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[2008] ZASCA 161
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S v Maroulis (240/08) [2008] ZASCA 161; [2009] 2 All SA 429 (SCA) (27 November 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 240/08
No precedential
significance
CHRISTO
MAROULIS
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Maroulis
v The State (240/2008)
[2008] ZASCA 161
(27 November 2008)
Coram
:
MPATI
P, COMBRINCK JA and KGOMO AJA
Heard
:
5
NOVEMBER 2008
Delivered
:
27
NOVEMBER 2008
Summary
:
Sentence
– on charge of attempted murder appellant pleaded guilty to
assault with intent to do grievous bodily harm (count
1) –
pleaded guilty also to malicious injury to property (count 2) –
blunt object used in assault damaging front windscreen
of
complainant’s vehicle – sentence of 5 years’
imprisonment in terms of
s 276(1)(i)
of the
Criminal Procedure Act 51
of 1977
set aside and matter referred back to trial court for
imposition of sentence in terms of
s 276(1)((h).
_____________________________________________________________________
ORDER
_____________________________________________________________________
On
appeal from:
High
Court, Eastern Cape (Grahamstown) (Liebenberg and Revelas JJ) on
appeal from regional court, East London.
The appeal succeeds. The
sentence imposed by the trial court is set aside and the matter is
referred back to it for the imposition
of a sentence of correctional
supervision in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51
of 1977
.
JUDGMENT
MPATI P (COMBRINCKJA and
KGOMO AJA concurring):
[1]
This is an appeal against sentence. The appellant was arraigned in
the regional court, East London, on one count of attempted
murder
(count 1) and one count of malicious damage to property (count 2).
The allegations in respect of count 1 were that on 2
April 2004 the
appellant unlawfully and intentionally attempted to kill one Jean
Pierre Rautenbach (the complainant in both counts)
by hitting him
with a brick and a fist on his face, head and body. In respect of
count 2 it was alleged that on the same day he
unlawfully and
intentionally damaged the front windscreen of the complainant’s
BMW motor vehicle. The value of the windscreen
was reflected in the
charge sheet as R3 357.66.
[2] On count 1 the
appellant pleaded guilty to assault with intent to do grievous bodily
harm (a competent verdict on a charge of
attempted murder). He also
pleaded guilty to count 1. The state accepted the factual background
upon which the pleas of guilty
were based as set out in a statement
handed in by the appellant’s legal representative in terms of s
112(2) of the Criminal
Procedure Act 51 of 1977 (the Act). The
appellant was thus convicted on both counts in accordance with his
plea. The two counts
were taken as one for purposes of sentence and
the appellant was sentenced to 5 years’ imprisonment in terms
of s 276(1)(i)
of the Act. This meant that he could, at the
discretion of the Commissioner of Correctional Services, be placed
under correctional
supervision after serving a portion of the five
year term of imprisonment. The regional court magistrate also
declared the appellant
to be disqualified from possessing a firearm.
[3] The appellant’s
appeal to the Eastern Cape Division (Liebenberg J, Revelas J
concurring) against sentence was dismissed.
He is before us with
leave of that court.
[4] The facts which
formed the basis of the appellant’s convictions may be
summarised thus. The appellant and complainant
shared a house at the
relevant time. During the evening in question they went to a club
together with the appellant’s girlfriend
where they consumed
alcoholic beverages. In due course, the appellant became intoxicated
and got involved in an argument with his
girlfriend. He decided to
return home but his girlfriend refused to accompany him. He slapped
her once across the face. The complainant
then encouraged her not to
leave with the appellant. The appellant left without her and once
home he imbibed more. He was already
heavily intoxicated when he left
the club. He called his girlfriend and enquired as to when she and
the complainant would return
home. His girlfriend was to be given a
lift by the complainant but the latter refused to talk to him over
the telephone. This angered
the appellant. Repeated telephone calls
brought him no joy. He continued to consume liquor and when the
complainant ultimately
arrived in the early hours of the morning
without his (appellant’s) girlfriend he enquired about her
whereabouts. He became
enraged when the complainant still refused to
speak to him. He picked up an object which he thought was the metal
lid of a dustbin
and struck the complainant with it ‘three or
four times’. It is during this assault that the windscreen of
the complainant’s
motor vehicle was damaged.
[5] It appears that in
the process the appellant landed on the ground because he states (in
his statement) that he ‘got up
from the ground’ and went
into the house. He states further that he was heavily under the
influence of alcohol at the time
of the incident and although he
recalls what happened, there were some things that he did and about
which he was told the next
day.
[6] After the appellant’s
previous convictions (which I mention later) were proved, the state
led the evidence of the complainant,
who testified that the assault
on him began whilst he was still sitting in his vehicle. It continued
after he had alighted from
the vehicle. Whilst he was sitting inside
his vehicle he was struck with fists and when he alighted the
appellant pinned him against
the vehicle and hit him with a brick.
The brick was also used to damage the windscreen of his motor
vehicle. As a result of the
attack on him he fell onto the pavement
where the appellant continued to strike him. He lost consciousness
which he regained the
next morning in bed, covered in blood. When he
stumbled out of the house he saw the appellant who seemed to find his
appearance
quite amusing and who threatened that he ‘would get’
him.
[7] On 3 April 2004 the
complainant was examined by a physician, who recorded his findings in
a report which was handed in at the
trial as an exhibit. According to
the report the complainant sustained, inter alia, a severely bruised
face with swelling around
both eyes, lacerations on the right
occipital scalp, right ear, left eyebrow and lower lip. Several
photographs depicting the injuries
sustained by the complainant were
placed before the regional court magistrate. They support the
physician’s findings and
evidence a severe assault on the
complainant. The photographs were taken the next morning at the Fleet
Street police station, East
London. On 30 April 2004 the complainant
was also examined by a dentist, who recorded ‘a fractured upper
left front tooth’
which he repaired.
[8] At the end of May
2004 the complainant relocated to Cape Town. He testified that the
move was as a result of his living in anxiety
and fear since he
believed that the appellant ‘is a very violent person’.
He had been unemployed at the time of the
incident but found
employment in Cape Town.
[9] The appellant was a
42 year old divorcee at the time of the incident. He has previous
convictions of assault with intent to
do grievous bodily harm and
malicious injury to property, for which he paid an admission of guilt
fine of R200. The magistrate
said this about them:
‘
You
have a previous conviction for the very same offences, although these
convictions date back to 1991, almost 13 years before
these incidents
that we are dealing with. And also, the court has no information
regarding those incidents of 1991 except to conclude
that it would
not appear from the sentence, the admission of guilt that you paid,
that they were very serious. But nonetheless,
they are on your
record.’
[10] When it considered
sentence the regional court had the benefit of the views of a
probation officer in the service of the state,
Ms Andriette Ferreira.
She is the head of social services in the Department of Correctional
Services. She was called as a witness
by the defence. From her report
and her evidence it appears that the persons she interviewed and who
were able to testify to the
appellant’s character said that the
appellant was not inherently aggressive or violent. The appellant
works on a commission
basis and earns approximately R7000 per month.
Although she merely concluded in her report that the appellant was a
suitable candidate
for correctional supervision under the provisions
of s 276(h) of the Act, she recommended the imposition of such a
sentence during
her testimony.
[11]
Mr Price, who appeared in this court on behalf of the appellant
submitted, as he did in the court below, that the magistrate
misdirected himself in certain respects. The first such misdirection,
it was argued, was that the regional magistrate allowed the
prosecutor, after conviction, to lead evidence in aggravation, which
was inconsistent with the contents of the appellant’s
statement
in terms of s 112(2) of the Act. This inconsistent evidence relates
to the assault described by the complainant after
he had allegedly
fallen on the pavement until he lost consciousness, and the object
allegedly used in the assault. Mr Price submitted
that the prosecutor
ought not to have been allowed to lead such evidence. He referred in
this regard to this court’s decisions
in
S
v Ngubane
1985
(3) SA 677
(A) at 683 D-F and
S
v Legoa
2003
(1) SACR 13
(SCA) paras 26 and 27.
[12] The court a quo
dealt with this submission as follows:
‘
The
evidence led by the state after conviction, in my view, did not
contradict the appellant’s version in any material respect.
The
evidence by the complainant regarding the use of his fists and a
brick by the appellant is in my view not a contradiction of
the
version of the appellant. The appellant stated that he used an object
but was not at all clear as to what it actually was.
His reference to
the lid of a dustbin was vague and he himself expressed uncertainty.
The evidence of the complainant, therefore,
does not contradict the
appellant’s but supplements it and fills in the detail of what
occurred. This is admissible in terms
of the provisions of section
112 (3) of the Act (see
S
v Swarts
1983
(3) SA 261
(C);
S
v Moorcroft
1994
(1) SACR 317
(T)). In any event the magistrate did not make a
specific finding that it was a brick, but accepted, as he should
have, that the
attack was with a blunt object.’
In
the view I take of this matter, I find it unnecessary to enter into
this debate. Suffice it to say that I agree with the last
sentence of
the passage just quoted.
[13]
There are in my view at least two important misdirections in the
regional court magistrate’s judgment on sentence. The
first is
his comment that the appellant must have contemplated the attack
‘long before complainant’s arrival at home’.
There
is to my mind no basis for this observation. There is no indication
that the appellant knew that the complainant would arrive
home
without his (appellant’s) girlfriend. Indeed, the appellant’s
statement is to the effect that he confronted the
complainant ‘as
to where my girlfriend was’ and the complainant did not want to
talk to him. He then states that ‘I
then became cross’
and picked up the object which he used to attack the complaint.
[14]
The second misdirection relates to the appellant’s character.
The evidence of the probation officer was that the people
that she
consulted told her that the appellant was not inherently inclined to
aggression or violence. Without any evidence to the
contrary and
purely on the basis of the attack on the complainant – possibly
also from the previous convictions – the
regional court
magistrate disagreed and held that ‘. . . although you
professed not to be inclined to aggression and violence,
the Court is
convinced that there is a definite need to address this problem of
yours’. I consider these misdirections to
be such as to entitle
this court to interfere with the sentence.
[15]
It is true that judging from the injuries sustained by the
complainant as evidenced by the photographs referred to above, the
attack on him was very serious indeed. But it does not necessarily
follow that every serious assault should result in a custodial
sentence. Whilst it is also true that where the seriousness of an
offence makes it necessary that a clear message be sent to the
community at large that resort to violence will not be tolerated (
S
v Maleka
2001
(2) SACR 366
(SCA) para 8), this must not be done at the expense of
an accused person’s personal circumstances. The appellant, at
the
age of 42 years, has only once been the subject of a prosecution
before the present incident. The period between his previous
conviction
and the present matter is approximately 13 years. It can
be inferred from this that until the incident which is the subject of
this appeal and which, in my view, does have an element of
provocation, the appellant had not been in conflict with the law over
that period. He is employed and earns a commission-based income of
R7000 per month. According to the report compiled by Ms Ferreira,
the
appellant has always been self-sufficient and financially
independent.
[16]
When all these factors are taken into consideration, it seems to me
that a sentence of direct imprisonment would do more harm
to the
appellant and society at large than what is generally sought to be
achieved by the imposition of a custodial sentence. In
my view, the
regional court magistrate overemphasised the elements of deterrence,
prevention and retribution, whilst he overlooked
the element of
rehabilitation. It seems to me that had he not misdirected himself as
indicated above, the regional court magistrate
would in all
probability have imposed a sentence of correctional supervision in
terms of s 276(1)(h) of the Act. Such a sentence
is not to be viewed
as a light sentence as the regional court magistrate himself
observed. He said:
‘
Correctional
supervision is undoubtedly a stern form of sentence with the benefit
that the offender is spared the humiliation of
incarceration.’
These observations are
indeed appropriate. The stringent conditions placed on an offender,
such as house arrest, community service
and the like afford such
offender an opportunity to remain a member of society in gainful
employment while not free to do as he/she
pleases and also paying
his/her dues to society. In my view, the present is a case where a
sentence of correctional supervision
would be an appropriate
sentence.
[17]
The appeal succeeds. The sentence imposed by the trial court is set
aside and the matter is referred back to it for the imposition
of a
sentence of correctional supervision in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
.
MPATI P
Appearances:
For appellant : T N Price
Instructed by
Changfoot & Van
Breda, East London
Honey Attorneys,
Bloemfontein
For respondent H
Obermeyer
Instructed by
Director of Public
Prosecutions, Grahamstown
Director
of Public Prosecutions, Bloemfontein