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[2015] ZAGPPHC 513
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S v Fourie (A319/2015, A466/15) [2015] ZAGPPHC 513 (9 July 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
A466/15
9/7/15
REVIEW CASE NO: A319/2015
IN THE MATTER BETWEEN:-
THE
STATE
vs
KERNIELS
MANIKIE FOURIE
REVIEW JUDGMENT
KUBUSHI,J
[1] The accused, a [……]
year old male, was charged with two counts of assault with intent to
do grievous bodily harm
in the magistrate court Cullinan. The accused
pleaded guilty to the charges and the state accepted the plea. The
accused was as
a result found guilty on both counts. Both counts were
taken together for purpose of sentence and the accused was sentenced
to
two (2) years effective imprisonment.
[2] The case was marked reviewable in
the normal course as laid down in
s 302
of the
Criminal Procedure Act
51 of 1977
by the trial court and was therefore referred on review to
the High Court.
[3] The matter was initially allocated
to Strauss AJ, as the reviewing judge. Strauss AJ referred the matter
back to the trial magistrate
with a query as to whether the sentence
imposed was appropriate and in accordance with justice if regard is
had to what is stated
in
Tankise
Mokoena v The State
in appeal 323/2010 Free State High
Court Bloemfontein, 9 February 2012. Strauss AJ was also concerned
that the record contained
no reference to the factors considered by
the trial court in mitigation and in aggravation in coming to the
sentence imposed, which
in her view appeared as if on the face of it
the sentence was not in accordance with justice.
[4] In his reply to the query raised
by Strauss AJ, the trial magistrate assured Strauss AJ that, even
though it does not appear
on record, he profiled the accused properly
before passing sentence. In aggravation of sentence the trial
magistrate took into
account the accused's previous conviction of a
similar nature. The suspension period in respect of that conviction
had not elapsed
at the time of the current sentencing (it is due to
lapse on 11 October 2016) and the state did not bring an application
within
fourteen (14) days that the suspended sentence be put into
operation. In addition he applied the three factors in
S
v
Zinn
to come to a founded and personalised sentence. When
coming to the merits, he took into account that the accused first
assaulted
the wife, and when the husband intervened, he also
assaulted him. According to the trial magistrate, the husband was
'degraded
in the last degree' in that he could not protect his wife.
The accused did not use his hands to assault the woman but a stone
several times on the head - same applied to the husband. In this
regard the trial magistrate referred to the judgments in
S
v Pelzer en
'n
Ander
1992 (1) SACR 633
(A) and
S
v Molefe
(2005)
JOL 14328
(T). Based on these grounds, the trial magistrate was of
the view that the sentences on both counts are in order and ought to
be
confirmed on review.
[5] On receipt of the trial
magistrate's response, the matter was referred to the Director Public
Prosecutions for comment.
[6] Relying on the judgments in S
v
Mareathle
and
Others
2008 JOL 22250
(T) and S v
Msimanga
and
Another
2005 (1) SACR 377
(OPD) at 381f - I, and the following
aggravating circumstances, that: the accused hit both complainants
with stones; the one complainant
is a woman; and the accused had a
previous conviction of the same nature, the state advocate who was
allocated the matter, submitted
that the trial magistrate did not
misdirect himself in any way in regards to the sentence. He as a
result urged that in the light
of the seriousness of the offence the
sentence should be confirmed.
[7] The state advocate further called
on the prosecutors to bring an application for the accused's previous
suspended sentence to
be put into operation by placing the sentence
on the roll and to be put into operation
[8] The state advocate also proffered
the following procedure to be followed by the prosecutors:
"10.1
Where the sentence to be put
into operation was imposed by the same
court which imposed the subsequent sentence, the record should be
drawn from the clerk of
the court, the matter placed on the roll, and
the application brought for the imposition of the sentence.
10.2
Where the suspended sentence
was imposed by another court, the matter
should be postponed on a new J15 and the prosecutor should request
the clerk of the court
to obtain a certified copy of the record of
the previous trial.
10.3
Where the accused person is detained
in a prison, which is
conveniently close to the court where the suspended sentence was
originally imposed, arrangements can be
made with the prosecutor at
that court to have the application for the imposition of the
suspended sentence heard there. In that
case a certified copy of the
subsequent trial record should be forwarded to that court."
[9] The state advocate was, however,
overruled by the Deputy Director of Public Prosecutions (DOPP) whose
opinion is that the sentence
appears to be too harsh bearing in mind
that the suspended sentence might also be put into operation. The
DDPP's contention is
that there is no evidence as to the nature of
the injuries sustained by the complainants or the exact circumstances
of the incident
safe for address by the prosecutor from the bar. The
accused avers that he was provoked by the complainant in count 1.
Both complainants
appear to have been drinking before the incident.
Both assault incidents happened in close proximity as to time. In the
circumstances
it is suggested that a year of the imposed sentence be
suspended, so that the effective sentence is one year imprisonment.
[1
0]
The matter was referred to me on return from the DDPP's office for
review in chambers.
[11] I am in agreement with the
submission by the DOPP that the sentence imposed is too harsh and
that part thereof should be suspended.
Although the accused has a
previous conviction of a similar nature, he, however, pleaded guilty
and asked for leniency. He also
showed remorse. From the record, it
appears that the accused was provoked by the complainant in count 1
which made him angry and
he ended assaulting her. Most importantly,
there is no evidence of the injuries sustained by the two
complainants, if any.
[12] It is, therefore, my view that a
period of one year, as suggested by the DOPP, ought to be suspended
so that the effective
sentence is one year imprisonment.
[13] I am also of the view that the
previously suspended sentence ought to have been put into operation
as suggested by the state
advocate. The prosecutor who handled this
matter, or any other prosecutor should therefore be ordered to
operationalize the suspended
sentence.
[14] In the premises
I would make the following order:
1. The
sentence of two years imprisonment
imposed by the
Court of the Magistrate
Cullinan, is hereby set aside and substituted by the following:
"The
accused is sentenced to two (2) years imprisonment. Half of the
sentence, that is one
(1)
year,
is
suspended
for
a
period
of
five
(5)
years
on
condition
that
the
accused
is
not convicted of the offence of assault with
intent to do grievous bodily injuries or assault
within the period of such suspension."
2.
The prosecutor is ordered to bring an
application to
operationalize the previously
suspended sentence.
KUBUSHI
E.M.
JUDGE OF THE
HIGH COURT
I
agree and
it
is so
ordered
JUDGE
OF THE HIGH COURT