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Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no: A 40/12

Division: 5

In the matter between:

ANWAR WILLIAMS …............................................................................................Appellant

v

THE STATE …....................................................................................................Respondent

Coram: BLIGNAULT, J. et CLOETE, A.J.

Heard: 01 JUNE 2012

Delivered: 27 JULY 2012

JUDGMENT

CLOETE AJ:

[1] This is an appeal with the leave of the trial court against the sentence imposed on the appellant who appeared as accused no 2 in the trial. Although leave to appeal was granted in respect of the sentences imposed on both counts on which the appellant was convicted, namely assault with intent to cause grievous bodily harm ( count 1) and kidnapping (count 2), the only sentence that was attacked during argument on appeal was that imposed in respect of count 1, being 5 years imprisonment in terms of s 276(1 )(i) of Act 51 of 1977. (The sentence imposed in respect of count 2 was a period of 2 years imprisonment suspended for 4 years) . In essence therefore the only issue to be determined is whether direct imprisonment on count 1 is an appropriate sentence.

[2] The offence committed by the appellant (along with his wife and son) was undoubtedly serious. Acting on the strength of nothing other than a suspicion that the complainant had robbed the appellant's son of his cellphone, the former was abducted from the home of a friend and severely assaulted with an axe and physical blows, resulting in him sustaining injuries which required outpatient treatment at a local hospital. The complainant testified that as a result of the attack he suffered from intermittent migraines for which he took prescribed medication.

[3] The magistrate correctly found that the appellant was the driving force in the attack on the complainant. It was for this reason that it was only the appellant who was given a period of direct imprisonment. His wife and son received suspended sentences coupled with strict terms of correctional supervision.

[4] The appellant is a first offender. He was 46 years old at the time of the offence and 48 years old when he was sentenced. According to the correctional supervision report submitted by the state and accepted by the appellant he was in full time employment, having worked at that stage for his current employer for just short of 5 years and for his previous employer for 21 years. He and his family had lived at the same address for 21 years. The appellant and his wife have three children. It appears that he is the family's primary breadwinner since his wife is unemployed although his child who was his co-accused in the trial is also employed. The appellant suffers from high blood pressure for which he takes prescribed medication.

[5] The appellant did not testify in mitigation of sentence but called a Ms Amirudien as a witness to give evidence on his behalf. She is a registered social auxiliary worker and a director of a welfare organisation, namely PRECO (the acronym for the Poverty Relief and Empowerment for Change Organisation) which is registered as such with the Department of Social Development.

[6] Ms Amirudien testified that the appellant (along with his wife and son) had played a pivotal role in the organisation since its inception some 11 years previously in various upliftment projects in their community including youth and environmental camps. Their involvement had thus directly benefited their community. She appealed to the magistrate to impose a non-custodial sentence on the appellant, since she felt that the community would otherwise suffer. This evidence was not challenged in cross-examination.

[7] When it was put to her by the magistrate that in these circumstances one would surely have expected the appellant (and his wife and son) not to take the law into their own hands, she replied:

"I think because the mind is made of various components and emotions is one of that, sometimes it does overrule it, you know your control and within an incident you find, and it happens with the best of us all the time. And I think being at the wrong place at the wrong time brought that unto them, but knowing them, they are normally very level headed, very well-known and respected and just at that moment, I think emotionally it must have gotten ... to them."

[8] During his address to the magistrate the appellant's legal representative informed the court that the appellant tendered payment of the complainant's medical expenses incurred as a result of the attack.

[9] The state informed the magistrate of the attitude of the complainant's family, namely that they did not wish a custodial sentence to be imposed. They had decided to institute civil proceedings against the appellant and his co-accused.

[10] It was against this background that the state submitted that an appropriate sentence would be a suspended period of imprisonment coupled with correctional supervision in accordance with the recommendation of the officer who had prepared a report to that effect.

[11] In delivering judgment on sentence the magistrate reasoned that although the appellant's personal circumstances played an important role, these were outweighed by, first, the serious nature of the offence; second, the need to stamp out vigilanteism; third, (and although this was not the complainant's evidence) that the latter would suffer from the effects of the attack for the rest of his life; and fourth, that a more severe punishment had to be imposed on the appellant than on his co-accused since the appellant had played the main role in the attack. As to the non-custodial sentence requested by the state the magistrate said

"Die staatsaanklaer het ook submissies gehad dat normaalweg sou hy vra vir gevangenisstraf, maar in hierdie geval vra hy nie, want dit is dan nou drie lede van dieselfde gesin. Dit is 'n faktor wat die hof in gedagte moet hou. Maar as drie lede van die gesin 'n persoon doodmaak, beteken dit nie dat daardie drie persone kan nie almal tronk toe gaan nie. So 'n argument hou ook nie water nie."

[12] It is trite that the circumstances in which a court of appeal may interfere in a sentence which another court has passed are limited. There must be either a material misdirection by the trial court, or the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking, startling or disturbingly inappropriate': S v Malgas 2001 (1) SACR 469 (SCA) at 478d-g.

[13] Our courts have stressed on numerous occasions that judicial officers should not hesitate, in appropriate cases, to make use of correctional supervision. It has already been imposed for very serious crimes including murder: S v Booysen 1993 (1) SACR 698 (A); S v Potgieter 1994 (1) SACR 61 (A); S v Kleynhans 1994 (1) SACR 195 (O); and S v Ingram 1995 (1) SACR 1 (A). In all of these cases the perpetrators were adults.

[14] In S v E 1992 (2) SACR 625 (A) at 633a-b Howie AJA (as he then was) said:

What is clear is that correctional supervision is no lenient alternative. It can, depending on the circumstances, involve an exacting regime, even virtual house arrest. Its advantage is that it is geared to punish and rehabilitate the offender within the community, leaving his work and domestic routines intact, and without the obvious negative influences of prison. It can also involve specific rehabilitative treatment and community service.'

[15] In S v Schutte 1995 (1) SACR 344 (C) at 349d-g Steyn J, referring to the unreported judgment of Conradie J in S v Harding quoted a portion of that judgment as follows:

'...correctional supervision is not a soft sentence...in some ways it is harder than imprisonment. A cynic once said that the easiest life on earth is being a soldier or a nun: you only have to obey orders. Prison is like that. A model prisoner is the one who best obeys orders. These are not ideal circumstances, generally, for the regrowth of character. Correctional supervision gives an offender greater scope for regrowth of character. It takes a great deal of restraint and determination on the part of a probationer. It can be very stressful. A probationer does not have his freedom - far from it - but he is not cut off from the community altogether. His support systems are not destroyed and in this way rehabilitation prospects are enhanced.'

[16] While I respect the views expressed by the magistrate I am unable to agree that in the particular circumstances of this matter the appellant should be sentenced to direct imprisonment for any period at all.

[17] I say this for the following reasons. First, neither the complainant nor the community sought direct imprisonment. Rather, the evidence and the submissions made indicated that both would be prejudiced should such a sentence be imposed. Second, the appellant on the uncontested evidence is unlikely to re-offend and is an ideal candidate for correctional supervision, having every prospect of being fully rehabilitated. Imprisonment, even for a short period, is likely to hinder that prospect. The appellant would undoubtedly lose his job and at the age of 50 years or older may well struggle, with a criminal record for violence, to obtain other employment. His dependants will suffer, not only as a result of his loss of income but also from the fragmentation of the family unit. Third, correctional supervision is in itself not a soft option and the recommendations of the officer concerned are stringent. Fourth, the kidnapping and the assault essentially comprised one incident. Fifth, the appellant will nonetheless have the sword of Damacles hanging over his head if a suspended sentence is imposed. Sixth, to impose a sentence of direct imprisonment on this particular individual would amount to sacrificing him on the "altar of deterrence". In S v Sobandla 1992(2) SACR 613 (A) 617 f-h Howie AJA fas he then was) said

"As to the magistrate's view of the need for a strongly deterrent sentence, the peculiar circumstances of the present case do not, in my assessment, suggest the risk of a repeated robbery or housebreaking by appellant. Essentially what the trial court had in mind was, in the interests of the community, a sentence which would deter others who might, given the prevalence referred to, contemplate similar serious criminal conduct. Having regard to all the facts of the present matter, however, it seems to me that appellant's counsel (who appeared at the Court's request, and for whose assistance we are grateful) was right in contending, in effect, that appellant was sacrificed on the altar of deterrence, thus resulting in his receiving an unduly severe sentence. Where this occurs in the quest for an exemplary sentence, a trial court exercises its discretion improperly or unreasonably: S v Collett 1990(1) SACR 465 (A) at 470 i-471 a."

[18] It is for these reasons that the appeal in respect of the sentence imposed on count 1 must succeed. As I have said no submissions were made on behalf of the appellant in respect of the sentence imposed on count 2. In any event there is no basis for this Court to interfere with that sentence.

[19] In the result I propose the following order:

1. The appeal in respect of the sentence imposed on count 1, namely 5 years imprisonment in terms of s 276(1 )(i) of Act 51 of 1977, is upheld.

2. Such sentence is set aside and replaced with a sentence of 4 years imprisonment suspended for 4 years with effect from the date of the sentence, being 29 September 2011, on condition that the appellant is not convicted of the offence of assault with intent to cause grievous bodily harm committed during the period of suspension. In addition the appellant is sentenced to 4 years correctional supervision with effect from the date of this order in terms of s 246(1)(h) of Act 51 of 1977 on the terms and conditions set out in annexure "X" hereto.

3. The appeal in respect of the sentence imposed on count 2, namely 2 years imprisonment suspended for 4 years on condition that the appellant is not convicted of the offence of kidnapping or attempted kidnapping during the period of suspension, is dismissed and such sentence is confirmed.

4. It is further ordered, in terms of s 280 of Act 51 of 1977, that the sentences imposed in respect of counts 1 and 2 shall run concurrently.

CLOETE, A.J.

I agree and it is so ordered.

BLIGNAULT, J.

“X”

1. (a) Die beskuidigde onder huisarres geplaas word te Frankiinstraat 5, Uitbreiding 23. Belhar gedurende die tye soos deur die Kommissaris van Korrektiewe Dienste bepaal vir die voile duur van korrektiewe toesig. Die Kommissaris van Korrektiewe dienste word gemagtig om sodanige woonadres na goeddunke en om gegronde redes te verander. Voorts dat die Kommissaris gemagtig word om enige tydperk van huisarres op te skort of te verieng onder die voorwaardes wat hy/sy goedvind of, daarna ,vir solank en onder sodanige voorwaardes as wat hy mag goedvind. her in te stei.

(b) Gemeenskapsdiens vir 'n maksimum periode van 16 uur per maand vir die duur van die vonnis.

Die diens sal bestaan uit skoonmaak en instandhouding van perseei te Modderdam Begrafplaas , Belhar onder toesig van mnr Alfred Jacobs .

♦ Met dien verstande dat die Kommissaris gemagtig word om:

Die aard van die diens en die plek waar dit geiewer word, te wysig indien dit nodig is om die nakoming van die vonnis te bevorder.

Indien verdiensteiik, hoogstens een derde van die tyd waarin Gemeenskapsdiens verrig moet word, op te skort onder voorwaardes wat hy goed vind.

Addisionele gemeenskapsdiens by te voeg ten einde nakoming van die vonnis te bevorder, maar wat nie die oorspronkiike hoeveelheid ure oorskry nie.

(c) Onderwerping aan behandelingsprogram(me)/rehabilitasieprogram/ maatsapiike dienste soos bepaal met reassesering by Gemkor kantoor.

(d) Die plek waar, tye waartydens, duur en inhoud van sodanige programme/toesigdiens sal deur die Kommissaris van Korrektiewe Dienste bepaal word. Enige koste verbonde aan sodanige programme/toesigdiens kan van die beskuldige verhaai word.

(e) Onderwerping aan monitenng deur die Kommissaris van Korrektiewe Dienste ten einde die oogmerke van hierdie vonnis te verweseniik.

2. Die beskuidigde mag nie sonder toestemming van die Korrektiewe Beampte die ianddrosdistrik waar hy woon en werk verlaat nie.

3. Die beskuidigde moet:

(a) Bv die korrektiewe DeamDte aanmeld by Landdroshof Bellville, kainer 313 na afloop van vemgtmge in die hof.

(b) Hom vir die voile duur van hierdie vonms van die gebruik van sterk drank of die gebruik van dweimmiddeis anders as op voorskrif van 'n mediese praktisyn wesrhou.

(c) Enise redeiike opdragte bexreffsnde die nakormng en admmistrasie van hierdie vonms war die Kommissaris van Korrekuewe Dienste mrxeik. uitvoer.

(d) Die Kommissaris van Korrektiewe Dienste vooraf in kennis sxe] van emge verandermg van woon- of werksadres.

(e) Hom ook me skuidig maak aan enige verdere misdaad me.

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