S v Mosiakoa (854/07) [2007] ZAFSHC 137 (29 November 2007)

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[2007] ZAFSHC 137
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S v Mosiakoa (854/07) [2007] ZAFSHC 137 (29 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 854/07
In
the review between:-
THE
STATE
versus
CECILIA
BAITSEPILENG MOSIAKO
CORAM:
EBRAHIM,
J
et
MOCUMIE,
AJ
_____________________________________________________
JUDGMENT
BY:
MOCUMIE,
AJ
_____________________________________________________
DELIVERED
ON:
29
NOVEMBER 2007
_____________________________________________________
[1] This
matter came before me on automatic review in terms of section 302
read with 304 of the Criminal Procedure Act, Act 51 of
1977 (“the
CPA”). The accused appeared in the Magistrate Court, Bloemfontein
on a charge of assault with intent to do grievous
bodily harm. She
pleaded guilty but the plea was altered to a plea of not guilty in
terms of section 113 of the Criminal Procedure
Act 51 of 1977 (“the
CPA”). She was later convicted as charged. She was sentenced to
18 (eighteen) months imprisonment of which
6 (six) months were
suspended for 3 (three) years on certain conditions.
[2] I was of the view
that the sentence was unduly harsh and inappropriate and directed the
following query to the magistrate:
“
1. The accused was convicted on
12 September 2007 and sentenced on 14 September 2007. The matter was
only received by this Court
on 22 October 2007, contrary to the
provisions of section 302 read with 304 of the
Criminal Procedure
Act.
2. Is
the sentence not too harsh taking into account the following:
2.1 The age of the accused;
2.2 The
fact that she pleaded guilty;
2.3 The fact that she has minor
children she is raising on her own – one being 10 months old;
2.4 Importantly,
the fact that she is a first offender without previous convictions of
any nature.
3. Were the interests of the
society and the prevalence of the offence not over-emphasised above
the personal circumstances of the
accused?
Were other sentencing options
considered?”
[3] The magistrate
supplied his comments.
[4] The accused was
correctly convicted of assault with intent to do grievous bodily
harm. The proved and admitted facts of the case
are simple and can
be summarised as follows: On 16 April 2007 the accused and the
complainant were in a taxi in Bainsvlei, Bloemfontein.
She accused
the complainant of speaking ill, I suppose, about her. Without any
provocation she stabbed the complainant who was
carrying a baby,
several times. When they alighted from the taxi, she stabbed the
complainant further. Bystanders or other commuters
intervened. The
accused left.
[5] The
issue is whether the magistrate exercised his discretion judiciously
when he sentenced the accused to the aforementioned sentence.
It is
trite that sentencing is a function that lies within the discretion
of the trial court. See
R
v Mapumulo and Others
1920 AD 56
;
S
v Rabie
1975 (4) SA 855
(A). See also
S
v Barnard
2004 (1) SACR 191
(SCA) at 194 C – D.
[6] The
accused is a 24 year old first offender. She is unemployed. She is
unmarried and has two children – 10 years and 10 months
respectively. She resides on her own with the two minor children.
[7] The magistrate
correctly found that assault with intent to do grievous bodily harm
is a serious offence and was rife. He states
that other sentencing
options were considered. It is however clear from the record,
including the magistrate’s reasons, that the
magistrate did not
consider other sentencing options. The fact that other options were
investigated and looked into must preferably
be clear from the
record.
[8] Imprisonment without
an option of a fine even when it is a suspended sentence should be
imposed only after a careful consideration
of all the facts of the
case, the personal circumstances of the accused, the nature and
prevalence of the offence and the societal
purpose that can be served
by the imposition of the suspended sentence including its negative
effect on the accused.
[9] However
serious the offence may be, it is irregular to proceed from the
assumption that because the offence was serious, imprisonment
was the
only appropriate sentence. See
S
v D
1999 (1) SACR 122
(NC);
S
v Tshisa en ‘n Ander
2003 (1) SACR 171
(O) at 175.
[10] The
magistrate states that
“...
the imposed sentence is not only appropriate but justified ...”
[11]
In
my view, the magistrate misdirected himself in concluding that a
prison sentence without an option of a fine was the only suitable
sentence to impose on the accused in these circumstances. He did not
exercise his discretion properly. I say so because the
finding
that direct imprisonment was the only option he had, is based on a
finding that he made that the accused was the type
of accused who
should be removed from society and that South African prisons welcome
all types of prisoners. These findings clearly
played a large part
in the magistrate imposing the sentence of eighteen months.
[12] This
misdirection is, in my view, material. A balance needs to be struck
between the interests of society in having deterrent
sentences
imposed and the interests of the accused in having her personal
circumstances taken into account in amelioration of sentence,
as well
as the purposes of judicial punishment
per
se
.
The quest for severity in a sentence should not override
considerations of mercy and an understanding of human weakness. See
S
v Barnard
,
supra
at 195 h – i.
[13] I
have considered remitting the matter back to the court
a
quo
to reconsider sentence afresh. However, in the light of what I have
said above I have decided against it because this Court is in
as good
a position to impose an appropriate sentence as the trial court. I
am of the view that a fine coupled with imprisonment
wholly
suspended, would be appropriate.
[14] In the circumstances
I make the following order:
1. The
conviction is confirmed.
2. The sentence of 18
(eighteen) months partly suspended for 3 (three) years on certain
conditions imposed by the magistrate is set
aside and replaced with
the following:
“R800,00
(eight hundred rand) or 6 (six) months imprisonment wholly suspended
for 3 (three) years on condition that accused is not
convicted of
assault with intent to do grievous bodily harm, committed during the
period of suspension.”
3. The sentence is
antedated to 14 September 2007.
________________
B.C. MOCUMIE, AJ
I
concur.
_____________
S.
EBRAHIM, J
/sp