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[2018] ZAGPJHC 38
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Khamisi v S (A253/2017) [2018] ZAGPJHC 38 (6 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number:
A253/2017
DATE:
05/03/2018
In
the matter between:-
KHAMISI,
EDWARD
Appellant
and
THE
STATE
Respondent
JUDGMENT
VAN
DER WESTHUIZEN AJ
Introduction
[1]
The
appellant was convicted in the Regional Court, sitting in
Johannesburg, of housebreaking with the intent to steal and theft
(count 1) and attempted murder (count 2). The appellant was legally
represented and pleaded not guilty to count 1 and guilty to
count 2.
The facts underpinning the guilty plea to count 2, were not accepted
by the State. On 18 August 2016, the appellant was
found guilty on
both counts and on the same day, sentenced to three years
imprisonment in respect of count 1 and ten years in respect
of count
2, which sentences were ordered to run concurrently. He was declared
unfit to possess a firearm in terms of the provisions
of
section 103
of the
Firearms Control Act 60 of 2000
.
[2]
The
appellant applied for leave to appeal, which was granted in respect
of his sentence only.
SUMMARY OF FACTS
[3]
The
Appellant and the complainant were married but at the time of the
incident, were separated. The complainant stayed in
a room on
the premises of her employer. During the morning of the attack,
she went to her room when she noticed the appellant
hiding in the
garden. She became scared and started to run in the direction of the
main house. The appellant caught up with her,
tripped her and she
fell to the ground. Whilst on the ground he said that he wanted
to kill her and he then stabbed her in
the neck with a knife.
The appellant dragged her by her feet into her room where he again
threatened to kill her.
[4]
Inside
the room he started to boil water telling the complainant that he
wanted to burn her. He also said that he wanted
to have sexual
intercourse with her. Her
employer
called for her and the appellant then fled the scene. The police and
ambulance were called and the complainant was taken
to hospital.
Three days later the blade of the knife was surgically removed from
her neck.
TEST ON APPEAL
[5]
The
principles underpinning the power of a court on appeal to interfere
with the sentence imposed by the trial court are well established
in
our law. In
S
v Romer
2011 (2) SACR 153
(SCA), at paras [22] and [23] they were discussed
as follows:
‘
[22]
It has been held in a long line of cases that the imposition of
sentence is pre-eminently within the discretion of the
trial court.
The appellate court will be entitled to interfere with the sentence
imposed by the trial court only if one or more
of the recognised
grounds justifying interference on appeal has been shown to exist.
Only then will the appellate court be justified
in interfering. These
grounds are that the sentence is ‘(a) disturbingly
inappropriate; (b) so totally out of proportion
to the magnitude of
the offence; (c) sufficiently disparate; (d) vitiated by
misdirections showing that the trial court exercised
its discretion
unreasonably; and (e) is otherwise such that no reasonable court
would have imposed it.’ See
S
v Giannoulis
;
S
v Kibido
;
S
v Salzwedel & others
.
[23]
In
S
v Matlala
it
was held that in an appeal against sentence the fact that the
sentence imposed by the trial court is wrong is not the test. The
test is whether the trial court in imposing it exercised its
discretion properly or not. Consequently, the circumstances in which
an appellate court will interfere with the exercise of such
discretion are circumscribed. In
S
v Sadler
Marais JA, writing for a unanimous court, had occasion to re-state
them when he said the following:
‘
The
approach to be adopted in an appeal such as this is reflected in the
following passage in the judgment of Nicholas AJA in
S
v Shapiro
1994
(1) SACR 112
(A) at 119j-120c:
“
It
may well be that this Court would have imposed on the accused a
heavier sentence than that imposed by the trial Judge. But even
if
that be assumed to be the fact, that would not in itself justify
interference with the sentence. The principle is clear: it
is
encapsulated in the statement by Holmes JA in
S
v Rabie
1975
(4) SA 855
(A) at 857D-F:
“
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 is vitiated by
irregularity
or
misdirection or is disturbingly inappropriate”.’
(footnotes omitted)
MISDIRECTIONS
[6]
The appellant contended that the effective
sentence imposed is shockingly inappropriate.
FACTORS CONSIDERED BY
THE COURT A QUO
[7]
The
court
a
quo
considered the follo
wing:
7.1.
That
the appellant was 37 years of age.
7.2.
That
he was a first offender.
7.3.
That
he was married to the complainant and that they have two children,
one 12 years of age the other 9.
7.4.
That
he was employed as a driver prior to being incarcerated earning an
income of approximately R1 800 per month of which R 700
was used for
rent and R 900 for the support of his mother and children.
7.5.
That
he was in custody for approximately 4 months awaiting trial.
7.6.
That
he had taken R600 cash from the complainant and that it had not been
recovered.
7.7.
The
particular facts of this matter.
[8]
The
learned magistrate quite rightly found the conduct of the appellant
particularly reprehensible. She placed a lot of emphasis
on the fact
that the appellant was married to the complainant and was, by virtue
of this very intimate relationship, the person
who was supposed to
love, protect and respect her. Instead, he stabbed her with a knife
in the back of her neck with such force
that the handle broke off
with the knife blade remaining embedded in her neck. As if this was
not enough, he then dragged the injured
woman by her feet into the
room to torment her even further. He started to boil water and
threatened to burn her. One shudders
to think what might have
happened had her employer not interrupted the appellant in executing
his sadistical plans. The learned
magistrate also, quite correctly,
had regard to the fact that the complainant’s life was spared
through no doing of the appellant
but rather due to the swift action
of the employer who had contacted the ambulance and ensured that she
had received medical attention.
[9]
The
learned magistrate also had regard to the emotional anguish the
complainant would have suffered during the 3 days prior to the
surgery during which time the complainant was told that the medical
doctors were scared to remove the knife. During those three
days she
feared she would die or that she would end up
paralysed. The learned magistrate
quite correctly, had regard to the fact that the complainant has
still not recovered completely,
had difficulty in the movement of her
leg and still experiences pain.
[10]
The
learned magistrate considered the facts of this case most heinous, as
indeed they were. The trauma caused to the complainant
by these acts
of violence was severe and enduring. The victims of such crimes
deserve the protection of the law and the sentences
that are imposed
should reflect that the law takes the victims’ trauma into
account, see
S
v Matyityi
,
2011 (1) SACR 40
(SCA). To place people’s lives at risk like
this and to be so enduringly cruel to them is an evil to be severely
punished;
it is widespread conduct as the magistrate pointed out. The
learned magistrate, quite rightly, placed much emphasis on the
prevalence
of domestic violence against women throughout this
country.
[11]
From
my summary of the court
a
quo’s
judgment on sentence in this matter, it is patent that the magistrate
took pains to consider all of the principles relevant to
sentencing
the appellant and to apply these to the facts of the case before
her. She did not overlook the appellant’s
personal
circumstances. She weighed these against the list of
aggravating factors that she found to be relevant. It
cannot be
said that she misdirected herself in identifying these as aggravating
factors, or in the manner in which she sought to
balance these
against factors favourable to the appellant.
[12]
It
also cannot be said that the sentence imposed was shockingly
inappropriate, there certainly is precedent for sentences of a
similar nature in this division, see
S
v Kgwedi
,
2015 JDR 2428 (GP). The supreme court of appeal too has not shied
away from sentences of this nature, see
Zimila
v S
(1179/16)
[2017] ZASCA 55
(18 May 2017) nor has the Constitutional
Court, see
Carmichele
v Minister of Safety and Security and Another
,
[2001] ZACC 22
;
2002 (1) SACR 79
(CC). There could not be a clearer case of attempted
murder than this one. The complainant survived despite every effort
by the
appellant to murder her.
[13]
It
was contended that the sentence imposed on the appellant visited the
appellant with a punishment to the point of being broken
as
insufficient regard was had to the fact that he had apologised to the
complainant and that when imposing sentence, the court
did not have
regard to mercy. As far as the element of mercy is concerned
the Court takes into consideration what is appositely
stated in
paragraphs 20 and 21 of the heads of argument of Mr Wasserman
representing the state: “
Mercy
is not a separate element that needs to be accounted for, as is
suggested by counsel for the appellant. When considering the
elements
of retribution, deterrence and prevention, mercy is used to temper
the sentence so that the sentence is fair and just
and not overly
harsh
.”
And paragraph 21: “
Retribution
and deterrence are proper purposes of punishment and must therefore
be afforded due weight and consideration.
If the crime is
serious, it will require that the element of retribution and
deterrence be given more weight and consideration
than
rehabilitation
”.
[14]
It
is correct, as submitted by Mr Wasserman, that any form of crime has
a harsh effect on society. However, as Sachs J observed
in the
matter of
S
v Baloyi
[1999] ZACC 19
;
2000 (1) SACR 81
(CC):
‘
What
distinguishes domestic violence is its hidden, repetitive character
and its immeasurable ripple effects on our society and,
in
particular, on family life. It cuts across class, race, culture
and geography, and is all the more pernicious because
it is so often
concealed and frequently goes unpunished’.
[15]
Sachs
J stated further that domestic violence compels constitutional
concern in that it is systemic, pervasive and overwhelming
gender
specific as it reflects and reinforces patriarchal domination in a
brutal form. In terms of section 12(1) of the Constitution
everyone
has the right to freedom and security of person. That includes
freedom from all forms of violence.
[16]
In my
view, the peculiarities of this case, and the host of aggravating
factors considered by the court
a
quo
justify the sentence that was imposed. Interference with the trial
court’s sentence in this matter is not justified.
ORDER
[17]
In
the circumstances the appeal on sentence is dismissed.
___________________________
FJ VAN DER
WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
_________________________
I OPPERMAN
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Heard:
8 February 2018
Judgment
delivered: 6 March 2018
Appearances:
For
Appellant: Adv E Guerneri
Instructed
by: Legal Aid South Africa
For
Respondent: Adv JG Wasserman
Instructed
by: Office of the DPP