S v Naledzani

• Jurisdiction: South Africa
• Judge: Patel AJ
• Judgment Date: 11 February 2000
• Docket Number: 462/99
• Court: Venda High Court
• Hearing Date: 11 February 2000
• Citation: 2000 JDR 0090 (V)

Patel AJ:

This is an automatic review from the magistrate at Dzanani in the Northern Province. The accused, Mr Mabudu Samuel Naledzani was charged with the crime of attempted rape. It was alleged that on 30 November 1998 and at Chabaroewtsi Village he wrongfully, unlawfully and intentionally attempted to have sexual intercourse with J.N. [1] without her consent or against her will. He

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Patel AJ

was convicted and sentenced to fifteen months' imprisonment without an option of a fine.

When the case was submitted for review, I was of the opinion that the accused was accorded a fair trial and he was rightly convicted, but the sentence of fifteen months' imprisonment was manifestly disproportionate to the gravity of the offence. The punishment was unduly lenient and not in accordance with justice. I invited the Acting Director of Public Prosecutions in Thohoyandou to comment and he indicated that the accused was correctly convicted but the sentence was 'very lenient'.

Subsequently, with the concurrence of my Brother Hetisani, I handed down an interim ruling that the proceedings under review were not in accordance with justice because the sentence of fifteen months' imprisonment imposed on the accused on a conviction for attempted rape was disturbingly inappropriate and that he should be notified of the refusal of the certificate in terms of section 304 of the Criminal Procedure Act 51 of 1977 and indicated that the Acting Director of Public Prosecutions has a discretion to invoke the provisions of section 310A if the State elects to appeal against the sentence. I also indicated that a review judgment would follow in due course.

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Patel AJ

The vexed issue in this review is not only that the sentence of fifteen months was unduly lenient but the trial court's approach was superficial in assessing an appropriate sentence. It is a platitude that sentencing is 'pre-eminently a matter for the discretion of the trial court' and it must be 'judicially and properly exercised'. [2] The traditional approach in fixing a sentence, particularly in the lower courts, is simply to recant the triad by having some sense about the offender, the offence and the interests of society. The trial court sometimes alludes to the objectives of sentencing which are cystallised in four words: retribution, deterrence, prevention and rehabilitation.

Sentencing is a vital component of the right to a fair trial. [3] It is in the public interest that an accused is sentenced justly and fairly. Sentencing is an art rather than a science. The trial court is well endowed to assess the weight to be given to various competing factors and considerations in determining an appropriate punishment. The technique certainly does not entail a mechanical approach by simply applying legal principles. What is essential, in the sentencing process is an informed evaluation of the trilogy of essential factors - the offender, the offence and the interests of society - against the backdrop of the classical objectives of punishment. Sentencing is notoriously an awesome exercise in delicately balancing the personal circumstances of the offender, the

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Patel AJ

contextual setting and commission of the offence and the overriding concerns of society at large to attain the objectives of punishment. In fixing an appropriate sentence it is fundamental that the punishment must be proportionate to the gravity of the offender's culpability. The offender must be sentenced 'rationally and fairly'. Dumbutshena CJ, in delivering the judgment of the Zimbabwe Supreme Court, in S v Harington [4] noted:

"This is one of the principles of criminal justice which requires that punishment imposed by the Court for crimes committed must themselves be just and fair. In balancing the scales of justice it is well established to remember that

'(t)here must be an appropriate degree of severity in the range of punishments available in order that the criminal justice system as a whole can rationally demonstrate that a breach of the law is attended by real consequences.'

(See Australian Law Reform Commission Report No. 44 at para. 28.) It is also well established that too harsh a sentence is as ineffective and unjust as is a sentence that is too lenient."

It was observed in Attorney-General's Reference No. 4 of 1989 (Bunt) [5] that:

"A sentence was unduly lenient where it fell outside the range of sentences which the judge, applying his mind to all relevant factors, could reasonably consider appropriate."

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Patel AJ

Therefore, it is pertinent for me to consider the trilogy of factors for the purpose of confirming the interim ruling that the sentence imposed on the offender is unduly lenient and not in accordance with justice.

The offender was born in 1952 and was 47 years old when he was convicted. He was a self-employed latrine pit-digger earning approximately R300,00 per month. He is a widower with two children both of whom are residing with their grandmother and supported them by contributing R200,00 per month for their maintenance. The offender lived with his parents who are old age pensioners. His unblemished record until the commission of the offence and the fact that he provided maintenance for his children surely deserve some consideration in assessing an appropriate punishment. These personal circumstances of the offender did not feature in the magistrate's judgment on sentence.

For the purpose of determining whether the sentence imposed by the trial court was unduly lenient or not, it is necessary to consider the factual circumstances of the commission of the offence. The complainant gave a graphic picture of the episode but I do not propose to dwell on it at any length. On the afternoon of 30 November 1998 when the...