IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG

CASE NUMBER A32/23
                                                   REGIONAL COURT CASE NUMBER PSH106/2020

IN THE MATTER BETWEEN

KENNETH ALBERT SITHOLE       					APPELANT

AND                                       

THE STATE                                    					RESPONDENT
                                                        JUDGEMENT: SENTENCE

CORAM: Mashile J and Manthata AJ

INTRODUCTION

[1]	 The appellant, Kenneth Albert Sithole, duly represented, was arraigned in the Regional Court Piet Retief on two counts, he pleaded not guilty and was convicted of rape in contravention of Section 3 of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007 read with sections 51(1) of the Criminal Law Amendment Act 105 of 1997, and pleaded guilty and was convicted of contravention of Section 49(1)(a) read with Sections1, 9(1), 9(3)(b), 10, 25 and 26 of the Immigration Act 13 of 2002 as amended. 

[2]	The appellant was sentenced to undergo life imprisonment in respect of rape and three (3) months imprisonment in respect of contravention of the Immigration Act. The sentences were ordered to run concurrently. No order was made in terms of section 103[1] of the Firearms and Ammunition Control Act 60 of 2000. The appellant remained unfit to possess a firearm. 

[3]	Unsatisfied with the life imprisonment sentence imposed, the appellant appeals against it and he enjoys an automatic right to appeal in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (CPA). Accordingly, this appeal concerns sentence of life imprisonment only.

GROUNDS OF APPEAL

[4]	The Appellant’s challenge to the Court a quo imposition of life imprisonment sentence is firstly, that the Court a quo misdirected itself in not finding that substantial and compelling circumstances exited for the court to deviate from imposing the prescribed minimum sentence. Secondly, the court a quo failed to consider the triad principle in the case of S v Zinn S v Zinn1969 (2) 537 A, the fact that the appellant is a first offender, that he spent 1 year and 8 months in custody awaiting trial, and that court a quo failed to consider the four objectives of punishment and misdirected in not finding that the Appellant can be rehabilitated. 

BRIEF FACTUAL BACKGROUND
	
[5]	The incident that led to the appellant’s conviction and sentence occurred on the Christmas day of 2018. The victim disappeared on that night and was found the following day laying on the ground. She was found by her grandmother with whom she stays as both the victim’s parents had passed on. The victim is a 24 years old woman with mental disability. According to Dr Johannes Paulus Victor, a psychologist, who assessed the victim, said the victim mental age is on the level of 3 years and 9 months old child while she is 24 years old indicating profound intellectual disability. She was impregnated as a result of the rape and DNA result proved that the appellant is the father of the child.

ISSUES

[6]	In the circumstances, the issue to be decided is whether the sentence of life imprisonment imposed by the court a quo is disturbingly or shockingly inappropriate and vitiated by misdirection.

LEGAL FRAMEWORK

[7]	A Court of Appeal will be entitled to interfere with the sentence imposed by the trial court if the sentence is disturbingly inappropriate or out of proportion to the seriousness of the offence. See: S v Romer 2011 (2) SACR 153 (SCA) para 22.

[8]. To determine if the sentence is suitable or appropriate the Court should consider the interest of the society, the seriousness and the prevalence of the crime, on the one hand, and the personal circumstances of the Appellant on the other.

[9]	As to the period spent in custody awaiting trial, the court held in the case of S V M 2007 (2) SACR 60 W that since life sentence is indeterminate, time spent in custody awaiting trial not capable of being subtracted from sentence and thus not substantial and compelling circumstances.

[10]	In S v C 1996 (2) SACR 181 C at 186 E-F the court stated: “Rape is regarded by Society as one of the most heinous of crimes, and rightly so. The rapist does not murder his victim. He murders her self-respect and destroys her feeling physically and mentally and security. His monstrous deed often haunts his victim and subjects her to a mental torment to the rest of her life, a fate often worse than loss of life.”

[11]	The offence for which the Appellant is convicted is governed by section 51(1) of the Criminal Law Amendment Act. The court must therefore consider whether or not the seriousness of the offence, the personal circumstances of the Appellant, and interests of justice are substantial and compelling as envisaged in the Act.  If they are, this Court will be entitled to interfere with the sentence, and if they are not, there will be no interference. 

ANALYSIS

[12]	The personal circumstances to which the Court a quo was implored to have regard were that the Appellant was aged 36 years old, unmarried with three children aged 13, 7 and 3 years old respectively. That the children are receiving social grant. He is unemployed and depends on odd jobs.

[13]	In aggravation of sentence, the State contended that the Appellant impregnated a mentally disabled woman, a vulnerable member of the society and who is now burdened with a child. The Appellant did not show any remorse despite overwhelming evidence against him. 

[14]	 The Court a quo only considered the personal circumstances of the Appellant and the fact that he raped a mentally disabled woman. On that basis, it is argued that the Court a quo misdirected itself in not considering that the Appellant is a first offender, had spent one (1) year and eight (8) months in custody awaiting trial and that he is a candidate for rehabilitation.  

[15]. The fact that the Appellant is a first offender, that he spent one (1) year and eight (8) months in custody and that he is rehabilitated, were not presented to the Court a quo, they are only raised in this appeal.

[16]	A classical case where the appellant failed to testify and the trial court failed to ascertain what factors constitute substantial and compelling circumstances, is Kwinda v The State (076/14) [2014] ZASCA 136 (25 September 2014) in which Mathopo AJA (Brand and Mbha JJA concurring) had this to say:
“The appellant did not testify and inexplicably his counsel did not address the court in mitigation of sentence nor adduced any evidence aimed at establishing whether substantial and compelling circumstances existed to justify a departure from the prescribed sentence. It also does not appear from the record that the trial judge ascertained what may constitute mitigating factors or substantial and compelling circumstances. The reluctance on the part of the appellant and his counsel to adduce evidence to assist the court in establishing whether substantial and compelling circumstances existed to justify the imposition of a lesser sentence could have occurred as a result of the appellant having realised that the evidence against him was overwhelming and that it would be futile to attempt to convince the court otherwise. This is the choice that the appellant made and it is also not without consequences. As a result of the strategy adopted by the appellant in the court below, there were no facts placed before the trial court to determine what constitutes mitigation and/or substantial and compelling circumstances”.

[17]	The Supreme Court of Appeal in Kwinda case, supra, went on to deal with factors needed to be considered in determining an appropriate sentence despite the court a quo having failed to consider such and confirmed the sentence. This is what this court is going to do.

[18]. Dealing with the rape itself, there is no doubt that rape is a very serious offence. The seriousness of this rape is compounded by the fact that the appellant raped a 24 year old woman who had the mental age of a 3 year old and who was unable to defend herself or call for help. The appellant had impregnated her as a result of the rape. See, S v C 1996 (2) SACR 181 C.

[19]	The submission that the court a quo did not consider the four objectives of punishment and misdirected itself by not finding that the appellant can be rehabilitated without sentencing him to a term of imprisonment is unsustainable, in S v Ro and Another 2010 (2) SACR 248 (SCA) para 15. the majority of the Supreme Court of Appeal held that: “To elevate the personal circumstances of the accused above that of society in general and the victims in particular would not serve the well-established aims of sentencing, including deterrence and retribution”. In serious cases like the rape in this case deterrence and retribution must play a major role as to rehabilitation of the offender. 

[20]	Having considered the factors in this case I find that there is no misdirection on the part of the court a quo in imposing the sentence of life imprisonment. The sentence is not disturbingly or shockingly inappropriate and is undoubtedly one befitting the crime committed by the appellant.

[21]	I therefore find that no interference will be justified with the trial court’s exercise of its discretion in imposing the sentence of life imprisonment.

ORDER

[22]    In the result, I propose the following order:

      The appeal against sentence is dismissed. 

									
________________________
MANTHATA AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA

I agree

___________________________
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA

Delivered:  This judgment is handed down electronically by email to the parties.

Counsel for the Appellant: 		Mr Buthelizi NB
					No 17 Cnr Botha and Northey Street
					Middelburg Local Office 
					Emalahleni
					1039
					NtokozoB@legal-aid.co.za

Counsel for the Respondent:		Ms B E Maoke
Instructed by:				Director of Public Prosecutions
					Middelburg
					BEmaoke@npa.gov.za