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2009
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[2009] ZAFSHC 135
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S v Mokoena [2009] ZAFSHC 135 (10 December 2009)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: A272/2006
In
the case between:
THE
STATE
and
JOSEPH
MOKOENA
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD
ON:
21 SEPTEMBER 2009
_____________________________________________________
DELIVERED
ON:
10 DESEMBER 2009
_____________________________________________________
[1] This is an appeal by
the state for leave to appeal against the sentence. I sentenced the
respondent on the 10
th
November 2006. I imposed on him a sentence of 10 years imprisonment
which I wholly and conditionally suspended. The respondent
opposes
the application.
[2] Mr Pienaar, counsel
for the applicant, contended that I committed a material misdirection
in sentencing the respondent as I did.
He argued, therefore, that I
improperly exercised the sentencing discretion entrusted to me by
entirely suspending the sentence.
Accordingly he submitted that
there were reasonable prospects of success on appeal.
[3] Mr Reyneke, counsel
for the respondent, differed. He contended that I committed no
misdirection at all in the light of the particular
circumstances of
the case particularly those of the respondent. His argument was
that, on the facts, it could not be convincingly
submitted that I
improperly exercised the discretion I had. Therefore, he made the
submission that there were no reasonable prospects
of success on
appeal.
[4] At the time of the
crime the respondent was an adult male and mentally impaired. At the
same time the victim was a minor girl
who was also mentally impaired.
In the absence of substantial and compelling circumstances, life
imprisonment was supposed to have
been an appropriate prescribed
minimum sentence. The respondent was liable to such punishment on
two distinct grounds because the
victim was doubly vulnerable. In
the instant case, the two counsels were
ad
idem
that there were substantial and compelling circumstances which
justified a departure from the prescribed minimum sentence.
[5] At paragraph 12 of
the sentence component of the judgment I enumerated and recorded the
factors which moved me to make the critical
finding that the
interests of justice required deviation from the prescribed minimum
sentence. I deem it unnecessary to recite them
here.
[6] The
crux
of the matter was and still is the question: To what extent can a
court deviate from the prescribed minimum sentence once it has
found
that substantial and compelling circumstances exist?
[7] The submission by Mr
Pienaar seems to suggest that where there is a prescribed minimum
sentence for a crime, as in the instant
case, a wholly suspended
sentence is
ipso
facto
ruled
out as a sentencing option. Such a proposition appeared to be at
odds with the sentencing discretion entrusted to a judge.
I find it
untenable. I am not certain whether the exercise of such a
discretion is so rigidly demarcated that one may say that
there is a
bottom line beyond which the court cannot go.
[8] There is no specific
provision in the applicable legislation, namely: The
Criminal Law
Amendment Act, 105 of 1997
, which curtails the exercise of the
sentencing discretion in the manner, suggested. I was not referred
to any specific authority
and I am not aware of any to support such a
proposition. In exercising its sentencing discretion, there is no
sentencing option
too lenient for a court to consider. It seems to
me that if the wholly suspended sentence was no longer an option in
circumstances
such as these the provision to such an effect would
certainly have been inserted in the aforesaid legislation.
[9] The court has, of
course, no unfettered discretion. It is bound to exercise its
discretion judiciously taking into account all
the factors relevant
to the difficult matter of sentencing. In doing so a court has to
remain conscious and mindful that in certain
serious and prevalent
crimes such as rape of minor female children a prescribed minimum
sentence has been ordained as a sentence
which must ordinarily be
imposed â
S
v MALGAS
2001 (1) SACR 469
(SCA) at para 18 on p. 480b-c.
[10] The aforesaid
passage means that even if the court finds justifiable reasons for
zooming out of the compulsory sphere of sentencing
into the
discretionary sphere of sentencing, the benchmark has to be
constantly kept in mind. However, it does not follow from this
that
there exists a defined barrier a court cannot cross, in its search
for an appropriate punishment, where the prescribed minimum
sentence
cannot be imposed. In this case,
S
v MALGAS
supra
,
at para 25 there are truly objective and compelling reasons not only
for a different response but a substantially different response.
[11] It will therefore be
readily appreciated that flexible ways do exist which circumscribe
the bounds of the sentencing discretion.
They are designed to
minimise abuse of power, an evil inherently present in the exercise
of a discretion and to promote proper and
judicial exercise thereof.
[12] In sentencing the
respondent I was alert and mindful of the sentencing principles.
Sentencing him was no easy task. It was
not a walk in the park.
However, when this application was argued, I had a rare opportunity
of seeing the respondent. I am indebted
to Mr Reyneke for the
initiative and the trouble he took by ensuring that the respondent
attended these proceedings. Seeing the
respondent convinced me even
more about the appropriateness of the sentence I imposed on him. I
could not ignore the fact that he
had already spent approximately two
years incarceration at the time I sentenced him.
[13] Ours would be a
society that has lost its soul if an effective jail term, over and
above such incarceration, were to be imposed
on an offender
irrespective of his peculiar and personal circumstances identical to
those of the respondent. We are not a heartless
society which
condemns its weak, vulnerable and intellectually impaired members
without any compassion and throws them into the deep
donjons of
prison because there is no precedent of a rapist who had previously
ever been given a wholly suspended sentence.
[14] On the facts, I am
not persuaded that I committed such a material misdirection in
sentencing the respondent as I did. The disparity
between the
sentence I imposed and the sentence which a court with appellate
jurisdiction would probably have imposed would not,
on the facts,
have been so huge as to warrant any interference. I am not persuaded
that another court would, on those facts, have
come to a different
conclusion.
[15] In my judgment, it
appears that there are no reasonable prospects of success in this
matter should the appellant be allowed to
go on appeal. I am
persuaded by Mr Reynekeâs submission that it cannot be said in the
circumstances of this case that the sentence
I imposed on the
respondent is shockingly lenient to warrant any interference on
appeal. He also submitted that there are no reasonable
prospects of
success in this matter. There was substance in the submission.
[16] In the result the
application for leave to appeal is refused.
______________
M. H. RAMPAI, J
On behalf of
applicants: Adv. T. Pienaar
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
On behalf of
applicant: Adv. D. Reyneke
Instructed by:
The Justice Centre
BLOEMFONTEIN
/em