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[2016] ZAFSHC 38
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Sesing v S (A202/2015) [2016] ZAFSHC 38 (25 February 2016)
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FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal no: A202/2015
DATE: 25 FEBRUARY 2016
In the matter between:
TEBOHO GEORGE
SESING
.................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: MOLOI, J et CHESIWE, AJ
HEARD ON: 08 FEBRUARY 2016
DELIVERED ON: 25 FEBRUARY 2016
CHESIWE, AJ
[1] The Appellant in this matter was
convicted in the Bothaville District Court on a charge of assault to
do grievous bodily harm
and was sentenced to 18 (eighteen) months
imprisonment, in terms of Section 276 (1) of
Criminal Procedure Act
51 of 1977
.
[2] Leave to appeal was granted by the
trial court and the appeal lies only against the sentence.
[3] The facts of the matter are briefly
as follows:
On the 7 March 2015, the complainant
was at house number [1……]. He was in the company of
his girlfriend, Nonie Magelwe.
Together with them was also Xolile
Bam and Millicent.
The complainant was drinking alone and
his girlfriend was drinking with her friends.
He had two bottles of beer and was busy
drinking from one of the bottles when, the accused arrived. The
complainant noted that the
accused had already taken alcohol. The
accused wanted to pour himself beer from the complainant’s beer
bottle. A struggle
between them ensued. The accused hit the
complainant with the full beer bottle, and struck the complainant on
the left side of
the face. The complainant sustained 5cm long
laceration. He had to be sutured with 12 twelve stitches.
[4] During the trial, the Appellant,
was at all times legally represented by Mr. Khambule. The Appellant
pleaded not guilty and
a plea explanation was not given.
[5] The Appellant appeals on the
following grounds:-
The sentence is out of proportion with
the facts in mitigation; the Appellant was also injured by the
complainant; the court a quo
erred in finding that the Appellant was
the aggressor, because he also sustained an injury.
The court a quo erred in not properly
taking the Appellant’s personal circumstances into account,
being:-
a) Appellant’s age,
b) His children,
c) His employment.
d) He was attacked by the complainant.
e) He only struck complainant once with
the beer bottle.
[6] Mr. Reyneke on behalf of the
Appellant, in the Heads of Argument and oral argument, before us
submitted that, the court over-emphasised
the seriousness of the
crime. The court made no mention during the sentence of the
Appellant’s sobriety, although complainant
testified that the
Appellant was drunk or under the influence of alcohol.
[7] Mr. Reyneke submit that the intake
of alcohol, clearly influenced the Appellant’s
blame-worthiness, as the Appellant acted
out of the norm on the said
day though there was no evidence of the extend of the appellants
intoxication.
[8] Mr. Reyneke further submitted that
there was no J88 submitted to prove the injuries of the complainant.
In spite of the absence
of J88, one must take cognisance of the
gravity of the complainants injury, being hit with a beer bottle next
to his eye, and sustaining
a laceration of about 5cm long, which was
sutured with 12 (twelve) stitches.
[9] Adv. Moroka on behalf of the
Respondent argued that the court did not misdirect itself and that
the appeal court should not
temper with the sentence, because it was
appropriate for the crime committed.
[10] Adv. Moroka submitted that the
court a quo took into account the weapon used, and the sensitive area
of the face targeted by
the assault.
[11] She argued that the appellant is
not a first offender. The appellant has previous convictions; one of
theft, which is irrelevant
in this instance; one of assault GBH and
two counts of robbery.
Adv. Moroka argued that these
convictions have an element of violence and are relevant for purposes
of sentence in this case. She
submitted that the appellant has not
learned from this previous convictions and sentences imposed.
[12] Adv. Moroka submitted that the
sentence by the court a quo was neither severe, nor shockingly
inappropriate nor did the magistrate
misdirect himself in his
finding. The Magistrate took into account the following:-
The personal circumstances of the
Appellant: the seriousness of the office; the prevalence of assault
in the Magisterial District
of Bothaville; the complainant was struck
at a very sensitive area with the beer bottle. The kind of weapon
used in the commission
of the offence.
[13] Assault with intention to do
grievous bodily harm is a very serious offence. The crime in that
area is prevalent. The Appellant’s
previous convictions were
relevant for purposes of sentence. It is trite law that the sentence
of an accused must be balanced
between the interests of society, the
offence and the personal circumstances of the accused. S v Rabie,
1975 (4) SA 855
(A) at 866 A-C;
[14] The interests of the public must
be protected. I am of the view that the sentence handed down by the
court a quo is an appropriate
sentence for the offence committed.
The trial court did not misdirect itself in any manner during
sentencing.
Rex v Dhlumayo and Another
1948 (2) SA
677
(A) at 706.
“Where there has been no
misdirection on fact by that court, the presumption is that his
conclusion is correct; the appellate
court will only reverse it where
it is convince that it is wrong.”
[15] The questions which the court is
called upon, is to determine whether the sentence imposed is in
accordance with justice.
It is trite law that numerous decided cases
of the SCA, has it been decided that the appeal court can only
interfere with the sentence
where when the sentence is:
Disturbingly inappropriate and induces
a sense of shock: S v De Jager & Another,
1965 (2) SA 616
(A)
Totally out of proportion to the
magnitude of offence;
Vitiated by misdirection if the
misdirection is serious: S v Kibido,
1998 (2) SACR 213
(SCA) or
improperly exercised: S v Anderson
1964 (3) SA 494
[16] It is trite law that the sentence
of an accused must be balanced between the interest of society, the
nature and seriousness
of the offence and the personal circumstances
of the accused. S v Banda and Others 1991 (2) SA (BGD) on 355 A; S v
Rabie
1975 (4) SA 855
(A).
[17] It is also trite law that a Court
of Appeal will only interfere with the sentence if it is not suitable
or if an irregularity
occurred during sentencing. The test for
interference is (a) whether the discretion of the case that court has
been judiciously
and properly exercised; (b) whether the sentence
imposed is vitiated by shockingly irregularity or misdirection or is
inappropriate.
[18] S v Malgas
2001 (1) SACR 469
SCA
at 478 D-E.
“A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the
quantum of sentence as if it were the trial
court, and then substitute the sentence arrived at by it simply
because it prefers
it. To do so would be to usurp the sentencing
discretion of the trial court …”
It is clear from Malgas (supra) that
the powers of a court of appeal to interfere in a sentence imposed by
that court are clearly
circumscribed. See S v Botha
1998 (2) SACR
206
(SCA) and also S v Barnard
2004 (1) SACR 191
(SCA). It follows
that this court is not at large to interfere with the sentence
imposed by the trial court.
[19] The trial court correctly
exercised its discretion in a fair and reasonable manner and that the
sentence imposed is appropriate
and fair.
[20] In view of the aforesaid, I am not
persuaded that the court a quo misdirected itself or that the
sentence is shockingly appropriated.
[21] In the circumstances, I would make
the following order:-
1. The Appeal in respect of sentence is
dismissed.
S. CHESIWE, AJ
I concur
K.J. MOLOI, J
On behalf of Appellant: JD Reyneke
Instructed by: Legal Aid
Bloemfontein
On behalf of Respondent: Adv. MMM
Moroka
Instructed By:Director of Public
Prosecution
Bloemfontein