S v Louw (CA&R 66/06) [2006] ZANCHC 108; 2007 (1) SACR 539 (NC) (3 November 2006)

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[2006] ZANCHC 108
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S v Louw (CA&R 66/06) [2006] ZANCHC 108; 2007 (1) SACR 539 (NC) (3 November 2006)

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No
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to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
High
Court Case No: CA&R 66/06
Magistrate
Case No: RC 38/04
Date
heard: 30/10/2006
Date
delivered: 3/11/2006
In
the appeal matter of
:
KOOS
LOUW
APPELLANT
versus
THE
STATE
RESPONDENT
Coram
:
MAJIEDT,
J et WILLIAMS, J
JUDGEMENT
ON APPEAL
MAJIEDT J:
1. The
appellant appeals against his sentence of 10 years imprisonment of
which 2 years were conditionally suspended for 5 years,
on a
conviction of attempted murder.
2. The
conviction followed upon a plea of guilty expounded in a written
statement in terms of sec 112(2) of Act 51 of 1977. The salient
features of the plea of guilty are the following:
2.1 The
appellant admitted that he had unlawfully and intentionally assaulted
the complainant, an eight year old girl, with a thick
vine-shoot
(“wingerdloot”).
2.2 The
aforesaid assault had been perpetrated on the hapless child due to
her refusal to fetch wine for the appellant as instructed
by him
(there does not appear to be any family relationship between the
appellant and the complainant).
2.3 The
appellant averred that he had lost his temper due to the
complainant’s insolence and he had beaten her repeatedly and
uncontrollably
until two of his friends had intervened and stopped
him.
3. The
trial magistrate described the appellant’s physique in his judgment
on sentence as “
well-built
”.
The doctor who had examined her, described the complainant in his
medical report as a “
slender
built eight year old girl.
”
The doctor noted the following injuries in his report:
(a) an
abrasion under the left eye and he noted that the complainant had
complained of pain at the back of her head where the appellant
had
pinned her head down on the ground;
(b) multiple
soft tissue bruises over her torso, purple-blue in colour and caused
by a long hard object; the bruises were particularly
prominent over
her back and underneath her shoulder blades;
(c) the
doctor counted six welts in total over her back and left flank and
two over her left upper arm;
(d) quite
significantly the doctor added the following conclusions (translated
from Afrikaans and reproduced exactly as the doctor
had written
same):
“
Brutal
violent and unnecessary assault of an eight year old girl!!!
Barbaric!!
”
The
abovementioned observations, contained in the standard J88 medical
form, were supplemented by the doctor’s notes on the patient
record and which formed part of the medical report handed in as an
exhibit. The most important additional observations
are
the following:
(a) the
complainant had difficulty breathing during the examination, due to
pain;
(b)
she
had suffered a fracture of the right upper arm which he had set in a
splint;
(c) the
bruises varied in width between 2 to 3 cm;
(d) the
bruises were typical railway line bruises normally caused by an
object like a stick, kierie or sjambok.
5. These
injuries were captured on photographs handed in as exhibits at the
trial. The original photographs depict the injuries quite
vividly
and accords with the doctor’s above-mentioned observations, namely
purple discoloration of the skin along the prominent
welts all over
the front and back upper body and stomach and showing the
complainant’s right upper arm in a splint.
6. I
have described in great detail the complainant’s injuries to
demonstrate that this had been a horrific, senseless and quite
disturbing attack on a vulnerable eight year old child. I have no
doubt that, sans the intervention of the appellant’s two unnamed
friends the consequences for the complainant would have been extreme.
The force with which the blows had been inflicted, is quite
graphically demonstrated by the fact that her right upper arm had
been fractured in the process.
7. The
trial magistrate approached the sentencing of the appellant on the
basis that the provisions contained in Act 105 of 1997 (“
the
Act”)
are
applicable and that a minimum sentence of 10 years is statutorily
prescribed in respect of the present offence. This is obviously
incorrect. Sec 51(2)(b)(i), read with sec 52(1) of the Act and Part
III of Schedule 2 to the Act, provides that a minimum sentence
of 10
years imprisonment is prescribed
inter
alia
for assault with intent to commit grievous bodily harm perpetrated on
a child under the age of 16 years.
Attempted
murder of a child under 16 years, as in the present case, is not
included in Part III of the Schedule.
Having
discovered his mistake afterwards, the trial magistrate readily
granted the appellant leave to appeal to this Court against
the
sentence.
8. Mr
Fourie, who appeared before us for the appellant, has quite correctly
and properly pointed out that, while it is technically
correct that
attempted murder of a child under 16 years is not included in the
minimum sentence provisions, it is utterly inconceivable
that the
Legislature had intended that it should be visited by a lesser
sentence than the 10 years minimum sentence prescribed for
assault
with intent to commit grievous bodily harm perpetrated on a child
under 16 years.
I
share Mr Fourie’s view that the present offence is in fact a more
serious offence than the one listed in Part III of Schedule
2 to the
Act, namely assault with the intent to commit grievous bodily harm on
a child under 16 years.
9. The
aforementioned omission of the offence of attempted murder committed
on a child under 16 years involving the infliction of
grievous bodily
harm from the list in Part III of Schedule 2 is to my mind a serious
oversight on the part of the Legislature. It
should be corrected
without delay. This case serves as a vivid illustration of the
miscarriage of justice which may occur due to
this
lacuna
in the statute.
10. Having
laboured under this misapprehension, the trial magistrate found as
compelling and substantial circumstances the appellant’s
plea of
guilty, the fact that he had been under the influence of liquor and
the fact that no previous convictions had been proved
against him,
consequently warranting a departure from the statutorily prescribed
minimum sentence.
But
for the aforementioned
lacuna
in the Act, it is quite conceivable that a sentence exceeding that
prescribed for assault to commit grievous bodily harm on a child
under 16 years would have been prescribed for an offence such as the
present one.
In
the premises, it can never be said that a sentence of 10 years
imprisonment of which 2 years is conditionally suspended, imposed
in
this case, is appealable on the basis of the magistrate’s
aforementioned misdirection on the law.
11. Quite
apart from the aforementioned, the sentence cannot be said to be so
severe that it induces a sense of shock; on the contrary
I hold a
strong view that the sentence is too lenient. I say so, because this
young girl had been severely assaulted and the appellant’s
reason
for doing so is an aggravating factor. To my mind there would have
been good grounds for the Director of Public Prosecutions
to have
asked on appeal for an increase in sentence.
12. To
conclude on the merits of the appeal: notwithstanding the trial
magistrate’s misdirection on the applicable legal prescripts,
the
appeal against sentence is devoid of any merit as Mr Fourie has
correctly conceded.
13. A
final disturbing aspect requires mention.
13.1 After
conviction, the prosecutor led the evidence of the investigating
officer, Inspector Majere. He testified to the effect
that the
appellant’s record of previous convictions was not available as
yet, due to the fact that it had been discovered that
the appellant
had been operating under two different names, Koos Tieties and Koos
Louw and under two different identity numbers.
Inspector Majere
testified further that to his knowledge, the appellant not only had a
criminal record,
but
had also previously been declared a habitual criminal
.
13.2 At
its request, the State was granted an adjournment of some two weeks
to obtain a full criminal record from the National Criminal
Records
office in Pretoria. At the commencement of the hearing two weeks
later, the prosecutor again called Inspector Majere who
testified
that he had personally travelled to Upington from Kakamas, but had
been unable to obtain the appellant’s full criminal
record there.
Enquiries at the National Office also drew a blank, due to problems
with the computer system there. The appellant’s
attorney opposed a
further postponement. The magistrate thereafter refused a further
postponement on the basis that the appellant
was constitutionally
entitled to a speedy trial (the appellant had been arrested some 6
months earlier already).
13.3 The
State was consequently not able to prove any previous convictions
against the appellant.
14. Prior
to the hearing of the appeal I had requested the legal
representatives for the State and the appellant to prepare argument
on whether it was competent for this Court to remit the matter to the
trial court to afford the State a reasonable opportunity to
attempt
(again) to prove the appellant’s previous convictions (if any).
Upon
reconsideration and after having heard argument from Counsel, I am
satisfied that to remit the matter for the aforementioned
purpose,
would offend the fair trial provisions contained in sec 35(3) of the
Constitution, Act 108 of 1996.
It
is highly probable that in the event that the matter is remitted and
if previous convictions were to be proved against the appellant,
that
a more severe sentence would be imposed.
15. It
has been decided in a long line of cases that it is the State’s
discretion to prove previous convictions and, in the absence
of such
proof, an accused has to be treated as a first offender.
See:
S
v Khambule
1991(2) SACR 277 (W) at 283 b – c;
S
v Maputle
2002 (1) SACR 550
(W)
S
v Njikaza
2002(2) SACR 481 (C)
S
v Smith
2002(2) SACR 488 (C)
S
v Kqawane
2004(2) SACR 80 (T)
16. In
S v Joaza
2006(2) SACR 296 (T) Patel J said the following regarding the failure
by the State to prove previous convictions:
“
Previous
convictions of an accused person certainly play an important role in
the assessment of a fair and just sentence. Apart from
the
seriousness of the offence, it is a crucial determining factor to
reflect an informed punishment which the offender deserves.
If
persons are simply regarded as first offenders and receive lenient
sentences then the administration of our criminal justice
system will
invite societal disdain.
”
These
remarks are particularly apposite to the present matter. See
further:
S
v Sethokgoe
1990(2) SACR 544 (T) at 545 i – j.
17. Of
course, the prosecutor had in the present matter made a concerted
attempt on two occasions to prove the appellant’s previous
convictions. Upon careful consideration of the facts and
circumstances, I have taken the view that it cannot be said that the
trial
magistrate had exercised his discretion unreasonably in
refusing the State a further (third) postponement in this regard,
hence the
decision not to remit the matter.
18.
The
appellant’s appeal against sentence is dismissed. His conviction
and sentence is confirmed.
______________________
SA MAJIEDT
JUDGE
I
concur
______________________
C C WILLIAMS
JUDGE