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[2017] ZAWCHC 56
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S v Henry and Another (CC16/2016) [2017] ZAWCHC 56 (19 May 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: CC16/2016
THE
STATE
v
BRENT
HENRY

Accused 1
JUANE
JACOBS

Accused 2
JUDGMENT
ON SENTENCE:  19 MAY 2017
HENNEY,
J:
INTRODUCTION
[1]
In considering an appropriate sentence, a Court must have regard for,
and take into consideration, the aims of punishment, which
are
deterrence, retribution, rehabilitation and prevention.
Furthermore, a Court should not lose sight of the element of
mercy
during the process of sentencing - see
S v RABIE
1975 (4) SA 855
(A)
at
862 D – F
.
[2]
An additional important factor that a Court has to take into account
is the so-called triad
[1]
,
which every sentencing court must consider.  These are the
personal circumstances of the accused, the offence (or offences)

which had been committed, as well as the interests of society. In
considering the aforementioned factors, the Court should at all
times
strive to impose a balanced sentence without over or under
emphasizing any of these circumstances at the expense of the other.
the
personal circumstances of accused 1
[3]
He is 40 years old, unmarried and the father of 3 minor children, who
are all of school going age – 16, 14 and 10 respectively.
His
eldest daughter stays with his mother.  The other 2 children
stay with their respective mothers.  The accused
was also
gainfully employed and earned a salary of R10,000 per month.  His
highest level of education is grade 11, but he
obtained various posts
school diplomas and certificates.  He is a first offender and
stayed with his mother prior to the incident.
THE
PERSONAL CIRCMSTANCES OF ACCUSED 2
[4]
He is 37 years of age, born and raised in Cape Town and later
relocated to Johannesburg with his mother when he was 17.  He

currently stays in Johannesburg.  He is married to two women:
Zanooksha Ismail, in accordance with Muslim rights, for the
past for
2 years, and to Natalie Jacobs for the past 6 years under civil law.
He has no children with either of his wives.
However, he
has 3 children (aged 17, 8 and 3 years respectively) born out of
relationships with other woman.  He financially
supports all 3
children and plays an active role in their lives.  He attended
Bracken Downs high school and completed grade
10.  He continued
with his further education at Roodepoort Technical College in 1997.
[5]
He studied various courses in health and safety training, obtained an
NT3 qualification and was at some stage employed at Third
Millennium
Safety Solutions as a health and safety manager.  He was
diagnosed with bipolar disorder and is also HIV-positive
–
currently he is still undergoing treatment for his medical
conditions.  Before his incarceration he was in the business
of
buying and selling cars and earned around R150000,00 per month.
[6]
In mitigation of sentence accused 2 presented the evidence of Mrs.
Ann Cawood, a social worker who compiled a report for the
benefit of
the court.  According to her evidence the accused is capable of
being rehabilitated and has shown insight into
his culpability.  She
further testified that he has taken full responsibility for his
choices and actions on the evening of
the incident.  According
to her understanding, accused 2 had shown remorse.
[7]
He called a witness, Lorianne Van Zyl, his cousin, who testified
about his character.  Further testimonials about his good

character were also handed up during argument on mitigation of
sentence.  Mr. Booth further argued that accused 2’s

previous convictions should not be considered, either because it is
not relevant or because the last conviction for a violent offence

occurred in 2008, which is almost 10 years ago.
THE
OFFENCE
[8]
The crime committed by the two accused – murder – is of a
very serious nature.  The manner in which it was
executed is of
particular concern to this court.  Although it was not planned
and premeditated, the conduct of the accused
was brazen and revolting
and would have induced a sense of shock and disbelief in any
civilized human being.  The attack on
the deceased was brutal
and callous.  The motivation for the attack seems to involve
some incident that had happened at the
night club.
[9]
There is no evidence that the deceased was involved in any incident
with the two accused.  On the contrary, the evidence
clearly
shows that after accused 1 had seen the deceased in the taxi (while
still at the night club) he had mistakenly identified
the deceased as
having been involved in the incident at the club.  From the
nightclub, they followed the taxi in which the
deceased and the other
witnesses were driving, to the first scene in White Road where the
taxi driver was forced by accused 2 to
bring the vehicle to a
standstill.
[10]
At that stage the accused were told, for the first time, that the
deceased and the other witnesses had not been involved in
any
incident at the nightclub involving the two accused and that they
were making a mistake.  The witnesses were scared and
managed to
get away from them.  They gave chase and cornered them in a
cul-de-sac in Avoca Road.  There the accused were
again
repeatedly told that they were making a mistake, but to no avail.
Notwithstanding these pleas, the accused started
with the
brutal and vicious assault on the deceased.
[11]
By that time, they must have had enough time to consider their
actions.  When accused 2 punched the deceased with his
fist,
causing him to land on the ground, the deceased did not offer any
resistance and did not fight back.  He was lying there

helplessly.  Once again the accused had an opportunity to
reconsider their actions or to stop from further assaulting the

deceased to the extent that they did.
[12]
What makes this attack so brutal and abhorrent was the continuous and
incessant assault on a person who could not defend himself.
This
was evident in the testimony of Sarah and John Cannon, Victoria
Packer, and Melanie Steyn who were still very traumatized
and were
reduced to tears when they had to recall the brutality and
viciousness of the incident.  They found the conduct of
the
accused totally incomprehensible and were unable to understand how
the accused could be so violent and cruel in the manner
in
which they assaulted the deceased.  This
incident will be something that they will never forget.
[13]
The conduct of the accused can only be described as a cowardly and
dastardly act.  As the prosecutor rightly pointed out
in a case
where murder is committed with a firearm, death is almost instant,
but in this case the incessant and continuous kicking
and beating of
the deceased, which endured for some time, must have been very
painful and he must have suffered a lot throughout
the ordeal.  It
was almost like torture.  The severe injuries he suffered to his
head, bears testimony to this fact.
Interests
of Society
[14]
Society demands that in cases like these the Court must protect its
interests by imposing a stringent sentence.  Ordinarily
it is in
cases like this where the interest of the accused takes a back-seat
and the interest of society, as well as the seriousness
of the
offence, is brought to the forefront.  There is no doubt in my
mind that a sentence of direct imprisonment would be
appropriate.
[15]
It is for these reasons that Parliament has enacted the provisions of
the Criminal Law (Sentencing) Amendment Act 105 of 1997
(“Prescribed
Sentences Act”).  In this particular case, the accused had
been convicted of murder in furtherance
of a common purpose.  In
such an instance the prescribed sentence is one of life imprisonment.
The court is obliged
to impose that sentence unless it can find
that there are substantial and compelling circumstances that justify
deviating from
the prescribed sentence.
The
absence or presence of substantial and compelling circumstances
[16]
Before the court can come to such a conclusion, it has to weigh up
all the facts and circumstances of the specific case.  The
court
has to consider the cumulative effect of all the facts and
circumstances and not consider those facts in isolation.  Both

Mr. Solomons as well as Mr. Booth submitted that the personal
circumstances of the accused, together with the totality of the other

facts, constitute substantial and compelling circumstances.
[17]
In respect of accused 1, Mr. Solomons argued that the following
constituted substantial and compelling circumstances:
1) he
is a first offender;
2) has
never before been incarcerated;
3) has
never  before been involved in criminal activities;
4)
that he had a stable job  for most of his life and earned a
steady income of R10 000 per month;
5) is
the father of 3 children that attend school;
6) has
an elderly mother which he has to care for;
7)
that alcohol played a role in the commission of the offence.
[18]
In respect of accused 2, Mr. Booth submitted that the following facts
and circumstances should be considered as substantial
and compelling
circumstances:
1)
that accused 2, even though he has previous convictions, should also
be considered as a first offender;
2)
that he is married and the father of 3 children;
3)
that he had a stable job and income, prior to his incarceration;
4)
that he had been in custody awaiting trial since January 2016;
5)
that he is not a healthy person and suffers from bipolar disorder as
well as the fact that he is HIV-positive;
6)
that he exhibited some form of remorse, by admitting that he slapped
and kicked the deceased;
7)
that something had happened earlier on the evening that gave rise to
the commission of this offence;
8)
that he had had a troubled youth due to the fact that his parents
were separated.
[19]
Mr. Booth further argued the court should consider the evidence of
Mrs. Cawood, the social worker, as well as the evidence
of the other
people who submitted testimonials about his good character.  The
most compelling of these circumstances highlighted
by both Mr.
Solomons and Mr. Booth in respect of both the accused is the fact
that both of them have a good and stable family life
and work record.
A further factor which is common to both of the accused, is
that they have minor dependent children, who
will suffer if they
should be sent to prison for a considerable period of time.  This
in itself, in my view, would be a strong
mitigating factor.
Nugent
JA
,
in
S
v Vilakazi
[2]
said the following to this effect at para 58:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessary recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of’ ‘flimsy’
grounds that Malgas said should
be avoided. But they are nonetheless
relevant in another respect. A material consideration is whether the
accused can be expected
to offend again. While that can never be
confidently predicted his or her circumstances might assist in making
at least some assessment.
In this case the appellant had reached the
age of 30 without any serious brushes with the law. His stable
employment and apparently
stable family circumstances are not
indicative of an inherently lawless character.”
[20]
The ill health of a person in itself cannot serve as a circumstance
to justify a lesser sentence than the prescribed one.
[21]
Mr. Booth conceded in argument to this court that it cannot be used
as a “get out of jail ticket”, but insisted
that it can
be taken into consideration as a substantial and compelling
circumstance.  This is a reality of the impact of
the scourge of
HIV/AIDS, from which millions of South Africans suffer.  Courts
are increasingly faced with the situation where
offenders who had
been diagnosed as HIV positive, commit serious offences.  This
disease, although life-threatening, in itself
is not fatal, and it
has been shown that it can be properly treated with medication.
People live an almost normal life for years
after having been
diagnosed with this deceased.
[22]
It cannot always be a mitigating factor and in some instances it may
be regarded as an aggravating factor, especially where
a person who,
knowing full well that he or she has contracted the disease, commits
a crime where he or she puts another person
at risk of contracting
the disease also.  It is for this very reason that Parliament
has
recognised
that
the prescribed sentence should be imposed on a person who had been
infected by HIV and then commits the offence of rape whereby
his
victim may be infected with the disease.
[3]
[23]
The question that should be considered by the courts is whether this
should be considered as a substantial and compelling circumstance
to
deviate from the prescribed sentence in a case where the offender has
committed a very serious offence which calls for a specific
period of
imprisonment in terms of the provisions of the Prescribed Sentences
Act.
[24]
The question of the weight that a court should attach to the fact
that the person suffers from ill-health has been dealt with
by our
courts in the past, when the court was confronted with the question
whether the ill-health of a person should preclude it
from imposing a
sentence of direct imprisonment.  Those considerations would
also, in my view, be applicable in coming to
the conclusion whether
the ill-health of a person should be taken into consideration in
determining whether there are substantial
and compelling
circumstances to deviate from the prescribed sentence.
[25]
In
S v C
1996 (2) SACR 503
(T)
Cameron J
(as he then
was) had occasion to pronounce on this very issue where he made
reference to a decision of
Ogilvie Thompson JA
, at page
511
G – H
:
“
The
general principle is that enunciated by Ogilvie Thompson JA in S v
Berliner 1967 (2) 193 (A) at 199F-G: while a convicted person's

health or life expectation may, depending on the circumstances,
afford a good reason for not sentencing him to imprisonment, there
is
no general rule that ill health, or foreshortened life expectation,
automatically relieves a criminal from being imprisoned.”
[26]
In this same matter, at page
512 A – D,
Cameron J
also refers to a similar approach adopted in Australia where the
South Australian Court of Criminal Appeals, per
King CJ
in
R
v SMITH
(1987) 44 SASR 587
(CCA SA)
held that:
“‘
The
state of health of an offender is always relevant to the
consideration of the appropriate sentence for the offender. The
courts,
however, must be cautious as to the influence which they
allow this factor to have upon the sentencing process. Ill health
cannot
be allowed to become a licence to commit crime, nor can
offenders generally expect to escape punishment because of the
condition
of their health. It is the responsibility of the
correctional services authorities to provide appropriate care and
treatment for
sick prisoners. Generally speaking, ill health will be
a factor tending to mitigate punishment only where it happens that
imprisonment
will be a greater burden on the offender by reason of
his state of health, or where there is a serious risk of imprisonment
having
a gravely adverse effect on the offender's health.'”
[27]
The same approach was adopted in
S v
MAZIBUKO AND OTHERS
1997 (1) SACR 255
(W)
where
a Court sentenced a young first offender who was a quadriplegic to 10
years imprisonment.  This, after he had committed
a series of
very serious offences like robbery with aggravating circumstances, 2
counts of attempted murder, and possession of
an unlicensed firearm
and ammunition in contravention of the relevant statutory provisions
applicable.
[28]
It would not be in the interests of justice if a court should create
the impression that an offender who committed a very serious
offence
would not be visited with the full might of the law because of the
fact that he is suffering from HIV/AIDS, and therefore
as a result of
this, consider it as a substantial and compelling circumstance to
deviate from the prescribed sentence.  Such
a condition cannot
be used as an excuse to escape due punishment in circumstances where
the prescribed sentence should have been
imposed given the
circumstances of the case and the seriousness of the offence.  I
am therefore not convinced that the fact
that accused 2 suffers from
HIV/AIDS and bipolar disorder, in itself, is enough justification to
deviate from the prescribed sentence.
[29]
The next question to consider is whether the accused had shown any
remorse.  On the evidence as presented, in my view,
both the
accused have not taken responsibility for what they had done.
Accused 1 in his evidence said that he was sorry for
what
happened to the deceased, but stopped short of telling the court that
he has taken full responsibility for his actions.  The
same can
be said in respect of accused 2.  I do not think the evidence of
Mrs. Cawood, the social worker who testified on
his behalf, is very
helpful in this regard.  In the report at page 12 she makes the
following remark: “
Mr. Jacobs shows appropriate remorse and
deeply regrets the life changing choices he made of the 20
th
and 21
st
November 2015. He was able to
verbalize insight into the severity of his actions and realizes he
has to repay his debt to society
.”
[30]
This is a very vague and unsubstantiated comment.  When she was
asked what she meant by that, and when she was informed
that the
accused failed to take responsibility for his actions, she submitted
to the court that due to the fact that accused 2
had slapped and
kicked the deceased, he has taken full responsibility for his
actions.  According to her, based on her expertise
and
experience, this is true remorse.  It is clear that Mrs. Cawood,
who according to her evidence has testified in many criminal
cases,
has with respect, no understanding of what is meant by the concept of
genuine remorse, as spelt out the many decisions of
our courts.
[31]
A further aspect which the court takes into consideration as an
aggravating factor, was the attitude that accused 2, displayed
prior
to his arrest.  Soon after this incident had occurred, the
police had difficulty in trying to ascertain his whereabouts.
It
seems that immediately after the incident he had gone back to
Johannesburg.  The brother of the deceased, Lee Schoombie

(“Lee”) thereafter tried to locate accused 2.  He
created a Facebook page entitled “Justice for Carl”.

During his interactions he had contact with some of the family
members of accused 2, including his mother.  A photo
of accused
2 was also posted on Facebook to indicate that he was wanted for the
murder of the deceased.  An amount of R50
000,00 was also later
raised as a reward for information leading to the arrest of accused
2.
[32]
According to Lee, accused 2 also had a Facebook account.  He had
contact with the mother of accused 2, who it seems had
communicated
with him on Facebook about accused 2.  She was, however, not
willing to assist him or the police and tried to
shield him from
arrest.  It is difficult to accept that accused 2 could not have
been aware of the fact that the police were
looking for him, given
the fact that he had committed a very serious offence and that his
mother was in communication with Lee
on Facebook, enquiring about his
whereabouts.  The police, after receiving information from a
source that he was in Johannesburg,
only managed to arrest him about
3 months after the incident.
This is
once again a clear indication that accused 2 did not want to take
responsibility for his actions and tried to evade arrest.
[33]
In
S v MATYITYI
2011
(1) SACR 40
(SCA)
Ponnan JA
had the following to say about this aspect, at para 13:
“
There
is, moreover, a chasm between regret and remorse.  Many
accused persons might well regret their conduct, but that
does not
without more translate to genuine remorse. Remorse is a gnawing pain
of conscience for the plight of another. Thus genuine
contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely
remorseful, and not
simply feeling sorry for himself or herself at having been caught, is
a factual question. It is to the surrounding
actions of the accused,
rather than what he says in court, that one should rather look. In
order for the remorse to be a valid
consideration, the penitence must
be sincere and the accused must take the court fully into his or her
confidence. Until and unless
that happens, the genuineness of the
contrition alleged to exist cannot be determined. After all, before a
court can find that
an accused person is genuinely remorseful, it
needs to have a proper appreciation of, inter alia: what motivated
the accused to
commit the deed; what has since provoked his or her
change of heart; and whether he or she does indeed have a true
appreciation
of the consequences of those actions.”
[34]
This is not a victimless crime and the voice of the victim as
presented to this court by Lee, should be given sufficient importance

and weight.  A further important fact in considering the voice
of the victim is that, whatever sentence the court will impose,
it
will not bring the deceased back to life.  The loss of the
deceased, it seems, has had a devastating effect on the lives
of his
family.  Lee did everything in his power to see that the two
accused were brought to book.  He was unrelenting
in his effort
and literally did not want the accused to get away with murder.
[35]
It was difficult for the father of the deceased to attend this trial
and to understand why the accused acted in such an inhumane
and
abhorrent manner towards the deceased and why it was necessary for
them to kill him.  According to Lee’s evidence
his mother
is a totally broken person.  He testified that as a result of
this incident, she is constantly grief-stricken and
described it as
follows: “
My mum is alive but not living anymore.”
The Schoombee family will take a long time to recover from the loss
of their loved one, if ever.
The
deceased was a talented young man in the prime of his life.  He
was a qualified engineer and also intended to study further.
He
would have been a great asset to our society.  The loss of his
life was totally unnecessary and undeserved.
[36]
I am of the view that these facts do not constitute sufficient
justification to deviate from the prescribed sentence. After
a
consideration of all these facts and circumstances, I impose the
following sentence on the accused.
[37]
In respect of
Accused 1
:
Count
1 - Murder of Carl Schoombie -
life
imprisonment
;
Count
3 - Assault with intent to do grievous bodily injury in respect of
John Cannon -
6 months imprisonment
;
Count
5 - Assault on Sarah Cannon –
60
days imprisonment
;
Counts
6-7 - Assault and Crimen Injuria on Victoria Packer. Both charges are
taken together for the purpose of sentence -
60
days imprisonment
;
In
respect of
Accused 2:
Count
1- Murder of Carl Schoombie -
life
imprisonment
;
The
sentences in respect of counts 3 and 4, which are 2 separate assaults
with the intent to do grievous bodily injury committed
in respect of
John Cannon -
3 years imprisonment
.
The
court orders all the sentences in respect of both accused are to be
served concurrently.
Both
the accused are declared unfit to possess a firearm in terms of the
provisions of section 103 of
Firearms Control Act 60 of 2000
.
___________________________
HENNEY,
J
Judge
of the High Court
[1]
S v Zinn
1969 (2) SA 537
(A) at 540 G.
[2]
2009 (1) SACR 552
(SCA) at 574.
[3]
An
offence of rape
as
contemplated in
s3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
, committed by a person knowing
that he has the acquired immune deficiency syndrome or the human
immunodeficiency virus.