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2011
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[2011] ZAFSHC 104
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Toboko v S [2011] ZAFSHC 104 (23 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A284/2009
In the matter between:
TANKISO TOBOKO
…..............................................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM:
C J
MUSI, J
et
KUBUSHI, AJ
_____________________________________________________
HEARD ON:
23 MAY 2011
_____________________________________________________
DELIVERED ON:
23
JUNE 2011
KUBUSHI, AJ
[1] The appellant
appeared in the Regional Court in Bloemfontein on a charge of rape of
a ten year old girl. He pleaded not guilty
but after the state had
led the evidence of the complainant and her father, the appellant
changed his plea to guilty. He was found
guilty and on 23 July 2009
sentenced to life imprisonment. He is now, with leave of the trial
court, appealing against the imposed
sentence.
[2] The facts of the case
are that on 24 February 2007 the complainant was playing with two of
her friends, Lindane and Fumane outside
Lindane’s home.
Lindane’s father, the appellant, sent Lindane and his sibling
to buy liquor for him. He later sent
his wife to look for them as
they were taking too long. In the absence of his wife the appellant
called the complainant into his
house where he threatened to cut her
throat should she scream and raped her. The complainant testified
that her vagina was painful
and that she had to walk with ‘open
legs’. When she arrived home her father noticed that she was
walking with ‘opened
legs’ and alerted her mother. The
complainant told her mother that the appellant raped her. Her father
went to the appellant
to make enquiries and the appellant chased him
with as stick. The rape was then reported to the police.
[3] The appellant knew
that he was HIV positive when he raped the complainant. Both legal
representatives informed us that the medical
status of the appellant
was disclosed with his consent.
[4] The appellant in his
heads of argument contended that the minimum sentence of life
imprisonment induced a sense of unease and
it is a sentence which
this court would not have imposed had it been a court of first
instance. At the hearing of the appeal, Mr
Tshabalala, the
appellant’s counsel, did not argue the matter and maintained
that he was abiding with the heads of argument.
[5] The respondent’s
counsel, Mr Chalale, in his argument, conceded that although the
personal circumstances of the appellant
were placed on record the
trial court did not mention them when passing sentence. He however
contended that the trial court correctly
found that there were no
substantial and compelling circumstances to justify the imposition of
a lesser sentence than the minimum
sentence of life imprisonment.
[6] The issue to be
determined is whether or not this court would have imposed a
different sentence were it the court of first instance.
[7] The crime, which the
appellant was convicted of, falls within the provisions of the
Criminal Law Amendment Act, 105 of 1997
as amended (“the Act”).
In terms of section 51 (1) read with
part I
of schedule II, where a
person is convicted of an offence of rape and the victim is a person
under the age of 16 years the sentence
of life imprisonment must be
imposed unless there are substantial and compelling circumstances
which will justify the imposition
of a lesser sentence. In terms of
section 51
(1) read with
part I
of schedule II, where a person is
convicted of an offence of rape when committed by a person, knowing
that he has the acquired
immune deficiency syndrome or the human
immunodeficiency virus the sentence of life imprisonment must be
imposed unless there are
substantial and compelling circumstances
which justify the imposition of a lesser sentence.
[8] In determining
whether in a particular case substantial and compelling circumstances
exist a court has to follow the guidelines
as set out in
S v
Malgas
2001 (1) SACR 469
(SCA) at 482C and consider the well
known traditional triad of factors relevant to sentence – the
crime, the criminal and
the needs of society.
[9] The trial court
failed, as conceded by the respondent’s counsel, to mention the
personal circumstances of the appellant
when considering whether
there are substantial and compelling circumstances. It concentrated
more on the circumstances leading
to the commission of the offence
and the aggravating factors. In
S v Malgas
supra
at
477f it was said that all factors traditionally taken into account in
sentencing (whether or not they diminish the moral guilt)
continue to
play a role. As endorsed in
S v Mahomotsa
2002 (2) SACR
435
(SCA) and in
S v Nkomo
2007 (2) SACR 198
(SCA).
[10] It is trite that the
appeal court may interfere with the sentence imposed by a trial court
if
inter
alia there is disparity in the sentence imposed or
where the trial court failed to exercise its discretion properly or
exercised
it unreasonably or where thee is a misdirection by the
court. In
casu
the trial court misdirected itself in that it
failed to take the personal circumstances of the appellant into
account when considering
sentence. This court is therefore at large
to consider sentence afresh.
[11] The appellant was 41
years old, married with two children aged between one year and three
years. At the time of his arrest
he was employed at Botes Glass Work
for four years and earning a salary of R3 500-00 per month. He never
attended school. His wife
is unemployed and survives on the
children’s social grant. The appellant pleaded guilty –
he told his legal representative
that the commission of the offence
was a mistake on his part and that he does not know what caused him
to do it. He had no previous
conviction and had been in custody for
seventeen months for this offence.
[12] As per the
appellant’s heads of argument, the appellant is a person who
can be rehabilitated. At face value the appellant’s
circumstances are not indicative of an inherently lawless character.
However in my view the personal circumstances are overshadowed
by the
gravity of this offence, particularly because the appellant raped the
complainant without using a condom well knowing that
he was HIV
positive. This is an aggravating factor by its very nature.
[13] As stated, rightly
so, by the trial court, this was not a spur of the moment incident.
The offence was premeditated –
the appellant sent the children
to buy liquor for him and the mother was sent after them apparently
to look for them. In my view
he did not show genuine remorse. He
chased the complainant’s father with a stick when enquiries
were being made. He pleaded
guilty only after he became aware of the
DNA analysis results which implicated him. The impact of the liquor
on him is not evident
from the record and it can thus not be said
that he was under the influence of liquor when he committed this
offence.
[14] After careful
consideration of all the relevant circumstances I could not find that
there are substantial and compelling circumstances
which justify the
imposition of a lesser sentence than life imprisonment. There is
nothing that persuades me to impose a sentence
different from that
imposed by the trial court. The sentence imposed is just and
appropriate to this particular offence and there
is no justification
to temper with it.
[15] Consequently the
following order is granted;
1. The appeal is
dismissed and the sentence imposed by the trial court is confirmed.
________________
E. M. KUBUSHI, AJ
I concur.
_____________
C. J. MUSI, J
On behalf of the
appellant: Adv. Tshabalala
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Chalale
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/EMK