Makoena v S (A467/15) [2016] ZAGPPHC 519 (24 March 2016)

Makoena v S (A467/15) [2016] ZAGPPHC 519 (24 March 2016)

The court found that the magistrate misdirected himself by imposing sentences that did not run concurrently, resulting in an effective term of 75 years, which was harsher than life imprisonment. The abduction and rapes formed part of the same incident and should have been considered together for sentencing purposes. The appellant's previous convictions, including two for rape, indicated a real threat to society and no reasonable prospect for rehabilitation. There were no compelling and substantial circumstances to justify deviation from the prescribed sentence of life imprisonment. The appeal against sentence was upheld, and the appellant was sentenced to life imprisonment on each rape...

Citation
[2016] ZAGPPHC 519
Parties
Appellant: Tebogo Sydney Makoena; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 March 2016
Case Number
A467/15
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentence set aside and replaced.
Judges
R G Tolmay, M S Sikhwari
Legal Topics
Rape of Minor, Sentencing Discretion, Life Imprisonment, Concurrent Sentences, Mitigating Circumstances
Criminal Law Rape of Minor Sentencing Discretion Life Imprisonment Concurrent Sentences Mitigating Circumstances

Case Brief

Summary, issues, holding and outcome

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Parties

Tebogo Sydney Makoena

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentence imposed by the Regional Court was appropriate in light of the prescribed minimum sentences for rape of a minor.
  2. 2 Whether the failure to order sentences to run concurrently constituted a misdirection.
  3. 3 Whether there were compelling and substantial circumstances justifying deviation from the prescribed sentence of life imprisonment.

Ratio Decidendi

The court found that the magistrate misdirected himself by imposing sentences that did not run concurrently, resulting in an effective term of 75 years, which was harsher than life imprisonment. The abduction and rapes formed part of the same incident and should have been considered together for sentencing purposes. The appellant's previous convictions, including two for rape, indicated a real threat to society and no reasonable prospect for rehabilitation. There were no compelling and substantial circumstances to justify deviation from the prescribed sentence of life imprisonment. The appeal against sentence was upheld, and the appellant was sentenced to life imprisonment on each rape...

Court Disposition

Appeal against sentence upheld; sentence set aside and replaced.

Orders

  • The appeal against sentence is upheld.
  • The sentence is set aside and replaced by: The accused is sentenced to life imprisonment on each of the two counts of rape and 5 years on the abduction charge. All the sentences to run concurrently.