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[2006] ZANCHC 116
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S v Phakathi (K/S 8/2005) [2006] ZANCHC 116 (15 September 2006)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: K/S 8/2005
Heard:
13/09/2006
Delivered:
15/09/2006
In
the matter:
Billy
Phakathi Applicant
and
The
State Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
Tlaletsi
AJP:
This is an application for leave to
appeal against sentence. The applicant was convicted on one count
of Housebreaking with intent
to steal and theft (count 1) and two
counts of Rape (count 2 & 3) of the same woman. For count one
he was sentenced to three
years imprisonment and the two counts of
Rape were taken together for the purpose of sentence and was
sentenced to 18 years imprisonment.
The applicant was sentenced on 22
February 2006. He noted his application for leave to appeal on 2
March 2006 and was received
by the Registrarâs Office on 14 March
2006. There is no doubt that the delay was caused by the postal
services. He cannot be
blamed for the delay as it cannot be
expected of him to be released from prison to attend to service of
the application.
The grounds of appeal are:
The court erred by
imposing an effective sentence of 18 years which is under the
circumstances shockingly inappropriate;
The court erred by overemphasizing
the seriousness of the offences and the interests of the community
over his personal circumstances;
The court erred by not ordering
that half of the 18 years imprisonment should run concurrently with
the other half. By this he
means that he should only serve an
effective sentence of 9 years imprisonment for the two rapes;
The court ignored the fact that
the complainant did not sustain serious bodily injuries and that he
(the applicant) is a âgood
citizenâ capable of rehabilitation.
I have in my judgment on sentence
dealt in much detail all factors taken into account for purposes of
sentence. I do not wish to
burden this judgment with the repetition
of the judgment. Suffice to state that the applicant and his
co-perpetrator broke into
the house where the complainant was
sleeping in order to steal. To their surprise when they noticed the
presence of the complainant,
they raped her. The co-perpetrator
raped her once and the applicant raped her twice. They both
ransacked the house and stole
some items belonging to the
complainantâs boyfriend. The applicantâs co-perpetrator
testified for the state and corroborated
the complainant and the
other state witness. This was after he had pleaded guilty and his
trial separated from that of the applicant.
The applicant was a candidate for
life imprisonment. I found that there are substantial and
compelling circumstances. In my view
the applicant should instead
regard himself fortunate to have escaped life imprisonment and only
serve 18 years for all his criminal
deeds. I am not persuaded that
there are prospects of success on appeal against sentence. On the
contrary he runs the risk of
increase in sentence. Mr Cloete who
appeared on behalf of the applicant could also not point any
misdirection that would cause
an appellate court to interfere with
sentence to the benefit of the applicant.
In the result I make the
following order
:
The application for leave to
appeal is dismissed
.
________________________
L
P TLALETSI
ACTING
JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
For
the Applicant: Adv P J CLOETE
Instructed
by: Legal Aid Board
For
the Respondent: Adv T BARNARD
Instructed
by: Director of Public Prosecutions