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[2011] ZAFSHC 64
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Nkhohliso v S (A224/09) [2011] ZAFSHC 64 (24 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A224/09
In
the appeal between:
BANGANI
HENDRIK NKHOHLISO
…......................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM
:
MOLOI, J
et
KUBUSHI, AJ
HEARD
ON:
7 MARCH 2011
_____________________________________________________
DELIVERED ON:
24
MARCH 2011
KUBUSHI, AJ
[1] This is an appeal
against the judgment of the Regional Court, Kroonstad. The appellant
was charged and convicted of rape. He
was sentenced on 24 April 2009
to life imprisonment. He is now, with leave of the trial Court,
appealing against the imposed sentence.
[2] The complainant’s
evidence was that on 18 November 2007 and at about 20h00 she was
accosted by the appellant whilst on
her way back from the shop. The
appellant grabbed her and forced her to go with him to where he
stayed. He also hit her with open
hands on the face. The appellant
took the complainant to a house made of plastic near the dumping site
where he raped her. He kept
her there for the whole night against her
will. He had sexual intercourse with her without her consent four
times.
[3] The appellant’s
case was that complainant was his girlfriend and that he had
consensual sexual intercourse with her twice
that evening.
[4] Mr. Makhene,
appellant’s counsel, contended that the appellant’s
personal circumstances were clearly canvassed at
the hearing but that
the trial Court failed to find that substantial and compelling
circumstances existed. He further argued that
the trial Court failed
to take into account the fact that the appellant was under the
influence of liquor at the time of the incident.
In the Heads of
Argument he submitted that the sentence imposed by the trial court
would not have been imposed by this Court had
this Court been a court
of first instance.
[5] The issue to be
decided by this Court is whether the trial Court erred in not finding
that substantial and compelling circumstances
existed that would
justify a departure from the prescribed sentence of life imprisonment
and whether the Court of appeal could
have imposed a different
sentence if it was a court of first instance.
[6] The law is that an
appellate Court may interfere with the sentence imposed by the trial
Court when the disparity between the
sentence imposed by the trial
Court and the sentence which the appellate Court would have imposed
if it were the court of first
instance is so marked that it can
properly be described as ‘shocking’, ‘startling’
or ‘disturbingly
inappropriate’. If the difference
between that sentence and the sentence actually imposed is so great
that an inference can
be made that the trial Court acted unreasonably
and therefore improperly, the Court of appeal will alter the
sentence. If there
is no such degree of difference the sentence will
not be interfered with. See
S v MALGAS
2001 (1) SACR 469
(SCA)
at 478 f - h and
S v ANDERSON
1964 (3) 494 (A) 495 F – H
[7] I fully support the
conclusion by the trial Court that no substantial and compelling
circumstances existed warranting a deviation
from the sentence of
life imprisonment as imposed. I am content that the trial Court
considered all the relevant circumstances
as to the nature of the
offence committed, the personal circumstances of the accused and the
interests of the community.
[8] The appellant’s
counsel contended that though the personal circumstances of the
appellant were fully canvassed the trial
Court failed to find
substantial and compelling circumstances. I am satisfied that the
appellant’s personal circumstances
are overshadowed by the
aggravating factors in this case. The long list of previous
convictions, which I am not going to repeat
here, the nature and
gravity of the offence and the interests of the community in this
case speak for themselves. I cannot over
emphasise the trauma the
complainant went through, the humiliation of being sexually disgraced
by a person she referred to as her
child and who grew up before her
eyes, is appalling.
[9] In support of the
fact that the appellant was under the influence of liquor at the time
of the incident and that the trial Court
failed to consider that
factor as mitigating, Mr. Makhene referred this court to a citation
from Straf in Suid Afrika: Etienne
Du Toit at page 64. The trial
Court did not deliberate on this issue and rightly so in my view as
it was immaterial. There is nothing
on record that indicates what
effect, if any, the liquor had on the appellant. It is not apparent
from the record whether the appellant
was affected by the said
consumption of liquor to the extent that ‘sy sinne afgestomp,
sy vermoë tot selfbeheer en sy
optrede ooreenkomstig sy inrigte
in te rig, verminder het’ as stated in the authority referred
to above.
[10] After careful
consideration of all the relevant circumstances as to the nature of
the offence committed, the personal circumstances
of the accused and
the community interests, nothing persuaded me to impose a sentence
different from that imposed by the trial
Court. In my view the
sentence imposed is just and appropriate to this particular offence
and there is no justification to temper
with it.
[11] As ordained by
section 51 of the Criminal Law Amendment Act, Act 105 of 1997, life
imprisonment is a sentence which must ordinarily
be imposed in
circumstances such as these.
[12] In the circumstances
I would dismiss the appeal.
________________
E.M. KUBUSHI, AJ
I concur and it is so
ordered.
____________
K.J. MOLOI, J
On behalf of appellant:
Adv. O.J. Makhene
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. S. Giorgi
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp