About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 174
|
|
Hildebrand v The State (00424/2015) [2015] ZASCA 174 (26 November 2015)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 00424/2015
DATE: 26 NOVEMBER 2015
Not Reportable
In the matter between:
RAINIER
HILDEBRAND
................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral citation: Hildebrand v The
State (00424/15)
[2015] ZASCA 174
(26 November 2015)
Coram: Bosielo, Tshiqi and Swain JJA
Heard: 04 November 2015
Delivered: 26 November 2015
Summary:
Appeal against sentence
– appellant convicted of two counts of assault with intent to
cause grievous bodily harm on two young
children –sentenced to
30 days imprisonment on each count – Section 51(5) of the
Criminal Law Amendment Act 105 of
1997 not precluding a sentencing
officer from suspending the sentence imposed where minimum sentence
departed from.
ORDER
On appeal from: North Gauteng High
Court, Pretoria (Makgoba J and Jansen AJ sitting as court of first
instance).
a) The appeal is upheld.
b) The order of the court a quo is set
aside and replaced with the following order:
The appeal is upheld and the sentence
imposed by the Gauteng Regional Court is set aside and replaced with
the following sentence:
‘The appellant is sentenced to
imprisonment for 30 days on each count. Both sentences are suspended
for a period of 5 years
on condition that the appellant is not
convicted of assault with intent to cause grievous bodily harm,
committed during the period
of suspension and for which he is
sentenced to imprisonment without the option of a fine’.
JUDGMENT
Bosielo JA (Tshiqi and Swain JJA
concurring)
[1] The appellant was convicted by the
regional magistrate, sitting at the Gauteng Regional Court, Benoni,
on 27 June 2012 following
his plea of guilty on two counts of
assault, with intent to cause grievous bodily harm, perpetrated on
two minor children. He was
sentenced on 10 September 2012 by the
regional magistrate to imprisonment for 30 days on each count. His
appeal against sentence
to the North Gauteng High Court, Pretoria
having failed, he now appeals to this Court with the leave of the
court below.
[2] A brief background to this case
will suffice. The appellant is the fiancé to the complainants’
mother. The complainants
are twelve years and six years old
respectively. He was staying with them in a flat with their mother.
On 11 February 2011, upon
returning home, the appellant found the
complainants throwing articles out of the flat’s window onto
the neighbours’
premises. It was not the first time that they
had done this. As the appellant had previously admonished them
against this conduct
he lost his temper and out of frustration
grabbed a broken bat and hit both children on their buttocks. There
is no clarity regarding
the size and nature of the broken bat which
the appellant used. According to the appellant, he did not intend to
hurt the children
but did so spontaneously in an attempt to
discipline them.
[3] However, the two medical reports
which were admitted as part of the evidence with the appellant’s
consent, show that the
two complainants suffered the following
injuries;
(a) ML, the 12 year old complainant,
sustained a 10x4 cm bruise on her left buttock;
(b) DL the 6 year old sustained three
bruises, a 7x8 cm bruise on his left buttock; a 9x7 cm bruise on the
whole of his right buttock
and a 8x5 cm bruise on the right upper
leg, just next to the buttock area.
[4] The Probation Officer, Ms
Mbulawa-Kama interviewed the appellant and compiled a pre-sentence
report. She also testified in court.
Based on her interview with the
two victims, the appellant, his fiancé (the mother to the two
victims), the victims’
stepmother and the victims’
maternal grandparents, she recommended a sentence of correctional
supervision in terms of s 276(1)(h)
of the Criminal Procedure Act 51
of 1997 (CPA).
[5] The regional magistrate sentenced
the appellant to 30 days’ imprisonment on each count. She
justified the sentence as
follows:
‘I cannot for one minute believe
that society would expect this court to take you out of society, but
sir, as I have quoted
to you, I have a problem I can defer from that
prescribed sentence, and certainly I will, but according to the
Criminal Procedure
Act, I only have incarcenation as an option. I
cannot replace it with correctional supervision, I cannot suspend the
sentence it
is prohibited, I cannot postpone sentencing it is also
prohibited.’
[6] Before us the appellant’s
counsel submitted in the main that the regional magistrate erred in
considering herself bound
by the minimum sentencing provisions of the
Criminal Law Amendment Act 105 of 1977 (the Act) even after she had
found that there
were substantial and compelling circumstances which
justified a departure from the minimum sentence. He concluded by
contending
that the regional magistrate misdirected herself by
finding that she was precluded by s 51(5) of the Act from suspending
part of
the sentence she had intended to impose on the appellant.
[7] Counsel for the respondent conceded
that the regional magistrate erred in finding that, although she
would have preferred to
impose a prison term wholly suspended, she
was prevented from doing so by s 51(5) of the Act. She contended that
once the regional
magistrate found that there were substantial and
compelling circumstances which justified a sentence other than the
one prescribed
as a minimum by the Act, she retained her unfettered
discretion to impose any sentence which she regarded as appropriate,
having
considered the basic triad and purposes of punishment. The
concession by the state is well-made.
[8] Section 51 of the Act provides for
the minimum sentences for certain specified offences. Once a court
finds that the offence
for which an accused has been convicted falls
under offences specified by s 51 of the Act, then that court has no
option but to
impose the minimum sentence prescribed unless it can
find substantial and compelling circumstances. However, once it is
satisfied
that there are substantial and compelling circumstances
which justify the imposition of a sentence other than the one
prescribed
by the Act, it can impose any sentence which it regards as
appropriate (s 51(3) of the Act). This is so because as this Court
held
in S v Malgas
[2001] ZASCA 30
;
2001 (2) SA 1222
(SCA) para 25A:
‘Section 51 has limited but not
eliminated the courts’ discretion in imposing sentence in
respect of offences referred
to in Part 1 of Schedule 2 (or
imprisonment for other specified periods for offences listed in other
parts of Schedule 2).’
[9] Section 51(5) of the Act reads:
‘The operation of a minimum
sentence imposed in terms of this section shall not be suspended as
contemplated in section 297(4)
of the Criminal Procedure Act, 1977
(Act 51 of 1977).’
[10] It should be clear that s 51(5)
refers to ‘a minimum sentence imposed in terms of this
section’. Self-evidently,
this section does not apply to
sentences imposed after a finding that substantial and compelling
circumstances exist, because such
a sentence is not one imposed in
terms of s 51. The sentence imposed by the regional magistrate
accordingly did not fall within
the restrictive provisions of s 51(5)
[11 The regional magistrate found that
the appellant does not present as a serial criminal, nor as a person
with a proclivity for
violent conduct. Moreover, he is a first
offender. There is no evidence that he is a danger to society. It is
clear from the Probation
Officer’s report that, although he is
not the natural and biological father of the two complainants, he
treated them with
care and love. He would take them shopping and buy
them clothes. Amongst others, he would also assist them with their
lunch boxes
and even drive them to school. Importantly, this is
confirmed by both Mr and Ms Visser, the victims’ maternal
grandparents.
[12] Sight must not be lost of the fact
that this assault was an isolated incident which happened on the spur
of the moment. Against
his previous warnings, the complainants threw
articles through the flat’s window onto the neighbours’
premises. As
he had warned them before, he lost his temper and in a
momentary lapse of good judgment, gave in to his anger and
frustration,
and took a broken bat and hit them on their buttocks.
There is nothing to gainsay his explanation that he did not intend to
hurt
them, but merely intended to discipline them and correct their
aberrant behaviour. This is not to suggest that infliction of bodily
injuries to young children should be condoned. The appellant as an
adult and a parent needed to find alternative ways of disciplining
the children. There is thus no doubt that he was wrong in his conduct
and deserves to be punished.
[13] As the regional magistrate stated,
the appellant is not prison material. The record shows that the
regional magistrate agonised
about the desirability and efficacy of
direct imprisonment for a person of the appellant’s calibre.
She did not think that
direct imprisonment was an appropriate
sentence. Even the Probation Officer recommended correctional
supervision instead of direct
imprisonment. No doubt the sentence
which she ultimately imposed was influenced by her wrong
understanding of the provisions of
the Act. Having found good grounds
to deviate from the minimum sentences, the regional magistrate was at
large to impose any sentence
which she found appropriate, given the
particular circumstances of this case. Furthermore, she was also free
to suspend the sentence,
either wholly or in part, under any
conditions which she may have regarded as suitable. It follows that
the regional magistrate
misdirected herself and this Court is
accordingly at liberty to interfere with the sentence.
[14] It is true that the appellant had
to be punished for the offences which he committed. However I am of
the view that a sentence
of direct imprisonment, due regard being had
to all of the facts, was shockingly inappropriate, contrary to the
conclusion reached
by the high court.
[15] In the result, the following order
is made:
a) The appeal is upheld.
b) The order of the court a quo is set
aside and replaced with the following order:
The appeal is upheld and the sentence
imposed by the Gauteng Regional Court is set aside and replaced with
the following sentence
‘The appellant is sentenced to
imprisonment for 30 days on each count. Both sentences are suspended
for a period of 5 years
on condition that the appellant is not
convicted of assault with intent to cause grievous bodily harm,
committed during the period
of suspension and for which he is
sentenced to imprisonment without the option of a fine’.
L O Bosielo
Judge of Appeal
APPEARANCES:
For Appellant: HL Alberts
Instructed by:Legal Aid South
Africa, Pretoria
Legal Aid South Africa, Bloemfontein
For Respondent: S Scheepers
Instructed by: Director Public
Prosecutions, Pretoria
Director Public Prosecutions,
Bloemfontein