State v M (A599-17,259-17,A298-17, 17-17) [2017] ZAGPPHC 1288 (27 November 2017)
- Citation
- [2017] ZAGPPHC 1288
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- S. Potterill, A.J. Bam
- Case number
- A599/17
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- S. Potterill, A.J. Bam
- Case number
- A599/17
On this page
Professional case brief
Research organized from the available case record
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
ApplicantS M
RespondentAmounts and remedies
- Sentence Duration (months): 18
03
Procedural history
Posture
Review Application / Review Judgment Following Conviction and Sentence in the Magistrate's Court.
04
Questions and positions
Legal issues
- 01
Whether the conviction for assault with intent to do grievous bodily harm was appropriate or should be substituted with common assault.
- 02
Whether the sentence of 18 months compulsory residence in a youth care centre was appropriate given the accused's history and circumstances.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
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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