S V Iileka (CR 08-2018) 2018 NAHCNLD 12 (09 February 2018)
1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION
HELD AT OSHAKATI
REVIEW JUDGMENT
CASE NO: CR 08/2018
THE STATE
v
KAAPATANENWA IILEKA1ST ACCUSED
SHIWATI HERTHA2ND ACCUSED
HIGH COURT NLD REVIEW CASE REF NO: 32/2018
Neutral citation:S v Iileka (CR 08/2018) [2018] NAHCNLD 12 (09 February 2018)
Coram: CHEDA J et JANUARY J
Delivered:09 February 2018
Flynote:In assault cases where a minor is involved the court should where possible impose either a direct imprisonment or an effective fine as opposed to suspending the whole sentence.
Summary: A couple assaulted a 13 year old child for having stolen a melon. The child sustained some injuries as a result. The court a quo imposed a fine of N$1500 which was suspended on condition accused perform community service. The sentence was very lenient in the circumstances and could not be confirmed.
ORDER
I withhold my certificate.
JUDGMENT
CHEDA, J (JANUARY J concurring):
[1] In my routine duties this matter landed on my desk by way of review. Upon perusal I noticed that the sentence is out of step with case authorities. The brief facts of the case under review are outlined hereinunder.
[2]The two accused are a couple and they were charged with assault with intent to do grievous bodily harm. They pleaded guilty, were convicted and sentenced as follows:
‘Each N$1500 or 6 months imprisonment wholly suspended for 2 years on condition accused performs 210 hours of community service at 1. Amwaanda Junior Primary School and 2. Ananias Emvula Junior Secondary School respectively, Outapi District with effect 25.09.2017 to be completed within 7 (seven) weeks.’
[3]The conviction is proper, but, the sentence is unsettling to me as it is manifestly lenient in the circumstances. Accused are aged 56 and 38 respectively. The complainant is a 13 year old child. The two accused jointly assaulted the complainant with a stick for having eaten a melon and destroying some. The complainant sustained multiple injuries on her body.
[4]The crime of assault is per se a serious offence as it is a violation of someone’s body. Assault by its very nature is, therefore, serious. It is not the injuries sustained which determine its seriousness although they are a factor in aggravation. The determining factor is the intent of inflicting an injury, which is derived from the weapon used, force used and the place where the blow is directed on the body.
[5]The fact that no injury has resulted is mere luck. Invariably such an offence attracts a prison term, even if it is for a short period, see S v Mugwenhe & Another 1991 (2) ZLR 66 (SC), Ebrahim JA stated:
‘An examination of assault with intent to cause grievous bodily harm lead me to the conclusion that a term of imprisonment is invariable imposed particularly were the assault causes serious injury and/or disfigurement.’
[6]It is clear that there was no serious injury in this case, but, my view is that assaults are abhorred. The overriding factor is the intention. In S v Tazama 1992 NR 190 HC at 191 H-I the court adopted and applied the dictum of Miller J in S v Mbele 1966 (1) PH 176 (N) where the learned Judge remarked:
‘…however one expresses it, it is at least clear that there must be an intent to do more than inflict the casual and comparatively insignificant and superficial injuries which ordinarily follow upon an assault. There must be proof of an intent to injure and to injure in a serious respect.’
[7]The same reasoning regarding intent was applied in S v Goeieman 1993 (NR 225 at 227 A-B. In that case Hannah J remarked:
‘Normally this (intent) will include factors such as the nature of the weapon or instrument used, the degree of force used in wielding such weapon or instrument, the part of the body at which the assault is directed and the injuries actually sustained.’
[8]It, therefore, stands to reason that bodily harm is not restricted to visible wounds caused by assault. Again this was the position adopted in Nghinaunye v State (CA 62/2014) [2014] NAHCMD 372 (2 December 2014) delivered on 24 November 2014.
[9]While I accept that sentence remains the domain of the trial court, the appeal court or review judge is obliged to exercise his judicial discretion where it is of the view that there has been a miscarriage of justice see, S v Sibanda HB 37/10 (unreported) where I stated:
‘It is trite law, that decisions regarding sentences of inferior courts are discretional and can only be interfered with by superior courts when they are of the view that the said courts have not judiciously exercised their discretion; see Attorney General v Bvuma 1987 (2) ZLR 96(SC). While this is the legal position, triers of facts should bind their consciences in the decision and determination of sentences to be imposed bearing in mind that justice must not only be done, but, be seen to be done.’
[10]In this country, violence in general is wide spread and in particular violence against the vulnerable group of society, women and children. For time without member the nation is mourning this abuse which resulted in the enactment of the Combating of Domestic Violence Act (Act 4 of 2003). It is therefore the duty of the courts to apply this law effectively in order to deter offenders and those of like-mind. The court should have a human face and is expected to be touched by the national plea for intervention in this scourge. It cannot stand spell bound and watch while the strong and mighty do as they please.
[11] In casu, two old people assaulted a 13 year old child with a stick and caused injury (bruises) which the trial court acknowledged. This was a defenceless child who posed no harm to the accused’. What the child did was what I would describe as childhood prank, which is typical of most children in this age group. The courts should pass sentence which should be respected by both accused and society. Society, in my view, will no doubt lose faith in the judicial system if an unduly lenient sentence is imposed in the circumstances.
[12]I am mindful of the court’s discretion in sentencing, but, I however, hazard to add that in the exercise of its judicial discretion the court should not have sentenced them to community service, but, to an effective fine. This, in my view, would have resulted in effective justice to both the accused, the complainant and the community.
[13]In the circumstances, it is my considered view that the sentence is lenient and disturbingly shocking in the circumstances. In the result the following is the order of the court.
[14]In the result I make the following order:
I withhold my certificate.
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M Cheda
Judge
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HC January
Judge