Moshodi v S (A27/2021) [2021] ZAFSHC 149 (3 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal number: A27/2021

In the matter between:

GAOPALELWE

MOSHODI

Appellant

and

THE

STATE Respondent

HEARD ON: 24 MAY 2021

CORAM: VAN ZYL, J et LOUBSER, J

JUDGMENT BY: LOUBSER, J

DELIVERED ON: 3 JUNE 2021

[1] The Appellant in this appeal is a 23 year old male who was convicted in the Regional Court sitting at Thaba ‘Nchu of raping an 18 year old female twice. He was sentenced to life imprisonment in terms of Section 51(1), read with Part I of Schedule 2, of the Criminal Law Amendment Act 105 of 1997. The appeal is only against the sentence imposed. It was submitted before us that a sentence of 20 years imprisonment would have been more appropriate, having regard to the substantial and compelling circumstances present in the matter. The Appellant has an automatic right of Appeal against the sentence imposed.

[2] After hearing the evidence of the complainant and another witness, the court a quo found that during the evening of 3rd November 2019, the complainant was on her way to visit her boyfriend when the Appellant approached her and then started to assault her with open hands and fists in her face. She tried to fight back and to run away several times, but on each occasion he chased after her and again got hold of her. At one point he also kicked her with booted feet. While all this was happening, the two of them came across a person named Smelt, and the complainant grabbed hold of him for assistance. Smelt then reprimanded the Appellant, and he left them after smoking with the Appellant.

[3] The court a quo further found that the Appellant again assaulted the complainant after Smelt had left. He forced her to accompany him to his parental home, and he dragged her in the process. When they arrived at his parental home, the Appellant left her outside when he entered the home. She waited there because the Appellant had threatened to kill her if she tried to flee. She was crying and was covered in dirt due to the fact that she was dragged on the ground by the Appellant. She had also lost some extentions of her hair during the assault.

[4] The Appellant later returned to her, the court a quo found. He then took her to a shack in that yard, where he told her to undress. While she was still crying, he then raped her on the bed, whereafter he fell asleep. The complainant eventually also fell asleep, and she only woke up at approximately 5 am. She was unable to escape because the Appellant had locked the door. When she told the Appellant that she had to leave, he raped her again. He thereafter allowed her to leave, and she went to the home of her boyfriend, who accompanied her to the police station. She was also taken to the hospital where she was examined by a doctor. According to the report by the doctor, no injuries of the genital area were found.

[5] As already intimated, the Appellant does not challenge the findings of the Court a quo or his subsequent conviction. On his behalf it was mainly submitted that the court a quo had erred in finding no substantial and compelling circumstances to deviate from the prescribed sentence of life imprisonment. It was also submitted that the court a quo had erred in over-emphasizing the interest of the community, and by placing too much emphasis on the previous convictions of the Appellant.

[6] I do not agree with any of these submissions. A reading of the judgment on sentence, leaves no doubt that the Magistrate had duly considered each and every circumstance before arriving at her conclusion that there were no substantial and compelling factors which would call for a lesser sentence than life imprisonment. In considering the personal circumstances of the Appellant, she had due regard to the fact that he was still young, single and unemployed. She also referred to the fact that he has a child of some 2 years of age, and that he was not a first offender. He was sentenced to a suspended sentence of 3 years imprisonment in February 2018 for assault with the intent to do grievous bodily harm. He committed the present crime of rape while he was still under suspension. The Magistrate also had regard to the fact that the Appellant had been in custody for 5 months awaiting trial.

[7] On the other hand, the Magistrate also referred to the high prevalence of rape crimes in South Africa and the need for courts to emphasize the deterrent element of sentencing when dealing with the perpetrators of such crimes. She also mentioned the fact that there was no evidence of serious injuries caused by the Appellant, and of permanent psychological damage or trauma suffered by the complainant. It is therefore clear that the Magistrate had balanced all the relevant factors and that she did not over-emphasize any of them. In fact, she expressly stated that “the cumulative effect of all the factors must be considered”.

[8] Now, generally this Court can only interfere with the sentence imposed by the trial court if it is clear that an irregularity took place during the sentencing stage, that the court misdirected itself in respect of the imposition of sentence, or that the sentence imposed was disturbingly or shockingly inappropriate.[1] A court of appeal is not free to interfere with the sentence if it might have imposed a different sentence had it been the court of first instance. It may also do so if it is convinced that the trial court could not have reasonably passed the sentence that it did.[2]

[9] Where minimum sentences in terms of Act 105 of 1997 are concerned, the Supreme Court of Appeal has reiterated that courts should not depart from the prescribed minimum sentences lightly and for flimsy reasons.[3] The correct approach by a court of appeal against a sentence imposed in terms of the Act, was authoritatively stated as follows by the Supreme Court of Appeal: “The approach to an appeal on sentence imposed in terms of the Act should, in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime. This, in my view, is so because the minimum sentences to be imposed are ordained by the Act… It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling, or not”.[4]

[10] In my view, the facts considered by the court a quo are certainly not substantial and compelling in favour of the Appellant. For instance, his relative youth can be no more than a neutral factor. It is evident from S v Matyityi[5] that the courts generally require an accused older than 20 years to show that his immaturity was such that it can serve as a mitigating factor. In the present case there is no evidence that the youthfulness of the Appellant in any way influenced his conduct or affected his moral blameworthiness. A similar fate befalls the submission that the lack of physical injuries to the complainant received inadequate consideration. Section 51(3)(aA)(ii) of Act 105 of 1997 provides that the absence of physical injuries to victims does not constitute substantial and compelling circumstances which justify the imposition of a lesser sentence.

[11] As for the fact that the Appellant spent 5 months in prison awaiting trial, this can also not assist him. The Supreme Court of Appeal has determined that, by itself, a pre-conviction period spent in custody does not constitute substantial and compelling circumstances which would justify a deviation from the prescribed minimum sentence.[6]

[12] In the premises, there is no basis upon which this Court can interfere with the sentence imposed by the court a quo. The following orders are therefore made:

12.1. The appeal is dismissed.

12.2 The sentence of life imprisonment is confirmed

___

P. J LOUBSER, J

I concur:

____

C. VAN ZYL, J

On behalf of appellant: Me. S. Kruger

Instructed by: Legal Aid South Africa

Bloemfontein

On behalf of respondent: Adv. S. Giorgi

Instructed by: Office of the DPP

[1] S v Petkar 1988 (3) SA 571 (A) at 574 C

[2] S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W) at 388c

[3]S v Malgas 2001 (1) SACR 469 (A) at 481j – 482a; S v Matyityi 2011 (1) SACR 40 (SCA) at par 23

[4] S v PB 2013 (2) SACR 533 (SCA) at par 20

[5] See footnote 3 above, at page 48b

[6] S v Radebe and Another 2013 (2) SACR 165 (SCA) par 14 page 170