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[2013] ZAFSHC 201
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S v Mukuwane (145/2013) [2013] ZAFSHC 201 (14 November 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
.................................................................................................................................................................................
Review No. : 145/2013
In the review
between:-
THE STATE
…..................................................................................
and
MZIMKHULU MOSES
MUKUWANE
CORAM: MOLEMELA, Jet
PHALATSI, AJ
JUDGMENT BY: PHALATSI,
AJ
DELIVERED ON: 14
NOVEMBER 2013
[1] This is an automatic
review in terms of section 302 of the Criminal Procedure Act, 51 of
1977 (“the CPA”). The accused
was charged and convicted
of assault with intent to do grievous bodily harm on 23 April 2013
and sentenced to three years imprisonment
on 26 April 2013.
[2] The State led the
evidence of two state witnesses, namely the complainant, Elisa
TatiaHlatswayo and her daughter, Ntombizodwa
Susan Labase. The
complainant testified that she was asleep in her home when she was
woken up by noise in the kitchen. When she
was about to stand up, a
male person entered her bedroom and stabbed her with a screwdriver.
She screamed and called her daughter,
who was asleep in the other
bedroom, to help her. Her daughter met the assailant in the passage
and said “Seun, what do you
want here.” The assailant
then left the house. She identified the accused as Seun, who stabbed
her with a screwdriver. She
further testified that she sustained two
stab wounds, one on her left hand and another one on her left chest.
She was taken to
hospital where the wounds were washed and stitched.
Hereafter the State handed in the medical report, J88, as exhibit, by
agreement
with the accused. The doctor was not called to testify.
[3] NtombizodwaSusan
Labase testified that she was asleep when she was woken up by the
screaming of her mother. She stood up to
go and find out what was
wrong and along the passage she met the accused. She enquired what
the accused wanted in her parental
home and he said he was looking
for his girlfriend. He thereafter left. She knows the accused very
well and she was drinking alcohol
earlier that night with him and his
(the accused’s) girlfriend. The incident happened at between
02h00 and 03h00 in the morning
of 2 March 2013.
[4] The accused testified
and in essence just denied that he was the person who assaulted or
stabbed the complainant. He therefore
put identity in dispute. The
court, however, rejected his version and convicted him. I am
satisfied that the accused was correctly
convicted on the evidence
before the court.
[5] When it comes to
sentencing, I can do no better than to quote the magistrate verbatim,
as this was done in only one paragraph,
as follows:
“
In giving
sentence accused the Court will take into consideration your personal
circumstances as for the purpose of sentence you
are regarded as a
first offender that you still young about 25 years old and further
that you are fortunate that you are not charged
and convicted of
housebreaking with intend to assault and assault, but accused this is
a very serious offence that you have been
convicted of.
The Court will have no option but to
give you a term of imprisonment, your sentence will be as follows, in
terms of
Section 276(1)(i)
of the
Criminal Procedure Act 51/1977 you
are sentenced to
THREE (3) YEARS IMPRISONMENT
.”
[6] Based on what is said
in this paragraph, the accused was sentenced to three years
imprisonment, the maximum sentence that the
court can impose. In the
medical report, the doctor stated that the patient sustained
lacerations
on left hand and left breast (my own emphasis).
This finding of the doctor clearly contradicts the evidence of the
complainant,
who testified that she sustained stab
wounds
,
which were stitched. The court dismally failed to enquire and to take
into consideration all the personal circumstances of the
accused. The
only serious aggravating circumstances that I can find in this case,
are that the complainant is of advanced age (61
years old) and that
she was attacked in the sanctity of her home.
[7] In any offence
involving the use of violence, the seriousness of injuries sustained
by the complainant will always be a factor
to be taken into
consideration in aggravation or mitigation of sentence.
In casu
,
the medical report shows that the complainant suffered lacerations of
1 cm on the breast and 3 cm on the hand. This can hardly
be regarded
as serious injuries. The accused is 25 years of age and the evidence
reveals that he had been drinking alcohol before
the incident. He is
a first offender and supports his mother, siblings and two minor
children. I am of the view that the sentence
imposed by the
magistrate is wholly inappropriate in the circumstances and that this
court is entitled to interfere therewith.
I therefore find that the
appropriate sentence should have been one of 18 (eighteen) months
imprisonment, 6 (six) months of which
is suspended on condition that
the accused is not found guilty of a similar offence within five
years from the date of sentence.
[8] Consequently, I make
the following order:
8.1 The conviction is
confirmed.
8.2 The sentence imposed
by the court
a quo
on the accused is set aside and replaced
with the following:
“
the
accused is sentenced to 18 months imprisonment, 6 (six) months of
which is suspended for a period of five years, on condition
that the
accused is not found guilty of assault committed within the period of
suspension.”
8.3 The sentence is
antedated to 26 April 2013, being the date on which the accused was
sentenced in the court
a quo
.
_________________
N.W. PHALATSI, AJ
I concur.
_________________
M.B. MOLEMELA, J
/spieterse