IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

						CASE NUMBER:A210/2010
						DATE:6 AUGUST 2010

In the matter between:

and

JUDGMENT

COETSEE, AJ:

The appellant in this appeal was convicted in the Oudtshoorn Regional Court on 5 February 2010 on a charge of attempted rape in contravention of the provisions of section 55 of the Criminal Law Sexual & Related Matters Amendment Act 32 of 2007 and sentenced to seven years imprisonment. The conviction relates to the events that took place on 1 November 2008 when, on the evidence, the appellant assaulted and attempted to rape Ms Stolmeester, a 19 year old woman who was at the time walking home. The appellant pleaded not guilty to the charge and disputed any involvement in the incident.

These grounds of appeal and the criticisms of the trial court are to be evaluated. A proper reading of the judgment and sentence imposed by the trial court show that the appellant was at all times duly represented by an attorney. That the appellant's attorney was granted the opportunity to address the trial court in mitigation of sentence and did so with reference of the appellant's personal circumstances, and that the trial court considered these facts adduced in mitigation by the appellant's attorney.

'1.    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".
2. The test under (b) is whether the sentence vitiated by irregularity or misdirection or is disturbingly inappropriate."

A210/2010

"Where, however, the dictates of justice are such as clearly to make it appear that the trial court ought to have regard to certain factors and that it failed to do so, or that it ought to have assessed the value of these factors differently from what it did, then such action by the trial court will be regarded as a misdirection on its part, entitling thi court to consider the sentence afresh."

Not every misdirection by itself is, however, sufficient to entitle a court of appeal to interfere with sentence. It must be of such a nature, degree and seriousness that it shows directly or inferentially that the court did not exercise its discretion at all discretion at all or that it exercised it improperly and and unreasonably.

The record further records that on 20 May 2009 the appellant was held in custody on other charges and was serving a sentence of 18 months on another conviction, and that his bail was once again restored. Thereafter the trial commenced on 15 October 2009. The contention that the appellant spent one year and four months, or differently put, a considerable amount of time in custody awaiting the trial in this matter and that the trial court should have taken this into consideration and failed to do so, is therefore unfounded. In my view, the submission that the trial court found as a matter of fact that the only mitigating circumstances with the appellant's criminal record, is also not justified.

Having considered the appropriate factors in assessing a proper sentence and having recorded that the appellant's attorney addressed the Court on the appellant's personal circumstances, the influence of the liquor taken by the appellant, the fact that the appellant was for a period in custody, as well as the appellant's previous convictions, the trial court duly considered in the appellant's favour, that the appellant's previous convictions show that the appellant never served a long term of imprisonment for violence. No facts were adduced in mitigation regarding the so called needs of the appellant's child, his alleged support for his alleged extended family or his fulltime employment. In the light thereof the trial court can hardly be criticised for having erred in this regard.

It follows that the only basis left for the appellant is the contention that the sentence handed down is in the circumstances of the case shockingly unjust as it is put. Section 55 of the Criminal Law Amendment Act 2007 provides that any person who attempts to commits a sexual offence in terms of that act, is liable on conviction to the punishment to which a person convicted of actually committing the offence, would be liable. In this regard the trial court, in my view, correctly held that the fact that the appellant's attempt to rape the complainant was not successful, cannot be credited to his benefit, that the appellant failed to show any remorse and denied his involvement.

In my view a sentence of seven years imprisonment for the crime committed, does not induce a sense of shock and the appeal is without merit.  I propose that it be dismissed and the sentence of the trial court be confirmed.

COETSEE, AJ

TRAVERSO, DJP