Director of Public Prosecutions FS v Abubaker (A312/2015) [2015] ZAFSHC 119 (25 June 2015)
The court found that there are reasonable prospects that another court could conclude the regional magistrate erred by overemphasizing the respondent's role as primary caregiver in sentencing for a violent crime. The cases cited regarding primary caregivers pertain to economic crimes, not violent offences against a...
Source-derived case information.
- Citation
- [2015] ZAFSHC 119
- Parties
- Applicant: Director of Public Prosecutions FS; Respondent: Fatimah Abubaker
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- A312/2015
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Against Sentence Imposed by Regional Magistrate
- Outcome
- Leave to appeal against sentence granted to the state.
- Judges
- A Kruger
- Legal Topics
- Leave to Appeal Against Sentence, Domestic Violence, Primary Caregiver in Sentencing, Attempted Murder
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecutions FS
Applicant
Fatimah Abubaker
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Sentence Imposed by Regional Magistrate
Legal Issues
- 1 Whether the sentence imposed by the regional magistrate was appropriate given the seriousness of the offence.
- 2 Whether the magistrate erred by attaching undue weight to the respondent's status as primary caregiver.
- 3 Whether the nature of the crime justified a custodial sentence despite mitigating factors.
Ratio Decidendi
The court found that there are reasonable prospects that another court could conclude the regional magistrate erred by overemphasizing the respondent's role as primary caregiver in sentencing for a violent crime. The cases cited regarding primary caregivers pertain to economic crimes, not violent offences against a parent. The magistrate may have treated sentencing too much like a custody enquiry and underplayed the seriousness of the attempted murder. Given the premeditated nature of the crime and the severe injuries inflicted, the interests of justice require that leave to appeal be granted so that the appropriateness of the sentence can be reconsidered.
Court Disposition
Leave to appeal against sentence granted to the state.
Orders
- Leave is granted to the state to appeal to the full court of this division against the sentence imposed.
Full Case Text
Judgment text and source record
46 paragraphs
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. : A312/2015
In the case between:-
THE DIRECTOR OF PUBLIC PROSECUTIONS FS
Applicant
and
FATIMAH ABUBAKER
Respondent
JUDGMENT BY: KRUGER, J
DELIVERED ON: 25 JUNE 2015
[1] This is an application under section 310A of the Criminal Procedure Act 51 of 1977 by the state for leave to appeal against the sentence imposed by a regional magistrate. The respondent was convicted of attempted murder and sentenced to five years’ imprisonment wholly suspended and three years correctional supervision under section 276(1)(h) of Act 51 of 1977. The complainant was the husband of the respondent. She told him at 4am one morning that there was an intruder behind her. He rushed from the shower to the bed where he kept his revolver under his pillow, but it was not there. The respondent had the revolver. He rushed to her and she shot him. He ran away down the passage and she fired more shots at him, eight in all. The complainant was seriously injured and had to be transferred to a hospital in Bloemfontein. He took a year to recover. The respondent did not testify.
[2] Counsel for the state, Ms Giorgi, and for the respondent, Mr Van der Merwe provided written submissions, for which they are thanked. Mr Van der Merwe lists the mitigating and aggravating factors:
(a) Mitigating:
“3.1.1 Respondent was a first offender and the breadwinner for her family which included six (6) children.
3.1.2 Three of the children were taken away and are living with their father (complainant in matter) now.
3.1.3 Respondent was taking care of her mother financially and if she was sent to prison her remaining three children would be destitute.
3.1.4 Respondent was not a threat to society and there was very slim chance that she would commit any further crime.
3.1.5 Community work that Respondent does in the community.”
(b) Aggravating:
“6.2.1 Seriousness of the offence;
6.2.2 Impact of offence on Complainant;
6.2.3 Community interest;
6.2.4 Nature of the offence;
6.2.5 Fact that offence was planned;
6.2.6 Impact of offence on Family of Complainant;
6.2.7 Absence of remorse;
6.2.8 Injuries sustained by Complainant.”
Ms Giorgi says the sentence is shockingly inappropriate, inter alia for the following reasons:
“1.3 The court a quo, with the sentence it imposed, gives the impression that, as long as an accused has minor children, it is acceptable to commit a serious crime and that you will not be incarcerated.
1.4 The court a quo did not attach enough weight to the injuries sustained by the complainant which were of a very serious nature.
1.5 The court a quo did not attach enough weight to the fact that this was a serious case of domestic violence which takes on epidemic proportions in South Africa.”
[2] In sentencing the respondent, the regional magistrate heard the evidence of social workers. The magistrate attached importance to the fact that the respondent was the primary caregiver of her children. See S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) par [36]; S v Pillay 2011 (2) SACR 409 (SCA) par [24]; MS v S (Centre for Child Law as Amicus Curiae) 2011 (2) SACR 88 (CC) pars [62]-[64] and S v Chetty 2013 (2) SACR 142 (SCA).
[3] This was a serious case. The complainant was shot eight times, also while he was lying on the ground. The regional magistrate found that the crime was pre-meditated because the respondent had removed the baby from the bedroom before the shooting started.
[4] In my view there are reasonable prospects that another court can come to the conclusion that the regional magistrate erred by overlooking the fact that the cases dealing with the importance of the wife as primary caregiver referred to above deal with economical crimes, not a violent crime against the father of the children as the present, where the mother may not be a suitable person to look after the children. Another court may find that the magistrate treated sentencing too much in the nature of a custody enquiry and under-emphasised the seriousness of the offence.
ORDER
1. Leave is granted to the state to appeal to the full court of this division against the sentence imposed.
____________
A. KRUGER, J
On behalf of applicant: Adv S Giorgi
Instructed by:
The Director: Public Prosecutions
BLOEMFONTEIN
On behalf of respondent: Mr P van der Merwe
Legal Aid South Africa
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