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[2011] ZAFSHC 143
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Seitshili (Seitshiro) v S (A21/2009) [2011] ZAFSHC 143 (1 September 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A21/2009
In
the appeal between:-
MESHACK
M SEITSHILI (SEITSHIRO)
…................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
VAN ZYL, J
et
MATHEBULA, AJ
_____________________________________________________
HEARD
ON:
15 AUGUST 2011
_____________________________________________________
DELIVERED
ON:
1 SEPTEMBER 2011
_____________________________________________________
JUDGEMENT BY:
MATHEBULA, AJ
_____________________________________________________
[1] The appellant was
tried in the Bloemfontein Regional Court in connection with a rape of
a minor child. He was convicted and
sentenced to life imprisonment.
He is now approaching the court on appeal against both conviction and
sentence.
[2] On his behalf, Mr
Reyneke conceded that the conviction was in order and made no
submission in that regard. I agree with his
concession. His
submission was that the sentence is shockingly inappropriate and that
the court must interfere with it. He referred
to the diminished
criminal capacity of the appellant at the time of the commission of
the offence. He also referred to the time
that the appellant spend in
prison as an awaiting trialist. The period was three (3) years and
four (4) months.
[3] He also referred to
the doubt regarding the impact or effect that the incident had on the
complainant. It appears that the complainant
was also sexually abused
by her stepfather and was now accommodated at a place of safety. His
submission was that the court
a quo
did not strike a balance
between the interests of society, the offence and personal
circumstances of the appellant.
[4] The state counsel, Mr
Strauss conceded that the court
a quo
erred in not finding
substantial and compelling circumstances. It was his submission that
the sentence was shocking and inappropriate.
In particular the court
erred in not taking into account the lengthy period that the
appellant had been incarcerated while awaiting
trial.
[5] It is within the
discretion of the trial court to impose sentence. The court of appeal
will not lightly interfere with the sentence
imposed. However it will
undoubtedly interfere if there is a striking disparity between the
sentence imposed and that it will have
imposed seating as a court of
first instance. In essence it will interfere if the sentence is
shockingly inappropriate. See
S v PIETERS
1987 (3) SA
717
(A) at 727 F-H and
S v WHITEHEAD
1970 (4) SA 424
(A) at 435 D.
[6] The appellant did
spend a lengthy period in custody. In
S v STEPHEN and ANOTHER
1994(2) SACR (W) on 168E - G, Schultz J and the following:-
“
Imprisonment
whilst awaiting trial is the equivalent of a sentence of twice that
length….”
The court in
RAMMOKO
v DIRECTOR OF PUBLIC PROSECUTIONS
2003 (1) SACR 200
SCA at
205C - D per Mpati JA (as he then was) said the following:-
“
This
court observed in
S
v ABRAHAMS 2002(1) SACR 716 SCA
some rapes are more than others and the life sentence ordained by the
legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust”
[7] In this matter the
court
a quo
did not give sufficient consideration to these
aspects. The issue of his lengthy incarceration is not mentioned at
all. At the
same level the objective gravity of the crime is not
given appropriate attention. The court
a quo
considered the
heinous nature of the offence and it was on that basis that she
imposed the life imprisonment. The failure to strike
a proper balance
of all the factors renders the sentence inappropriate and shocking. I
am at liberty to interfere. The appellant
deserves to be sentenced to
a lengthy period of imprisonment. The society expects nothing less
because of the seriousness of the
crime he committed. It has been
repeatedly been affirmed by our courts that vulnerable members of our
society must be protected
against the appellant and his ilk. In the
final analysis that must be done within the dictates of the law.
[8] I make the following
order:-
The conviction is
confirmed.
The sentence is set
aside
The sentence of life
imprisonment is substituted with twenty (20) years imprisonment.
The aforegoing sentence
shall be deemed to have been imposed on the 4
th
June
2008
___________________
M.A. MATHEBULA, AJ
I agree.
____________
C. VAN ZYL, J
On behalf of appellant:
Mr. J.D. Reyneke
Attorney for appellant
Instructed by:
Bloemfontein Justice
Centre
Legal Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv. Strauss
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
MAM/sp