---

“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: CA04/2018

REPORTABLE

In the matter between:

RAMPOGO JAMES RABOKOME                                                                          Appellant

And

THE STATE                                                                                                         Respondent

 

HENDRICKS ADJP & GUTTA J

JUDGMENT

GUTTA J.

 

A. INTRODUCTION

[1] The appellant was arraigned in the Regional division of the North West, held at Lehurutshe on two counts, namely rape in contravention of Section 3 of Act 32 of 2007 and robbery.

[2] The appellant pleaded not guilty to both counts. On 23 July 2015, the appellant was acquitted of robbery and found guilty of rape and sentenced to 12 years imprisonment.

[3] With leave from the Trial Court, the appellant appeals his sentence.

 

B. CONDONATION

[4] The appellant applied for condonation for the late prosecution of his appeal. The application was not opposed. The appellant proffered a reasonable explanation for the delay and the challenges he confronted in prosecuting his appeal. Accordingly, condonation is granted.

 

C. THE FACTS

[5] The facts briefly summarized is that the complainant, a 59 year old woman and the appellant were known to each other as they worked together at some stage for the same employer. The complainant said at about 5am on 4 November 2013, she was on her way to work when the appellant jumped out from behind the trees. The appellant’s face and clothes were bloodied and he threatened the complainant that it was her ‘last day’. The appellant carried two containers containing alcohol and made the complainant drink the one container. Thereafter he took her to a hill where he ordered her to undress. He asked her if she wanted to be like the other person he had killed or smash her head with the stones that were on the ground. She undressed and put her clothes on the ground and laid on top of her clothes. He then raped her. Thereafter he instructed her to wipe his penis with her panty. They then proceeded to another hill and she feared that he was going to kill her. She said the appellant expressed concern that she was going to lay charges against him. The appellant wanted to tie her up with a belt and she pleaded with him not to tie her up. She told him that she had R1000 at her home and promised him that she would not run away when he went to fetch the money. The appellant left her there and she escaped and reported the rape to the employer.

 

D AD SENTENCE

[6] The evidence led in mitigation of sentence is the following:

6.1 The appellant has two children, one is an adult and the other is a minor, aged 8 years, who resides with his mother;

6.2 The appellant assisted in the support of his minor child and the child’s mother;

6.3 The appellant was 44 years old at the time of his arrest and 46 years old at the time of conviction;

6.4 The appellant was employed and earned R1300.00 every 15 days.

[7] The evidence led in aggravation of sentence is the following:

7.1 The complainant was a 59 year old woman who was threatened with murder if she did not succumb to the appellant’s demands;

7.2 The appellant has six previous convictions. The one conviction was of Possession of dagga which offence occurred more than 10 years ago. The remaining previous convictions were for housebreaking with intent to steal and theft;

7.3 The appellant committed the offence of rape, less than 2 years after he was released on parole for housebreaking with intent to steal and theft;

[8] Counsel for the appellant submitted the following:

8.1 The appellant was liable to imprisonment for 10 years in terms of Section 51(2) of Schedule 2 part 3 of Act 105 of 1997, unless the Court finds that there are substantial and compelling circumstances to deviate from the prescribed minimum sentence. He submitted that, although the Trial Court concluded that there were no substantial and compelling circumstances, the Court imposed a 12 year sentence, even though the appellant was never previously convicted of rape. He said the Trial Court misdirected itself by imposing a term of imprisonment more than the prescribed sentence.

8.2 The appellant was in custody as he was denied bail. He spent more than one year and eight months in custody awaiting finalisation. The Trial Court overlooked this aspect when imposing sentence.

8.3 This was not the worst type of rape as the complainant was only threatened with violence and she did not sustain any other injuries[1].

8.4 The appellant was convicted of a very serious offence which can cause psychological harm and trauma to the victim.

8.5 The sentence of twelve years imprisonment is shockingly severe and excessive. A sentence of 10 years imprisonment fits the triad, namely the offender, the crime and society.

[9] Counsel for the respondent submitted that the previous convictions have an element of dishonesty which show that the appellant disrespects a person’s right to privacy and has no respect for the law. He further said the previous convictions show that the appellant has not been rehabilitated.

 

E. EVALUATION

[10] The appellant was charged and convicted of rape as referred to in part III of Schedule 2 of Section 51 (1)(2)(b) of Act 105 of 1997, as amended (the Minimum Sentence Act). Section 51(1)(2)(b) reads,

“(2) Notwithstanding any other law but Subsection (3) and (6), a Regional Court or a High Court shall:

b) if it has convicted a person of an offence referred to in Part III of Schedule 2 sentence the person, in the case of –

i) a first offender to imprisonment for a period not less than 10 years;

ii) a second offender to any such offence, to imprisonment for a period not less than 15 years; and

iii) a third or subsequent offence, to imprisonment for a period not less than 20 years.

Provided that the maximum sentence that a Regional Court may impose in terms of this Subsection shall not be more than five years longer than the minimum sentence that it may impose in terms of this Subsection”.

[11] In terms of the Minimum Sentence Act, the offence for which the appellant was convicted of carried a minimum sentence of ten (10) years imprisonment. The appellant’s argument that the Court erred by imposing a 12 year term of imprisonment because the minimum sentence is 10 years is flawed because on a plain language interpretation of the Act, a person can be sentenced “for a period not less than 10 years”. Hence 10 years is a minimum sentence and the Court could exercise its discretion and impose a higher sentence provided that the sentence the Court imposes shall not be more than 5 years longer than the minimum sentence it may impose. In other words, the Court could not impose a sentence exceeding 15 years.

[12] Two other issues for consideration arose during the hearing of the matter namely:

a) whether the appellant should have been treated as a second or third offender as he has other previous convictions of housebreaking with intent to steal and theft.

b) whether the Trial Court erred by taking the appellant’s previous convictions into considerations as they don’t relate to the rape offence. This was the appellant’s first conviction of rape.

[13] The answer to the question whether the appellant was correctly treated as a first offender lies in the interpretation of Section 51(2)(b) of the Minimum Sentence Act[2]. Section 51(2)(b) reads, “if it has convicted a person of an offence referred to in Part III of Schedule 2 sentence the person, in the case of a second offender of any such offence referred to in Part III of Schedule 2” (own emphasis)

[14] The offences’ lists under Part III are the following:

“Rape in circumstances other than those referred to in Part I.

Indecent assault on a child under the age of 16 years, involving the infliction of bodily harm.

Assault with intent to do grievous bodily harm on a child under the age of 16 years. Any offence in contravention of Section 36 of the Arms and Ammunition Act 1969 (At No. 75 of 1969), on account of being in possession of more than 1000 rounds of ammunition intended for firing in an arm contemplated in Section 39(2)(a)(i) of the Act”.

[15] Thus on the plain language interpretation of Section 51(2)(b), an accused must have previous convictions of such offences referred to in Part III of Schedule 2. (Own emphasis)

[16] The second issue for consideration is whether the Trial Court erred by taking the appellant’s previous convictions of housebreaking with intent to steal and theft in consideration when imposing the sentence of 12 years imprisonment.

[17] Previous convictions are generally considered as aggravating factors[3]. Previous convictions generally reflect on the character of the offender and often show that the accused was of bad character and was less open to rehabilitation[4] since he was not deterred by his previous incarcerations.

[18] The extent to which the previous conviction aggravates the sentence, that is its weight is generally determined by the Court taking into consideration, the nature, the number and extent of similar previous convictions and the length of time between them and the current offence[5]. Crimes which have no relation to the current offence may be relevant as an indication of the effectiveness of the sentence in deterring the offender[6].

[19] Although the appellant does not have previous conviction of rape or offences of a similar nature, his previous convictions of housebreaking with intent to steal and theft are relevant as they are an indication of the appellant’s character and that he was not rehabilitated. The fact that the rape was committed when the appellant was on parole for housebreaking with intent to steal and theft is relevant as it is indicative of the fact that the appellant has not been rehabilitated.

[20] Accordingly, I am of the view that the Court a quo correctly took the appellant’s previous convictions into consideration as an indication that the appellant was not deterred by his previous incarcerations when he said, “And it was argued on your behalf that the other previous convictions are not related. However, what it does show is that your sentences for a lesser offence did not deter you from committing even a more serious offence. You were released on parole for your last offence previous conviction in 1 November 2011 and two years later you committed this serious offence so it is clear that you already had the opportunity to rehabilitate yourself, you did not do so short term imprisonment did not deter you from committing offences”.

[21] It is trite law that the imposition of a sentence falls primarily within the discretion of the Trial Court and that the Court of Appeal would not normally interfere with the sentence imposed by the Trial Court unless it finds that the Trial Court misdirected itself in imposing a sentence or that the sentence imposed is shockingly disproportionate to an extent that it induces a sense of shock[7]. The Court of Appeal is not entitled to interfere with the sentence imposed by the Trial Court purely because it would have imposed a sentence different from the one imposed by the Trial Court. The Court of Appeal must be satisfied that the Trial Court clearly misdirected itself and there must be clear signs of the misdirection[8].

[22] It is further trite that in considering the sentence to be imposed the Court is enjoined to take into account the elements of the triad i.e. the nature of the offence, the accused personal circumstances and the interest of community[9].

[23] The Magistrate in his judgment considered the purpose of punishment, namely deterrence, prevention, reformation and retribution and cited the Supreme Court of Appeal case of S v Swart[10] which provides that “each element of punishment is required to report equal weight but proper weight should be accorded to each according to the circumstance. It was further held that retribution and deterrence should come to the fore and the rehabilitation of the offender will consequently play a smaller role in cases of serious crimes”.

[24] Although a Court is enjoined to strike a balance when imposing sentence, it should not lose sight of the fact that in violent offences the element of retribution carries more weight than the element of rehabilitation[11]. A sentencing Court should consider the effects the offence had on the complainant[12]. In S v Chapman supra, Mahomed CJ, as he then was, held that rape is a “humiliating, degrading and brutal invasion of privacy, dignity and person of the victim”.

[25] The fact that the appellant raped the complainant while he was on parole overshadows the fact that the appellant spent almost 1 year and 8 months in custody while awaiting finalisation of the trial. The Trial Court correctly took into account the fact that the offence of rape is not only a serious offence but also it constitutes a serious violation of women’s rights to dignity. The Magistrate in my view balanced the interests of the appellant with the seriousness of the offence and the interest of society when he imposed the sentence. He also said that the punishment must also be blended with a measure of mercy. Accordingly, I am of the view that the Court a quo did not misdirect itself when imposing the sentence of 12 years imprisonment and that the sentence is neither disproportionate to the offence nor does it induce a sense of shock.

 

F. ORDER

[26] In the result,

a) The appeal on sentence is dismissed.

 

 

________________

N. GUTTA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

I agree

 

 

__________________

R.D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

DATE OF HEARING: 04 MAY 2018

DATE OF JUDGMENT: 07 JUNE 2018

ADVOCATE FOR APPELLANT: ADV CHWARO

ADV LOABILE-RANTAO

ADVOCATE FOR RESPONDENT: NO APPEARANCE

 

---