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[2015] ZAFSHC 119
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Director of Public Prosecutions FS v Abubaker (A312/2015) [2015] ZAFSHC 119 (25 June 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : A312/2015
In the
case between:-
THE
DIRECTOR OF PUBLIC PROSECUTIONS FS
Applicant
and
FATIMAH
ABUBAKER
Respondent
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
25 JUNE 2015
[1]
This is an application under
section 310A
of the
Criminal Procedure
Act 51 of 1977
by the state for leave to appeal against the sentence
imposed by a regional magistrate. The respondent was convicted
of attempted
murder and sentenced to five years’ imprisonment
wholly suspended and three years correctional supervision under
section 276(1)(h)
of Act 51 of 1977. The complainant was the
husband of the respondent. She told him at 4am one morning that
there was
an intruder behind her. He rushed from the shower to
the bed where he kept his revolver under his pillow, but it was not
there. The respondent had the revolver. He rushed to her
and she shot him. He ran away down the passage and she fired
more
shots at him, eight in all. The complainant was seriously
injured and had to be transferred to a hospital in Bloemfontein.
He
took a year to recover. The respondent did not testify.
[2]
Counsel for the state, Ms Giorgi, and for the respondent, Mr Van der
Merwe provided written submissions, for which they are
thanked.
Mr Van der Merwe lists the mitigating and aggravating factors:
(a)
Mitigating
:
“
3.1.1
Respondent was a first offender and the breadwinner for her family
which included six (6) children.
3.1.2 Three of the children were taken
away and are living with their father (complainant in matter)
now.
3.1.3 Respondent was taking care of her
mother financially and if she was sent to prison her remaining
three
children would be destitute.
3.1.4 Respondent was not a threat to
society and there was very slim chance that she would commit
any
further crime.
3.1.5
Community work that Respondent does in the community.”
(b)
Aggravating
:
“
6.2.1
Seriousness of the offence;
6.2.2 Impact of offence on Complainant;
6.2.3 Community interest;
6.2.4 Nature of the offence;
6.2.5 Fact that offence was planned;
6.2.6 Impact of offence on Family of
Complainant;
6.2.7 Absence of remorse;
6.2.8
Injuries sustained by Complainant.”
Ms
Giorgi says the sentence is shockingly inappropriate, inter alia for
the following reasons:
“
1.3
The court
a
quo
,
with the sentence it imposed, gives the impression that, as long as
an accused has minor children, it is acceptable to commit
a serious
crime and that you will not be incarcerated.
1.4
The court
a
quo
did not attach enough weight to the injuries sustained by the
complainant which were of a very serious nature.
1.5
The court
a
quo
did not attach enough weight to the fact that this was a serious case
of domestic violence which takes on epidemic proportions
in South
Africa.”
[2] In
sentencing the respondent, the regional magistrate heard the evidence
of social workers. The magistrate attached importance
to the
fact that the respondent was the primary caregiver of her children.
See
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) par [36];
S
v Pillay
2011 (2) SACR 409
(SCA) par [24];
MS
v S (Centre for Child Law as Amicus Curiae)
2011 (2) SACR 88
(CC) pars [62]-[64] and
S
v Chetty
2013 (2) SACR 142
(SCA).
[3]
This was a serious case. The complainant was shot eight times,
also while he was lying on the ground. The regional
magistrate
found that the crime was pre-meditated because the respondent had
removed the baby from the bedroom before the shooting
started.
[4] In
my view there are reasonable prospects that another court can come to
the conclusion that the regional magistrate erred by
overlooking the
fact that the cases dealing with the importance of the wife as
primary caregiver referred to above deal with economical
crimes, not
a violent crime against the father of the children as the present,
where the mother may not be a suitable person to
look after the
children. Another court may find that the magistrate treated
sentencing too much in the nature of a custody
enquiry and
under-emphasised the seriousness of the offence.
ORDER
1.
Leave is granted to the state to appeal to the full court of this
division against the sentence
imposed.
____________
A. KRUGER, J
On behalf of
applicant:
Adv S Giorgi
Instructed
by:
The Director: Public
Prosecutions
BLOEMFONTEIN
On behalf of
respondent: Mr P van der Merwe
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
wm/