
did not impose sentence in respect
of Count 2, assault with intent to do grievous bodily harm, it is
only proper that this Court
do so. The facts of this case show
clearly that the assault was committed during the rape even if it
cannot be said that the appellant
assaulted the complainant to make
her submit to his demands. In that light I am of the view that a
sentence of two years imprisonment,
which is ordered to run
concurrently with the sentence in Count 1, will be appropriate.
[20]
In the circumstances the following order is made:
ORDER:
The
appeal against sentence is upheld.
The
sentence imposed in respect of count 1, rape, is set aside and
substituted by the following:
“
The
accused is sentenced to 20 (twenty) years imprisonment.”
In
respect of count 2, assault with intent to do grievous bodily harm,
the accused is sentenced to 2 (two) years imprisonment.
In
terms of
section 280
of the
Criminal Procedure Act 51 of 1977
the
sentence in count 2 is ordered to run concurrently with the sentence
in count 1.
In
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
the
sentences imposed are antedated to 1 February 2008.
_______________
B.C.
MOCUMIE, J
I concur.
______________
M.H. RAMPAI, J
I
concur.
_______________
A.F. JORDAAN, J
On behalf of the
appellant: Adv. R.J. Nkhahle
Instructed by:
Bloemfontein Justice
Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of the
respondent: Adv. D. J. Pretorius
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
BCM/sp