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[2006] ZAWCHC 86
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S v Dotwana (SS68/2006) [2006] ZAWCHC 86 (11 October 2006)
SENTENCE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS68/2006
DATE
:
11
OCTOBER 2006
In
the matter between:
THE
STATE
and
THEMBALANI
DOTWANA
SENTENCE
HLOPHE,
JP
:
Mr
Dotwana for purposes of sentence, I am going to treat all four counts
as one. Not so long ago I confirmed that you were convicted
properly
by the lower courts and now we are reaching a stage when I have to
decide on an appropriate sentence to be meted out to
you.
Let
me tell you what goes through the mind of any judicial officer when
he has to sentence. There are three factors that are normally
taken
into account, it is the crime, the criminal and the interest of the
community. Let us deal with crime, rape, and in your
case it is two
counts of rape, is a very serious crime which involves the invasion
of a woman's privacy. What makes it even worse
in your case is the
fact that you abused the relationship of trust, the complainant is
your stepdaughter. At the time when these
crimes were committed, you
were living together and you are still married to the mother of the
complainant.
If
we turn to the interest of the criminal, I am not going to rehash
that, because it has already been captured electronically when
you
gave evidence earlier today. I do want to say even though you were
convicted of theft in 1992 and you were sentenced accordingly,
I am
going to disregard that in its entirety for purposes of today. It is
an irrelevant previous conviction completely. A further
reason for
disregarding it, is because it occurred in 1992, it is more than ten
years old. I have no intention to rehash the evidence
that you led,
except to say that for all practical purposes I am going to treat you
as a first offender.
Turning
to the third factor, the need to protect the interest of the
community. That is a very important factor, because crimes
of this
nature, rape, particularly in the Western Cape, are on the rise.
More and more every day our courts are flooded because
of rape cases.
I have no doubt that women, and particularly young children, are the
most vulnerable groups in our communities and
there is no doubt to my
mind that they are looking up to these courts for protection against
people who commit crimes of this nature.
The
kind of sentence that I will impose, will also give you an
opportunity to rehabilitate, regard being had to your age, of course,
you are now 35 years old. The law is very simple in this regard. An
accused person who has been found guilty of rape of this magnitude,
must be sentenced to life, unless there are compelling and
substantial factors dictating otherwise. I have no intention to
sentence
you to life imprisonment, Mr Dotwana. In my judgment, indeed
there are substantial and compelling factors which dictate otherwise.
Cumulatively speaking, within the authority
S
v Malgas
,
the fact that, number 1, you have been in prison for almost a year
now and, of course, the fact that you are a first offender.
These
factors, in my judgment, are such that they dictate that I should not
impose life sentence on you.
That,
however, does not mean that I am not going to sentence you. I have
taken account of the evidence led by your wife earlier
regarding the
financial hardship that they have experienced since your
incarceration about a year ago. I have taken that into
account.
However, as Ms
Greylinq
,
who appeared for the state, highlighted, it would be a sad day if
criminals were to walk free purely on the basis that should
they be
imprisoned, their next of kin would suffer. If anything, there is a
real risk that if that approach were to be followed,
the citizens
would be encouraged thereby to take the law into their hands, and
that we can ill afford as a young democracy.
I
have taken all other factors into account that need to be taken into
account for purposes of deciding on an appropriate sentence.
Having
taken all other factors that need to be taken into account, I am
satisfied that a period of direct imprisonment is indeed
called for,
particularly in the light of the seriousness of the crimes of which
you have been convicted. I am satisfied that a
period of 18 years
direct imprisonment is the sentence that must be imposed on you.
Accordingly
YOU
ARE SENTENCED TO 18 (EIGHTEEN) YEARS DIRECT IMPRISONMENT.
HLOPHE,
JP
24/11/2011