South Africa: Free State High Court, Bloemfontein

FREE STATE HIGH COURT. BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Appeal No.: A52/2010

In the matter between:-

BOIKI ESAU LEHOLE …......................................................First Appellant

PAKISO BENNET MAKOKO …............................................Second Appellant

versus

THE STATE ….............................................................................Respondent

CORAM: MOCUMIE, J et MTHEMBU, AJ

JUDGMENT: MOCUMIE, J

HEARD ON: 3 MAY 2010

DELIVERED ON: 10 JUNE 2010

APPEAL

MOCUMIE, J

[1] The two appellants, Mr Boiki Esau Lehole and Pakiso Bennet Makoko, appeared in the Regional Court, Kroonstad, on a charge of robbery with aggravating circumstances and a count of rape on 19 October 2009. The first appellant was convicted of both robbery with aggravating circumstances and the rape charge and the second appellant was convicted of robbery with aggravating circumstances only. The first appellant was sentenced to fifteen years imprisonment for the robbery and eighteen years imprisonment for the rape. Both sentences were ordered to run concurrently. The second appellant was sentenced to ten years imprisonment for the robbery. The two appellants applied for leave to appeal against both their convictions and sentences to the court a quo which was refused. This appeal, with leave of the court a quo, is only against sentence.

[2] Mr T.B. van Rensburg, for the appellants, submitted that the trial court erred by not finding that compelling and substantial circumstances existed which justified a departure from the prescribed sentence in respect of the robbery with aggravating circumstances. He submitted further that in respect of both counts the trial court erred by not taking both counts as one for purposes of sentence as the count of rape flowed from the robbery or was committed during the robbery. In respect of the second appellant he submitted that the trial court overemphasised the seriousness of the offence and the interests of society taking into account the appellant's personal circumstances including, inter alia, his youthfulness and the fact that he was a first offender and that he was in custody for over two years and further the fact that he did not participate in the commission of the rape in count 2.

[3] The applicable principles in an appeal against sentence are clearly set out in S v Rabie 1975 (4) SA 855 (A) at 857D-F where the Appellate Division stated:

"In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal - (a) should be guided by the principle that punishment is "pre-eminently a matter for the discretion of the trial Court"; and (b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been "judicially and properly exercised". The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate."

[4] The first appellant was 19 years of age and in Grade 11 at school at the time of the commission of this offence. He is unmarried and has one child. He was doing casual manual jobs and earning R50, 00 per day. He is not a first offender. He has two previous convictions, one of robbery and the other theft. He was arrested on 15 June 2007 and was kept in detention until he was convicted and sentenced on 19 October 2009, almost two years later.

[5] The Regional Magistrate's view in respect of the first appellant was as follows:

"Aan die ander kant bestaan daar geen twyfel by die hof dat die enigste gepaste vonnis wat aanklag 1 aanbetref maar die van direkte en langtermyn gevangenisstraf sal wees... Wat die aanklag van roof met verswarende omstandighede aanbetref... is die Hof van oordeel dat wat die aanklag van roof aanbetref daar nie meriete daarin sou wees om af te wyk van die minimum vonnis nie. Die hof sal egter ook wel die kumulatiewe effek van die gevangenisstraf wat hy op beide klagtes aan u gaan ople terdee in gedagte hou by vonnisoplegging."

[6] The second appellant was 18 years at the time of commission of this offence. He was not attending school although he attained Grade 8. He also did casual labour and has one child. He is a first offender.

[7] The Regional Magistrate's view in respect of the second appellant was as follows:

"Aan die ander kant is die Hof ook in u geval van oordeel dat die enigste gepaste vonnis egter maar die van direkte en betreklik langermyn gevangenisstraf sal wees."

[8] It is correct as the trial court found that the offences which the appellants committed are serious. I agree with him that these offences are rife in this province. It is also true that direct long term imprisonment is inevitable in respect of both appellants. However it is necessary to evaluate whether the trial court exercised its discretion judiciously and did not over-emphasis one or the other element of the basic triad: the accused's personal circumstances, the seriousness of the offence and the interests of society.

[9] For convenience I will address the second appellant's circumstances first. In an unreported appeal case, S v Petrus Lenyeta, Case No. A279/2009 by Cillie J, in which case I concurred, delivered on 4 February 2009, the personal circumstances of the appellant were almost similar to the present case. The appellant in that case was also convicted of robbery with aggravating circumstances. He was 18 years of age and pleaded guilty. The ten years imprisonment imposed by the Regional Court was set aside and substituted with six years of which two years was suspended for five years on certain conditions.

[10] In the aforesaid S v Petrus Lenyeta although the second appellant was 18 years of age, as in this case, he accepted responsibility immediately by pleading guilty, which on its own indicated a sense of remorse and a good prospect for rehabilitation. In this case the appellant pleaded not guilty and protracted the proceedings despite the overwhelming evidence against him. However I am inclined to agree with Mr Van Rensburg that the Regional Magistrate overemphasised the seriousness of the offence at the expense of the other important factors, including the second appellant's personal circumstances and the fact that he had been in custody for two years. He also did not participate in the more serious offence of rape as the first appellant did. In my view the trial court indeed had room to impose a lesser sentence.

[11] In all the circumstances the appeal on sentence in respect of the second appellant ought to succeed and the sentence be reduced.

[12] Insofar as the first appellant is concerned, I am in full agreement with the Regional Magistrate that the first appellant's blameworthiness is higher than that of the second appellant. He is older than the second appellant by a year. In his instance as the trial court correctly observed: