Johannesburg - A rapist’s life imprisonment sentence has been reduced to 10 years on the grounds that police never arrested his accomplice and that he was a first-time offender.
Judge Maake Francis Kganyago ruled in the Polokwane High Court last week that a lower court misdirected itself by handing Costa Thabalesoka Shai a life term.
Shai took to the high court to appeal against both the conviction and sentence he received at the Phalaborwa Regional Court in January last year.
Magistrate PD Nkuna found him guilty as charged for the rape of a woman who was walking home at about 11pm on December 15, 2012.
Along with an accomplice whom the police have not found, Shai raped the woman in the bushes between Mashishimale and Topville villages. He was arrested in 2014 after being linked to the rape by DNA test results.
Judge Kganyago rejected his claim that he had consensual sex with the victim. Shai had claimed the woman offered him sex because she feared walking in the dark bushes.
He denied being with another man. Judge Kganyago questioned how total strangers would just agree to sex without even asking each other’s names.
“This I find to be improbable.”
However, he found in favour of Shai’s sentence appeal. He ruled that the trial had not established minimum requirements for life imprisonment.
His first reason for setting aside the life sentence was that Shai’s accomplice was never arrested and put on trial.
“The other person implicated by the complainant was not before the trial court and no evidence was presented to show that the other person has been convicted for the rape of the complainant,” said Judge Kganyago.
“Therefore, the minimum sentence under Part 1 Schedule 2 (of the Criminal Law Amendment Act) is not applicable to the rape which the appellant has been convicted of.
“The trial court has therefore misdirected itself and the sentence of life imprisonment stands to be set aside.”
It could also not be found that Shai raped the victim twice, Judge Kganyago said.
“In my view, what the appellant did was a single continuing course of conduct and does not amount to two separate acts of rape.
“In the light that the State has failed to establish jurisdictional facts for the trial court to impose life imprisonment, the rape which the appellant has been convicted of falls within the ambit of Part III of Schedule 2 where the prescribed sentence for a first offender is 10 years, second offender 15 years and third offender 20 years,” Judge Kganyago said.
“The appellant is a first offender. The appeal on sentence stands to succeed.”
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