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[2010] ZAFSHC 109
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Lehole and Another v S [2010] ZAFSHC 109 (10 June 2010)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No.: A52/2010
In
the matter between:-
BOIKI
ESAU LEHOLE
…......................................................
First
Appellant
PAKISO
BENNET MAKOKO
…............................................
Second
Appellant
versus
THE
STATE
….............................................................................
Respondent
CORAM:
MOCUMIE,
J
et
MTHEMBU,
AJ
JUDGMENT:
MOCUMIE,
J
HEARD
ON:
3
MAY 2010
DELIVERED
ON:
10
JUNE 2010
APPEAL
MOCUMIE,
J
[1]
The two appellants, Mr Boiki Esau Lehole and Pakiso Bennet Makoko,
appeared in the Regional Court, Kroonstad, on a charge of
robbery
with aggravating circumstances and a count of rape on 19 October
2009. The first appellant was convicted of both robbery
with
aggravating circumstances and the rape charge and the second
appellant was convicted of robbery with aggravating circumstances
only. The first appellant was sentenced to fifteen years imprisonment
for the robbery and eighteen years imprisonment for the rape.
Both
sentences were ordered to run concurrently. The second appellant was
sentenced to ten years imprisonment for the robbery.
The two
appellants applied for leave to appeal against both their convictions
and sentences to the court a
quo
which
was refused. This appeal, with leave of the court a
quo,
is
only against sentence.
[2]
Mr T.B. van Rensburg, for the appellants, submitted that the trial
court erred by not finding that compelling and substantial
circumstances existed which justified a departure from the prescribed
sentence in respect of the robbery with aggravating circumstances.
He
submitted further that in respect of both counts the trial court
erred by not taking both counts as one for purposes of sentence
as
the count of rape flowed from the robbery or was committed during the
robbery. In respect of the second appellant he submitted
that the
trial court overemphasised the seriousness of the offence and the
interests of society taking into account the appellant's
personal
circumstances including,
inter
alia,
his
youthfulness and the fact that he was a first offender and that he
was in custody for over two years and further the fact that
he did
not participate in the commission of the rape in count 2.
[3]
The applicable principles in an appeal against sentence are clearly
set out in
S
v Rabie
1975
(4) SA 855
(A) at 857D-F where the Appellate Division stated:
"In
every appeal against sentence, whether imposed by a magistrate or a
Judge, the Court hearing the appeal -
(a)
should
be guided by the principle that punishment is "pre-eminently a
matter for the discretion of the trial Court"; and
(b)
should
be careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been "judicially and properly exercised". The test under
(b)
is
whether the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate."
[4]
The first appellant was 19 years of age and in Grade 11 at school at
the time of the commission of this offence. He is unmarried
and has
one child. He was doing casual manual jobs and earning R50, 00 per
day. He is not a first offender. He has two previous
convictions, one
of robbery and the other theft. He was arrested on 15 June 2007 and
was kept in detention until he was convicted
and sentenced on 19
October 2009, almost two years later.
[5]
The Regional Magistrate's view in respect of the first appellant was
as follows:
"Aan
die ander kant bestaan daar geen twyfel by die hof dat die enigste
gepaste vonnis wat aanklag 1 aanbetref maar die van
direkte en
langtermyn gevangenisstraf sal wees... Wat die aanklag van roof met
verswarende omstandighede aanbetref... is die Hof
van oordeel dat wat
die aanklag van roof aanbetref daar nie meriete daarin sou wees om af
te wyk van die minimum vonnis nie. Die
hof sal egter ook wel die
kumulatiewe effek van die gevangenisstraf wat hy op beide klagtes aan
u gaan ople terdee in gedagte hou
by vonnisoplegging."
[6]
The second appellant was 18 years at the time of commission of this
offence. He was not attending school although he attained
Grade 8. He
also did casual labour and has one child. He is a first offender.
[7]
The Regional Magistrate's view in respect of the second appellant was
as follows:
"Aan
die ander kant is die Hof ook in u geval van oordeel dat die enigste
gepaste vonnis egter maar die van direkte en betreklik
langermyn
gevangenisstraf sal wees."
[8]
It is correct as the trial court found that the offences which the
appellants committed are serious. I agree with him that these
offences are rife in this province. It is also true that direct long
term imprisonment is inevitable in respect of both appellants.
However it is necessary to evaluate whether the trial court exercised
its discretion judiciously and did not over-emphasis one
or the other
element of the basic triad: the accused's personal circumstances, the
seriousness of the offence and the interests
of society.
[9]
For convenience I will address the second appellant's circumstances
first. In an
unreported
appeal case,
S
v Petrus Lenyeta
,
Case No. A279/2009
by
Cillie
J,
in
which case I concurred, delivered on 4 February 2009, the personal
circumstances of the appellant were almost similar to the
present
case. The appellant in that case was also convicted of robbery with
aggravating circumstances. He was 18 years of age and
pleaded guilty.
The ten years imprisonment imposed by the Regional Court was set
aside and substituted with six years of which
two years was suspended
for five years on certain conditions.
[10]
In the aforesaid
S
v Petrus Lenyeta
although
the second appellant was 18 years of age, as in this case, he
accepted responsibility immediately by pleading guilty, which
on its
own indicated a sense of remorse and a good prospect for
rehabilitation. In this case the appellant pleaded not guilty and
protracted the proceedings despite the overwhelming evidence against
him. However I am inclined to agree with Mr Van Rensburg that
the
Regional Magistrate overemphasised the seriousness of the offence at
the expense of the other important factors, including
the second
appellant's personal circumstances and the fact that he had been in
custody for two years. He also did not participate
in the more
serious offence of rape as the first appellant did. In my view the
trial court indeed had room to impose a lesser sentence.
[11]
In all the circumstances the appeal on sentence in respect of the
second appellant ought to succeed and the sentence be reduced.
[12]
Insofar as the first appellant is concerned, I am in full agreement
with the Regional Magistrate that the first appellant's
blameworthiness is higher than that of the second appellant. He is
older than the second appellant by a year. In his instance as
the
trial court correctly observed:
"...
(A)s die Hof ... in gedagte hou dat
u
as't ware maar tot
f
n
groot mate die persoon was wat ook ten tyde van die rooftog die
leidende rol gespeel het u het onder andere die mes voortdurend
teen
die klaagster gehou. Ook dat u nie 'n eerste oortreder is nie, ook
nie in verband met die aanklagte van roof nie..."
(Own
emphasis)
Furthermore
despite the overwhelming evidence against the first appellant he
persisted in his innocence,
albeit
his
right to do so. The fact remains that he showed no sign of remorse
or repentance.
[13]
Section 51(2) (a) (ii) of the Criminal Amendment Act, 105 of 1997
("the
Criminal Amendment Act"),
provides:
"51
Discretionary
minimum sentences for certain serious offences
(2)
Notwithstanding any other law but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
who
has been convicted of an offence referred to in-
(a)
Part II of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a
second offender of any such offence, to imprisonment
for a period
not less than 20 years; and
(iii)
a
third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years..."
(Own
emphasis.)
[14]
I am of the view that the Regional Magistrate ought to have imposed
twenty years instead of the 15 years because the first
appellant
falls within the category provided for in terms of s51 (2)(a)(ii)
set out above on the basis of being
'a
second offender'
in
respect of the robbery.
[15]
The first appellant has two previous convictions of the same nature
viz: robbery of which he was sentenced to a suspended
sentence of
four years in 2004 and theft for which he was given correctional
supervision of two years in 2004. Notwithstanding
these previous
convictions the Regional Magistrate found that compelling and
substantial circumstances existed in respect of
count 2 of rape. He
enumerated these to be the fact that the appellant had been in
custody for almost two years; that the complainant
did not sustain
serious physical injuries; and that the rape flowed from the
robbery. In other words that the rape was committed
during the same
occasion as the robbery. The Magistrate lost sight of the fact that
rape is a violent crime. It is both a physical
and psychological
assault on its victim.
[16]
The application of s51 of the Criminal Amendment Act is warranted on
the totality of the evidence and facts before the trial
court and
not per count. See
S
v Johaars
2010
(1) SACR 23
(SCA) at 29c-d where the Supreme Court of Appeal stated
that where multiple offences need to be punished the court had to
ask
itself what the appropriate sentence was for all the offences
together.
[17]
From the facts of this case especially first appellant's conduct
during the commission of these offences it is clear that
he has no
respect for other people's rights particularly women who are the
most vulnerable of our society. He failed to use the
opportunities
that the courts gave him in the recent past to rehabilitate. The
possibility that he will repeat these offences
is high. It was thus
necessary to remove him from the society for a longer period than
the second appellant. I am as a result
satisfied that the sentences
on both counts are appropriate. In
S
v Dlamini
2010
(1) SACR 295
(GSJ) the court on appeal set aside a sentence of life
imprisonment and substituted it with twenty years. If the first
appellant
was given the necessary timeous notice in terms of
s322
(b) of the
Criminal Procedure Act 51 of 1977
, I would not have
hesitated to increase his sentence. See
S
v Du Toit
1979
(3) SA 846
(A) at 855;
S
v Anderson
1964
(3) SA 494
(A) at 495 and
S
v Van Aardt
1975
(2) SA 372
(RAD).
18]
In the circumstances the following order is made:
ORDER:
The
appeal against sentence in respect of the first appellant (Boiki
Esau Lehole) on both count 1 and 2 is dismissed.
The
appeal against sentence in respect of the second appellant (Pakiso
Bennet Makoko) on count 2 is
upheld
and the sentence of 10 (ten) years imprisonment is substituted with
the following:
"The
accused 2 (Pakiso Bennet Makoko) is sentenced to 10 (ten) years
imprisonment of which 4 (four) years is suspended for
a period of 5
(five) years on condition that the accused is not convicted of
robbery or attempted robbery or an offence involving
violence to the
person of another and for which he is sentenced to imprisonment
without the option of a fine, committed during
the period of
suspension."
It
is ordered that the sentence imposed in respect of the second
appellant is, in terms of
s282
of the
Criminal Procedure Act, 51 of
1977
, antedated to 19 October 2009.
B.C. MOCUMIE, J
I
concur.
J.
B. MTHEMBU, AJ
On
behalf of the appellant: Adv. T.B. van Rensburg
Instructed
by: Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. M.A. Lencoe
Instructed
by: Director of Public Prosecutions
BLOEMFONTEIN