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[2024] ZAECMKHC 110
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Halitile v S (Appeal) (CA&R88/2024) [2024] ZAECMKHC 110 (11 October 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case Number.:
CA&R88/2024
In the matter between:
LUVO
HALITILE
Appellant
and
THE
STATE
Respondent
JUDGMENT –
CRIMINAL APPEAL
Beshe
J
[1]
The appellant stood trial on a rape charge before the Regional Court
sitting in East London. He was
alleged to have committed acts of
sexual penetration with Ms V[...] M[...] without her consent. The
offences were alleged to have
been committed on the 11 June 2016.
Having pleaded guilty to the charge, he was convicted on the basis of
his plea on the 14 June
2017. It was on the same day that he was
sentenced to imprisonment for life. He is now appealing against the
sentence imposed on
the basis
inter alia
, that the trial court
misdirected itself by over emphasising the seriousness of the offence
and by not placing enough emphasis
on the appellant’s personal
circumstances.
[2]
The appeal is opposed by the state on the
basis that the sentencing court exercised its discretion
judiciously
and did not commit any misdirection when assessing whether
substantial and compelling circumstances existed. Section
51(1) of
the Criminal Law Amendment act 105 of 1997 requires that a court if
it has convicted an accused of an offence such as
the one committed
by accused, namely, rape where the victim was raped more than once
whether by the accused or by a co-perpetrator
or accomplice, to
sentence such an accused to life imprisonment. The imposition of a
lesser sentence is permissible if the court
is satisfied that
substantial and compelling circumstances justifying that lesser
sentence exist (Section 51(3)(a)). The court
a quo
having
considered all the circumstances of this case concluded that there
were no substantial and compelling circumstances justifying
a lesser
sentence.
[3]
It is by now settled law that in determining
the existence of or otherwise substantial and compelling
circumstances and whether or not to deviate from the prescribed
sentence, the factors that are traditionally taken into account
for
sentencing continue to pay a role. It is trite that a sentence must
fit the crime, the offender and be fair to society.
[4]
The trial court was urged to consider the
following factors as constituting substantial and compelling
circumstances warranting the imposition of a lesser sentence:
The
fact that appellant pleaded guilty to the charge. The submission
being made that by so doing he exhibited remorse, a factor
he also
expressed in the statement he made in terms of
Section 112(2)
of the
Criminal Procedure Act 51 of 1977
. In the said statement the
following was stated in this regard: “I am remorseful of my
action and request the court to be
lenient when imposing a sentence”.
It was further submitted that being 24 years old, appellant can be
categorised as being
young/youthful. Furthermore, that no gratuitous
violence was used, even though he threatened the complainant.
[5]
This was countered by the respondent by
suggesting that aggravating circumstances outweighed whatever
factors
may be favourable to the accused. The public prosecutor highlighted
the prevalence of this type of offence in circumstances
where the
complainant would have boarded a vehicle as a fare paying passenger,
being taken on a detour instead of her intended
destination where she
is then raped, as it happened to the complainant in this matter. At
24 years of age, there is no evidence
to show that he was immature,
so the argument went. Accused humiliated the complainant by forcing
her to suck his penis. He left
the complainant to fend for herself in
the middle of nowhere around 21h00 in the evening. He did not use
protection when he raped
her. We also know that the incident caused
the complainant a great deal of anguish and psychological trauma.
[6]
It is trite that the power of an appellate
court to interfere with a sentence that was imposed by the
trial
court is circumscribed. This was also acknowledged by counsel for the
appellant with reference to previously decided cases
in their heads
of argument. An appellate court may only do so if the sentence is
vitiated by (1) an irregularity;
(2)
misdirection; or
(3) is one which no
reasonable court could have imposed.
In
casu
, it was submitted that the court
a quo
committed a
misdirection by overemphasising the seriousness of the offence and by
not placing enough emphasis on the appellant’s
personal
circumstances. It was also suggested that the sentence imposed is
unreasonable.
[7]
In S v PB
2013 (2) SACR 533
SCA at 539
paragraph [20], the following instructive remarks were made regarding
the approach by an appeal court when considering
an appeal against a
sentence that was imposed as envisaged in the Minimum Sentence
regime:
‘
[20]
What then is the correct approach by a court on appeal against a
sentence imposed in terms of the Act? Can the appellate court
interfere with such a sentence imposed by the trial court’s
exercising its discretion properly, simply because it is not
the
sentence which it would have imposed or that it finds shocking? The
approach to an appeal on sentence imposed in terms of the
Act should,
in my view, be different to an approach to other sentences imposed
under the ordinary sentencing regime. This, in my
view, is so because
the minimum sentences to be imposed are ordained by the Act. They
cannot be departed from lightly or for flimsy
reasons. It follows
therefore that a proper enquiry on appeal is whether the facts which
were considered by the sentencing court
are substantial and
compelling, or not.
’
[8]
I am inclined to agree with the
representative for the state that mitigating factors were outweighed
by the aggravating circumstances and that such mitigating factors
were neutral. Granted that this may have been accused’s
first
conviction for a sexual offence. But regarding the suggestion that
his age and the fact that he pleaded guilty thereby showing
a sign of
remorse were not given due weight by the trial court, I take note of
what was stated in S v Matyityi
2011 (1) SACR 40
SCA. I can do no
better than quote directly from the said judgment in this regard at
paragraph 14 a-c:
‘
Thus,
whilst someone under the age of 18 years is to be regarded as
naturally immature, the same does not hold true for an adult.
In my
view a person of 20 years or more must show by acceptable evidence
that he was immature to such an extent that his immaturity
can
operate as a mitigating factor. At the age of 27 the respondent could
hardly be described as a callow youth. At best for him,
his
chronological age was a neutral factor. Nothing in it served, without
more, to reduce his moral blameworthiness. He chose not
to go into
the box, and we have been told nothing about his level of immaturity
or any other influence that may have been brought
to bear on him, to
have caused him to act in the manner in which he did.’
[9]
Regarding pleading guilty to a charge, the
following was stated at paragraph [13].
‘
[13]
Remorse was said to be manifested in him pleading guilty and
apologising, through his counsel (who did so
on his behalf from the
bar) to both Ms KD and Mr Cannon. It has been held, quite correctly,
that a plea of guilty in the face of
an open and shut case against an
accused person is a neutral factor. The evidence linking the
respondent to the crimes was overwhelming.
In addition to the stolen
items found at the home of his girlfriend, there was DNA evidence
linking him to the crime scene, pointings-out
made by him, and his
positive identification at an identification parade. There is,
moreover, a chasm between regret and remorse.
Many accused persons
might well regret their conduct, but that does not without more
translate to genuine remorse. Remorse is a
gnawing pain of conscience
for the plight of another. Thus genuine contrition can only come from
an appreciation and acknowledgement
of the extent of one’s
error. Whether the offender is sincerely remorseful and not simply
feeling sorry for himself or herself
at having been caught, is a
factual question.’
These
observations apply with equal force in this matter. By concluding
that there were no substantial and compelling circumstances
justifying a lesser sentence the court
a quo
seems to have
exercised its discretion judiciously and did not misdirect itself and
therefore cannot be faulted. The appellant’s
personal
circumstances did not amount to substantial and compelling
circumstances.
[10]
Consequently, the appeal against sentence is
dismissed.
N G BESHE
JUDGE OF THE HIGH
COURT
ZILWA J
I agree.
P ZILWA
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Appellant :
Adv:
D. P. Geldenhuys
Instructed
by :
LEGAL
AID SOUTH AFRICA
69
High Street
MAKHANDA
Ref.:
Mrs H McCallum
Tel.:
046 – 622 9350
For
the Respondent :
Adv:
H. Obermeyer
Instructed
by :
DIRECTOR
OF PUBLIC PROSECUTIONS
94
High Street
MAKHANDA
Ref:
Mrs Turner
Tel.:
046 – 602 3000
Date
Heard
:
9
October 2024
Date
Reserved
:
9
October 2024
Date
Delivered
:
11
October 2024