About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 177
|
|
Swartz v S (A660/2007) [2008] ZAWCHC 177 (18 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A660/2007
DATE
:
18
APRIL 2008
In the matter between:
CECIL
SWARTZ
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Appeal
against Sentence)
MEER,
J
:
[1]
On 8 February 2006 appellant was convicted at the Parow Regional
Court on two counts of indecent assault and he was sentenced
to an
effective period of seven years
direct imprisonment, three years on the first count and four years on
the second count.
[2]
Appellant, who was legally represented, had pleaded guifty. The
offences were committed in 2002 and 2005 respectively on appellant's
own daughter who was 13 at the time of the first offence and 16 at
the time of the second offence. Appellant himself was in
his 30's
or thereabouts. At the time of sentence, appelfant was still married
to his daughter's mother. He has a younger daughter
and son.
Appellant appeals against his sentence only with leave of the Court a
quo.
[3]
The grounds of appeal in essence are that the sentence is shockingly
disproportionate, that the magistrate misdirected himself
in
over-emphasising appellant's three previous convictions for a
violation of a family violence interdict, misdirected himself
in
concluding that long term imprisonment was an appropriate sentence
and placed too much emphasis on the interests of society.
A further
misdirection it is said was not to temper the cumulative effect of
the sentences by ordering that they run concurrently.
[4]
Mr
Maartens
for the respondent submitted that notwithstanding the fact that the
cumulative effect of the sentences might appear to be on the
heavy
side, the protection of innocent children from abuse of this type
calls for severe sentences.
[5]
In a well-reasoned judgment for the purpose of sentence the heinous
act of a father indecently assaulting his own daughter was
aptly
commented upon by the magistrate. Cognisance was taken of the fact
that the offences were committed over four years and that
appellant
had three previous convictions for violating interdicts against him
for family violence and the appellant's family could
no longer be
traumatised by him. Instead of protecting them he presented a danger
to them. The Court found that the appellant had
expressed no true
remorse. He had also ignored a bail condition preventing him from
returning to the family home. In all the circumstances,
the Court
concluded that a sentence of long term imprisonment had to be
imposed. As the two offences were committed years apart,
the
concurrent operation of sentences was not ordered.
[6]
Whilst ( cannot fault the Court's reasoning, 1 am of the view that
the cumulative effect of the sentence is excessive. Notwithstanding
the serious nature of the offences, the cumulative effect of these
sentences, in my view, stand to be tempered. In reconsidering
the
sentences I am in agreement with respondent that the first offence is
more serious than the second and the sentences stand
to be adjusted
to reflect this.
[7]
I would on appeal set aside the sentences imposed and substitute them
with the following sentences:
Count
1
- the appellant is sentenced to three years' imprisonment
Count
2
- the appellant sentenced to two years' imprisonment.
Appellant
is accordingly sentenced to a period of five years' effective
imprisonment.
MEER.
J
N
C ERASMUS. J
:
I agree. It is so ordered.
The
Registrar of this Court is instructed in case number A660/2007, the
matter of Cecil Swartz, having regard to the fact that the
appellant
was sentenced approximately two and a half years ago the sentence now
being reduced to five years, and in the matter
of Severo Hendricks to
forward to the prison authorities the orders of this Court before the
end of business today.
N
C ERASMUS, J