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[2013] ZAGPPHC 279
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Phiri v S (A 400/2012) [2013] ZAGPPHC 279; 2014 (1) SACR 211 (GNP) (8 August 2013)
NOT
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: A 400/2012
DATE:08/08/2013
In
the matter between:
MPHIKELELI
LOVERS
PHIRI
..........................................................................
Appellant
and
THE
STATE
......................................................................................................
Respondent
JUDGMENT
MAKGOKA
J et BALOYI AJ:
[1]
This is an appeal against conviction and sentence, with leave of the
trial court - regional court Piet Retief. The appellant
was convicted
of attempted murder and sentenced to 6 years’ imprisonment. The
charge arose from the appellant having had
unprotected sex with the
complainant while knowing that he was HIV-positive. Only the
complainant and the appellant testified during
the trial.
[2]
The complainant testified that during February 2010 she met the
appellant at a local clinic where she had visited for an HIV
test.
The appellant was employed as an HIV-Aids counsellor at the clinic,
and also responsible for testing. The appellant tested
her, and her
result was that she was HIV-negative. Later a love relationship
developed between her and the appellant. At that stage,
she was
pregnant and had just separated with the father of her unborn child.
It was common cause during the trial that the appellant
had been HIV-
positive three years prior to meeting the appellant, and that he was
aware of his status.
[3]
During the course of their relationship they had consensual sexual
intercourse on two occasions. On each occasion, the appellant
did not
use a condom. Despite she requesting him to do so, on each occasion
he declined. Subsequently, she tested HIV-positive
when she tested as
part of her pre-natal routine. As the appellant was the only person
she had sexual intercourse during the relevant
period, she confronted
the appellant for having infected her with HIV virus. The appellant
apologised and pleaded for forgiveness.
[4]
The only point in dispute during the trial became whether or not the
appellant used a condom during the sexual encounters with
the
complainant. During cross- examination by the prosecutor, the
appellant changed his version, and for the first time, stated
that he
had informed the complainant of his HIV status before the first
sexual intercourse, as a result of which he used a condom
on both
occasions. The trial court was thus confronted with two conflicting
versions. Having weighed the two versions, the learned
regional
magistrate preferred the complainant’s version over that of the
appellant.
[5]
On behalf of the appellant, it was contended that the learned
regional magistrate misdirected himself in the evaluation of the
evidence and the law, as, so was the contention, the State had not
established that appellant had the necessary
mens rea
to
sustain a conviction on attempted murder. The State supports the
conviction.
[6]
Before we consider the arguments on behalf of the parties, it is
useful to remind ourselves of the proper approach to be adopted
by a
court of appeal when it deals with the factual findings of a trial
court. The approach is found in the collective principles
laid down
in R v Dhlumayo
1948 (2) SA 677
(A). A court of appeal will not
disturb the factual finding of a trial court unless the latter had
committed misdirection. Where
there has been no misdirection on fact
by the trial Judge, the presumption is that his conclusion is
correct. The appeal court
will only reverse it where it is convinced
that it is wrong. In such a case, if the appeal court is merely left
in doubt as to
the correctness of the conclusion, then it will uphold
it. See also DPP v S
2000 (2) SA 711
(T); S v Leve
2011 (1) SACR 87
(ECG); and Minister of Safety and Security and Others v Graig and
Another NNO
2011 (1) SACR 469
(SCA).
[7]
The learned authors, Schmidt & Rademeyer, in their work, Bewysreg
4ed at p116, neatly sum up the position as follows:
‘
Wanneer
teen ‘n verhoorhof se feitebevindings geapelleer word, hou die
appelhof daarmee rekening dat die hof aquo in 'n gunstiger
posisie
verkeer het om ‘n oordeel te vel omdat hy die getuinies tydens
hul ondervraging waargeneem het en in deurgaans in
die atmosfeer van
die verhoor verdiep was. Die appelhof gaan gevolglik uit van die
veronderstelling dat die verhoorhof se bevindings
korrek was en sal
normaalveg daardie die bevindings aanvaar tensy daar die een of
aander anduiding is dat ‘n fout begaan
is.’
[8]
In our view the appellant’s version that he used a condom
during sexual intercourse on both occasions was correctly rejected
by
the magistrate. It was not credible, especially in light of his
adaptation of his evidence as pointed out in para [4] above.
We find
no irregularity on the part of the learned regional magistrate in
rejecting the appellant’s version as not being
reasonably
possibly true. We are therefore not at large to interfere with the
trial court’s findings in this regard. In the
circumstances the
appeal against the conviction has to fail.
[9]
It was further argued that the appellant should not have been
convicted of attempted murder, but of a less count such as assault
with intent to do grievous bodily harm. There is simply no merit in
this contention. It is to be borne in mind that the appellant
was not
convicted of having in fact transmitted HIV to the complainant. The
State did not have to go that far. It was sufficient
for a conviction
on the count of attempted murder, to establish that the appellant,
knowing that he was HIV positive, engaged in
sexual intercourse with
the complainant, whom she knew to be HIV negative, without any
preventative measures. This entails the
presence of
mens rea
in
the form of dolus evetualis. In this regard it must be accepted, and
we can take judicial notice of the fact, that HIV-Aids has
no cure
presently, and the infection with the virus is likely to lead to
reduced life span.
[10]
It was established over a decade ago by this court that such conduct
constitutes attempted murder. See S v Nyalungu
2013 (2) SACR 99
(T)1.
We are therefore satisfied that the appellant was properly convicted
of attempted murder. There is no basis to disturb the
conviction on
this ground.
[11]
As indicated in the introduction, the appeal is also directed
against the sentence, to which we now turn. Counsel for the
appellant
submitted that the sentence of 6 years imprisonment is disturbingly
inappropriate in that the appellant is a first offender
HIV-positive.
It was also contended that the trial court did not take sufficiently
into account that the appellant and the complainant
were in a love
relationship and there was therefore no forced sexual intercourse.
[12]
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 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 Petkar
1988 (3) SA 571
(A); S v Sadler
2000 (1)
SACR 331
(SCA) and Director of Public Prosecutions, KZN v P
2006 (1)
SACR 243
(SCA) para 10.
[13]
As to the nature of the misdirection which entitles a court of appeal
to interfere, the following was stated in S v Pillay
1977 (4) SA 531
(A) at 535E-F:
‘
Now
the word ‘misdirection’ in the present context simply
means an error committed by the Court in determining or applying
the
facts for assessing the appropriate sentence. As 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 is shows, directly or inferentially, that the Court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such misdirection is usually and conveniently termed
one that vitiates the Court’s decision
on sentence.’ (my
emphasis)
[14]
In the present case, the trial court took into consideration the
serious nature of the offence, and carefully balanced it against
the
appellant’s personal circumstances, which were placed on record
as follows. He was 32 years old during the time of sentencing.
He is
a first offender. His highest academic qualification is standard 5.
He is unmarried, but has two children, aged 7 and 10.
It does not
appear from the record whether he lived with these children or
whether they lived with their mother(s). He was employed
at a health
clinic, earning R1 800 per month.
[15]
The trial court found to be aggravating, the fact that he was
employed as an HIV counsellor by the Department of Health to
help in
educating people about the dangers of unprotected sex, among others.
Indeed, much was expected of the appellant. The argument
that because
there was a love relationship between the parties should serve as a
mitigating factor, is a startling proposition.
We do not perceive how
this could possibly serve as a mitigating factor. That very fact
could easily serve as an aggravating one,
as lovers are expected to
protect one another. At best, this is a neutral aspect. Although the
State did not prove that he transmitted
the complainant with HIV
virus, his conduct remains reckless.
[16]
In our view, the only aspect of the appellant’s personal
circumstances deserving of consideration, is his HIV-positive
status.
In S v Mahachi
1993 (2) SACR 36
(Z), it was observed that the HIV
status could tip the balance in favour of the imposition of a
suspended sentence where the court
had a real choice between the
imposition of, on the one hand, a sentence of effective imprisonment
and, on the other, a non-custodial
sentence. In the present case, the
trial court found that the circumstances of the case rendered
custodial sentence the only option.
I find no fault with that
finding.
[17]
As a result, the appellant’s HIV status is only but a factor
among others to be considered. The head-note in S v Mabutho
2005 (1)
SACR 485
(W) reads as follows:
‘
Depending
upon the circumstances, a convicted person’s health may
sometimes afford a good reason for not sentencing her or
him to
imprisonment. There is certainly no rule that ill-heath automatically
relieves the criminal from being imprisoned. Adequate
medical
facilities are generally available for convicts. A reduction or
suspension of prison sentence on a mere excuse of ill-health
would
attract criticism from the public and undermine confidence in the
system of administration of justice...’
[18]
Having regard to all the conspectus of the matter, we do not find any
misdirection in the manner in which the magistrate considered
sentence. There is no evidence to suggest that the sentence is
vitiated by irregularity, either. Equally, we find nothing shockingly
disproportionate in the sentence of 6 years’ imprisonment in
the circumstances of the case. In the absence of misdirection
or
disproportionality, we are not entitled to interfere with the
sentence.
[19]
To sum up. There is no merit in the appeal, either on the conviction
or the sentence. In the result we make the following order:
1.
The appeal against the conviction and the sentence is dismissed.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
and
JS
BALOYI
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD : 3 MAY 2013
JUDGMENT
DELIVERED : 8 AUGUST 2013
FOR
THE APPELLANT : ADV MG LEDWABA
INSTRUCTED
BY : PRETORIA JUSTICE CENTRE
FOR
THE STATE : ADV C PRUIS
INSTRUCTED
BY : DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA