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[2017] ZANCHC 8
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Moos v S (CA&R113/16) [2017] ZANCHC 8 (17 February 2017)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No:
CA&R
113/16
Heard:
13-02-2017
Delivered:
17-02-2017
In
the matter between:
JOLANDA MOOS
Appellant
v
THE
STATE
Respondent
Coram:
Kgomo JP et Snyders AJ
APPEAL
JUDGMENT
Kgomo JP
1.
The
appellant was arraigned before Regional Magistrate Ms N Mbalo sitting
at Sutherland, Northern Cape, on a charge of murder.
She was
accused of murdering Mr Reckville Olivier a 21 year old man on 05
January 2016, by repeatedly kicking and trampling him
on his head and
upper body until he died. The provisions of
sections 51(2)
,
52A
and
52B
of the
Criminal Law Amendment Act, 105 of 1997
, were invoked.
2.
The
appellant was sentenced to 15 years imprisonment and also declared
unfit to possess a firearm. Leave to appeal against
the
sentence is with leave of the trial Court. The essence of the
ground(s) of appeal is that having regard to the sheer
weight and
number of the mitigating factors the learned Magistrate erred in not
having imposed a lesser sentence than the prescribed
15 years minimum
sentence. This resumè also basically summarises Mr
Fourie’s, appellant’s counsel’s,
submission to us.
3.
The
appellant was legally represented by attorney Ms E Muller attached to
the Legal Aid South Africa Centre at trial stage.
She pleaded
guilty and submitted a written plea in terms of
s 112(2)
of the
Criminal Procedure Act, 51 of 1977
, in which she broadly stated that:
3.1
Earlier
on the day of the incident the deceased stole her phone and it took a
lot of effort to retrieve it from him;
3.2
She
had been drinking that day and was fairly heavily under the influence
of intoxicating liquor but was fully cognizant to, or
appreciated,
what she was doing;
3.3
In
that state of intoxication she found the deceased lying on a bed
where she also happened to have been. He was stuporous
drunk
(“
tiepdronk”,
she
says). She dragged him from the bed onto the floor where she
kicked and trampled him severely on his head and the chest
area.
The chief post-mortem finding by the pathologist is the following:
“
(1)
Uitgebreide kneusing, abrasies gesig;
(2)
Groot subdurale bloeding (L) en (R) occipital;
(3)
Aspirasie bloed tragea en veral (R) long;
(4) Bloed in
maag.”
The cause of death is noted as:
“
Subdurale
bloeding met asperasie en asfiksie.”
4.
In
my view the following may be recorded as mitigating factors:
4.1
The
appellant was brought up in a dysfunctional home. She started
drinking when she was at High School and developed a drinking
problem, a combination of which let her dropping out of school in
Grade 8;
4.2
When
the offence was committed, now not surprisingly, she was relatively
heavily under the influence of intoxicating liquor.
The intake
had impaired her thinking faculties. If sober she would not
have behaved in the irrational way she did.
She says, for
instance:
“
Ek het
net geskop en aangehou skop totdat die mense van die huis my daar
weggetrek het.”
4.3
The
deceased had provoked the appellant earlier in the day by stealing
her phone and steadfastly refused to part with it.
The sight of
him sleeping triggered the rage in her. The meaning of this is
that the assault was not just gratuitous in the
sense that it stems
from somewhere;
4.4
At
19 years of age the appellant was still fairly youthful. It was
common cause that she had previously voluntarily submitted
herself
for alcohol rehabilitation and undertook or was prepared during her
trial to do so again. She is, in the premises,
a good candidate
for rehabilitation. That window ought to be left open for her
to look through and reconsider her wayward
ways;
4.5
The
appellant was a first offender. A combination of this fact with
her plea of guilty makes her written expression of remorse
the more
plausible; and
4.6
The
appellant has been convicted of murder with
dolus
eventualis
as
the form of intent. The state by accepting the plea of guilty
in that form conceded thereby that the appellant had no direct
intent
to cause the deceased’s death. The concomitant thereof is
that the moral turpitude of her heinous deed was ameliorated.
5.
The
Supreme Court of Appeal, Marais JA, in
S
v Sadler
2000(1) SACR 331 (SCA) at 334d-g (para 6) re-emphasized the
parameters within which an appellate Court may interfere with the
decision/sentence of a court
a
quo
by referring to two decisions of that Court where the following was
stated:
“
[6]
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".”
6.
In
S
v Malgas
2001(1) SACR 469 (SCA) at 482e-f Marais JA made this pronouncement
which, for me, is pertinent to this case:
“
I. If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
7.
While
state counsel, Adv Jansen, emphasized the persistence and viciousness
of the assault she declared herself not to be averse
to the Court
tampering with the sentence. This is also what we intend doing
because, on a conspectus of the aforegoing, substantial
and
compelling circumstances calling for a deviation from the ordained
sentence exist and is justified. Although this was
not a
straightforward balancing act, this is the conclusion which the
Magistrate should have reached.
8.
In
the result I make the following order:
(1)
The
appeal succeeds to the following extent: The sentence of 15
years imprisonment is set aside and replaced with the following:
“
The
accused is sentenced to 12 (twelve) years imprisonment, 4 (four)
years of which are suspended for five years on condition that
the
accused is not convicted of an offence involving violence to the
person of another, and to which she is sentenced without the
option
of a fine, and committed during the period of suspension.”
(2)
In
terms of
s 282
of the
Criminal Procedure Act, 51 of 1977
, this
sentence is antedated (backdated) to 02 February 2016.
_______________________
F DIALE
KGOMO
JUDGE
PRESIDENT
Northern
Cape Division, Kimberley
I concur
_______________________
J A
SNYDERS
ACTING
JUDGE
Northern
Cape Division, Kimberley
On
behalf of the Applicant
:
Mr
P.J Fourie
(Legal
Aid South Africa, Kimberley)
On
behalf of the Respondent:
Adv.
C. Jansen
(Director
Public Prosecutor, Kimberley)