Criminal appeal



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NORTH WEST HIGH COURT, MAFIKENG
CASE NO.: CA 32/2010
In the matter between:-
SAM THEMBINKOSI NQOTHINI Appellant

and
THE STATE Respondent


CRIMINAL APPEAL

HENDRICKS J; GURA J


DATE OF HEARING: 26 NOVEMBER 2010

DATE OF JUDGMENT: 03 FEBRUARY 2011


COUNSEL FOR APPELLANT: ADV TAUKOBONG

COUNSEL FOR RESPONDENT: ADV MOROKA




JUDGMENT

GURA J

[1] The appellant was convicted by the Regional Court of Lichtenburg of the following three offences: - Robbery with aggravating circumstances; Rape and Housebreaking with intent to commit an offence unknown to the State. He was sentenced to fifteen years imprisonment; imprisonment for life and five years imprisonment for each of the three counts respectively. The present appeal is directed against sentence only.


[2] On the night of this incident, Simon Motloung (Simon) was in bed with his lover, Martha Moremi (Martha) at the former’s house. The door to the house had been closed and properly locked. Despite that, the couple was surprised by a stranger (the appellant) who was already inside the house. He was standing at the bedroom door and demanding money from Simon. He threatened Simon that if he did not give him his money, “I will eat your prostitute” – an innuendo which implies that he would have sexual intercourse with Simon’s lover. As proof that he was serious about his demand, he had a knife in his right hand and a spade in the left one.
[3] Although Simon offered to go and take out his (appellant) money from his pair of trousers, the appellant was not prepared to listen. As Simon bent in order to go to his trousers, he stabbed him with the knife on his shoulder blade.

[4] He then focused his attention on Martha. He wanted to rape her. As she protested, he tamed her by stabbing her with a knife, once on the neck, twice on her back and twice on her arms. He also hit her with the spade on the head. He then raped her inside that bedroom whilst Simon was watching, helplessly.


[5] The appellant has previous convictions which can be listed as follows: -

Theft: 20 March 2002; 12 months imprisonment i.t.o section 276(1)(h)

Housebreaking with intent to steal and theft: 19 October 2002; 12 months imprisonment



Assault – two counts: 9 March 2004; R300-00 or 3 months imprisonment (both counts treated as one)

Assault: 15 September 2007; Six (6) months imprisonment.
[6] His personal circumstances are that he is 26 years old, has no children and his parents have long separated. His dependants include his aged mother who is a pensioner and the appellant’s two sisters who are still attending school. He passed matric at school. In mitigation of sentence, he testified that he was really sorry for what he has done. He, at that stage, asked for forgiveness from both complainants.
[7] In meting out punishment, the trial court proceeded along these lines. “A man of 45 years watched helplessly as a 23 year old was raping his lover and stabbing her. The accused’s actions were very brutal. He had no sign of mercy on his two victims. He has a list of previous convictions and is presently serving sentence”. The Regional Magistrate considered all relevant authorities pertaining to the Criminal Law Amendment Act, No.105 of 1997 (the Minimum Sentence Act) and came to the conclusion that there were no substantial and compelling factors which could ward off the mandatory minimum sentence which the legislature has ordained.
[8] In S v Malgas 2001 (1) SACR 469 at 478 d – h, Marais JA, set out the approach which a court such as this one should adopt in considering the appropriateness or not of sentence imposed by the trial court.
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.”

[9] I have to mention that Counsel who argued the appeal before us is not the one who represented the accused during the trial. The trial court, correctly in my view, specifically drew the attention of the appellant’s representative, at mitigation stage, to the Minimum Sentences Act, but he never submitted that there were substantial and compelling reasons which would justify a lesser sentence. In this court (of appeal), Counsel for the appellant submitted that there are such factors which call for a lesser sentence. He did not introduce any new factors except those which were considered by the trial court.

[10] This court has not been persuaded however, that the Regional Court Magistrate, Ms Djadje, paid lip service to the personal circumstances of the appellant. The brutal nature of the crime is that he attacked the victims at their sanctuary – their home; not only that, but at their last place of privacy – the main bedroom. The assault on Martha was severe. His track record of criminality depicts a man with criminal propensity. In my view, no other sentence would fit this crime except the ultimate sentence.
[11] Consequently, the appeal is dismissed and the sentence in respect of each of the three counts is confirmed.


_________________

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree.



_________________

R D HENDRICKS

JUDGE OF THE HIGH COURT


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