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South Africa Judgment

North Gauteng High Court, Pretoria

State v M (A599-17,259-17,A298-17, 17-17) [2017] ZAGPPHC 1288 (27 November 2017)

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Source document

01

Holding and result

The court found that the facts admitted by the accused did not support a conviction for assault with intent to do grievous bodily harm, but rather for common assault. Despite the accused's history of aggressive behaviour and failed diversion attempts, the sentence of 18 months compulsory residence in a youth care centre was not shockingly inappropriate given the circumstances. The conviction on count 1 was set aside and substituted with common assault, while the conviction and sentence on count 2 were confirmed.

Court disposition

Conviction for assault with intent to do grievous bodily harm set aside and substituted with common assault. Conviction for malicious injury to property and sentence of 18 months compulsory residence confirmed.

Orders

  • The conviction on count 1, assault with intent to do grievous bodily harm, is set aside and substituted with assault common.
  • The conviction on count 2, malicious injury to property, is confirmed.
  • The sentence of 18 months compulsory residence in Bosasa Child and Youth Care Centre is confirmed.

02

Material facts

Parties

The State

Applicant

S M

Respondent

Amounts and remedies

  • Sentence Duration (months): 18

03

Procedural history

  1. Posture

    Review Application / Review Judgment Following Conviction and Sentence in the Magistrate's Court.

04

Questions and positions

Legal issues

Party arguments

Applicant
The Senior State Advocate argued that while the nature of the sentence imposed cannot be faulted, the conviction for assault with intent to do grievous bodily harm should be substituted with common assault, and the sentence reduced from 18 months to 12 months compulsory residence.
Respondent
The accused admitted to threatening his mother and to substance use, but denied dependency. The probation officer and social worker corroborated the mother's account of aggressive behaviour. The accused had previously undergone diversion for similar offences, but his delinquent behaviour persisted.

05

Court’s reasoning

  1. 01

    Child Justice Act, 75 of 2008

    Sentencing of child offenders must comply with the Child Justice Act, considering the nature of the offence, the offender's history, and prospects of rehabilitation.

  2. 02

    Section 112(2) of the Criminal Procedure Act

    A conviction must reflect the facts admitted by the accused; if the facts do not support assault with intent to do grievous bodily harm, the conviction should be for common assault.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the facts admitted by the accused did not support a conviction for assault with intent to do grievous bodily harm, but rather for common assault. Despite the accused's history of aggressive behaviour and failed diversion attempts, the sentence of 18 months compulsory residence in a youth care centre was not shockingly inappropriate given the circumstances. The conviction on count 1 was set aside and substituted with common assault, while the conviction and sentence on count 2 were confirmed.

Obiter and limits

  • The accused's persistent aggressive behaviour and threats towards his mother indicate poor prospects of rehabilitation.
  • Previous diversion attempts have failed to manage the accused's delinquent behaviour, justifying a custodial sentence.

Court disposition

Conviction for assault with intent to do grievous bodily harm set aside and substituted with common assault. Conviction for malicious injury to property and sentence of 18 months compulsory residence confirmed.

  • The conviction on count 1, assault with intent to do grievous bodily harm, is set aside and substituted with assault common.
  • The conviction on count 2, malicious injury to property, is confirmed.
  • The sentence of 18 months compulsory residence in Bosasa Child and Youth Care Centre is confirmed.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2017] ZAGPPHC 1288

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE-HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)

NOT

REPORTABLE

(2)

NOT OF

INTEREST TO OTHER JUDGES

(3) REVISED.

Date: .27/11/2017

A599/17

High Court Reference No: 259/17

Case No: A298/17

Magistrate's serial number: 17 / 17

MAGISTRATE

TSHWANE NORTH (held at SOSHANGUVE)

THE STATE v S M

REVIEW

JUDGMENT

POTTERILL J

[1] The accused herein was 17 years and 9 months old when he pleaded guilty on charges of assault with intent to do grievous bodily harm and malicious damage to property. He was sentenced to 18 months compulsory residence in Bosasa Child and Youth Care Centre in terms of section 76(1) of the Child Justice Act, 75 of 2008.

[2] I am thankful to the Deputy Director of Public Prosecutions and Senior State Advocate advising me upon request that in fact there was exact compliance with the provisions of the Child Justice Act.

[4] Pertaining to sentence the accused accounted to the probation officer that he in fact threatened to stab his mother with a knife. It is the contention of the state advocate that although this threat did not form part of the facts contained in the section 112 (2) statement, it is relevant in as far as an appropriate sentence is concerned. This is a further indication of the accused's moral blameworthiness and apparent poor prospect of rehabilitation. This is specially so due to his threats and aggressive behaviour over an extended period of time. So much so that the accused's mother fears for her life and that of her new born child. The aggressive behaviour as testified to by the mother is corroborated by the probation officer talking to the neighbour as well as the social worker at Soshanguve Secure Centre corroborating the mother's version of his behaviour. The accused further admitted to substance use/abuse although he . denies being dependent thereon. It is also common cause that on two previous occasions criminal charges were diverted with both of them relating .to assault with intent to do grievous bodily harm.

[5] The Senior State Advocate submitted that while the nature of the sentence imposed cannot be faulted, the term may need to be revisited in view of the fact that the appropriate conviction in respect of count 1 is that of common assault. It is then proposed that the period of 18 months be reduced to 12 months.

[6] I am however of the view that when considering the delinquent behaviour of the accused that started several years ago and which has not been managed by means of diversion the 18 months is not shockingly inappropriate in these circumstances.

[7] I accordingly make the following order:

7.1 The conviction on count 1, assault with intent to do grievous bodily harm is set aside and substituted with assault common.

7.2 Count 2, the conviction on malicious injury to property is confirmed.

7.3 The sentence of 18 (eighteen) months compulsory residence in Bosasa Child and Youth Care Centre is confirmed.

S. POTTERILL

JUDGE OF THE HIGH COURT

I agree

A.J. BAM

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Child Justice Act, 75 of 2008

Legislation

Legislation referenced in the available case record.

Criminal Procedure Act, Section 112(2)

Legislation

Legislation referenced in the available case record.

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