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CASE NO.: CA 37/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

BRUNO DA SILVA PAIYA APPELLANT

and

THE STATE RESPONDENT

CORAM: GEIER, AJ et UEITELE, AJ

Heard on: 14 June 2010

Delivered on: 28 July 2010

APPEAL JUDGMENT

UEITELE, AJ:

A. INTRODUCTION

[1] The appellant was charged with three different counts, convicted on all three the different counts and sentenced. He now appeals against the conviction in respect of counts 1 & 2, and against the sentence in respect of count 3.

[2] The charge-sheet alleged that:

Count 1

“...upon or about the 24^th day of February 2009, and at or near Swakopmund in the district of Swakopmund the accused did wrongfully, unlawfully and intentionally assault Ileni S Gebhardt by beating the complainant with clenched fist several times, especially in the facial area, slapping her several times and kicking her several times with intent to cause the said Ileni S Gebhardt with whom the accused was in a domestic relationship as defined in section 1 of Act 4 of 2003, grievous bodily harm.”

Count 2

“...upon or about the 24^th day of February 2009, and at or near Swakopmund in the district of Swakopmund the accused did wrongfully, unlawfully and intentionally assault Ileni S Gebhardt by threatening then and thee (sic) to kill the complainant, thereby causing the said Ileni S Gebhardt with whom the accused was in a domestic relationship as defined in section 1 of Act 4 of 2003 to believe that the said accused intended and had the means forthwith to carry out this threat”

Count 3

“...upon or about the 24^th day of February 2009, and at or near Swakopmund in the district of Swakopmund the accused did wrongfully, unlawfully and maliciously break and/or damage 1x Nokia 6200 Cellphone valued at N$3 500-00 by throwing it against the wall, the property or in the lawful possession of Ileni S Gebhardt with the intent to injure the said Ileni S Gebhardt in his/her property and thus the accused is guilty of the crime of Malicious Injury to Property.”

[3] When the appellant appeared in the Court a quo, the three charges were put to him. The appellant then pleaded guilty to all three the counts. Upon his plea of guilt the appellant was then questioned in terms of section 112(1)(b) of the Criminal Procedure Act, 1977 (51 of 1977). After the question and answer session the appellant was convicted on all three counts and sentenced as follows: “Count 1&2 are taken together for sentencing ...accused sentenced to 24 (Twenty Four) months imprisonment of which 6 (six) months is suspended for a period of 4 years ... Count 3 ... accused is sentence to a fine of N$3 000 ...”

[4] The appellant now appeals against the conviction in respect of count 1 & 2 and against the sentence in respect of count 3. The grounds of appeal are set out in the notice of appeal and the grounds of appeal are that:

“1.1 The learned Magistrate erred in convicting the appellant in respect of count 1 for the following reasons:-

1. The appellant did not admit all the requisite elements of the charge of assault with intent to do grievous bodily harm, alternatively the admissions made by the appellant do not amount to unequivocal admission of all elements of assault with intent to do grievous bodily harm.”

1.2 The learned Magistrate erred in law in convicting the appellant on a charge of assault by threat read with the provisions of the Domestic Violence Act, 2003, (Act No. 4 of 2003) for the following reasons:

1.2.1 The conviction of the appellant on the aforesaid count given the conviction in respect of count 1 amounts to duplication of conviction and/or charge.

AD SENTENCE

2.1 The learned Magistrate erred in law and on facts in sentencing the appellant in respect of count 1, 2 and 3 in that –

2.2.1 The learned Magistrate overemphasised (sic) the seriousness of the offence at the expense of the circumstances of the offence and the mitigating circumstances of the appellant.

2.2 The sentence imposed is wholly inappropriate and harsh in the circumstances of the matter.”

B. THE ISSUE: TO BE DECIDED

[5] We are thus called upon to answer the following questions:

1. Could the Magistrate, on the answers given to her question in terms of section 112(1)(b) of Act 51 of 1977, have been satisfied that all the elements of the offence of assault G.B.H have been covered?

2. Was there an improper duplication of charges and conviction in respect of count 1 & 2?

3. Is the sentence imposed on the appellant inappropriate?

[6] In answering the questions posed above we will first set out what section 112(1)(b) of Act 51 of 1977 provides, the elements of the crime of assault “GBH”, the legal principles governing duplication of charges and the legal principles governing the approach of an appeal court to a sentence imposed by a trial court. After having set out the legal principles we will apply those principles to the facts as discerned from the record.

C. THE LAW

[7] Section 112(1)(b) of the Criminal Procedure Act, 1977 provides that:

“(1) Where an accused at a summary trial in any court pleads guilty to the offence charged ...

(b) the ... magistrate shall ... question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegation in the charge to which he has pleaded guilty, convict the accused on his plea of guilty.” [Our emphasis]

[8] Assault with intent to do grievous bodily harm, is described as assault which involves serious physical injury to the victim. The elements of the crime are (1) assault; (2) grievous bodily harm; and intent.¹

[9] “It is not necessary that x should actually cause grievous bodily harm: it is enough that he intends to cause it, for the crime is not, “causing grievous bodily harm, it is assault with intent to do grievous bodily harm.” If x intends a grievous injury, but caused a slight one or not at all, he may accordingly be guilty of assault with intend to do grievous bodily harm. Of course where a slight injury is caused the court may be unwilling to accept that x really did intend a severe one but that is a matter of evidence not of substantive law.”²

[10] As far as the question of what is ‘grievous bodily harm’ it was stated as follows:

“...however on one expresses it, it is at least clear that there be an intent to do more than inflicting the casual and comparative insignificant and superficial injuries which ordinarily follows upon assault. There must be proof of intent to injure and to injure in a serious respect.”³

[11] The approach to be adopted by the Court when determining whether a duplication of conviction has taken place was outlined by Hannah, J, when he said:

“... when determining whether a duplication of conviction has taken place. There is no single test ... The tests which have been developed are mere practical guidelines in the nature of question which may be asked by the Court in order to establish whether a duplicate has occurred or not ... The two most commonly used tests are the single evidence test and the same evidence test. Where a person commits two acts of which each standing alone, would be criminal, but does so with a single intent and both acts are necessary to carry out that intent, then he ought only to be indicted for, or convicted of, one offence because the two acts constitute on criminal transaction. This is the single intent test. If the evidence requisite to prove one criminal act necessarily involves proof of another criminal act, both acts are to be considered as one transaction for the purpose of a criminal transaction. But if the evidence necessary to prove one criminal act is complete without the other criminal act being brought into the matter, the two acts are separate criminal offences ...”⁴

D. APPLICATION OF THE LAW TO THE FACTS

[12] Mr Narib who appears amicus curiae for the appellant submits that the conviction of the appellant should not be allowed to stand, because, so he argued, “the appellant did not admit the facts which would indicate to the Court that he is guilty of assault with intent to do grievous bodily harm.” We pause here to record the Court’s gratitude for the industry of Mr Narib in preparing and presenting extensive arguments in support of the appeal.

[13] Mr Narib criticises the finding of the magistrate as follows: “... from the exchanges between the learned Magistrate and the appellant ... the closest the Court came to enquire about the requisite intention with which the assault was carried out is the question? “Did you know to assault a person in such a way can hurt such a person seriously?”

[14] To be able to appreciate the merits or demerits of Mr Narib’s criticism we will turn to what happened in Court after the appellant pleaded guilty to the charges put to him.

[15] The record of proceeding shows that after the appellant pleaded guilty the Court applied Section 112(1)(b) of Act 51 of 1977.

“Count 1

Q: Did you on 24 February 2009 at Swakopmund assault Ileni Gebhardt?

A: Yes

Q: How did you assault her?

A: I did assault her several times with clinched first in the face.

Q: Did she sustain injuries:

A: Yes

Q: Did you know to assault a person in such a way you can hurt such person seriously?

A: Yes

Q: Did you have right to assault her?

A: No

Q: Did you know to assault a person without reason is unlawful and punishable?

A: Yes

Q: Why did you assault her?

A: We had a simple argument. We just got married on 9 January 2009. We had argument about what married woman must do and not do. Then she started crying. I asked her why she did cry. She then went to the bathroom and lock the door. I than forced the door open because I thought she will do something to herself. Then she took her handbag and her kid whom stays with us and wanted to leave. I got very angry and hit her. Know it was not necessary to assault her.”⁵

[16] The record records that when the magistrate convicted the appellant she did so in terms of section 112(1)(b) of the Criminal Procedure Act, 1977. It is obvious that that section allows an accused person who has pleaded guilty to an offence to be convicted of it without evidence. For the court to convict, it must be satisfied that the accused is indeed guilty of the offence with which he is charged.

[17] It is obvious that the satisfaction of the court is not derived from evidence (as the subsection disposes with the need to lead evidence) nor from the plea tendered by the accused person (because the subsection compels the court to go beyond the plea and ask prescribed questions). The answers given to the questions asked, standing entirely on their own is the crucial information which must determine the satisfaction of the Court. It has been held that “Before, however, they [i.e. the answers] are capable of satisfying the Court that the accused is actually guilty of the offence to which he has pleaded guilty they must at least cover all the essential elements of the offence which the State would otherwise have been required to prove. If any one of these is not admitted the court cannot be satisfied of the accused’s guilt. It may not convict him in terms of section 112(1)(b) on his plea of guilt.”⁶

[18] We have in paragraph 8 above set out the elements of the crime of assault with intent to do grievous bodily harm and those elements are grievous bodily harm, assault and intent. It is quite clear from the record of proceedings that the question which relates to the injuries was simply whether the complainant sustained injuries. No further probe was made as to the nature, degree and extent of injuries sustained. We are left with no option but to conclude that the appellant did not admit that he caused grievous bodily harm to the complainant. We, however, pause here and observe that the fact that the appellant did not admit that he caused the complainant grievous bodily harm is not helpful to the appellant as “It is not necessary that x should actually cause grievous bodily harm: it is enough that he intends to cause it, for the crime is not, ‘causing grievous bodily harm’, it is assault with intent to do grievous bodily harm.”

[19] With regard to the element of intention, Mr Narib argued that: “... the closest the Court [i.e. the Court a qou] came to enquire about the requisite intention with which the assault was carried out it is the question: “Did you know to assault a person in such a way you can hurt such a person serious? ... the answer ‘Yes' to this question is not sufficient to inform the Court that the accused actually admits the element of intention.”

[20] The Magistrate provided some reasons for her finding. She gave her reasons as follows: “The appellant pleaded guilty to this charge ... He admitted he knew he did wrong by assaulting her; He admitted he knew he could assault her seriously by hitting her the way he did.” ... Appellant did admit all the requisite element to a conviction (sic) of assault with intend to do grievous bodily harm.”⁷

[21] From the reasons advanced by the Magistrate, it is not evident that she could be satisfied that the appellant actually had the intention to cause the complainant serious bodily injury. I thus agree with Mr Narib that the question posed by the Magistrate did not go far enough to probe the intention of the appellant and the Court could not on the answer provided by the appellant be satisfied that the appellant had a direct intention to cause grievous bodily harm to the complainant.

[22] The matter does, however, not end there. It is trite law that intention takes various forms, namely dolus directus, dolus indirectus and dolus eventualis. Having reached the conclusion that the question posed by the Magistrate did not elicit sufficient information on which the Magistrate could be satisfied that the appellant had the necessary dolus directus, We ask the question, whether the “question and answer” do point to another form of intention, in particular intention in the form of dolus eventualis?

[23] It is trite that, intention, in the form of dolus eventualis exists where the accused does not “mean” to bring about the unlawful circumstances or to cause the unlawful consequences which follow from his or her conduct, but foresees the possibility of the circumstances existing or the consequences ensuing and proceeds with his or her conduct.⁸

[24] In the case of S v Goeieman⁹ which was a review matter before Hannah J with Frank J (as he then was) concurring, the accused was also charged with assault to do grievous bodily harm. He was questioned in terms of section 112(1)(b) and thereafter convicted as charged based on the answer that he gave.

[25] The questions that the Magistrate asked were inter alia “With what did you assault her?” The answer was “With a walking stick.” The follow-up question was: “How many times did you beat her and where on the body?” The answer was “Three times on the legs.” And another question was: “Did she suffer pain and loss of blood?” The answer to that question was. “I cannot say.”

[26] The conviction Goeieman was set aside. The Court, per Hannah J said: “What the magistrate should have done was to ask the accused whether he had foreseen the possibility of the complainant sustaining serious injury as a result of the assault. In the absence of such a question the intention of the accused had to be gathered or inferred from the circumstances of the assault as admitted by the accused.”¹⁰ {Our Emphasis}

[27] The question in the present case is thus whether one can indubitably infer or gather such intention of the appellant from the circumstances of the assault as admitted by the appellant. What we gather from the record is that the appellant assaulted the complainant several times with clinched fist in the face. The record does not reveal the degree of force used, the part of the face at which the assault was directed and the injuries actually sustained by the complainant. We pause here to state that it must be kept in mind that the court cannot at this stage, and for purposes of determining this issue, have regard to the medical evidence, which showed the severity of the injuries and the serious nature of the assault, which evidence, for inexplicable reasons was only led at the post- conviction stage.

[28] The record, however, shows that the appellant answered that he knew that “to assault a person in such a way you can hurt a person seriously...?” But does this eliminate the doubt that is created by the scarcity of information with regard to the circumstances of the assault? We think so. We say so because if the appellant knew that to assault the complainant in the manner in which he assaulted her would cause her serious injury and despite that knowledge he proceeded to assault her, the only inference we draw from the appellant’s knowledge is that the appellant foresaw the possibility of him causing the complainant grievous bodily injury and despite that foreseability he proceeded to assault the complainant. We are therefore satisfied that the element of intent was established.

[29] We have difficulty with the magistrate’s conviction of the appellant ‘as charged’? If one has regard to the charge, count 1 (page 6) of the record it is clear that the appellant was charged with “...assaulting Ileni Gebhardt by beating the complainant with clinched fists several times, slapping her several times and kicking her several times.” No mention was made by the appellant of slapping or kicking her several times as alleged by the prosecution in the charge. It thus follows that the conviction cannot be ‘as charged’ but of assault with intent to do grievous bodily harm.

AD COUNT 2

[30] With regard to count 2 the grounds of appeal as set out in the Notice of Appeal are that:

“1.2 The learned Magistrate erred in law in convicting the appellant on a charge of assault by threat read with the provisions of the Domestic Violence Act, 4 of 2003 for the following reasons: -

1.2.1 The conviction of the appellant on the aforesaid count given the conviction in respect of count 1 amounts to duplication of conviction and/or charge.”

[31] Mr Narib in argument elaborated this ground of appeal as follows: “It is clear from the record that he said “I will kill you” was uttered in the course of the assault perpetrated on the complainant – that was one continuous criminal transaction, or assault was carried out with a single intent.” He referred us to the cases of: S v Nakale & Others (No. 1)¹¹ and S v Seibeb; S v Eixab.¹²

[32] Mr. Truter for the respondent initially argued that it is not clear from the record that the words were uttered in the course of the assault. He says that, “that is at most an assumption.”

[33] Mr Truter may be correct in his submission, but he will only be correct in so far as one is limited to the answer produced to a question posed in terms of section 112(1)(b). Surely the court is not restrained from drawing the inference that the words were uttered during the assault perpetrated on the complainant and for which assault the appellant was charged under count 1. We are thus satisfied that the words “I will kill you” were uttered in the cause of the assault upon the complainant.

[34] Mr Truter conceded that “...at whatever stage these words were uttered, it was factually very closely related to the actual assault the complainant suffered...”. He also conceded (the concession was correctly made in our view) that this ground of appeal should be upheld. In the light of this concession, and taking cognisance of the guidelines enunciated by Hannah J, in the matter of Seibeb and Another; S v Eixab.¹³ we have come to the conclusion that the appellant committed the assault by threat and the physical assault on the complainant with a single intent. It thus follows that the conviction of the appellant in respect of count 2 amounts to an unlawful duplication of convictions and such conviction is accordingly set aside.

[35] Mr Truter who appeared for the Respondent (the state) had drawn our attention to section 312 of the Criminal Procedure Act, 1977 (Act 51 of 1977) which provides as follows:

“312. Review or appeal and failure to comply with subsection (1)(b) or (2) of section 112.

1. Where a conviction and sentence under section 112 are set aside on review or appeal on the grounds that any provision of subsection (1)(b) or subsection (2) of that section was not complied with, or on the ground that the provisions of section 113 should have been applied, the court in question shall remit the case to the court by which the sentence was imposed and direct that court to comply with the provisions in question or to act in terms of section 113 as the case may be, and requested us to act in terms of that section (i.e. Section 312) and to refer the matter back to the magistrate for her to ask the necessary questions to satisfy her that the accused is in fact guilty.” { Our Emphasis}

We will return to this request after we have dealt with the sentence imposed by the Magistrate.

AD THE SENTENCE

[36] The ground of appeal with regard to sentencing was set out as follows:

“2.1.1 The learned Magistrate overemphasised the seriousness of the offence at the expense of the circumstances of the offence and the mitigating circumstances of the appellant.

2.2 The sentence imposed is wholly inappropriate and harsh in the circumstances of the matter.”

[37] Mr Narib augmented this ground of appeal by arguing that an effective “... imprisonment of 18 months is disproportionate in the circumstances. Even though the complainant testified under oath, it is clear that the accused did not use any weapon to assault the complainant. Accused used his bare hands to assault the complainant.” He (Mr Narib) contends that imprisonment of less than a year would have been appropriate to deter the appellant from carrying out such an assault.

[38] Before we consider the submission by Mr Narib, we will brief restate this Court’s approach to an appeal against a sentence imposed by the trial Court. This Court has on more than one occasion stated that the sentence which the trial Court imposes on an accused is in the discretion of such trial Court. S v Tjiho¹⁴ S v Kauzu¹⁵; S v Ndikwetepo¹⁶.

[39] An appeal Court can only interfere with the discretion exercised by the trial Court in certain limited instances. The reason being that the discretion to be exercised is that of the trial judge or magistrate and not the appeal Court and it is therefore not an issue whether the sentence is right or wrong. The question is whether the discretion was judicially exercised by the trial judge or magistrate: See S v Vanisevic and Another¹⁷; S v Ndikwetepo¹⁸.

[40] The grounds on which a court of appeal is entitled to interfere with the discretion of a trial court were set out as follows in the matter of S v Tjiho. Levy J said: “... the appeal court is entitled to interfere with a sentence if:

(i) the trial court misdirected itself on the facts or on the law;

(ii) an irregularity which was material occurred during the sentence proceedings;

(iii) the trial court failed to take into account material facts or overemphasised the importance of other facts;

(iv) the sentence imposed is startlingly inappropriate, induces a sense of shock and there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by the court of appeal.”

[41] We now turn to the argument by Mr Narib. All that Mr Narib submitted is that an effective sentence of 18 months imprisonment is disproportionate in the light of the fact that the appellant did not use any weapon to assault the complainant, he used his bare hands to assault the complainant.

[42] In reply to that submission by Mr Narib, we echo the words of Levy J, when he said: “Marriage, whether blessed in a church or concluded before a magistrate or concluded and blessed according to tribal custom or simply a de facto living together of a couple as husband and wife, creates a special relationship. The parties fend for each other look after each other and protect each other. Assaults, beatings (and we add irrespective of whether weapons or bare hands are used) killings and abuse should have absolutely no place in such a relationship.” Our legislature recognised this fact and thus enacted the Combating of Domestic Violence Act, 2003.

[43] Mr Narib has not pointed out any misdirection on the part of the magistrate. We also do not understand Mr Narib to argue that the sentence imposed by the magistrate is startlingly inappropriate or that it induces a sense of shock or that the sentence is one which this Court would not have imposed if it had sat in first instance.

[44] The sentence imposed by the magistrate is certainly robust but bearing in mind that:

• the appellant and the complainant were in a special relationship;

• the assaults on the complainant caused her a swollen and blue eye, damaged the nerve at the end of the complainant’s right eye;

• the assault on the complainant will require her to undergo an operation;

• the assault on the complainant caused her bruises on the inside and outside of her right thigh and that her right hand is painful;

• the assault was perpetrated in the presence of the complainant’s

minor daughter of 4 years, and the assault took the form of strangulation, we can find no reason to interfere with the sentence imposed by the Court a quo.

[45] We now return to the request by Mr Truter for the respondent, that we, in terms of section 312, refer the matter back to the Magistrate for her to ask the necessary questions. Mr Truter referred us to no less than nine cases where on review, this Court referred the matters back to the respective magistrates.

[46] We are mindful of the fact that there is certain virtue in uniformity, but this still does not detract from the fact that each case must be dealt with according to its peculiar circumstances.

[47] First it is true that section 312 of the Criminal Procedure Act, 1977 as quoted above, does in peremptory terms direct that where an appeal court finds (on appeal or review) that the trial court did not fully comply with the provisions of subsection (1)(b) of section 112, it shall remit the case to the court by which the sentence was imposed. It is, however, equally true that section 312 makes that direction in respect of situations where the appeal court sets aside both the conviction and the sentence. In casu we do not intend to interfere with the conviction on count 1 and the sentence imposed by the court a quo.

[48] In the premises the following order is made:

1. The appeal against the conviction of assault with intent to do grievous bodily harm is dismissed.

2. The appeal against the conviction on count 2 succeeds and the conviction on that count is set aside.

3. The appeal against the sentence is dismissed.

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UEITELE, AJ

I agree

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GEIER, AJ

ON BEHALF OF THE APPELLANT: Mr Narib

INSTRUCTED BY: Amicus Curiae

ON BEHALF OF THE RESPONDENT: Mr Truter

INSTRUCTED BY: OFFICE OF THE PROSECUTOR-GENERAL

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