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[2015] ZAGPPHC 1121
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Seluma v S (A44/2013) [2015] ZAGPPHC 1121 (31 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
APPEAL
No: A44/2013
In
the matter between:
DAVID
SELUMA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
MOLOPA-SETHOSA
J
[I
] The Appellant was arraigned in the District of Wonderboom, held at
the Mamelodi Magistrate's Court on the following charges:
[1
.1] Count 1: Assault,
[
1.2] Count 2: Crimen Iniuria,
[
1.3] Count 3: Assault.
[2]
The appellant pleaded guilty on all counts. The state accepted the
plea as was tendered by the appellant, and he was subsequently
convicted on 27 July 2011 on his plea of guilty aforesaid on counts
1, 2 and 3 respectively.
[3]
The appellant was sentenced on 2ih July 2011 as follows: [3.1] Count
1 [Assault (common)] 6 months' imprisonment;
[3.2]
Count 2 [Crimen Iniuria] 4 months' imprisonment;
[3.3]
Count 3 [Assault (common)] 6 months'
imprisonment. The effective sentence is 16 months'
imprisonment.
[4]
On the 29th of September 2011 the appellant brought an
application for leave to appeal against sentence before the
learned
magistrate
a
quo
and such leave to
appeal against sentence was granted on the same date [29
th
September 201 1].
[5]
The appellant also applied on the same date [29th September 201
1] to be released on bail pending the outcome of the appeal,
and the
appellant was released on warning.
[6]
The appellant was legally represented throughout the trial
proceedings in the court
a quo.
[7]
With regard to
count
1
,
the
appellant admitted having assaulted the complainant, who is his wife,
on the 12
th
of November 2010 by hitting her once with a
belt.
[8]
With regard to
counts
2 and 3, which occurred on the 17
th
of April 201 1, the appellant admitted that he insulted the
complainant, thereby violating her dignity. He also admitted having
assaulted the complainant by slapping her with open hands.
[9]
From the record it appears that the state proved the following
previous convictions against the appellant, [although the SAP69
is
not attached to the record, the appellant admitted the previous
convictions]:
[9.1]
18 Apri l 1989- robbery; he was sentenced to a fine of R l 00 or 50
days' imprisonment;
[9.2]
28 April 1993-assault; he was sentenced to a fine of R50 or 50
days' imprisonment.
[10]
The personal circumstances of the appellant which were placed on
record were as follows:
[
I 0.1] the Appellant was employed;
[
I 0.2] he was married to the complainant;
[
I 0.3] he maintained the complainant as well as the minor children; [
I 0.4] he had an alcohol problem;
[
I 0.5] he was remorseful of his conduct, hence he pleaded guilty to
all counts;
[10.6]
from the charge sheet it appears that the appellant was
47 years
old
when charged on 18 April 201 1.
[
11 ] The appellant appeals against the severity of the sentence and
contends that that the factual basis, circumstances and background
to
the offences were not adduced in the court
a quo.
That the
legal representative and presiding officer failed to record the above
mentioned for purposes of sentence. That this information
was highly
relevant in determining an appropriate sentence.
[12]
In essence the appellant contends that the failure by the court
a
quo
to properly take the above information into
account resulted in a sentence which the cumulative effect thereof
cannot be seen as
a proportional sentence. That the sentence imposed
by the court
a
quo
is shockingly severe,
as the sentence of 16 months imprisonment only caters for
retribution
and
general
deterrence
as
aims of sentence, and that
rehabilitation
and
individual
deterrence
was not
afforded any consideration during the imposition of sentence.
[13]
The appellant contends that the court
a
quo
misdirected itself as follows during the evaluation of the nature
and seriousness of the offence
in casu:
[
13.1] That the court
a
quo
emphasized the
previous convictions of the appellant as aggravating factors. That
these convictions are respectively 22 years and
18 years old [18
April 1989 and 28 April 1993 respectively]; and that had the
appellant applied for the quashing of these previous
convictions,
then the Director-General of Justice and Constitutional Development,
would have issued a certificate to this
effect.
[13.2]
That the substantial period that had lapsed between these convictions
and the current offences, does not justify the inference
that the
Appellant is inherently violent.
[
13.3] That the court
a
quo
erred further in
stating that 'the household of the appellant cannot be described as
normal, due to his extreme behaviour'. That
no evidence was adduced
that shows extreme behaviour by the appellant. That it is also
uncertain which conduct the court
a quo
categorized as
extreme.
[
13.4] That the court
a quo
erred further in referring to a
protection order against the appellant, and that the contravention
thereof is an aggravating factor.
That this was not the charges
preferred against the appellant, nor was the existence of the order,
or contravention thereof proven.
I may just mention that in his plea
explanation the appellant does mention the existence of the
protection order; surely the respondent/state
did not see a
need to lead evidence to prove such as this was not in dispute.
[13.5]
That the court
a quo
erred in stating that the problem in the
household of the appellant
'has
been
brewing
for quite some
time '.
There is no
evidence to support this finding; the incidents herein occurred twice
within a period of a 6 months interval. No other
evidence was adduced
that this was a continuing problem.
[13.6]
That the court
a quo
erred in equating the nature of
the offences
in
casu,
to that of the
'slaughtering
of women
and
children'
.
No comparison can be
drawn between this statement and the appellant's conduct.
[13.7]
Further, that contrary to the address by the prosecutor, there is no
evidence that the offences were committed in the presence
of the
minor children.
[14]
Counsel for the appellant submitted that the above mentioned
misdirections unjustifiably increased the appellant's moral
blameworthiness
which resulted in the over-emphasis of the
seriousness of the offences
in casu.
[15]
Counsel for the appellant submitted that the court
a
quo
ought to have considered the following factors as mitigating,
which would have reduced the appellant 's moral blameworthiness:
[15.1]
The Appellant ought to have been considered a first offender without
a history of violence;
[15.2]
The Appellant pleaded guilty to all counts and accepted
responsibility for his conduct;
[15.3]
The Appellant's sincere remorse can be inferred from the above
mentioned;
[15.4]
The Appellant has been in stable employment for a period of 28 years
at Transnet;
[
15.5] He maintained the complainant as well as the minor children;
[
15.6] The Appellant also disclosed to the court that the cause of the
animosity between him and his wife was the use of alcohol.
The
Appellant acknowledged the problem and requested assistance.
[15.7]
The degree of violence implicit to the Appellant's actions is
severely limited, and as such only minor injuries could have
been
inflicted.
[15.8]
The Appellant had spent a period of approximately one and a half
month in custody before he was released on bail pending
the trial.
Thereafter the Appellant spent another two months serving the imposed
sentence before he was granted leave to appeal.
The cumulative period
of 3 and half months already constitutes an undeserved period, which
served as retribution only.
[16]
On the other hand, the state supports the sentence imposed by the
court
a
quo.
[17]
It is trite that the imposition of sentence is pre-eminently a matter
within the judicious discretion of a trial court. The
appeal court's
power to interfere with a sentence is circumscribed to instances
where it is convincingly shown that such discretion
was not
judicially and properly exercised and that the sentence is vitiated
by an irregularity, misdirection or where there is
a striking
disparity between the sentence and that which the appeal court would
have imposed had it been the trial court. See generally:
S
v
Rabie
1975 (4) SA 855
(A); S
v
Snyder
1982
(2) SA
694
(A);
S
v
Sadler
2000 (1) SACR 331
(SCA); and
Director of Public Prosecutions,
KZN v P
2006 (1) SACR 243
(SCA) para 10; S v Blignaut 2008 (
1) SACR 78
(SCA) at 81f-83f. In
S
v
Salzwedel
1999 (2) SACR
586
(SCA) at 591F-G it was held that:
"A
court
of appeal
was
entitled
to interfere
with a
sentence
imposed
by a
trial
court
in a case where
the sentence
is
'disturbingly inappropriate
',
or totally
out
of proportion
to
the
gravity or
magnitude
of
the
offence,
or
sufficiently
disparate,
or vitiated
by misdirections
of a nature
which
shows
that the trial court did not exercise
its
discretion
reasonably.
"
[
18] The general approach to be followed by a Court of Appeal with
regards to sentence is set out as follows in S v Pieters
1987 (3) SA
717
(A) at 727:
"Met
betrekking tot
appelle
teen
vonnzs
zn
die
algemeen is
daar
herhaaldelik in
talle
uitsprake
van
hierdie
Hof beklemtoon
dat
vonnis oplegging
berus
by die
diskresie
van die
Verhoorregter. Juis
omdat
dit so is,
kan
en
sal
hierdie
Hof
nie
ingryp
en
die vonnis
van
'n
Verhoorregter verander
nie,
tensy dit blyk dat hy die diskresie
wat aan hom
toevertrou
is nie op
'n behoorlike
of redelike
wyse
uitgeoefen
het nie.
Om dit andersom te
stel:
daar
is
ruimte
vir
hierdie
Hof
om 'n
Verhoorregter
se
vonnis
te
verander
alleenlik
as
dit
blyk
dat
hy
sy
diskresie
op 'n onbehoorlike of onredelike
wyse
uitgeoefen
het. Dit
is
die grondbeginsel wat
alle
appelle
teen vonnis
beheers.
"
[19]
In the case of
S v
Pillay
1977 (4) SA 531
(A) at 535 E-G, the court held that:
"....the
essential inquiry in an appeal against sentence, however, is
not whether the sentence was right or wrong, but
whether the court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient
to entitle the Appeal Court
to interfere with the sentence; it must
be of such
a nature, degree, or
seriousness
that
it shows,
directly
or
inferentially,
that
the
court
did
not exercise its discretion at all or exercised
it
improperly or unreasonably.
"
[20]
The learned magistrate, in sentencing the appellant stated that:
[20.1]
the household of the appellant cannot be described as normal, due to
his extreme behaviour. As contended by the appellant,
no evidence was
adduced that shows extreme behaviour by the appellant; further, it is
also uncertain which conduct the court
a quo
categorized as
extreme.
[20.2]
the problem in the household of the appellant 'has been brewing
for quite some time'. From the record there is no evidence
to support
this finding. The incidents herein seem to have occurred twice within
a period of a 6 months' interval. No other evidence
was adduced that
this was a continuing problem.
[20.3]
the learned magistrate, further, in sentencing the appellant equated
the nature of the offences herein to that of the
'slaughtering
of women and children'
.
On the
evidence on record, no comparison can be drawn between this statement
and the appellant's conduct. There is basically no
basis for such
utterances.
[20.4]
contrary to what was stated by the prosecutor, that the offences were
committed in the presence of the minor children, there
is no evidence
at all that the offences were committed in the presence of the minor
children, and the court
a
quo
seem to
have considered this as a fact.
[21]
It is trite that in the consideration of sentence, the
trial court has to consider a totality of factors, including
the
traditional triad, consisting of the nature of the offence, the
personal circumstances of the appellant, and the interests
of the
society. In S v
Nkosi
2012
(1)
SACR
87
(GNP),
it was
held that:
"....in
imposing
sentence
there
is
still
a
need
to
maintain
a
healthy
and
proper
balance
between
the
interests
of society,
the nature
of the offence and the
offender.
Aggravating
of
sentences
to
combat increasing prevalence of a particular crime
must
not
lead
to an
inevitable
negation of the accused's personal
circumstance
s
...
"
[22]
The court
a quo
misdirected itself during the imposition of
sentence. The court
a
quo
over-emphasized
the seriousness of the offence by considering irrelevant factors
which are not applicable herein; the court
a
quo
further
ignored the personal circumstances and inherent mitigating factors in
favour of the Appellant. In my view, from what was
said by the court
a
quo,
as alluded to above, the court
a
quo
failed to take sufficiently into consideration the
personal circumstances of the appellant, as well as the circumstances
of the
commission of the offences. With regard to the personal
circumstances of the appellant, the following point should be made:
It
is one thing to recite the personal circumstances of an accused.
It i s another to fuse those circumstances in the consideration
of
sentence. Unfortunately, in the present case, like many emanating
from the lower courts, personal circumstances of the appellant
were
simply recited without considering how they should impact on
sentence. That amounts to paying lip service to this component
of
sentencing.
[23]
The offences which the appellant have been convicted of remain
serious indeed. Violence against women is rife and prevalent;
further
it does appear that there was a protection order issued against the
appellant, though details thereof were not dealt with
at all. There
seems to have been alcohol abuse on the part of the appellant, who
mentioned in mitigation that he wanted to address
the problem and
become a better person. These are all legitimate considerations. But
our sentencing ethos enjoins a sentencing
court to carefully balance
these against the personal circumstances of the appellant, lest an
imbalanced sentence results.
[24]
There are instances where, due to the seriousness of the offence, it
is required that the elements of retribution and deterrence
should
come to the fore, and that the rehabilitation of the offender will
consequently play a smaller role
(
S
v Swart
2004
(2)
SACR
370
at 378c-e).
In
my view, the circumstances of the present case do not lend themselves
to that approach. The offences are indeed serious, but
the
circumstances of their commission are equally important in
considering an appropriate sentence, as are the personal
circumstances
of the appellant. Compare for example,
S
v
Ndlovu
2007
(1)
SACR
535
(SCA)
para 13, where the Supreme Court of Appeal cautioned against
imposing uniform sentences that do not distinguish between the facts
of cases and the personal circumstances of offenders.
[25]
The factors mentioned above should have been accorded due weight.
They were not, and in failing to do so, the trial court misdirected
itself. In my view, it is the type of misdirection contemplated in
S
v Pi/lay
1977 (4) SA 531
(A) 535E-F, it being
'of
such
a
nature,
degree,
or
seriousness that
it shows,
directly
or inferentially, that
the
Court
did
not
exercise
its
discretion at
all
or
exercised
it improperly
or
unreasonably.'
This warrants interference by this
court. This court is therefore at large to consider sentence afresh
and impose what we deem appropriate
in circumstances.
[26]
Considering all the relevant factors, I am of the view that a period
of 3 months' imprisonment each on counts l ; 2 and 3,
with a further
(12) twelve months imprisonment, wholly suspended for a period of (5)
five years on condition that the accused is
not again found guilty of
an offence of assault common and/or with intent to do grievous bodily
harm; crimen iniuria or the violation
of a protection order,
committed during the period of suspension. The term of 3 months
imprisonment on counts 2 and 3 are ordered
to run con-currently. This
will satisfy the aims of punishment, be fair to the society and the
appellant in the sense that he has
an opportunity for rehabilitation.
[27]
In the result the following order is made:
1.
The appeal against the sentence is upheld to the extent set out
below;
2.
The sentence imposed by the court
a quo
is set aside and the
following is substituted for it:
'On
Count 1:the accused is sentenced to (3) three months imprisonment,
plus a further (12) twelve months imprisonment, wholly suspended
for
a period of (5) five years on condition that the accused is not again
found guilty of an offence of assault (common), assault
with intent
to do grievous bodily harm, crimen iniuria and the violation of a
protection order, committed during the period of
suspension.
On
Count 2 the accused is sentenced to three (3) months imprisonment. On
Count 3 the accused is sentenced three (3) months imprisonment.
In
terms of section 280 (2) of Act 51 of 1977, the court orders that the
(3) months imprisonment imposed on count 2 shall run concurrently
with the (3) months imprisonment imposed on count 3.'
3.
In terms of
section 282
of the
Criminal Procedure Act 51 of
1977
, the substituted sentence is ante-dated to 27 July 2011, being
the date on which the appellant was sentenced.
_________________________
L
M MOLOPA - SETHOSA J
JUDGE
OF THE IDGH COURT
I
agree
___________________
D
DOSIO AJ
ACTING
JUDGE OF THE IDGH COURT
It
is so ordered.