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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 020/2004

PARTIES: The State

and

Nomqiniseko Mako

REFERENCE NUMBERS -

• Registrar: CA & R 554/04

DATE DELIVERED: 01/09/2004

JUDGE(S): Plasket J; Pickering J

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s):

• for the accused/respondent(s):

Instructing attorneys:

• Applicant(s)/Appellant(s):

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings :

Fettering of discretion in imposing sentence

• Topic:

Sentence - assault with intent to do grievous bodily harm

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

REVIEW CASE NO. 20040569

DATE DELIVERED: 1/9/04

In the matter between:

THE STATE

and

NOMQINISEKO MAKO

________________________________________________________________________________________JUDGMENT__________________________

Sentence -- assault with intent to do grievous bodily harm

Fettering of discretion in imposing sentence

Over-emphasis on deterrence

Sentence of three years’ imprisonment set aside and replaced with a sentence of one year’s imprisonment

______________________________________________________________

PLASKET J:

[1] The accused pleaded guilty, in the Magistrate’s Court, Stutterheim, to a charge of assault with intent to do grievous bodily harm. She was convicted on her plea and sentenced to three years imprisonment. As the accused was not legally represented at her trial, the matter is before us on automatic review.

[2] I queried the severity of the sentence, in the light of the absence of any evidence concerning the severity of the complainant’s injuries. The magistrate has now furnished us with his reasons for imposing this sentence.

[3] The magistrate’s reasons are the following:

‘Assault with intent to do grievous bodily harm is an offence that is very prevalent in my area of jurisdiction. Its seriousness cannot be emphasised enough.

The complainant was stabbed several times with a knife on the head and his body. He was admitted at hospital and sutured. It is so that the State did not prove the seriousness of these wounds.

In his speech made on 21 March 2001 the learned Judge Dhlodhlo called on the magistrates in the district courts to impose harsher sentences on the persons convicted for assault with intent to do grievous bodily harm where there have been some stabbing involved.

When making this call the learned judge drew our attention to the fact that for one stab wound that results in the death of a person, the offender gets fifteen years in the Regional Court while we in the district courts continue imposing fines for several stab wounds.

Coming to this case, several wounds were inflicted to the person of the victim, some of them in the head. I am no expert in the field of psychiatric neurosis and will not therefore express any opinion as to the long term effect of the wounds in the head of the victim especially in the absence of medical evidence.

However, I cannot ignore the seriousness of this offence and its prevalence in this district.

I have only been on leave writing exams for a month and my roll has increased from 40 cases to 150 cases to date. This to me is indicative of one thing only, that only the sentences that I impose have been able to stabilise the rate of crime commission in this district. And that is the only way that discipline and a crime free atmosphere can be kept within controllable limits in this district.

I am in no way suggesting that my sentence might not have been harsh, but I would like to suggest that considering the circumstances that prevail in this district, these sentences that I impose may be the only solution for the time being. Especially considering the fact that violence is an order of the day in this small district.’

[4] The only facts before the magistrate were those contained in the accused’s plea and her unsworn testimony in which she placed her personal circumstances on record.

[5] In her plea, she stated:

‘The complainant in this matter is my boyfriend. On this day I had been enjoying myself with my friends. In the evening I went home to my boyfriend. He asked me where I was coming from and told me to leave his house. He can’t do that because we stay together. So I took a knife and stabbed him several times. I am not sure exactly how many times. But he was stitched in the forehead, on the head and left arm and was admitted to hospital. After stabbing him I just left him there.’

When the accused was asked whether she knew at the time that she could have injured the accused seriously by acting as she had, she answered: ‘Yes. He deserved it.’

[6] The record of the unsworn evidence of the accused, given in mitigation of sentence, reads as follows: ‘I am 40 years old. I am not married. I have one child. She is 15 years old. I am employed as a gardener. I earn R100 per month. I have nothing further to say.’ It is then recorded by the magistrate that ‘the accused does not respond to the court’s questions in an attempt to elicit more information regarding her personal circumstances’. The State did not prove any previous convictions.

[7] The magistrate’s reasons for sentence disclose a number of irregularities that justify interference on review.

[8] The first is his reliance on a speech given by Dhlodhlo ADJP in which the learned judge apparently said that magistrates should impose harsher sentences in assault cases in which stab wounds are inflicted. Whatever the learned judge said, his speech, not being a judgment, is not binding on magistrates and it is not proper for a magistrate to fetter his or her sentencing discretion in the way in which the magistrate in this case has. In S v Koekemoer ¹ a magistrate in a drunken driving case, in imposing a sentence that was held on appeal to have been unduly severe, had been influenced by a speech delivered by the Minister of Transport, in which he had ‘expressed the view that drivers convicted of driving under the influence of liquor should go to gaol and lose their licences permanently’. James JP held that the magistrate had misdirected himself. He held:²

‘The magistrate did not say in express terms that the remarks attributed to the Minister influenced his decision regarding sentence but the fact that he mentioned them suggests strongly that they did. I have no doubt that if this was indeed the position it would be a misdirection as it would then seem that he was allowing the views of the Minister of Transport, expressed in general terms, to influence his decision upon sentence in this particular case. Even if it is open to doubt whether the magistrate allowed himself to be influenced by the Minister's remarks when passing sentence, the fact remains that they are very clearly open to that interpretation and should in fairness be treated as a misdirection.’

[9] The magistrate’s main reason for imposing the sentence that he did was because of the prevalence of the offence in his district and need for deterrence. Two observations are apposite in this regard. The first is that irrespective of the broader circumstances that prevail, the need to deter the commission of offences through sentencing may not go beyond what is just. This principle was stated in clear terms by Miller J in S v Khulu.³ After stating that ‘I cannot conceive of any principle which could justify, for the sake of deterrence, the imposition of a sentence grossly in excess of what, in the circumstances of a particular case and having regard only to the crime and the degree of the particular offender's moral reprehensibility, would be a just and fair punishment’⁴ he held:⁵

‘It is, I think, a truism that just as a court should not, in an excess of compassion or pity, show a criminal convicted of a serious and prevalent type of crime undue leniency at the expense of the best interests of society, so it should not by over-zealous protection of society denigrate the concepts of justice and fairness in relation to the individual offender. That, when all has been said, remains the true function of the court in any criminal case - to do justice to the State and to the man in the dock - to acquit him if he is not guilty but to convict him if he is guilty and then to sentence him, within the framework of the law, according to what is just and fair in all the circumstances. Where it is not possible to reconcile with the need to protect society a sentence which, having regard only to the crime and the offender, appears to be appropriate, a court would disregard its duty and abuse its powers if it did not ensure that the deviation from justice (in the sense of imposing punishment more severe than the particular offender merited) was no greater than was necessary in the public interest and that the sentence, though more severe than it would otherwise have been, was nevertheless not unreasonable in all the circumstances.’

[10] Secondly, one cannot lose sight of the individualised nature of the sentencing process and it is irregular to sacrifice the accused on the altar of deterrence: in R v Mzwakala⁶ Schreiner JA stated that ‘even where a crime is very grievous in its effects or possible effects it is not proper to disregard the history and circumstances of the accused and the subjective aspect of the crime’ and in S v Sobandla⁷ Howie AJA held as follows where a magistrate had imposed an exemplary sentence in an effort to act as a deterrent:

‘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 … 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.’

[11] In S v Maseko⁸ Miller JA, in a case in which the magistrate in the court below had imposed an exemplary sentence on the appellant for the unlawful possession of a firearm and ammunition, held:

‘The magistrate, in his comments preparatory to passing sentence, mentioned most if not all the relevant factors and substantially correctly described the proper approach to the question of sentence. But I am satisfied upon consideration of his reasons for sentence in their entirety that, when applying the principles which he correctly enunciated, he gave excessive weight to the factors of deterrence, public expectations regarding punishment of one convicted of a serious offence and prevalence of this type of offence, but wholly insufficient weight to other factors, more especially to the factor that appellant did not possess the firearm for evil or unlawful purposes. Important as the factors of deterrence, public expectations and prevalence of a particular offence undoubtedly are, they must not be permitted to weigh so heavily as to negate other factors which lessen the gravity of the offence in the particular circumstances of the case before the court. (See per Jansen JA in S v Matoma 1981 (3) SA 838 (A) at 842H-843A.) The magistrate clearly regarded this case as one in which an exemplary sentence should be imposed “wat as voorbeeld sal dien en wat afskrikkingswaarde sal hê” and in that context concluded that the case fell within the category of cases which required that the offender necessarily undergo a period of imprisonment. He also made pointed reference in that context to the many crimes committed by the use of firearms possessed by persons not licensed to possess them -- a factor hardly to be taken into account against the appellant personally, in the light of the magistrate's finding that he possessed the firearm not for unlawful or nefarious purposes. What has to be guarded against when exemplary sentences are imposed (concerning which see S v Khulu 1975 (2) SA 518 (N) at 521-2) is the danger that excessive devotion by a judicial officer to furtherance of the cause of deterrence may so obscure other relevant considerations as to result in very severe punishment of a particular offender which is grossly disproportionate to his deserts. (See also S v Christodoulou; S v Savides; S v Temple; S v Zwyssig 1979 (3) SA 523 (A) at 536E-F.)’

[12] Miller JA’s remarks are entirely apposite in this matter. The magistrate has lost sight, in his endeavour to deal with violent crime in his district, of the crucial fact that a proper balance has to be struck between the objective gravity of the offence, the interests of society and the interests of the offender, even where a particular crime is prevalent and an element of general deterrence may be warranted: in the well-known matter of S v Sparks and another⁹ Holmes JA, after stating that the deterrent aspect of sentencing required some emphasis ‘lest others think the game is worth the candle’ went on to hold that ‘the appellants must not be visited with punishments to the point of being broken’ and that a sentence ‘should fit the criminal as well as the crime, be fair to the State and to the accused, and be blended with a measure of mercy’.

[13] More recently, in S v Dodo¹⁰ the Constitutional Court has stressed that when a sentence is disproportional to the offence for which it is imposed, the right to human dignity of the offender is infringed, Ackermann J, writing for a unanimous court holding in this regard:

‘To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence … the offender is being used essentially as a means to another end and the offender's dignity assailed.’

[14] From his reasons for sentence the magistrate appears to have disregarded the personal circumstances of the accused and the context in which the offence was committed. He also had little before him as to the seriousness of the wounds that were inflicted and the precise nature of the weapon used.

[15] These are factors that ought to have been considered. It is clear from the accused’s explanation when she pleaded guilty that the reason why she stabbed her boyfriend was because he was going to evict her from their common home. That fact should have weighed heavily in her favour and was probably the reason why the accused stated that the accused got what he deserved. In addition, the accused is a middle aged first offender who had a job, albeit a poorly paid job. She has a 15 year old dependant daughter.

[16] While it is clear that the complainant received medical attention – the accused stated that at least some of his wounds required stitches – and that at least one wound was inflicted on his head, there is no other indication of the nature of the wounds that were inflicted or their seriousness. Medical evidence was not led with regard to the seriousness of the injuries, how many stitches were inserted, what other treatment was required, whether the complainant would suffer any permanent after effects, and if so, of what nature, and nor was evidence led as to what type of knife was used – whether, for instance, it was a butcher’s knife, a flick knife, a pen knife or a kitchen knife. In the absence of such evidence, it is difficult to determine with any precision the objective gravity of the offence for purposes of sentence.¹¹

[17] I have considered a number of the reported cases on sentence in cases of assault with intent to do grievous bodily harm. While I believe it is true to say that, in response to a general upsurge in violent crimes over the last 10 to 15 years,¹² the courts now impose heavier sentences than they used to for such crimes,¹³ the sentence imposed in this case is not proportional to the objective gravity of the offence and is not consistent with other comparable cases, to the extent that they are relevant.

[18] In the most recent reported decision that I could find, S v Singh,¹⁴ the appellant had, because he was drunk and spurred on by jealousy, assaulted the complainant (with whom he had an intimate relationship) with a broken glass, had thereafter punched her and had then slammed her head against the dashboard of his car. The assault with the broken glass had required 41 stitches.¹⁵ He had taken her to hospital but had then ‘shopped around’ for the cheapest treatment for her but had, nonetheless, not paid for her treatment then or subsequently. Lewis AJA, after observing that the ‘injury inflicted on the complainant was a severe one’, that she ‘will bear the scar of his conduct for the rest of her life’, that she ‘has required psychological counselling’ and that she ‘will need further medical treatment’¹⁶ confirmed a sentence of four years’ imprisonment subject to s276(1)(i) of the Criminal Procedure Act 51 of 1977.

[19] What stands out when one considers the reported decisions since 1990, is that the sentence in this case is out of line with the general approach, even in cases that appear to have been more serious and in cases in which deterrence was regarded as necessary and was taken into account.¹⁷

[20] It is my view too that the deterrence that the magistrate believes is necessary in his district can be achieved by a less severe sentence than the one he imposed – one that takes into account the personal circumstances of the accused. After all, it is not only sentences that induce a sense of shock that may deter others from conducting themselves as the accused has done.¹⁸

[21] I consider the offence in this case to have been a serious offence. I do not wish to be misunderstood on that score. Nonetheless, as serious as the offence undoubtedly is, and as important it is in the interests of the community generally that a signal be sent out that conduct such as this will be met with a stern response by the courts, the personal circumstances of the accused and the gap left in the State’s case by the failure to adduce any evidence as to the seriousness of the injuries caused call for a far less stringent sentence than that imposed by the magistrate.

[22] When all of the circumstances are weighed and balanced, I am of the view that a sentence of one years imprisonment is appropriate.

[23] The following order is made in consequence:

(a) The conviction of the accused is confirmed but the sentence imposed on her is set aside.

(b) The accused is sentenced to one years imprisonment, backdated to 24 April 2004.

________________________

C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

__________________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

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