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[2008] ZAFSHC 127
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S v Moeti (271/2008) [2008] ZAFSHC 127 (6 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 271
/2008
In
the review between:-
THE
STATE
versus
JOHANNES
TSHIDISO MOETI
_____________________________________________________
CORAM:
MOLEMELA
,
J
et
MOLOI,
AJ
JUDGMENT
BY:
MOLEMELA,
J
_____________________________________________________
DELIVERED
ON:
6
NOVEMBER 2008
_____________________________________________________
[1]
This
is an automatic review matter that came before me in accordance with
the previsions of section 302 read with 304 of the
Criminal Procedure
Act, 51 of 1977
.
[2] The
accused person appeared at the Magistrate’s Court in Botshabelo
on a charge of assault with intent to do grievous
bodily harm. He
was convicted as charged and sentence to 2 (two) years imprisonment.
It is clear from the judgement of the magistrate
invoked the
previsions of section 4 (1) of the Dangerous Weapons Act 71 of 1968
and accordingly found no circumstances justifying
a lighter sentence
than the prescribed 2 (two) years imprisonment sentence.
[3] I
was of the view that the sentence imposed did not reflect that the
accused’s personal circumstances were properly taken
into
account. In my view the following personal circumstances were under
- emphasized when sentence was imposed on the accused
person (1)
that at the age of 36 years he was a first offender; (2) that he was
the sole breadwinner responsible for the support
of extended family
and dependants; (3) that the circumstances under which the offence
was committed suggested the accused had not
planned the assault
beforehand and committed the offence in a fit of jealousy after he
had seen his girlfriend in the company of
the complainant.
[4] Adv
Hiemstra SC from the office of the Director of Public Prosecutions
conceded that the sentence was too harsh under the circumstances
and
recommended a lighter sentence.
[5] It
is trite that when sentence is imposed, the presiding officer must
consider the well-known triad of sentence in a balanced
manner. It
is also trite that a court of appeal or review can only tamper with
the sentence imposed by another court only if it
is convinced that
the sentencing discretion was exercised improperly by the presiding
officer in one way or another. In my view,
overemphasizing the
seriousness of the offence and under-emphasizing the personal
circumstances of the offender constituted a misdirection
that
warrants interference with the sentence imposed. It is this
misdirection that resulted in the harsh sentence imposed by the
presiding magistrate. The office of the Director of Public
Prosecutions has conceded that the sentence imposed is too harsh.
In
my view, this concession was properly made. It stands to reason that
the sentence falls to be set aside.
In the circumstances I
made the following order:
The conviction is
confirmed.
The
sentence of 2 (two) years imprisonment imposed by the presiding
officer on the 15
th
of April 2008 is set aside and substituted by the following:
2
(two) years imprisonment, of which 8 months is suspended for a period
of 4 (four) years on condition that the accused is not convicted
of
the crime of assault, committed during the period of suspension and
for which imprisonment without the option of a fine is imposed.
3.
The sentence is antedated to the 15
th
of April 2008.
_
_______________
M B
MOLEMELA
,
J
I concur.
_
_____________
K J
MOLOI
,
AJ
/am