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IN THE NORTH WEST HIGH COURT

MAFIKENG

CA: 23/13

DATE: 19 FEBRUARY 2015

In the matter between:

MOKGANTSI TUMELO WILLIAM.....................................................................................Appellant

And

THE STATE............................................................................................................................Respondent

CRIMINAL APPEAL

GURA J, KGOELE J

DATE OF HEARING : 30 JANUARY 2015

DATE OF JUDGMENT : 19 FEBRUARY 2015

FOR THE APPELLANT : Adv. Gongxeka

FOR THE RESPONDENT : Adv. S. Jika

JUDGMENT

KGOELE J:

[1] The appellant was charged with the offence of Rape of a 15 years old female, R….. S….. at the Regional Court of Mmabatho. He pleaded guilty to the charge and was consequently convicted solely on his plea. He was sentenced to life imprisonment. His appeal before this Court is against sentence only.

[2] Like many other cases where the accused pleads guilty, the factual background about how the incident occurred in this matter is scanty. He only mentioned in his statement that on the day of this incident he met the complainant and made a suggestion to her to accompany him to his place, whereupon complainant agreed. Upon arrival he had sexual intercourse with her without her consent.

[3] The appellant also applied for condonation of the late filing of his appeal. The explanation he gave reveals that he communicated his intention to note his appeal immediately after his sentence was meted out on the 14th June 2011. It is also clear from his explanation that the delay was mainly occasioned by the fact that he applied for Legal Aid and for the record of the proceedings to be transcribed, which fault cannot be attributed to him as a lay person. Coupled with the fact that there was sufficient prospect of success in his appeal, the condonation for the late application of his appeal was granted.

[4] The appellant’s main grounds of appeal were enumerated as follows in his notice of appeal;

4.1 The sentence of life imprisonment is unduly harsh and shockingly inappropriate;

4.2 The court failed to adequately consider the mitigating factors of the appellant;

4.3 The court failed to balance the triad factors;

4.4 The court failed to consider the fact that accused pleaded guilty to the charge;

4.5 The court failed to apply a measure of mercy to the appellant.

[5] The personal circumstances that served before the trial court were as follows:-

• The appellant was 25 years old at the time of the incident;

• He was gainfully employed at a diary pot earning R800-00 per month;

• His child was one year old at the time;

• He pleaded guilty and showed remorse;

• There was no mention of violence as he suggested to the complainant to accompany him and she agreed;

• He was a first offender;

• He spent +- 2 years and 6 months in custody;

• No victim impact report was submitted in aggravation of sentence.

The trial court found no substantial & compelling circumstances to deviate from the prescribed sentence of life.

[6] The crux of the submissions made by the appellant’s Counsel revolves around the issue that the trial court failed to attach a proper weight to the appellant’s personal circumstances and unduly overemphasized the interest of society. Counsel for the respondent conceded to the submissions made the appellant’s Counsel that the trial court erred in finding that there were no substantial and compelling circumstances that would have warranted it to deviate from imposing the minimum prescribed sentence of life imprisonment. I am of the view that the concession was correctly made.

[7] It appears from the record of the proceedings that the trial court overlooked the personal circumstances of the appellant as the two Counsel submitted. This is borne out by the following extracts from the sentencing proceedings which consisted of two and a half page of the typed record:-

“Well the court had done exactly that, you know, looked at the personal circumstances of the accused. The accused, I believe that what he only mentioned is that he has a one year old child whose mother is unemployed and that he, at the time of his arrest was employed and earning R800-00 per month, and he was sharing that money with that small child.

So I can see that he was arrested on 25 December 2008. It means that it was at that time when he was arrested that he was earning such amount of money and I believe that he then stopped maintaining that child from that period, from that time because he has been all the time kept in custody and that means that the child has been maintained by somebody or maybe by the grants or whatever. The child has been assisted in one way or the other and it is more than two years, you know, if you count if from 25 December 2008, so that is the only thing that the court detected from what he said and I do not think that that can be classified as substantial and compelling circumstances”. [My own emphasis added]

[8] From the above quotes it appears that the trial court only paid lip service to the applicant’s personal circumstances. The first part of this extract indicates that the trial court did not consider other factors the appellant’s legal representative mentioned to wit: “appellant was a first offender and that he was 25 years of age”. This is furthermore borne out by the fact that the last part of this extract indicates that the only thing that counted in favour of the appellant at that time was: “the time he spent in custody”. In my view, the trial court misdirected itself in this regard.

[9] I find the following remarks by Majiedt J A in the matter of S v SMM 2013 (2) SACR 292 (SCA) apposite in this matter:-

“I hasten to add that it is trite that each case must be decided on its own merits. It is also self-evident that sentence must always be individualised, for punishment must always fit the crime, the criminal and the circumstances of the case. It is equally important to remind ourselves that sentencing should always be considered and passed dispassionately, objectively and upon a careful consideration of all relevant factors. Public sentiment cannot be ignored, but it can never be permitted to displace the careful judgment and fine balancing that are involved in arriving at an appropriate sentence. Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interest of society. Sentencing involves a very high degree of responsibility which should be carried out with equanimity. As Corbett JA put it in S v Rabie:-

‘A judicial officer should not approach punishment in a spirit of anger because, being human, that will make it difficult for him to achieve that delicate balance between crime, the criminal and the interest of society which his task and the objects of punishment demand in him. Nor should he strive after severity, nor, on the other hand, surrender to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressure of society which contribute to criminality’.

[10] The following can be singled out from the personal circumstances of appellant and in my view, amount to factors that weigh heavily in favour of the appellant;-

• He was a first offender;

• He pleaded guilty to the charge;

• He spent 2 years and 6 months in custody as an awaiting trial prisoner;

• His age counts favourably for rehabilitation purposes;

[11] It is apparent that if these factors are cumulatively taken together with other personal circumstances of the appellant, they constitute substantial and compelling circumstances that should have warranted the trial court to deviate from imposing the prescribed minimum sentence of life imprisonment. As against these mitigating factors it must also be considered that the appellant raped a child who was under the age of 16 years. He lured her into his place and therefore broke the trust she had on him. The rape statistics induce a sense of shock and disbelief. Although there was no evidence of assault or any violent assault proved by the state, the reality is that rape is undeniably a degrading, humiliating and brutal invasion of a person’s most intimate, private space. The very act itself, even absent of any accompanying violent assault inflicted by the perpetrator is violent and traumatic in nature. The victim impact report was also not submitted.

[12] After weighing the mitigating factors against the aggravating ones, I am of the view that a proper balance of these factors informs me that the sentence imposed by the trial court is shockingly disproportionate to the offence committed. Life imprisonment is the most severe sentence which a court can impose. Having said that, the offence the appellant committed remains a heinous kind of crime which the legislature had singled out for severe punishment. I am of the view that the sentence of 20 years imprisonment would still serve the intended purpose and objectives of sentencing.

[13] Consequently the following order is made:-

13.1 The appeal against the sentence is upheld;

13.2 The sentence imposed by the trial court is set aside and substituted with the following:-

“Twenty (20) years imprisonment”

13.3 The sentence is antedated to 14 June 2011.

A M KGOELE

JUDGE OF THE HIGH COURT

I agree

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT : Mafikeng Justice centre

FOR THE RESPONDENT : Director of Public Prosecutor

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