Keohitlhetse v S (CA64/2015) [2017] ZANWHC 42 (19 May 2017)

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 NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CA 64/2015

In the matter between:

PASEKA

PETRUS KEOHITLHETSE Appellant

and

THE STATE Respondent

HENDRICKS J & DJAJE AJ

DATE OF HEARING: 12 MAY 2017

DATE OF JUDGMENT: 19 MAY 2017

COUNSEL FOR APPELLANT : MR. SETUMU

COUNSEL FOR THE RESPONDENT : ADV. ZONDO

JUDGMENT

HENDRICKS J

Introduction

[1] The Appellant, Mr. Paseka Petrus Keohitlhetse, is […] to Ms. X the complainant in count 1, a count of rape. The name of the complainant is withheld in order to protect her identity. It is alleged that he raped the complainant, who was by then 14 years of age, on the 27th April 2006.

[2] The facts can be summarized as follows. The parents of Ms. X were employed in the Gauteng Province. As a result of this, she had to put up with the Appellant during the temporary absence of her parents. She used to sleep in the kitchen whilst the Appellant occupied his bedroom. The evening of the day of the incident, the Appellant placed his mattress in the kitchen, next to the bedding of the complainant. She went to sleep and he went to fetch the complainant’s grandmother at the bus stop.

[3] Later that evening she felt how the Appellant pulled the blankets from her. She tried to scream but he then inserted his tongue into her mouth. This caused her to vomit. He then assaulted her. He undressed her clothes and also undressed himself. He then had sexual intercourse with her. She thereafter asked him permission to go to the toilet. He accompanied her to the toilet whilst he was in possession of the leg of a table. Whilst trying to relief herself he poked her with the leg of the table. This resulted that she was unable to relief herself.

[4] He instructed her to go back into the house. She obliged. He again had sexual intercourse with her. When she screamed, he again inserted his tongue into her mouth in order to prevent her from screaming. The following morning she went to her aunt’s place and made a report to her. The Appellant was arrested and tried in the Regional Court held at Taung. He was convicted and sentenced to undergo a term of life imprisonment. An application for leave to appeal was made on behalf of the Appellant, in the court a quo. Leave to appeal against sentence was granted; hence this appeal.

[5] At the hearing of this appeal, an application for condonation for the late prosecution of the appeal was made on behalf of the Appellant. Ms. Zondo on behalf of the Respondent submitted that the reasons advanced for the late prosecution of the appeal are reasonable and that the application for condonation is not opposed on this basis but on the basis that there are no reasonable prospects of success on appeal. I am holding a different view. The requisite condonation was granted not only because the reasons advanced for the delay are reasonable but also because there are reasonable prospects of success in the appeal against sentence.

[6] Sentence is pre-emptly within the discretion of the trial court and a court of appeal will not lightly interfere with the exercise of the sentencing discretion by the trial court. A court of appeal will only interfere in certain limited instances for example when a gross irregularity is committed; and/or when the sentence is shockingly severe and excessive or totally out of proportion with the crime committed.

See: S v Romer 2011 (2) SACR 153 (SCA) paragraph 22.

[7] In his judgment on leave to appeal the Regional Magistrate states:

“This Court is satisfied that a Sentence life imprisonment is the only appropriate Sentence. Now the question is however, would another Court considering the same factors come to different conclusion? This Court was satisfied that there are no compelling circumstances which will allow this Court to impose a lesser Sentence. However there is a possibility, a real possibility that another Court, considering the factors that the Court considered, especially the fact that Accused was in custody for twenty two (22), months as a factor which will allow them to, a Court to impose a lesser Sentence. There is a possibility that Accused may be successful on appeal in respect of the Sentence. Accused is granted leave to appeal against the Sentence.”

It is clear that the court a quo re-considered the fact that the possibility exist that it erred in its finding that there are no substantial and compelling circumstances present in this case.

[8] In S v Malgas 2001 (1) SACR 469 (SCA) the following is stated:

'[25] E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the Legislature has provided.”

[9] The following personal circumstances were placed on record:

· The Appellant was 52 years of age at the time of sentencing and was 43 years of age at the time of the commission of this offence;

· He is the father of four (4) children, two (2) of whom are still minors and are still staying in the house with him and his wife;

· He is married and his wife is unemployed;

· He, as the only breadwinner, was self-employed earning an income of approximately R2000.00 per month;

· He has a previous conviction of theft which is unrelated to the present offence;

· He was awaiting the finaliszation of this trial whilst being incarcerated for 22 months.

[10] Looking holistically at the aforementioned personal circumstances, I am of the view that they are substantial and compelling which warrant a deviation from the impositioning of the prescribed minimum sentence of life imprisonment. Therefore, I am of the view that because of this misdirection by the Regional Magistrate who concluded that there are no substantial and compelling circumstances present in this case, this Court, as a court of appeal, should set aside the sentence of life imprisonment and impose an appropriate sentence afresh.

See: Machongo v State (20344/14 [2014] ZASCA 179 (21 November 2014) or

S v Machongo 2014 JDR 2472 (SCA)

[11] In imposing an appropriate sentence afresh sight should not be lost of the aggravating features of this case which are the following:

· The Appellant was no stranger to the complainant. He is her uncle and she stayed with him during the temporary absence of her parents;

· He was in a position of trust vis-a-vis the complainant and also a father figure to her;

· He was supposed to protect her and not to abuse her sexually;

· He assaulted her;

· The complainant was merely fourteen (14) years old at the time when this incident occurred;

· He poked her with the leg of a table;

· He inserted his tongue into her mouth which caused her to vomit;

· He had sexual intercourse with her on two occasions;

· He also threatened her.

[12] Considering all the factors that need to be taken into account when imposing a suitable or appropriate sentence, I am of the view that a term of imprisonment of eighteen (18) years will be a suitable sentence under the circumstances of this case.

Order

[8] Consequently, the following order is made:

(i) The appeal against sentence is upheld.

(ii) The sentence of life imprisonment imposed by the Regional Court is set aside and is substituted with the following sentence:

“Eighteen (18) years imprisonment.”

(iii) The sentence is antedated to 21 October 2015.

_______

R

D HENDRICKS

JUDGE

OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

I agree

T

DJAJE

ACTING

JUDGE OF THE HIGH COURT