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[2008] ZAWCHC 320
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S v Mdolomba (CC103/2006) [2008] ZAWCHC 320 (13 February 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT. CAPE TOWN)
CASE
NO: CC103/2006
DATE: 13
FEBRUARY 2008
In the matter of:
THE STATE
versus
THOKOZILE MDOLOMBA
SENTENCE
HLOPHE, JP:
[1] Mr Mdolomba, a
little while ago I confirmed that you were properly convicted on the
nine counts in the court a quo. These nine
counts were read to the
record earlier; it is six counts of indecent assault, two counts of
assault with intent to do grievous
bodily harm and one count of rape.
[2] It would appear
that the victim in the respect of whom the rape charge and conviction
was made was not under the age of 16,
as we originally thought. Any
doubt with regard to the age of the victim must be given to the
accused person. The age of the victim
is important because by law
rape of a female who is under the age of 16 carries with it a
compulsory sentence of life imprisonment.
[3] In this case I
got the firm impression that counsel for the State, Mr Theron,
conceded, quite rightly in my view, that the compulsory
sentence of
life imprisonment is inapplicable.
[4] Your counsel
placed a number of personal factors on the record and this Court has
no intention of rehashing those factors. I
do want to highlight a few
of those factors however. The first relates to your age, you are now
49 years old, you are married with
eleven children, six of whom live
with you and your wife. It is also important that you have been
incarcerated since the 11th November
2005, for a period of just over
two years now.
[5] Prior to the
commission of the offence and the subsequent conviction, you had a
relatively stable job as a debt collector and
you also had some
private business interest as well. According to Exhibit B, being the
record of previous convictions which you
refused to sign, it is clear
that you do have relevant previous convictions.
[6] Mr Theron quite
rightly conceded that even though those previous convictions were
relevant insofar as they are crimes of violence,
nevertheless they
are older than ten years and therefore the Court had to discard them.
For all practical purposes therefore Mr
Mdolomba I will treat you as
a first offender for purposes of these proceedings.
[7] The three most
important factors which any court will take into account in deciding
on an appropriate sentence to be imposed
on a convicted person; these
are the crime, the interests of the criminal and the need to protect
society. Your personal circumstances
are already before Court and I
do not want to rehash them.
[8] Turning to the
second aspect, namely the crime, clearly three of the nine crimes of
which you have been found guilty are of
a serious nature. I am
referring to the two counts of assault with intent to grievous bodily
harm and rape. What the Court will
always take into account is the
nature of the crime, the seriousness thereof and the manner in which
the crime was committed.
[9] In this case
what makes it even more aggravating is the fact that you raped your
own biological daughter, something of which
you must be ashamed.
Rape is a crime of violence which entails the humiliation of the
victim of the crime. Furthermore, the victim
was your own biological
daughter who was aged about 16 years at the time and you would have
been about 33 years old. There was
such a huge age disparity between
yourselves and I regard the age disparity between yourselves, between
yourself as the father
and the child, in a rather serious light.
[10] Furthermore,
the fact that the victim of this crime, you own biological daughter,
would have felt very comfortable in your
presence and you abused that
relationship of trust.
[11] The kind of
sentence that I have in mind is the kind of sentence which will send
a clear message to the community that crimes
of this nature will not
be tolerated. It is the kind of sentence which will give you an
opportunity when you come out of prison
one day to rehabilitate and
be a better citizen of this country. For purposes of the sentence
which I am about to impose on you
I will take all nine counts as one.
[12] Accordingly,
having considered various sentencing options that are open to this
Court, I have come to the conclusion that direct
imprisonment is
called for. I will take account of the fact that you have already
been in prison for a period of just over two
years awaiting to be
sentenced today.
[13] Accordingly Mr
Mdolomba you are sentenced as follows: Seventeen years' direct
imprisonment. It is ordered that all nine counts
shall be taken
together as one for purposes of sentencing.
HLOPHE,
JP