Dipholo v S (CA47/2015) [2015] ZANWHC 80 (12 November 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASE NO: CA 47/2015

In the matter between:

STEVEN O. DIPHOLO

Appellant

AND

THE

STATE

Respondent

CRIMINAL

APPEAL

KGOELE J; DJAJE AJ

DATE

OF HEARING : 30 OCTOBER 2015

DATE

OF JUDGMENT

: 12 NOVEMBER 2015

COUNSEL

FOR THE APPELLANT : ADV. SKIBI

COUNSEL FOR THE RESPONDENT : ADV. MOETAESI

JUDGMENT

DJAJE AJ:

Introduction

[1] The Appellant was arraigned before the Regional Court in Lichtenburg on one count of rape, two counts of robbery with aggravating

circumstances and one count of sexual assault. He was acquitted on the one count of robbery with aggravating circumstances and convicted on the other three counts. He was then sentenced as follows:

Count 1: Rape – Fifteen (15) years imprisonment

Count 2: Robbery with aggravating circumstances – Fifteen (15) years imprisonment

Count 4: Sexual Assault – Ten (10) years imprisonment.

The court a quo made an order that the sentences will not run concurrently.

He now appeals against sentence only with leave from the Supreme Court of Appeal in terms of section 16 (1) (b) of Superior Courts Act 10 of 2013.

Facts

[2] O., the complainant in count 1 and 2 was with her friend P., the complainant in count 4 at a party late at night on 15 March 2008. In the early hours of the morning they met with the Appellant when they were leaving the premises. The Appellant produced a knife and broke a beer bottle threatening them to go with him to his place of residence. On their arrival he ordered the two complainants to prepare a bed for them to sleep and they refused. He then prepared the bed himself and instructed them to sleep without their clothes on. O. testified that she was only left with a “tight” and a bra. The Appellant asked her to kiss him and she told him she does not know how to kiss. At that time the Appellant undressed her “tight” and had sexual intercourse with her without consent. P. was pretending to be asleep on the side. After the intercourse the Appellant placed his hands in O.’s bra and took R100-00 from her. Thereafter he searched P.’ breasts fiddling with them and took R20-00 from her. The Appellant fell asleep and the two complainants escaped and reported the incidents to one T..

[3] In convicting the Appellant the court a quo found him to be unreliable and not telling the truth about the sexual intercourse

with O. being consensual.

Issues

[4] The first ground of appeal by the Appellant was that the court a quo erred in imposing a sentence of fifteen years in count 1 when section 51(2) of the Criminal Law Amendment Act 105 of 1997(“ the Act”) prescribes a minimum sentence of ten years imprisonment for a first offender of rape. Secondly, the Appellant argued that in count 2 the court a quo erred in imposing the minimum sentence of fifteen years when the charge sheet made no reference to the Minimum Sentence Act. On the count of sexual assault the ground for appeal raised was that the sentence imposed is shockingly severe. The last ground raised was that the court a quo erred in not considering the cumulative effect of the sentences imposed on the three counts.

Submissions

[5] During argument counsel for the Appellant submitted that the court a quo committed a misdirection by imposing the fifteen years

imprisonment in count 1 without explaining to the Appellant that it was exercising its discretion and adding five years to the prescribed minimum term of ten years. Further that the Appellant was a first offender and could not have been sentenced to fifteen years imprisonment which is prescribed for a second offender in Part III of Schedule 2 of section 51(2) of the Act. It was contended for the Appellant that in count 2 there were compelling and substantial circumstances which should have been considered and a lesser sentence imposed. These being that there was no violence used by the Appellant in taking the money from the complainant.

[6] At the outset counsel for the Respondent conceded that the failure of the court a quo to take the cumulative effect of the sentences

imposed constitutes a misdirection which justifies interference by this court. In relation to the sentence in count 1 the submission by the Respondent was that the court a quo correctly exercised its discretion in increasing the prescribed minimum sentence by five years as the court is empowered to do so by the Act. The contention by the Respondent in count 2 was that when the charge was put to the Appellant the prosecutor in the trial court made reference to the provisions of section 51(2) of the Act thus informing him of the applicable minimum sentence. Further that the court a quo was correct in finding that no compelling and substantial circumstances existed as the Appellant had two previous convictions of housebreaking and theft. Respondent’s counsel conceded that the sentence in count 4 was indeed shockingly severe and this court can interfere.

Law

[7] Section 51(2) of the Act provides:-

'(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in ─

(a) Part II of Schedule 2, in the case of ─

(i) a first offender, to imprisonment for a period not less than 15 years;

(ii) a second offender of any such offence, to imprisonment for a period not less than 20 years; and

(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;

(b) Part III of Schedule 2, in the case of ─

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

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

(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and

(c) Part IV of Schedule 2, in the case of ─

(i) a first offender, to imprisonment for a period not less than 5 years;

(ii) a second offender of any such offence, to imprisonment for a period not less than 7 years; and

(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years;

Provided that the maximum term of imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more than five years.

(3)(a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: Provided that if a regional court imposes such a lesser sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.

[8] In the matter of Tlhako v The State (129/15) [2015] ZASCA 140 (30 September 2015) at par 8 it was held that:

“ [8] The rationale behind this passage as I understand it, is this: The accused person has a constitutionally protected right to a fair trial, which includes the sentencing process. When he or she is confronted with a charge(s), he or she must be placed in a position to understand exactly the case he/she has to meet so that the defence, if any, can be conducted properly. Implicit herein is also the option of pleading guilty. The failure to alert the accused of the sentencing regime intended to be relied upon, precludes the use of the Act. Applying the Act in such circumstances would, in my view, constitute a misdirection.”

[9]……….

[10] The effective period of 30 years’ imprisonment is extremely harsh, shocking and disturbing. Where it is necessary to punish an offender for multiple crimes, the aggregate of the effective punishment imposed should always be borne in mind and where appropriate, ameliorated. This is especially so where the punishment imposed is one of imprisonment. There is generally a threshold beyond which further incarceration serves no purpose. This is one such instance. The court below was therefore entitled to and should have intervened on that ground alone. It failed to do so. It therefore leaves this court at large to consider the sentences afresh.”

[9] In S v Bogaards 2013 (1) SACR 1 (CC) the Constitutional Court held:

“[41] Ordinary, sentencing is within the discretion of the trial court. An appellate court’s power to interfere with sentence imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. A court of appeal can also impose a different sentence when it sets aside a conviction in relation to one charge and convicts the accused of another”

Analysis

[10] It appears from the record that when the charges in count 1 and 2 were put to the Appellant reference was made to the provisions of section 51(2) of the Act. The following appears on the record:

“COURT: Before you answer Mr Nkasi, Mr Vorster did you explain to your client the Minimum Sentence Act? I see the record book is correct it is rape, indecent assault, robbery with aggravating circumstances. Minimum Sentence Act applicable if convicted and also the competent verdict?

MR VOSTER: Your worship accused was informed by myself in the event that it be proved the complainant was a minor and that life imprisonment is a possibility for the rape if there is a conviction. And then for a first offender is robbery with aggravating

circumstances is 15 years your worship.”

[11] It is apparent from the above passage that there was no prejudice suffered by the Appellant in relation to the applicability of the minimum sentence in count 1 and 2. As submitted by the Respondent’s counsel the court is empowered to increase the minimum sentence by a period not more than five years as the sentence referred to in the Act is the minimum sentence that can be imposed. The intention of the legislature was for the court not to impose a sentence less than the prescribed one if no compelling and substantial circumstances are lacking. Section 51(2) of the Act refers to the minimum sentence which clearly means the regional court does have the discretion to increase the sentence with a term of imprisonment not exceeding five years. In my view there was no misdirection by the court a quo in imposing the term of fifteen years for the offence of rape which carries a minimum sentence of ten years imprisonment.

[12] In count 2 the court a quo found no compelling and substantial circumstances and I agree with this finding. The Appellant had two previous convictions of housebreaking and that of theft. Both these previous convictions are relevant to the offence of robbery with aggravating circumstances. I see no reason for this court to interfere with the sentence imposed.

[13] The offence of sexual assault falls within the ambit of Part IV, Schedule 2 of section 51(2) of the Act which provides for a minimum sentence of five years for a first offender. It was conceded on behalf of the Respondent that on the sentence in count 4 this court is at liberty to interfere as the sentence imposed by the court a quo is shockingly severe. The concession was correctly made and we are in agreement that this court should interfere.

[14] I am in agreement with the submission by both counsel that the cumulative effect of the sentences imposed on the Appellant should be taken into consideration. As stated in the case of Tlhako supra

“Where it is necessary to punish an offender for multiple crimes, the aggregate of the effective punishment imposed should always be borne in mind and where appropriate, ameliorated. This is especially so where the punishment imposed is one of imprisonment. There is generally a threshold beyond which further incarceration serves no purpose.”

In this matter the three offences occurred at the same place and at the same time. The complainant in count 1 and 2 is the same person and she was present when the complainant in count 2 was sexually assaulted by the Appellant. I see no reason why we cannot order that the sentences or part thereof should run concurrently.

[15] At the time of sentence the Appellant’s personal circumstances were as follows:

· He was 24 years old at the time of the commission of the offence;

· He had no dependants;

· He was doing odd jobs;

· He completed grade 10 at school;

· He had previous convictions of housebreaking with theft;

· He was not married.

[16] The complainant in count 1 and 2 was 17 years at the commission of the offence. No injuries were sustained by both complainants during their ordeal apart from the complainant in count 1 crying after the incidents. The Appellant took advantage of the complainants who were coming from a party and in need of a place to sleep as their friend did not open for them when they knocked.

[17] In determining an appropriate sentence it is important to balance the interests of the accused, the interest of society and the nature of the offence. The appellant’s personal circumstances do not constitute special qualities. The aggravating circumstances in this case far outweigh the mitigation and overall, emphasising the interests of society would indeed be in order so that any would-be offender is deterred from committing such crimes.

[18] It is therefore my view that there is no need for this court to interfere with the sentence imposed in count 1 and 2.

Order

Consequently, the following order is made:

1. The appeal against the sentences in count 1 and 2 is dismissed;

2. The appeal against the sentence in count 4 succeeds and the sentence imposed by the court a quo is set aside and replaced with the following:

“Five years imprisonment”

3. The sentence in count 2 is to run concurrently with the sentence in count 1.

4. The sentences are ante-dated to 17 March 2009.

DJAJE

AJ

ACTING

JUDGE OF THE HIGH COURT

I agree

KGOELE

J

JUDGE

OF THE HIGH COURT