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[2008] ZAFSHC 109
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S v Appols (207/08) [2008] ZAFSHC 109 (12 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
207/08
In
the review between:-
THE
STATE
versus
BANGANI
ABRAM APOOLS
_____________________________________________________
CORAM:
MOCUMIE,
J
et
MOLEMELA
J
JUDGMENT
BY:
MOCUMIE,
J
_____________________________________________________
DELIVERED
ON:
13
AUGUST 2008
_____________________________________________________
REVIEW JUDGMENT
_____________________________________________________
[1] The
accused appeared in the Magistrate Court, Botshabelo on a charge of
assault with intent to do grievous bodily harm. He
was convicted as
charged and sentenced to 2 (two) years imprisonment. The provisions
of section 4(1) of the Dangerous Weapons
Act 71 of 1968
(
“the
Dangerous Weapons Act”
)
were invoked as the presiding officer found no circumstances
justifying a lighter sentence than the prescribed 2 (two) years
imprisonment. I was of the view that the sentence was too harsh and
sent a query to that effect. The presiding officer has since
responded.
[2] The
facts are summarily as follows: On 1 January 2008 the complainant and
his friends
were
from a tavern in the early hours of the morning when they met with
the accused. The accused tried to take one of the women
in the
complainant’s company. When the complainant reprimanded him,
the accused instead stabbed him twice with a knife.
The attack was
unprovoked contrary to what the accused attempted to put across.
[3] It
is trite that sentencing is a function that lies within the
discretion of the trial court. See
Rex
v Mapumulo and Others
1920 AD 56
;
S
v Rabie
1975 (4) SA 855
(A);
S
v Barnard
2004 (1) SACR 191
(SCA). A Court of Appeal or review is not entitled
to interfere with the imposed sentence unless it is convinced that
the sentence
discretion has been exercised improperly or
unreasonably. See
S
v Pillay
1977 (4) SA 531(A)
at 534H–535G. Amongst other varying factors
depending from one case to another it may be a misdirection for the
presiding
officer to overemphasise the seriousness of the offence and
underemphasise the personal circumstances of the offender which would
then warrant the court on appeal or review to interfere.
[
4] The
accused is a 19 year old first offender. He is not married and has
no dependant. He finished school in 2005 in Grade 9
and has been
unemployed for three years. Both his parents are still alive. He
has no previous convictions. Alcohol played a
role as both the
accused and the complainant and his friends has earlier on during the
same day been at a tavern in Botshabelo.
[5] The
presiding officer was of the view that a suspended sentence was not
appropriate nor was correctional supervision or a fine
for the fact
that
inter
alia
“
4.1.1
...
die afgelope 16 jaar aan diegene wat skuldig bevind word aan
geweldsmisdade swaar gestraf sal word, het heel duidelik op dowere
ore geval.”
“
4.1.2
...
en alhoewel die persoonlike omstandighede steeds in ag geneem word,
word sy betaalvermoë nie. In die onderhawige geval
is ek van
mening dat ‘n boetevonnis onvanpas is.”
Nowhere in the judgment
does he indicate that he gave the accused an opportunity to address
him on whether he can afford to pay
a fine or raise funds to pay the
fine to be imposed.
[
6] Regrettably
it would seem as if some presiding officers in Botshabelo where the
Dangerous Weapon Act is still applicable have
made it a rule that
every accused who is convicted of assault with intent to do grievous
bodily harm in their court is sentenced
to the prescribed minimum
sentence of two years imprisonment irrespective of the different
circumstances. The same observation
was made in the unreported
Review Case No. 1135/2005 of
G
H Bloem AJ
and
Cillié
J
delivered
on 7 October 2005.
[7] It
is wrong to impose sentences not only to please the community but to
sacrifice an individual accused with favourable mitigating
factors at
the altar of deterrence. Each accused that appears before the court
is an individual, with his or her own unique circumstances
which can
never be the same as the next accused who has committed a similar
offence. Consistency in the imposition of sentences
to send a
message that the commission of a particular offence will not be
tolerated should not be allowed to displace the discretionary
powers
of a presiding officer in imposing individual, effective and
appropriate sentences.
[8] I
am strongly convinced that it is important to re-emphasise as I have
done before that, however, serious the offence may be,
it is
irregular to proceed from the assumption that imprisonment was the
only appropriate sentence as is clear from the presiding
officer’s
ex
tempore
reasons for sentence and his comments to my query. See
S
v Du Toit
1979 (3) SA 846
(A) at 857H – 858A.
[9] The
presiding officer has misdirected himself in concluding that a prison
sentence without an option of a fine, correctional
supervision or any
other option provided for by the CPA was the only suitable sentence
to impose on a 19 year old first offender
in these circumstances. A
court dealing with a case involving a young offender whose moral
culpability cannot be compared to that
of an adult should approach
punishment as far as possible from a point of view of the potential
for rehabilitation and care. In
S
v Nkosi
2000 (1) SACR 135
(W) guidelines were laid down for the sentencing of
young offenders for both serious and less serious offences.
[10]
This
is a typical example which the court in
S
v Pillay
had in mind. A misdirection which is not just a mere misdirection but
one which vitiates the decision on sentence. In future the
presiding
officer is advised to seriously consider the provisions of section
290(2) and (3) of the CPA and cases relevant thereto
as well as the
salutary approach set out in
S
v Z en Vier Andere Sake
1999 (1) SACR 427
(E) at 430f which can be of great assistance and
guidance in the consideration of an appropriate sentence in cases of
young offenders.
[1
1] In
the circumstances I make the following order:
ORDER:
The conviction is
confirmed.
The
sentence of 2 (two) years imprisonment imposed by the presiding
officer on 27 March 2008 is set aside and is substituted
by the
following:
“
R
1200,00 (One thousand two hundred rand) or 8 (eight) months
imprisonment”
_
______________
B.C. MOCUMIE, J
I concur.
___________
______
M.B. MOLEMELA, J
/sp