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IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

Case No.CA 187/04

In the matter between

ROBERT NKWE Appellant

and

THE STATE Respondent

Judgment on Appeal

The Appellant was charged with assault with intent to do grievous bodily harm, but convicted on a charge of common assault in the district court on the 19 August 2004. The learned Magistrate imposed a sentence of 8 months imprisonment. The appellant appeals against this sentence on the grounds that the Magistrate misdirected herself by:

1. considering an 8 year term of imprisonment to be the only suitable sentence;

2. failing to strike a proper balance between the circumstances of the accused and the objectives of sentencing;

3. failing to take into consideration the fact that the appellant was unrepresented both at trial and during sentence.

4. failing to obtain all the information regarding the personal circumstances of the appellant, despite it being incumbent on her to do so;

5. placing undue reliance on the fact that the appellant had a previous conviction for common assault;

6. failing to consider other forms of punishment, in particular correctional supervision and the option of a fine;

7. ignoring the mitigating factors that became apparent during the trial;

Appellant concludes that the sentence imposed is shockingly inappropriate and submits that no reasonable court would have imposed such a harsh sentence in the given circumstances.

The State filed heads of argument and made submissions in open court supporting the submissions of the appellant. Mr. suggested that the learned Magistrate ought to have given the appellant the option of a fine. In support of this view, the he submits that there are mitigating factors that ought to have been considered, such as the fact that the appellant was employed, and the finding that the injuries sustained by the complainant were relatively minor.

I have given due consideration to the submissions of both counsel and I am in agreement with them. There are material factors that the learned Magistrate ought to have considered in deciding on the most appropriate sentence and penalty to imposed on the appellant. The fact that the accused was unrepresented and unskilled in the presentation of mitigating factors is one of a number of considerations the Magistrate ought to have given due weight to. The fact that common assault is not considered as one of the more serious offences. The fact that the appellant believed he was acting in self defence; that he is employed and has a dependant; he cooperated with the police and was frank and honest with the court. The appellant is also a fairly young man, being 25 years of age, and in the prime of young adulthood. There was not premeditation as the accused appears to have acted in the heat of the moment.

I am of the view that the Magistrate was unduly swayed by the previous sentence she had imposed on the appellant. She had imposed a sentence of three months imprisonment suspended for a period of three years on condition that the accused is not convicted of assault during the period of suspension.

The learned Magistrate does not seem to have applied her mind to the cumulative severity of this sentence of imprisonment, coupled with the effect of bringing into operation the previous suspended sentence. The total sentence must be appropriate within the context of the nature of the crime, the objectives of punishment and the interests of the community. A just and equitable result is the underlying objective of sentencing.

Suffice it to state that in terms of section 297 (7) (b) of the Criminal Procedure Act, Act 51 of 1977, the court a quo or any court of equal or superior jurisdiction has the discretion of further suspending the operation of that sentence, inter alia, for any other good and sufficient reason. The learned magistrate had this discretion, which, as the sentencing court in both instances, she ought to have used given the general nature of the condition she attached to the first conviction. I am in support of the view that a judicial officer should be specific in imposing conditions of this nature, specifying for instance that a condition will only become operative if the offender is convicted of a sentence that imposes a term of imprisonment.

The court in S v Benn; S v Jordaan, S v Gabriels 2004 (2) SACR 156 (C) in considering the purpose of sentencing had regard to the 3 basic intentions of section 297(1) of the Criminal Procedure Act 51 of 1977, namely the mitigation of sentence, the prevention of crime and the preservation of positive characteristics or elements. Bozalek J further expressed the view that:

“conditions of suspension should have some relation to the crime, should be stated with precision and be reasonable. The conditions of suspension should be formulated in such a way that they do not cause future unfairness or injustice. They must also be framed to take account of human fallibility.”

Within the same context of assessing what is a just and equitable sentence for a repeat offender of a relatively minor offence, I wish to point to the judgment of Miller J in Smith v Friend N.O. and Another 1973 (3) SA 168 where he held that:

“it is not only apposite but extremely relevant and proper for a court, which is asked to put into operation a suspended sentence, to take into account the merits and demerits of the accused’s behaviour in regard to the second conviction, for it is in respect of that conviction that the first of the two sentences is sought to be put into operation”.

Common assault is considered a minor offence. It is also the type of offence that is easy to repeat as individuals interact socially. I do not believe that it is the type of offence that the legislature intended to create the current custodial sentences for. Of course, where such assault is aggravated in any manner, then on an individualised assessment, the merits and demerits of the appropriateness of a custodial sentence must be considered. One must bear in mind, however, that the essential purpose of imprisonment is to remove the offender from society so as to protect society and second, to provide a court with an appropriate sentence for those deserving of severe punishment.

In considering the fact that the appellant is a repeat offender, what is material is the fact that this was the second time within a space of approximately 5 months that the appellant was convicted of common assault. This fact alone, however, does not eliminate a consideration of other mitigating or positive features that might indicate that a non custodial sentence might still be the most appropriate for the appellant. It has often been stated that sentencing is an individual matter. The elements of retribution, rehabilitation, deterrence and prevention must be applied on each consideration by a judicial officer as she /he gives due weight to the circumstances of the accused, the victim, and the interests of the community. Thus the court in S v Torr 1991 (1) 409 WLD held in a matter concerning the refusal to render military service in contravention of section 126A (1) (a) of the Defence Act 44 of 1957, that

“the possibility of repeated prosecutions being instituted, arising from the fact that a suspended sentence was imposed, did not detract from the inappropriateness of imprisonment in the instant case.”

The appellant can afford to pay a fine. The fact that he has in such a short space of the run foul of the law be a wake up call for him.

I conclude that the sentence of the court a quo should be set aside.

In addition, I am of the view that the personal circumstances of the appellant, and the real possibility of him being rehabilitated outside of prison, constitutes sufficient reason for a further suspension of the sentence and conditions imposed by the learned Magistrate on the 04 March 2004.

The sentence of 8 months imprisonment is set aside and altered that of a fine of R1500 or 6 months imprisonment. Should the appellant not be in a position to pay this full amount immediately, I make the order that the fine imposed may be paid on a deferred basis as follows:

1. R500 to be paid immediately;

2. The balance of R1000 is to be paid in installments of R250 on or before the 7^th day of every month for a period of four months.

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