S v Lehole and Another [2010] ZAFSHC 109 (10 June 2010)

S v Lehole and Another [2010] ZAFSHC 109 (10 June 2010)

The court found that the trial court overemphasised the seriousness of the offence in relation to the second appellant, who was a first offender, youthful, had spent two years in custody, and did not participate in the rape. The sentence for the second appellant was therefore reduced, with part suspended. For the first appellant, the court agreed with the trial court that his blameworthiness was higher due to his prior convictions, leading role in the robbery, lack of remorse, and the violent nature of the offences. The sentences imposed on the first appellant were deemed appropriate and the appeal dismissed. The application of minimum sentencing legislation was confirmed, and the court...

Citation
[2010] ZAFSHC 109
Parties
Appellant: Boiki Esau Lehole; Appellant: Pakiso Bennet Makoko; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 June 2010
Case Number
A52/2010
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence for the first appellant dismissed; appeal for the second appellant upheld and sentence reduced.
Judges
Mocumie, Mthembu
Legal Topics
Minimum Sentencing, Robbery With Aggravating Circumstances, Rape, Appeal Against Sentence, Compelling and Substantial Circumstances
Criminal Law Minimum Sentencing Robbery With Aggravating Circumstances Rape Appeal Against Sentence Compelling and Substantial Circumstances

Case Brief

Summary, issues, holding and outcome

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Parties

Boiki Esau Lehole

Appellant

Pakiso Bennet Makoko

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court erred in not finding compelling and substantial circumstances justifying departure from the prescribed minimum sentence for robbery with aggravating circumstances.
  2. 2 Whether the trial court erred by not taking both counts as one for purposes of sentence, given that the rape flowed from the robbery.
  3. 3 Whether the trial court overemphasised the seriousness of the offence and the interests of society over the personal circumstances of the second appellant.

Ratio Decidendi

The court found that the trial court overemphasised the seriousness of the offence in relation to the second appellant, who was a first offender, youthful, had spent two years in custody, and did not participate in the rape. The sentence for the second appellant was therefore reduced, with part suspended. For the first appellant, the court agreed with the trial court that his blameworthiness was higher due to his prior convictions, leading role in the robbery, lack of remorse, and the violent nature of the offences. The sentences imposed on the first appellant were deemed appropriate and the appeal dismissed. The application of minimum sentencing legislation was confirmed, and the court...

Court Disposition

Appeal against sentence for the first appellant dismissed; appeal for the second appellant upheld and sentence reduced.

Orders

  • The appeal against sentence in respect of the first appellant (Boiki Esau Lehole) on both count 1 and 2 is dismissed.
  • The appeal against sentence in respect of the second appellant (Pakiso Bennet Makoko) on count 2 is upheld and the sentence of 10 years imprisonment is substituted with 10 years imprisonment, of which 4 years is suspended for 5 years on condition that the accused is not convicted of robbery, attempted robbery, or an...