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[2013] ZAWCHC 200
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Mpokeli v S (A106/13) [2013] ZAWCHC 200 (15 May 2013)
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IN THE HIGH COURT OF SOUTH AFRICA (WESTERN
CAPE HIGH COURT)
Case
No: A106/13
In the matter
between:
PATRICK
MPOKELI
Appellant
and
THE
STATE
Respondent
JUDGMENT delivered on 15 May 2013
BOQWANA AJ
[1]
The appellant was charged with the murder of his teenage daughter,
N.M., aged [...].
He pleaded not guilty to murder and made formal
admissions in terms of section 220 of the Criminal Procedure Act, Act
51 of 1977.
He was convicted of culpable homicide on 4 July 2011 in
the Bellville Regional Court and sentenced to 12 years imprisonment
of
which 5 years were suspended for a period of five years on
condition that the appellant was not convicted of murder, culpable
homicide
where assault was present, attempted murder or assault with
the intention to do serious bodily harm committed during the period
of suspension.
[2]
The appellant sought leave to appeal
against his sentence which was refused by the magistrate. On 13
December 2012, the appellant
was granted leave to appeal against his
sentence on petition to this Court.
[3]
The facts of this case are very tragic
and they are as follows: On 27 August 2009 the appellant assaulted
his daughter with a double-folded
electric cord for an intermittent
period of four hours. The appellant had been punishing the deceased
after he received a complaint
from the school principal that the
deceased was not attending school. Apparently she would leave home
under the pretence that she
was going to school. The appellant waited
for the deceased to come home after the meeting he had with the
principal. In an attempt
to elicit the truth from the deceased he
continuously assaulted her causing her death. The post- mortem
examination conducted by
Dr Marianne Tiemensma concluded that the
deceased was badly injured externally but her death was caused by
extensive soft tissue
injuries secondary to blunt force trauma. The
extent of the assault caused internal bleeding beneath the tissue.
The appellant’s
wife Nonkoliso Mpokeli (‘N Mpokeli’)
gave evidence for the state, whilst the appellant did not testify. N
Mpokeli’s
evidence largely corresponded with the appellant’s
admissions. The appellant was found guilty of culpable homicide.
[4]
N Mpokeli gave detailed evidence in
mitigation setting out the appellant’s personal circumstances.
In short, N Mpokeli testified
that she had been [….] to the
appellant for 23 years and they had four children excluding the
deceased. The first child
was 25 years old whilst the other children
were 9, 7 and 5 years of age. The three older children lived in the
Eastern Cape with
their grandmother who is ill whilst the 5 year old
lives with her. She had been battling to obtain a social grant for
the minor
children due to the requirements of social services. N
Mpokeli testified that she did not work and could not afford to
support
her children. The appellant supported her and the children
from the money he received from a shop they operated inside their
house.
She could not continue to run the shop because she had no
money to do so and all the money there was, was used for her
daughter’s
funeral. She further alleged that their house was
registered in the appellant’s name. N Mpokeli however testified
that she
no longer lives at such property after the community told
her to leave, and that she now lives with her sister in a squatter
camp.
[5]
Their house was being kept by her
brother in law. The community has however allowed her to return but
she has no money to do so.
Her husband was the eldest in his family
and his other brothers had no fixed employment and could not give her
regular financial
support. N Mpokeli testified further that her
children were suffering because of her husband being in prison.
[6]
In handing down the sentence the
magistrate considered the appellant’s personal circumstances,
that he was 42 years old at
the time of sentencing, the seriousness
of the offence, the interests of the community and the deceased.
Taking the appellant’s
and his family’s circumstances
into account the magistrate found that three minor children are
eligible for receiving state
grants. He also found that there was no
reason why the wife could not continue with the shop that she ran
with her husband. In
regard to the seriousness of the offence
committed, the magistrate held that the appellant had planned to
discipline the deceased
child with a particular weapon which was
inappropriate for parental disciplining purposes. The photos and the
evidence given by
the pathologist indicate that the injuries were
inflicted with extreme force. The magistrate found that an
aggravating factor was
that the appellant did not hit the deceased
once, he repeated the assault. As regards the interests of the
community the trial
court considered the fact that this incident had
attracted an outrage from the community that forced the appellant’s
wife
to leave their communal home. The court took into account that
the appellant had shown remorse. It also found that the appellant
had
a previous conviction which occurred 16 years earlier, which it could
not ignore, although it happened a long time ago. Having
looked at
all of these factors, the court imposed the sentence mentioned above.
[7]
Counsel for the appellant submitted that
the magistrate erred in not considering a non-custodial sentence as a
suitable sentence
in these circumstances. It was further submitted on
behalf of the appellant that the magistrate should have taken into
account
that the appellant showed remorse from the onset and took
responsibility for his crime. Counsel for the appellant submitted
further
that whilst the magistrate took into account the time spent
in custody by the appellant awaiting trial, he seemed to be of the
view that the minimum sentence legislation (i.e. Act 105 of 1997) was
applicable, which was not the case in this instance. According
to
counsel the magistrate overemphasized the deterrent aspect of
sentencing. He argued that the seriousness of the offence does
not
mean that correctional supervision cannot be considered. The relief
sought on behalf of the appellant was that the sentence
be set aside
and the matter remitted to the trial court for the procurement of a
Probation Officer’s Report. In the alternative
counsel asked
for the reduction of the sentence in the event that the appeal Court
finds that direct imprisonment is necessary.
[8]
It is trite that the appeal Court will
not lightly interfere with the sentence imposed by the trial court.
It is only when there
is a serious misdirection on the part of the
trial court or a failure to exercise the discretion properly or when
the sentence
imposed is startlingly inappropriate that the Court of
appeal would interfere. In that regard see S v Michele and Another
2010 (1) SACR 131
(SCA) at paragraph [11].
[9]
The key issue to be determined by this
Court is whether the sentence imposed by the magistrate is
appropriate or shoufd be set aside
and replaced by a non-custodial
sentence or a reduced custodial sentence having regard to the
interests of the children.
[10]
In S v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) at
paragraph 36 Sachs J set out guidelines that the sentencing court
should take into account when there is an indication
that the
convicted person might be a primary caregiver. The Court said the
following:
1.
A sentencing court should find out
whether a convicted person is a primary caregiver whenever there are
indications that this might
be so.
2.
A sentencing court should find out
whether a convicted person is a primary caregiver whenever there are
indications that this might
be so.
3.
A probation officer’s report is
not needed to determine this in each case. The convicted person can
be asked for the information
and if the presiding officer has reason
to doubt the answer, he or she can ask the convicted person to lead
evidence to establish
the fact. The prosecution should also
contribute what information it can; its normal adversarial posture
should be relaxed when
the interests of children are involved. The
court should also ascertain the effect on the children of a custodial
sentence if such
a sentence is being considered.
4.
If on the Zinn triad approach the
appropriate sentence is clearly custodial and the convicted person is
a primary caregiver, the
court must apply its mind to whether it is
necessary to take steps to ensure that the children will be
adequately cared for while
the caregiver is incarcerated.
5.
If the appropriate sentence is clearly
non-custodial, the court must determine the appropriate sentence,
bearing in mind the interests
of the children.
6.
Finally, if there is a range of
appropriate sentences on the Zinn approach, then the court must use
the paramountcy principle concerning
the interests of the child as an
important guide in deciding which sentence to impose.”
[11] In the
present case the magistrate did not necessarily follow these
guidelines methodically
although he referred to the judgment of S v M
and the judgment of this Court, Lorimer v S (A 57/2009)
[2010] ZAWCHC
47
(18 March 2010), where Bozalek J analysed at length the guidelines
suggested by Sachs J in the context of the Lorimer judgment That
however does not mean he misdirected himself in any way. The
magistrate paid due regard to the evidence provided by the
appellant’s
wife which in my view fully set out all the
circumstances regarding the impact that the incarceration had on the
minor children.
In my view, the magistrate had sufficient information
before him regarding the status of the children. It is clear from his
wife’s
evidence that the appellant was providing financial
support for his family through the shop he ran with his wife. N
Mpokeli was
sketchy on why she could not continue with the shop. I
understand from her evidence that she did not have money to continue
with
the shop because all the money they had was used for the funeral
of their deceased daughter. It is not clear where the husband will
get the money from if a non-custodial sentence was to be imposed. N
Mpokeli simply alleged that the appellant would make a plan.
Although
the appellant’s incarceration depleted the family structure, it
seems to me all is not lost as the children are
with their
grandmother and could still live with their mother and are eligible
for social grants. The community has given messages
to N Mpokeli to
come back to her house which is being kept by the appellant’s
brother. She is currently supported by her
sister and occasionally
the appellant’s brothers would give her money when they could.
[12]
The
interests of the children and the family must be weighed against the
state’s responsibility to prosecute and punish for
crime. These
are to be looked at on a case by case scenario.
[13]
The
duty on the State to deal firmly with criminal misconduct is an
important consideration that cannot be ignored. Sachs J remarked
in S
v M at paragraph 40 as follows:
‘As the Zinn triad recognises, the
community has a great interest in seeing that its laws are obeyed and
that criminal conduct
is appropriately prosecuted, denounced and
penalised. Indeed, it is profoundly in the interests of children that
they grow up in
a world of moral accountability where self-centred
and anti-social criminality is appropriately and publicly repudiated.
In practical
terms, then, the difficulty is how appropriately and on
a case-by-case basis to balance the three interests as required by
Zinn,
without disregarding the peremptory provisions of section 28.
This requires a nuanced weighing of all the interlinked factors in
each sentencing process. The normative setting for the balancing will
be the intricate inter-relationship between sections 28(1)
(b) and
28(2) of the Constitution, on the one hand, and section 276(1) of the
CPA on the other.’
[14]
The
appellant repeatedly inflicted the pain and injuries on the body of
the child. He did not stop after giving her the first hiding,
but he
went on and on, albeit intermittently, not using a hand or a stick
but an electric cord that might have been intertwined
for the
purposes of the assault. Although the Court is aware of the fact that
the appellant admitted his actions and was somewhat
remorseful and
emotional, I find no basis to interfere with the sentence imposed by
the magistrate.
[15] In the result I
propose an order in the following terms:
1. The appeal is dismissed and the sentence
imposed by the magistrate is confirmed.
N P BOQWANA
Acting Judge of the High Court
I agree, and it is so ordered
A BLIGNAULT Judge of the
High Court