About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 316
|
|
Ackerman v S (A773/2010) [2012] ZAGPPHC 316 (27 November 2012)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
no: A773/2010
DATE:27/11/2012
In
the matter between:
SMARTRYK
ACKERMAN
….................................................................
APPLICANT
AND
THE
STATE
...............................................................................................
RESPONDENT
JUDGMENT
BAQWA
J
[1]
The appellant was convicted in the Regional Magistrate’s Court
Potchefstroom and sentenced to eight (8) years imprisonment
three
years of which were suspended.
[2]
The charge was that on 6 October 2007near Plot 22, Mooibank the
appellant had unlawfully and intentionally attempted to murder
one
Hannes De Villiers by stabbing him several times with a broken
bottle.
[3]
The court s quo granted him leave to appeal against both conviction
and sentence on 31 March 2009.
[4]
The background to this case is briefly as follows. The appellant
stayed on a plot owned by the complainant and there had been
some
misunderstanding between them. On the day in question the altercation
had become physical. The appellant initially attempted
to butt
complainant with his head and thereafter attempted to hit him with
fists. When this line of attack was not successful he
broke two beer
bottles and thereafter stabbed the complainant on the neck. The
complainant did not retaliate.
[5]
Complainant suffered several open wounds on his neck. Thereafter the
appellant refuseo to open ine gaie so tnat complainant
could not
immediately get help. When complainant eventually got into his motor
vehicle the accused pulled out the keys and threw
them away.
[6]
It was part of the appellant’s defence that he did not intend
to stab the complainant with a bottle but to throw beer
at him.
Counsel for the appellant submits that complainant may have been hurt
by mistake.
[7]
In my view this submission is not borne out by the manner in which
the attack on the complainant was mounted. The appellant
was without
doubt the aggressor and his actions were deliberate and incremental.
Slashing at a person’s throat with the sharp
edges of a broken
bottle can hardly be called a mistake. In fact complainant was during
those moments literally staring death in
the face.
[8]
I am accordingly of the view that the state proved its case beyond
reasonable doubt.
[9]
Regarding sentence, the appellant was 34 years old when he committed
the offence. He had two children to maintain. He was not
formally
employed though he worked as a subcontractor in the construction
industry. His income was not properly placed on record.
He was under
the influence of alcohol when he committed the offence and he had
spent a period of about a year in custody awaiting
trial.
[10]
it is trite law that in every appeal against sentence, the court
hearing the appeal should be guided by the principle that
punishment
is pre-eminently 3 matter for the discretion of the trial court and
that the court should be careful not to erode such
discretion and
should alter sentence in exceptional circumstances.
In S v Salzwedel 1992(2) SACR 586(SCA)
this principle was restated as follows:
”
An
sppeai court is entitled to interfere with a sentence imposed by
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”.
[11]
According medical evidence, the appellant nearly severed a major
artery in complainant’s neck. If he had managed to strike
that
artery, complainant would have bled to death even before reaching the
doctor’s surgery. That underlines the gravity
or magnitude of
the offence with which the appellant was charged. This was an
aggravating factor which the court a quo could not
ignore.
[12]
The court had to weigh the aggravating factors against the personal
circumstances of the appellant and I do not accept the
appellant’s
submission that the trial court only paid lip sen/ice to the
appellant’s personal circumstances.
[13]
The approach by a court of appeal when considering sentence is
correctly summarised in
S
v Pieters 1987(3} SA 717 A Where it is stated as follows”
,:Met
betrekking tot appelle teen vonnis in 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
71 Verhoorregter verander nie, tensy dit blyk dat hy die diskresie
wat aan horn toevertrou is nie op 7? behoorlike of
rede!ike wyse
uitgeoefen het nie. Om dit andersom te stel: daar is ruimte vir
hierdie Hof om 7? Verhoorregter se vonnis te verander
alieenlik as
dit blyk dat hy sy diskresie op :n onbehoorlike of onredelike wyse
uitgeoefen het. Dit is die grondbeginsel wat alie
appelle teen vonnis
beheers”.
This
is the approach which this court has taken.
[14]
In the result, I propose that the following order is made:
The
appeal against both conviction and sentence is dismissed.
It
is so ordered.
SAM
BAQWA
JUDGE
OF THE HIGH COURT'
l agree-
L.G
NKOSI-THOMAS
'ACTING
JUDGE OF THE HIGH COURT