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IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO: A489/2005
DATE: 23
MAY 2008
In
the matter between:
WELCOME
LETLABIKA Appellant
and
THE
STATE: Respondent
JUDGMENT
ZONDI,
J:
[1]
The appellant was on 15 September 2002 convicted by the BellviIIe
Regional Court of attempted rape. It was alleged in the charge
sheet
that on or about 23 Aprif 2001 he unlawfully and intentionally
attempted to rape a three year old girl. The appellant was
sentenced
to 15 years' imprisonment. With the leave of the Court a quo
he
now appeals to this Court against sentence only.
[2]
The evidence which formed the basis of the appellant's conviction and
sentence was to the following effect. Mr Truter testified
that at
about 18:15 on the evening of 23 April 2001, having arrived home and
climbed out of his car, he heard what sounded like
a baby crying in
the Port Jackson bushes next to his house. He immediately crossed the
road and through the bushes he saw a man
kneeling over and straddling
a small child who was tying on the ground crying. The witness
immediately shouted at the man, asking
him what he was doing. The man
jumped up and fled. The witness gave chase and caught him some 100
metres away from the crime scene.
[3]
Ms Truter, who was with Mr Truter at the time, confirmed that Mr
Truter had crossed the road to investigate what sounded like
a baby
crying. She testified that after hearing Mr Truter shouting and
chasing someone, she walked across the road in the direction
from
where Mr Truter was shouting. On arrival at the bushes she stumbled
upon a child, a three year old girl, standing up crying,
with her
panties around her ankles. She approached the child, reassured her
and comforted her. She removed the child out of the
bushes to a
nearby road where she waited for the arrival of the police. The
appellant was subsequently arrested by the police.
[4]
Before sentencing the appellant to 15 years' imprisonment, the
magistrate took into account the fact that the appellant was
a first
offender, 30 years old, that he had two minor children of nine and 14
years old respectively, that he was employed and
that he had spent
about 18 months in prison awaiting the matter to be finalised.
[5]
The attack on the sentence is based on the grounds that the
magistrate erred in over-emphasising the seriousness of the offence
and the needs of society, not attaching sufficient weight to the
personal circumstances of the appellant and that a sentence of
15
years' imprisonment is so shockingly inappropriate that no reasonable
Court would impose it.
[6]
It is trite law that punishment is pre-eminently a matter for the
discretion of a trial court and that the appeal court would
be slow
to interfere with that discretion unless that discretion was not
judicially and properly exercised. The question is whether
the
sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate. However, not every misdirection will
justify the court of appeal's interference with the sentence. The
misdirection must be a material one and a misdirection would
be
material if the trial court misconstrued the facts, failed to take
cognisance of factors that should have been taken into account
or it
has under-emphasised the accused's personal circumstances in relation
to other relevant factors.
[7]
Returning to the matter in
casu, the
question here is whether the magistrate committed any misdirection in
his evaluation of an appropriate sentence. It is true
that the
magistrate referred to the appellant's personal circumstances but he
did not attach any weight to such factors. There
is no doubt about
the seriousness of the offence and the fact that it induces a strong
moral indignation. The fact that the appellant
was only convicted of
attempted rape appears to have escaped the magistrate's mind.
[8]
The accused before him was the accused convicted of attempted rape.
The magistrate was correct in imposing a heavy sentence
for the
offence but in imposing a sentence he had to bear in mind that he was
dealing with an attempted rape. In failing to have
regard to that
fact as well as the fact that the appellant was a first offender who
was employed and had dependents, the magistrate
misdirected himself.
The appellant has a prospect of rehabilitation, as Ms Fitzpatrick
argued, and the magistrate was wrong in imposing a sentence which
only emphasised the retributive and preventative aspects of
punishment.
[9]
In the circumstances, this Court sitting as a Court of appeal, is
entitled to interfere with the sentence imposed by the magistrate.
Having regard to the seriousness of the offence and the interests of
the community a sentence of 15 years1
imprisonment is appropriate but I would suspend a portion of it in
the light of the appellant's personal circumstances.
[10]
In the circumstances t make the following order:
1.
The appeal against sentence succeeds. The sentence of 15 years'
imprisonment is set aside and substituted with the following:
"1.1
The accused is sentenced to 15 years' imprisonment, three years of
which are suspended for five years on condition that
during the
period of suspension the accused is not convicted or rape,
indecent assault or the statutory offences
under the
provision of section 14 of the Sexual Offences Act of 1957;
1.2
the sentence is antedated to 11 September 2002.
ZONDI,
J
VAN
REENEN, J:
I agree and it is so ordered.
VAN
REENEN, J
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