S v Burger (CA&R320/06) [2008] ZAECHC 35 (7 May 2008)

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA&R320/06

DATE HEARD: 7/5/08

DATE DELIVERED: 7/5/08

NOT

REPORTABLE

In the matter between:

WILLIAM WILFRED BURGER APPELLANT

and

THE

STATE RESPONDENT

JUDGMENT

PLASKET J

[1] The appellant was convicted of assault with intent to commit grievous bodily harm and escaping from lawful custody, having pleaded guilty to these offences when he appeared in the Port Alfred Magistrate’s Court. He was sentenced to 12 months imprisonment half of which was conditionally suspended in respect of the first count, and six months imprisonment of which the entire period was conditionally suspended in respect of the second count. He appeals against the sentence imposed in respect of count 1.

[2] The starting point must be the facts that he admitted, and which were accepted by the State. The relevant portion of the appellant’s statement made in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 states:

‘1. That on 10 June 2006 and at Station Hill, Port Alfred, I assaulted Riaan Jacobs by throwing him with an empty bottle whilst realizing that I could cause serious injuries and notwithstanding that realization, proceeding.

2. I acted unlawfully in that I exceeded the bounds of self-defence and therefore had no lawful excuse or justification knowing I was committing a crime.’

[3] The J88 form recorded two 2cm and one 3cm laceration on the complainants face, multiple scratches on his face and neck and two lacerations on his wrists. At best, only some of these relatively minor injuries could have been caused by the accused throwing a bottle at the complainant but which they are, if any, is a mystery.

[4] The appellant was 18 years old at the time the offence was committed. He was a first offender. He left school in standard 7 and worked in the building industry earning R1600.00 per month. He had spent almost a month in custody before being sentenced.

[5] When these factors – all favourable to the appellant – are taken together with the fact that the assault, even though it was admitted to be one in which grievous bodily harm was intended, was not a particularly serious one, and that the appellant had been acting in self-defence but had exceeded the bounds of self-defence, this case is not one in which a young first offender should be imprisoned.

[6] In my view, the magistrate misdirected himself by not according sufficient weight to the mitigatory factors that I have mentioned, and by over-emphasising the seriousness of the assault. This misdirection entitles this court to interfere with the sentence on appeal and to replace it with an appropriate sentence.

[7] The following order is made:

The sentence in respect of count 1 is set aside.

The appellant is sentenced to one years’ imprisonment suspended for four years on condition that the appellant is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension.

The sentence is back-dated to 6 July 2006.

_____

C. PLASKET

JUDGE

OF THE HIGH COURT

I agree:

____

J.C FRONEMAN

JUDGE OF THE

HIGH COURT

APPEARANCES:

For the appellant: Mr A. Korkie, instructed by the Grahamstown Justice Centre, Grahamstown

For the respondent: Mr Deon Els of the office of the Director of Public Prosecutions, Grahamstown