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[2008] ZAWCHC 277
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Botha v S (A251/2008) [2008] ZAWCHC 277 (25 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A251/2008
DATE
:
24
OCTOBER 2008
In
the matter between:
HEIN
BOTHA
versus
THE
STATE
JUDGMENT
MAQUBELA,
A J
:
The
appellant was found guilty and sentenced on 18 February 2003 on three
counts as follows: count 1, attempted murder, ten years
direct
imprisonment; count
2,
rape,
15 years direct imprisonment; count 3, robbery, five years direct
imprisonment. The trial court further ordered that counts
1 and 3
were to run concurrently. The appellant is therefore serving an
effective sentence of 25 years imprisonment.
The
appellant applied for leave to appeal against both conviction and
sentence on 19 February 2008. Leave to appeal was granted
against sentence only. He now pursues the appeal against sentence.
The
main grounds of appeal against sentence are that the magistrate did
not take into account the cumulative effect of the sentences
imposed
in respect of multiple counts flowing from one incident, that he
disregarded the personal circumstances of the appellant
and that the
magistrate therefore erred in imposing a sentence which is shockingly
inappropriate in the given circumstances.
The
facts of the case appear from the judgment of the trial, Court which
found that on 11 November 2000, at or near Delmar Street,
Bellville
South, the accused unlawfully and with intent assaulted the
complainant, Ms Edwina Afrikaner by stabbing her, throwing
her on the
ground, kicking her, trampling her body and beating her with unknown
objects and inflicting violence on her with intent
to commit murder.
At the same day and place each of the accused raped the complainant
in turn. They also robbed her of her jewellery,
clothes, dentures,
shoes and gold earrings. The total value of these possessions was
some R4 000,00.
All
four accused had pleaded not guilty, but the Court found all four
guilty as charged.
Accused
No 3 appealed against his conviction and sentence, whilst accused No
4 initially appealed against his conviction only. Accused
No 3s
appeal against conviction succeeded, while No 4's conviction was
confirmed, but his sentence was altered to an effective
one of 18
years imprisonment. The reason for the partial success of the appeal
was to counter the cumulative effects of the sentences,
which,
according to Veldhuizen,
J
"was
buitensporig swaar".
The
guidelines in appeals against sentence were set out succinctly in
S
v Maloas
.
2001(1) SACR 469 (HAA)
r
where it was said:-
uThe
test for interference in sentences on appeal were evolved in order to
avoid subverting basic principles that are fundamental
in our law of
criminal procedure, namely that the imposition of sentence is the
prerogative of the trial court for a good reason,
and that it is not
for appellate courts to interfere without the exercise of discretion
unless it is convincingly shown that it
has not been properly
exercised. The adjectives, "shocking", "startling",
"inappropriate" and the
fike that have been employed to
drive that point home should not
simply
be appropriated indiscriminately for use in a situation which is very
different."
Also,
according to "
Terblanche's
Guide to Sentencing in South Africa
"
at page 138:-
"Conststency
in sentencing has the basic function of requiring that similar
sentences should be imposed when similarly placed
offenders commit
similar crimes/'
However,
on page 139 the learned author states that:-
"Consistency
does not require that exactly the same sentence should be imposed in
similar cases."
Judgment
of Veldhuizen, Judge, in the appeal of co-accused Nos 3 and 4,
dealing as it does with the same offence, although different
accused,
has relevance in regard to the present appeal insofar as it may point
towards an appropriate sentence and at the same
time establish an
expectation of consistency in the sentencing of the appellant and his
fellow-accused. However, the mere fact
that accused No 4s effective
sentence was reduced to 18 years does not mean that the present
appellant can expect the
same result.
Accused's
personal circumstances and his particular role in the offences must
be taken into account.
One
other guideline I consider relevant in this appeal is the view
expressed in the case of
R
v Zonele and Others
,
1959(3), SALR
r
page 319 (AD), where at page 330, it was said:-
"Gene
rally speaking, previous convictions aggravate an offence because
they tend to show that an accused has not been deterred
by his
previous punishments from committing the crime under consideration in
a given case."
The
questions, therefore, to be answered, are whether indeed the trial
court properly took into account the cumulative effect of
the
sentences imposed in respect of multiple counts flowing from one
incident, and also whether the personal circumstances of appellant
were disregarded or not. The overall question is whether, in the
circumstances, the trial court imposed a sentence which is
disturbingly
inappropriate.
The
answer to the above questions can best be made by looking at the
triad of the appellants personal circumstances, his rofe in
the
crimes of which he had been convicted, also the seriousness or
otherwise of the offences, and the interests of the community.
A
reading of the record reveals that the appellant played a leading
role in the events of the day in question. It is also
clear from
the record that this was a brutal and violent gang- rape. The assault
on an innocent and defenceless woman
was particularly vicious.
The
appellant himself hit the complainant with a plank, kicked her head,
removed her clothing and was the first to rape her. Appellant
had six
previous convictions, including two for robbery. He had been released
on parole barely a month before he committed the
present offences.
Clearly this is a case where the interests of society must take
priority.
Personal
circumstances of the appellant themselves are not remarkable, they
are largely outweighed by the seriousness of the crimes
and the
interests of the community.
It
appears from the record that the appellant was part of the so-called
Fanta Kids Gang, or a gang of sorts anyway, a factor which
acts as an
aggravating circumstance as far as I consider the matter.
The
Court must obviously consider whether there are any possible
mitigating circumstances. The most compelling such factor to
me is
the fact that appellant had already been in custody for two years and
three months as an awaiting-trial prisoner before sentencing.
Taking
all these circumstances into account and in particular the fact that
all three offences arose out of the same incident, I
consider that
the magistrate did indeed err in not giving sufficient weight to the
cumulative effect of the sentences. I consider
further that,
notwithstanding the aggravating factors present, the effective
sentence of 25 years is disturbingly inappropriate,
with the result
that this Court is entitled to interfere with the sentence.
Taking
into account the seriousness of the crime and the interests of
society which requires protection against, in particular,
brutal and
violent crimes against women and children, I consider that an
appropriate effective sentence would be one of
20
(TWENTY) YEARS IMPRISONMENT
.
In the result, I would allow the appeal and make the following
order:-
The
appeal against sentence is
UPHELD
.
The
sentences of 10, 15 and five years imprisonment imposed on counts 1,
2 and 3 respectively are confirmed, but it is ordered
that the
sentence imposed on count 3 will run concurrently with that imposed
on count
2,
whilst
five years of the sentence imposed on count 1 will afso run
concurrently with the sentence imposed on count 2
r
thereby
producing an effective sentence of
20
(TWENTY) YEARS IMPRISONMENT
.
MAQUBELA,
AJ
I
agree and it is so ordered
BOZALEK,
J