daughter. This was the daughter that even the headman, on your own version, told you to take for medical treatment but you preferred to go drinking. When you fetched her that evening you saw that she was ill and you knew that she was ill. Despite this, when she asked you to carry her, you dragged her along by her foot and after dragging her a while, you took a stick and hit her with the stick until she died. Although you were intoxicated you knew what you were doing was wrong, but you, nevertheless, persisted in your deed.
It is difficult for me to comprehend how any person can act in such an indescribably cruel manner towards his own young child. It is an horrendous offence that you had committed. When one takes the interest of society into account, I must consider that a child is normally entitled at least to love and affection from his own parents and not to the type of conduct that you had perpetrated upon her. Society cannot tolerate that those most vulnerable members of society, i.e. the children, be abused by those persons who are supposed to care for them with love and affection and I intend sending out a message to society at large that those people who abuse and maltreat these poor innocent vulnerable members of society, even if they are drunk, will be dealt with severely."
There is a striking disparity between the sentence passed by the trial Judge and the sentence which this Court would have passed (S v Berliner, 1967(2) SA (A) at 200.) While it may be understandable from the above passages in his judgment on sentence, that the heinousness of the crime evoked a sense of outrage in the Judge-a-quo's mind, but, as Strydom, J.P. said in S v Mehemia Tiiho, 1992(2) SACR 639 (NmHC),
"It is true that the heinousness of a crime should not evoke emotions which outweigh all other consideration."
The appellant obviously behaved like a mad man; hence the Judge-a-ouo's order that .he be examined by a psychiatrist before he passed sentence. All this was because of
5 intoxication, a factor which should have been given more weight than seems to have been the case. In this regard the remarks of Holmes, J.A. in S v Siawala. supra, at 571 D - E are apposite:
"In considering the relevance of intoxicating liquor to extenuating circumstances, the approach of a trial Court should be one of perceptive understanding of the accused's human frailties, balancing them against the evil of the deed."
Mr January for the State, who was asked to address the Court first at the hearing of this appeal, did concede in the end that the sentence could not be allowed to stand, and that we were entitled to interfere with that sentence or, appeal.
In the result the sentence of the Court-a-quo is set aside and substituted with one of -
Seventeen (17) years imprisonment of which seven (7) years are suspended for five (5) years on condition that the accused is not convicted of murder committed within the period of suspension.
MTAMBANENGWE, JUDGE
6
I concur
I. MAHOMED, CHIEF JUSTICE
I concur
E. DUMBUTSHENA
ACTING JUDGE OF THE SUPREME COURT
S v Moses (SA 2/96) [1996] NASC 8 (11 October 1996);