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Windvoel v S (CA&R51/2014) [2014] ZAECGHC 73 (10 September 2014)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

Case No: CA & R 51/2014

Date Heard: 30 July 2014

Date Delivered: 10/09/2014

In the matter between:

BONGANI WINDVOEL                                                                                           APPLICANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

JACOBS AJ:

[1] This is an appeal, with leave of the Judge President on petition, against the sentence of 10 years. The appellant was convicted of Housebreaking with intent to Rape and Rape. The provisions of section 51 (2) (b) of the Criminal Law Amendment Act 105 of 1997 are applicable. The appellant is a first offender of the nature and extent of this type of offence, and therefore the minimum sentence applicable is 10 years imprisonment. The magistrate wrongly held that the minimum sentence was 15 years imprisonment, but found substantial and compelling circumstances and imposed 10 years imprisonment. The sentence imposed was clearly a misdirection by the magistrate, which leaves this court to interfere with such sentence, and impose a sentence afresh.

[2] In S v Malgas 2001 (1) SACR 469 (SCA) at 478 par12 it was stated “where a 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 the sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance.”

[3] I now consider the so–called Zinn triad of factors, comprising of the interests of society, the nature and seriousness of the crime and the personal circumstances of the accused. Society considers rape to be a very serious matter indeed. Particularly as it is prevalent it calls for a proper measure of retribution. Housebreaking is a serious offence in its own right as its essence is the unwarranted invasion of the home – the sanctuary – of another.

[4] The complainant was asleep at her boyfriend’s home and during the night felt someone taking off her panties. The doors of the house and the windows were closed when the victim went to sleep. She did not resist the appellant having sexual intercourse with her as she was aware that her boyfriend was sleeping in one of the other rooms and was under the impression that it was him.  When she opened her eyes she noticed that it was the appellant, their neighbour.  She pushed him off her and assaulted him. Later they discovered that the appellant gained entry into the house through a window where he removed the window pane.

[5] The complainant did not suffer any physical injuries. Apart from the normal trauma associated with Rape she however suffered the indignation of being raped in her boyfriend’s house. The trial court therefore correctly concluded that this is indeed a serious offence and that the interest of society can only be served if the appellant is removed from society for a considerable period of time.

[6] The appellant’s personal circumstances are that he is […..] years old and therefore no longer a youthful offender. He has two children aged 3 years and 3 ½ years respectively. He has completed grade 11 at school and worked as a taxi driver at a salary of approximately R400,00 per week. He has two previous convictions for housebreaking and theft for which he was sentenced to direct imprisonment on each occasion. These previous convictions are regarded as aggravating factors as it is has a bearing on the charge which the appellant is presently facing. The appellant was arrested on this charge on 30 April 2012 and sentenced on 22 October 2012. Five months incarceration awaiting trial can hardly be considered a considerable period of time taking into consideration the volumes of cases courts deal with.

[7] The mitigating factors being that the appellant was employed and has minor dependent children viewed in the light of the seriousness of the offence and the interest of society does not constitute substantial and compelling circumstances which warrant a departure from the minimum sentence of 10 years.

[8] There is in my judgment, no proper basis not to impose the minimum sentence of  ten (10) years imprisonment.

[9] The appeal is upheld and is replaced by the following order:

1.         The accused is sentence to ten (10) years imprisonment;

2.         This sentence is antedated to the date of sentence by the Court a quo.”

______________________

S. JACOBS

ACTING JUDGE OF THE HIGH COURT

 

Mey AJ

 

I agree.

 

--------------------------------------

C. MEY

ACTING JUDGE OF THE HIGH COURT

                                                      

APPEARANCE

FOR THE APPELLANT      :           ADV SOLANI

INSTRUCTED BY              :           LEGAL AID BOARD

                                                            HIGH STREET

                                                            GRAHAMSTOWN



FOR THE RESPONDENT   :         ADV ELS

INSTRUCTED BY               :         DIRECTOR OF PUBLIC PROSECUTION

                                                            HIGH STREET

                                                            GRAHAMSTOWN