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document in compliance with the law and SAFLII Policy
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)
In the matter between:
Case No: CA & R 372/2013
JOSEPH MOLELEKOA
AYANDA BUNU
First Appellant
Second Appellant
MPHO MATHOBISA
Third Appellant
And
THE STATE
Respondent
Coram:
Chetty, J
Heard:
24 March 2014
Delivered:
28 March 2014
Summary:
Appeal – Against sentence – Substantial and compelling
circumstances – Complainant’s home forcibly entered and she
abducted and rape by second and third appellants – No basis to
interfere in sentence – First appellant already serving twelve years
for similar offence – Cumulative effect of two sentences unduly
severe – Portion ordered to run concurrently
Page 2 of 10
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1]
The three appellants, (hereinafter referred to, collectively, as the
appellants and individually as accused no’s 1, 2 and 3 respectively) were
arraigned for trial before Hartle, J., in the East London circuit division on charges
of housebreaking with intent to rob (count 1), robbery with aggravating
circumstances as defined in s 1 (1)(b) of the Criminal Procedure Act1 (the Act)
(count 2), and rape, in contravention of s 3, read with sections 56(1), 57(1), 58,
59, 60 and 68(2) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act2. They were found guilty on all counts save that on the rape
charge, accused no’s 2 and 3 were convicted on the basis that they had raped
the complainant more than once whilst accused no. 1 was convicted on the basis
that he had inserted his finger into the complainant’s vagina and had thereby
sexually penetrated her as defined in the Sexual Offences and Related Matters
Act as aforesaid.
[2]
The appellants were sentenced to six (6) years imprisonment on count 1
and eighteen (18) years imprisonment on count 2. Four (4) of the six (6) years
imposed on count 1 was ordered to run concurrently with that imposed on count
1
2
Act No, 51 of 1977
Act No, 32 of 2007
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2. On the rape conviction, accused no’s 2 and 3 were sentenced to life
imprisonment whilst accused no. 1 was sentenced to five (5) years imprisonment.
Accused no. 1 was however granted leave to appeal against the sentences
imposed on counts 1 and 2 whilst accused no’s 2 and 3 were granted leave to
appeal only against the ordained sentence of life imprisonment imposed on count
3.
[3]
It is wholly unnecessary to burden this judgment with a recital of the
proven facts. These have been meticulously recorded by the trial court. Words
cannot begin to adequately describe the sheer horror to which the complainant
had been subjected. The sanctity of her home was violated, and she, her son
and the latter’s friend terrorized by the appellants. She was robbed of her
belongings, assaulted and forcibly abducted in her night clothes in her own
vehicle which her assailants had commandeered. In the dead of night she was
ordered to alight from the vehicle and locked in the boot of her vehicle. Shortly
thereafter she was removed from the boot, a ligature placed around her neck and
gagged by the insertion of a sock in her mouth. Her clothes were ripped and cut
from her body whereafter she was violated, raped and abandoned in unfamiliar
territory.
[4]
The appellants now come before us on appeal against the alleged severity
of the sentences imposed on them. Although the ordained sentence on count 2
was one of fifteen (15) years imprisonment, the trial court, actuated no doubt by
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the premeditative nature of the offence and its violent execution, was constrained
to conclude that there were no substantial and compelling circumstances which
warranted the imposition of a lesser sentence than that prescribed by the
legislature, but, on the contrary, the offence demanded the imposition of a
sentence in excess of fifteen (15) years. In the exercise of her discretion, the trial
judge determined that an appropriate sentence would be one of eighteen years
imprisonment. On the rape conviction of accused no.’s 2 and 3 and these she
likewise found that there were no substantial and compelling circumstances to
warrant a departure from the ordained sentence.
[5]
In determining the legitimacy of the clamour for an amelioration of the
sentences imposed, it is apposite to reflect on the now trite approach
propounded by the Supreme Court of Appeal in S v Malgas3, where the learned
judge, Marais, J.A., said: -
“[21] It would be foolish of course, to refuse to acknowledge
that there is an abiding reality which cannot be wished away,
namely, an understandable tendency for a court to use, even
if only as a starting point, past sentencing patterns as a
provisional standard for comparison when deciding whether a
prescribed sentence should be regarded as unjust. To attempt
to deny a court the right to have any regard whatsoever to
past sentencing patterns when deciding whether a prescribed
sentence is in the circumstances of a particular case I
3
2001 (1) SACR 469 (SCA) 480 at para [21]
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manifestly unjust is tantamount to expecting someone who
has not been allowed to see the colour blue to appreciate and
gauge the extent to which the colour dark blue differs from it.
As long as it is appreciated that the mere existence of some
discrepancy between them cannot be the sole criterion and
that something more than that is needed to justify departure,
no great harm will be done.
[22] What that something more must be it is not possible to
express in precise, accurate and all-embracing language. The
greater the sense of unease a court feels about the imposition
of a prescribed sentence, the greater its anxiety will be that it
may be perpetrating an injustice. Once a court reaches the
point where unease has hardened into a conviction that an
injustice will be done, that can only be because it is satisfied
that the circumstances of the particular case render the
prescribed sentence unjust or, as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate
needs of society. If that is the result of a consideration of the
circumstances the court is entitled to characterise them as
substantial
and
compelling
and
such
as
to
justify
the
imposition of a lesser sentence.
[23] While speaking of injustice, it is necessary to add that the
imposition of the prescribed sentence need not amount to a
shocking injustice (''n skokkende onreg' as it has been put in
some of the cases in the High Court) before a departure is
justified. That it would be an injustice is enough. One does not
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calibrate injustices in a court of law and take note only of
those which are shocking.”
[6]
In argument before us, Mrs. C. urged us to draw a clear distinction
between the conduct of accused no. 1 and his fellow cohorts by reason of the
alleged lesser role played by him, his attempt to protect the complainant from
further harm and his remorse, as epitomized by his guilty plea on counts 1 and 2.
She submitted that the trial court underemphasized the aforementioned factors to
the detriment of the accused. Whilst it is undoubtedly so that accused no. 1’s
participation in the events post the stalling of the complainant’s motor vehicle
near the informal settlement was not of the magnitude of his companions’, it is
clear that his prior conduct not only precipitated the forced entry into the
complainant’s home but that he played the leading role in the events in the
house. The complainant’s uncontroverted evidence was that she had noticed
accused no. 1 peering over her boundary wall approximately two weeks prior to
the incident. When accused no. 2 dragged her to her son’s room, presumably
with the intention of raping her, he desisted from so doing at the behest of
accused no. 1. Accused no’s 2 and 3 obesience at accused no. 1’s command,
demonstrates the leadership role of accused no. 1.
[7]
He furthermore ordered her to unlock the garage door and drove the
vehicle laden, not only with her, but her possessions as well. After he had
crashed the vehicle, he went and withdrew money at the ATM from her account.
When accused no.’s 2 and 3 raped her in his presence, he remained impassive
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and made common cause with them thereafter by blindfolding her. His altruism in
offering to carry her on his back was clearly a sham. It afforded him the
opportunity of fondling and penetrating her genitalia digitally. To contend that he
played a subordinate role in this horrendous saga is thus entirely fatuous.
[8]
Upon
an
holistic
appraisal
of
the
aforementioned
aggravating
circumstances, accused no. 1’s personal circumstances must give sway. Not
only was the trial court’s finding that there were no substantial and compelling
circumstances which militated against the imposition of the ordained sentence of
fifteen years imprisonment undoubtedly correct, but, moreover, the decision to
impose a sentence in excess of that ordained, cannot be faulted. Appellate
interference in the effective sentence of twenty-five (25) years imprisonment is
clearly not warranted.
[9]
When regard is had however to the fact that at the sentencing stage
accused no. 1 was serving a sentence of twelve (12) years imprisonment, which,
together with the sentence of twenty-five (25) years imprisonment, would cause
him to be incarcerated for thirty-seven (37) years, then appellate interference
seems meet. The cumulative sentence is unduly harsh and no useful purpose
would be achieved thereby. However, to order that the entire prior sentence run
concurrently with that imposed by the trial court would be inimical to the interests
of justice for it is apparent from the judgment of the trial court, in the application
for leave to appeal, that the facts in that matter bear an uncanny resemblance to
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those in casu. A portion of that sentence however should be ordered to run
concurrently.
[10]
The trial court’s finding that the imposition of the ordained sentence of life
imprisonment upon accused no.’s 2 and 3 was justified, cannot be faulted. In my
view, it was imperatively called for. The factors enumerated by Mrs. C. as
constituting substantial and compelling circumstances pale into insignificance
regard being had to the aggravating circumstances. In the result the following
orders will issue: -
1. The appeals against the sentences imposed upon the
appellants are dismissed.
2. It is however ordered that seven (7) years of the sentence
of twelve (12) years imprisonment imposed upon accused
no. 1 by the regional court, shall run concurrently with the
sentences imposed by the court below.
________________________
D. CHETTY
JUDGE OF THE HIGH COURT
Page 9 of 10
Dukada, J
I concur. It is so ordered.
________________________
D. DUKADA
JUDGE OF THE HIGH COURT
Lowe, J
I concur. It is so ordered.
_________________________
M. LOWE
JUDGE OF THE HIGH COURT
Page 10 of 10
Obo the Appellants:
Adv E. Crouse, Port Elizabeth Justice Centre,
North End, Port Elizabeth, Ref: E Crouse; Tel:
(41) 408 2800
Obo the Respondent:
Adv Hendricks, National Director of Public
Prosecutions, High Street, Grahamstown,
Tel: (046) 6023000