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[2017] ZAWCHC 65
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S v Oliver (CC47/2016) [2017] ZAWCHC 65 (7 June 2017)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: CC47/2016
In
the matter between:
THE
STATE
and
HOWARD
OLIVER Accused
Date of judgment: 7 June 2017
JUDGMENT ON SENTENCE
SAVAGE J:
Introduction
[1]
On 31 May 2017 this Court convicted
the accused, Howard Oliver, on four counts:
1. the murder of
the FRANZISKA BLÖCHLIGER on 7 March 2016 by suffocation and
manual strangulation;
2.
two
contraventions of s3 of Act 32 of 2007
in
unlawfully and intentionally committing two distinct acts of sexual
penetration with 16 year old female FRANZISKA BLÖCHLIGER
by
penetrating her anus and then her vagina with his penis without her
consent
(rape)
;
and
3. one count of
robbery with aggravating circumstances as defined in s1 of Act 51
1977 with
grievous bodily harm inflicted on
FRANZISKA BLÖCHLIGER
during
the commission of the offence in which she
was
robbed of her Apple iPhone; a gold ring with diamonds; and a set of
earphones.
[2]
Prior to pleading in this matter the
accused acknowledged verbally in court and in his s 115 and s 112(2)
signed statements handed
up that he had received notice that minimum
sentences under s51(1) and s51(2) of Act 105 of 1997 applied to the
crimes he committed.
[3]
It is apparent from the indictment
that notice was given to the accused that in terms of s51(1) of Act
105 of 1997 the provisions
of Part 1 of Schedule 2 applied to the
count of murder in that the death of the victim was caused by the
accused after having committed
rape as contemplated in s3 of Act 32
of 2007 and after having committed robbery with aggravating
circumstances as defined in s1
of Act 51 of 1977. S51(1) read with
Part I of Schedule 2 provides that a minimum sentence of life
imprisonment applies to murder
either where the death of the victim
was caused after having committed rape as contemplated in s3 of Act
32 of 2007;
or
after having committed robbery with aggravating circumstances as
defined in s1 of Act 51 of 1977. In this case both circumstances
existed.
[4]
Notice was given to the accused that
in terms of s51(1) a minimum sentence of life imprisonment applied to
both rape counts, as
offences contemplated in s3 of Act 32 of 2007,
in that in terms of Part 1 of Schedule 2 the ‘
victim
was raped more than once
’ by the
accused and that the rape occurred in circumstances in which grievous
bodily harm had been inflicted.
[5]
In the circumstances of this matter
for a minimum sentence to apply to each count of rape on the grounds
of there being another
rape, the minimum sentence would apply in
respect of one count because of the other. This would, in my mind,
lead to a duplication
insofar as the one count would be considered
for purposes of the other in order for a minimum sentence to apply on
this basis.
[6]
The accused was also given notice
that
the provisions of section 51(2) and a
minimum sentence of 15 years applied to the robbery with aggravating
circumstances in that
the crime is one mentioned in Part II of
Schedule 2 of the Act with
grievous bodily
harm inflicted on
the victim
during
the commission of the offence.
[7]
In
S
v Malgas
[1]
it was
emphasised that s51 has limited but not eliminated the courts’
discretion in imposing a minimum sentence. Courts are
required to
approach the imposition of sentence conscious that the legislature
has ordained life imprisonment, or another prescribed
period of
imprisonment, as the sentence that should
ordinarily
and
in the absence of weighty justification be imposed so as to elicit
a severe,
standardised and consistent response from the courts.
[2]
A
court
therefore is not given a ‘
clean
slate to inscribe whatever sentence’,
minimum
sentences are not to be departed from lightly and for flimsy
reasons
[3]
and there
must be truly convincing reasons for a different response.
[4]
[8]
S
ection
51(3)(a) of Act 105 of 1997 provides that if the Court –
‘…
is
satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence
prescribed…it shall enter those circumstances into the record
of the proceedings and must thereupon impose such lesser sentence
…’.
[9]
The
legislature has therefore deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed minimum sentence. While the emphasis
has shifted to the objective gravity of the type of crime
and the
need for effective sanctions against it, this does not mean that all
other considerations are to be ignored.
Those
factors traditionally taken into account in sentencing (whether or
not they diminish moral guilt) continue to play a role,
with none
excluded at the outset from consideration in the sentencing
process.
[5]
The ultimate
impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick of ‘
substantial
and compelling
’
and must cumulatively justify a departure from the standardised
response sought.
[6]
Where such
circumstances are found to exist these are to be spelt out and
entered on the record by the trial court.
[7]
[10]
This means that –
‘…
speculative
hypotheses favourable to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to
the efficacy of
the policy underlying the legislation and marginal differences in
personal circumstances or degrees of participation
between
co-offenders are to be excluded
’.
[8]
[11]
It
follows that if, after considering all relevant sentencing factors,
the Court considers that an injustice will be done if the
prescribed
sentence is imposed or that the prescribed sentence would, as was
stated in
S
v Dodo,
[9]
be
disproportionate to the crime, the offender or the legitimate
interests of the community, Act 105 of 1997 does not require a
court
to act inconsistently with the Constitution in imposing such a
sentence.
Submissions on sentence
[12]
The State sought that this Court
find no substantial and compelling circumstances favourable to the
accused, who had committed a
cruel and horrendous crime, and sought
that the minimum sentences of which he had been notified be imposed
upon him. Without objection
from the defence, a signed letter from
the parents of the deceased, who elected not to give further evidence
in the matter, was
handed up. In it they state that they had been
asked to try and describe how the loss of Franziska had affected
their lives. They
wrote that:
‘
A year
after her death and we are still struggling with our grief and in
shock over her murder. The loss of a child is almost indescribable.
There’s pain, there’s sadness, there’s anguish but
acceptance is the hardest. To know that your child suffered
and
needed you, that is devastating. The loss of a child is the most
traumatic experience. You lose a piece of yourself that can
never be
regained…
We are left with the eternal
question of WHY? How could one human being do this to a child?
The senseless murder of our
beautiful Franziska can never be understood or explained. There can
never be any justification for taking
a life. Her family and friends
are left with the eternal grief and loss.
We only hope
that the person responsible for this brutal act of violence against
an innocent child is NOT ALLOWED to walk free to
hurt another
person
.’
[13]
The accused admitted the SAP69
reflecting his ten previous convictions, seven of which were for the
possession of drugs for which
he was fined. In 2007 he paid a R100
admission of guilt fine for assault and in 2009 was convicted of
robbery and theft, crimes
which both took place on 9 June 2008, for
which he was sentenced to 12 months imprisonment suspended for 5
years on condition that
he was not convicted of possession of stolen
property, robbery or attempted robbery during the period of
suspension.
[14]
The accused elected not to testify,
nor was any other oral evidence led on his behalf in mitigation. From
the bar it was submitted
that his personal circumstances are that he
is 28 years old. He has been married to his wife for 5 years with
whom he has two young
daughters under the age of 5. He completed
grade 10 and has worked at Wimpy, as a painter and plasterer and more
recently as a
farm worker at Klein Constantia where he earned R120
per day and approximately R2400 per month. He and his wife lived with
his
disabled father, who receives a disability grant, in Westlake
Village.
[15]
The
defence submitted that the accused’s personal circumstances,
the fact that he was a first offender for purposes of Act
105 of
1997;
[10]
that he had
been in regular employment; had admitted involvement in the robbery
shortly after the incident; that he later made admissions
during the
course of the trial in which he admitted his guilt; and shown remorse
for what he has done all provide substantial and
compelling
circumstances favourable to him. In addition, it was submitted that
regard should be had to the fact that he has spent
1 year and 3
months in custody awaiting trial. It was submitted that some regard
should be had that the accused was unconscious
when she was raped and
murdered. Despite his previous convictions, it was argued that a
deviation from the prescribed minimum sentence
on all counts is
warranted although a long period of imprisonment remains appropriate.
[16]
Without objection from the State,
two letters written by the accused were handed up during the course
of argument. In the first
undated letter, which appears to have
written following his arrest in 2016, the accused asked for
forgiveness for what he had done,
recognising that the deceased’s
life could not be brought back. He stated in this letter that he did
not mean for it to ‘
turn out this
way for the girl to lose her life
’
and that his intention ‘
was only
to take the phone
’ but that ‘
I
don’t know what evil spirit came over me. Everything happened
so fast
’. He went on to state
that as a parent of two children he could imagine ‘
if
it was my child how I would have felt’
and he asked for a plea bargain.
[17]
It was submitted for the accused
that in spite of the contents of this first letter, in which he had
only admitted somewhat opaquely
to the robbery but had not admitted
to the violence of it or to the deceased’s rape and murder, he
was persuaded by fellow
inmates in prison not to plead guilty to the
latter crimes. In his second letter dated 30 May 2017 the accused
wrote that he had
ended up in prison ‘
for
the biggest mistakes I’ve ever made’
,
that he was ‘
truly sorry
’
for taking the deceased’s life and asked for forgiveness. He
recognised that the deceased’s family would miss
‘
those
special days, holidays, trips together, birthdays, Christmas’s,
new year and special occasions’
but
sought to be forgiven so that he ‘
could
also start forgiving’
himself and
asked for mercy so that he may in due course be a part of the lives
of his children and family.
Evaluation
[18]
In
the exercise of its sentencing discretion, the Court is required to
have regard to the seriousness of the crime committed, the
interests
of the community and the personal circumstances of the offender in
order to reach an appropriate and just sentence.
[11]
Punishment
‘…
should
fit the criminal as well as the crime, be fair to society, and be
blended with a measure of mercy according to the circumstances
’.
[12]
While its purpose is deterrent, preventative, reformative and
retributive,
[13]
being to
make an example of the accused and provide ‘
a
warning to all that are like-minded with him’,
[14]
a sentence must always be individualised, considered and passed
dispassionately, objectively and upon a careful consideration of
all
relevant factors.
[15]
[19]
Punishment
should not be cruel and inhumane and r
etribution
and revenge do not alone to driving sentencing. Rat
her,
the circumstances of each matter are to dictate which, if any, of the
elements of punishment should be given prominence, with
‘(e)
ach…not
required to be accorded equal weight, but instead proper weight must
be accorded to each according to the circumstances
.
[16]
[20]
The
Court is required to have regard to the conspectus of the factors
before it relevant to sentencing on the basis that the minimum
sentencing regime ‘
creates
a legislative standard that weighs upon the exercise of the
sentencing court’s discretion
’.
[17]
[21]
Serious
crimes, it was recognised in
S
v Schwartz,
[18]
induce a
sense of outrage in society and
-
‘…
will
usually require that retribution and deterrence should come to the
fore and that rehabilitation of the offender will consequently
play a
relatively smaller role.
’
[22]
At
the same time in
S
v V
it was stated that -
[19]
‘…
the
element of mercy… should not be overlooked …True mercy
has nothing in common with soft weakness or maudlin sympathy
for the
criminal or permissive tolerance. It is an element of justice
itself.
”
[23]
The accused, having passed grade 10,
received no further formal education thereafter. He lived, prior to
his arrest and incarceration,
in Westlake village, a low-income
residential community located at the back of a wealthy shopping
centre
in
the midst of one of this country’s most upmarket residential
areas. Many of the surrounding wine farms have existed since
the late
1600’s and early 1700’s.
These
farms rely on farm labour from communities who live on the farms and
in this City, including more recently in Westlake Village,
the income
of many of whose residents reflect the stark disparities in wealth
which continue to beleaguer this country. Earning
R120 a day on such
a farm it is not difficult to understand why it may have been
difficult for the accused, with a family, to subsist
on his monthly
income of R2400 or why he needed a loan to pay crèche fees for
his child on the day of the crimes committed
by him.
[24]
Apart from his family circumstances
and obligations, with two young daughters to support, it is apparent
from his criminal record
with seven prior drug convictions from the
age of 17, that the accused, in addition, for more than a decade has
had a drug habit
to support. This Court accepts that this combination
of factors - financial need, drugs and no doubt limited opportunities
for
financial advancement - creates a tinderbox for crime to thrive.
[25]
Furthermore,
while his conviction for robbery and theft, with its sentence until
2015 is a prior conviction, the offence committed
was not one
specified in Act 105 of 1997 and he is therefore for purposes of the
Act and its minimum sentencing regime treated
as a first
offender.
[20]
[26]
It is so that the accused was in
regular employment at the time that the crimes were committed.
However, this fact together what
his other personal circumstances do
not provide strong mitigation for the accused. As a father and
husband approaching thirty he
cannot rely on any youthfulness on his
part to mitigate his crimes, more so when he is the father of two
young daughters whom he
acknowledges required his protection. What is
apparent is that in spite of his drug habit, his relative poverty and
his financial
stresses he chose not to explain why, having been
refused a loan, he acted on his expressed intent to steal the money
he needed,
or why he did so in the violent and brutal manner that he
did, proceeding viciously to rape and murder a young girl in the
prime
of her life. In the course of argument on sentence Mr Carstens
for the accused could provide no explanation as to what had caused
the accused to embark on the violent and fatal course of action he
did or why the accused had engaged in the extent of grave brutality
that he had. When asked by the Court in argument whether the accused
had not conducted himself in a manner which indicated that
he was a
danger to society, Mr Carstens was constrained to answer that the
accused had.
[27]
The
accused stated in writing that he expressed remorse for what he had
done, relying on an apparent religious awakening in doing
so. The
existence of remorse, as a ‘
repentance,
an inner sorrow inspired by another’s plight or by a feeling of
guilt
’
[21]
or a
‘
gnawing
pain of conscience
’
and ‘
genuine
contrition
’,
is a factual question.
[22]
Where it
exists it may constitute a mitigating factor
[23]
since a
truly remorseful offender is unlikely to commit the crimes again,
with the court at liberty to take into account any sorrow
or anguish
suffered by the accused.
[24]
[28]
It
is to the surrounding actions that the Court must look to determine
whether the accused has taken the Court into his confidence
and
whether he has expressed true and sincere remorse, rather than
feelings of self-pity or so as to attempt to secure a lesser
punishment for his criminal actions.
[25]
This is so
since before a court can find genuine remorse –
‘…
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
.’
[26]
[29]
It is so that the accused agreed
during the police investigation in this matter to point out the scene
of the robbery and made certain
admissions in doing so, yet denied
the violence of the robbery and his rape and murder of the deceased.
While he wrote an apparently
remorseful letter awaiting trial, this
apparent remorse did not cause him to admit his crimes either in the
letter or at the commencement
of this trial.
[30]
It
was only midway during the trial that the accused had a change of
heart, after fourteen state witnesses had testified and DNA
evidence
had been made available to him. Given these facts, the only
conclusion which can, in my mind, be drawn from this conduct
is that
when faced with the clear evidence for the State the accused
comprehended, opportunistically so, the urgency of admitting
his
guilt on all counts, distancing himself from the advice he had
apparently obtained from inmates in prison, in an attempt to
secure a
lesser sentence for himself for the crimes he had committed. His
belated admission of guilt is therefore no more than
a neutral
factor, since it has arisen in circumstances in which the accused was
faced with glaring evidence against him.
[27]
[31]
The
accused left the deceased alone, murdered in the fynbos bushes of
Tokai Forest, and walked home, callously removing her sim
card from
her iPhone and placing it in his own cellphone with full knowledge of
the heinous crimes he had just committed. His conduct
was vicious,
callous and cruel. As was stated in
S
v Matyityi,
[28]
there is a
chasm between regret and remorse.
[29]
The apparent
remorse the accused now expresses, while he suggests acknowledgement
of the gravity of loss caused by his brutal acts,
is, I am satisfied,
no more than regret on his part given the position in which he now
finds himself. No explanation more than
the need for money was
provided by the accused, when he was in a position to give it. He
failed to explain what caused him to commit
the brutal and shocking
crimes that he did, to explain the appalling extent of the violence
meted out or why it was necessary to
go any further than simply
robbing the 16 year old deceased of her phone and to proceed to
murder and rape the deceased.
[32]
The crimes committed by the accused
are patently of the most heinous and serious. The deceased was a
teenaged girl, a child who
had her life before her. She was attacked
in the middle of a weekday afternoon in a well-used public space
while she was alone,
out running to get fit, while her mother walked
the family dog in the same forest. The accused watched her from
between the pine
trees of the forest where he waited and planned his
attack from the shadows before launching it. In achieving his goal of
robbing
the deceased of her cellphone he immobilised her with extreme
violence during which he fractured the anterior hyoid bone of her
neck and, following a struggle, rendered her unconscious. He then
dragged her unconscious body through the fynbos bushes and stripped
her of her shoes and clothing. In a calculated manner he removed her
shoelaces from her shoes and tied first her hands together
and then
her neck with her own shoelaces. He placed her body in a position
which displayed a clear intent to rape her, which he
then did both
anally and then vaginally causing severe injuries to her. He
throttled and suffocated her to the point that she aspirated
sand and
blood into her lungs and with such violence that asymmetry was caused
to the left side of her face. After he had done
this the accused left
the lifeless body of the child lying in the bushes, having robbed her
of her cellphone, ring and earphones,
to be found more than an hour
later. It is difficult to contemplate a more brutal and chilling
death.
[33]
There
is nothing mitigating in the fact that the deceased was unconscious
when she was raped and then murdered. Society demands
that violent
crimes of this nature be punished harshly and that a clear message be
sent that this is so, particularly in crimes
such as this committed
against a young teenaged girl who had not even begun her adult life.
The Court, in having heard the grief
of the parents of the deceased
during sentencing proceedings through their letter handed up by
agreement, has been placed in a
position to understand the tragic,
extraordinarily difficult and lifelong consequences for the
deceased’s family of the accused’s
heinous crimes. In
hearing the victim’s parents this Court has been usefully aided
with a sense of balance and enhanced proportionality
in the manner
encouraged in
S
v Matyityi
.
[30]
[34]
It
was contended for the accused that regard must be had to the fifteen
month period he had spent in custody before sentencing awaiting
trial
as a factor to be taken into account when considering the presence or
absence of substantial and compelling circumstances
and imposing a
just sentence.
[31]
Although a factor to be weighed up together with others, this period
is in my mind not of such a nature as to compel a finding
that it is
a factor favourable to the accused in the current circumstances.
[35]
Having
had regard, within the context of the applicable minimum sentencing
regime, to the objective gravity, nature and seriousness
of the
crimes committed by the accused, the personal circumstances of the
accused, the relevant mitigating and aggravating factors
placed
before this Court and the interests of society, I am not persuaded
that it has been shown that substantial and compelling
circumstances
exist in this matter warranting a departure from the minimum
sentences prescribed. There are no convincing reasons,
in my mind, to
justify a departure from such minimum sentences, which the
legislature has enacted to ensure a severe standardised
response to
exactly the sorts of crimes committed in this matter given their
continued prevalence in our society. This was the
gravest and most
serious of crimes and there is no basis on which to justify an
overemphasis in this matter of the interests of
the accused at the
expense
of the public interest.
[32]
[36]
I
have no sense of unease that an injustice will be done if the
prescribed sentences are imposed on the accused or that the
prescribed
sentences would be a disproportionate response to the
crimes committed by him. It is incumbent on this
Court,
as was stated in
S
v Chapman
,
[33]
to send a clear message to the accused and to others like him that we
are determined to protect the life, equality, dignity, freedom
and
bodily integrity
[34]
of all women
and children in this country in whichever communities they live, and
that no mercy is to be shown to those who seek
to invade or diminish
those rights.
The
appalling crimes committed by the accused deserve harsh punishment
not only given their prevalence in our society, but also
in this case
because they were perpetrated against a young and defenceless
teenaged girl. Cognisance must be taken by this Court
of the
consequences of the crime, not only for society as a whole, but for
its individual members, particularly the family of the
deceased,
whose tragic loss is permanent.
[37]
For these reasons the view I take of
the matter is that it is both just and proportionate
to
the crime, the accused and the interests of society
that
the accused be sentenced to the minimum sentence of life imprisonment
for the murder of the deceased.
[38]
Given that the minimum sentence
applies in circumstances where two counts of rape are committed, I
consider it appropriate in the
circumstances of the matter that the
two rapes be considered together for the purposes of sentence. Doing
so, I find it to be just
and proportionate
to
the crimes committed
that the prescribed
minimum sentence of life imprisonment be imposed on the accused for
the rape of the deceased given that the
accused raped her twice.
[39]
Turning to the accused’s
conviction for robbery with aggravating circumstances, while it is so
that he
had
no prior conviction for an offence prescribed in Schedule 2 of Act
105 of 1997, the violence with which the robbery was committed
with a
fracture caused to the deceased’s hyoid bone during the attack
leads me to find that, in the absence of substantial
and compelling
circumstances, the minimum sentence prescribed in Part 2 of Schedule
2, being 15 years imprisonment, is manifestly
fair insofar as it is
both just and proportionate
to the
crime, the accused and the interests of society
.
[40]
This Court stands firm against the continued abuse of
women and children in our society. Women and children must be able to
make
use of public spaces safely in all communities across our
country without the risk and fear of attack, bodily violation or even
loss of life.
The accused conducted
himself with a flagrant disregard for the deceased’s right to
do so and for her constitutionally enshrined
rights to life, dignity,
bodily integrity and her rights as a child.
The
gravity of his conduct and the unfathomable level of violence
perpetrated by him on the deceased as a child, more so when he
is a
married father of his own two young daughters, must be punished
harshly in circumstances in which I am satisfied that he has
through
his conduct shown himself to be a danger to society and to the women
and children in it.
[41]
No court can return a child to a parent or a sister to
a sibling but in passing this sentence it is the sincere hope of this
Court
that there is in it some measure of justice for Franziska and
her family.
Order
[42]
For these reasons it is ordered
that:
1.
In respect of
counts
1 and 2
(rape), considered together for
purposes of sentencing, the accused is sentenced to
life
imprisonment
in terms of section
51(1) read with Part 1 of Schedule 2 of Act 105 of 1997.
2.
In respect of
count
3
(robbery with aggravating
circumstances), the accused is sentenced to
fifteen
(15) years imprisonment
in terms of
section 51(2) read with Part 2 of Schedule 2 of Act 105 of 1997.
3.
In respect of
count
4
(murder), the accused is sentenced to
life imprisonment
in terms of section 51(1) read with Part 1 of Schedule 2 of Act 105
of 1997.
_________________
SAVAGE J
Appearances
:
For State: Mr L Badenhorst
For Accused: Mr K Klopper and
thereafter Mr H Carstens
Instructed
by Legal Aid
[1]
S v
Malgas
2001
(1) SACR 469
(SCA) at para 25.
[2]
At para 25.
[3]
S v PB
2011
(1) SACR 448
(SCA) paras 9-10
[4]
At para 8.
[5]
S v Malgas
2001
(1) SACR 469
(SCA) at
paras 8 and 25.
[6]
Ibid.
[7]
See
S
v Nkunkuma and Others
[2013]
ZASCA 122
;
2014 (2) SACR 168
(SCA) (23 September 2013) at para 9.
[8]
Ibid.
[9]
[2001] ZACC 16
;
2001 (3) SA 382
(CC) at para 40.
[10]
S v
Nokomo
2007
(2) SACR 198
(SCA) at 205h-l;
S
v Sikhipha
2006 (2) SA 439
(SCA) at 445i.
[11]
S v
Zinn
1969
(2) SA 577
(A).
[12]
S v
Rabie
1975
(4) SA 855 (A)
[13]
A
t
862G-H;
S
v Zinn
1969
(2) SA 577
(A).
[14]
In
R v Swanepoel
1945 AD 444
Davis AJA
[15]
Mudau v S
[2013] ZASCA 56.
[16]
S v
Schwartz
2004
(2) SACR 370
(SCA) at 378c-d.
[17]
S v Abrahams
2002
(1) SACR 116
(SCA) at para 25.
[18]
Ibid.
[19]
1972(3) SA
611 (A) at 614D.
[20]
See note
10.
[21]
S v Martin
1996 (2) SACR 378
(W) at 383h.
[22]
S v
Matyityi
2011
(1) SACR 40
(SCA) at para 13.
[23]
See S v
Brand
1998 (1) SACR 296
(C) at 304b; S v Kok
[24]
Terblanche
A
Guide to Sentencing
(3
rd
ed) at 229 and authorities quoted there.
[25]
S v
Matyityi
2011
(1) SACR 40
(SCA) at para 13;
S
v Seegers
1970 (2) SA
506
(A) at 511G;
S v
Volkwyn
1995 (1) SACR
570
[26]
S v
Matyityi
2011
(1) SACR 40
(SCA) at para 13.
[27]
S v Barnard
2004 (1) SACR 191
(SCA) at 197;
S
v Michele
2010
(1) SACR 131
(SCA) at para 7;
S
v Pieter
2013 (2) SACR 254
(GNP) at para 39-40;
S
v Martin
1996 (2) SACR 378
(W) at 383g.
[28]
[2010] ZASCA 127; 2011 (1) SACR 40 (SCA).
[29]
S v
Mokoena
2009
(20 SACR) 309
(SCA) at para 9.
[30]
At para 17.
[31]
S v Vilakazi
2009
(1) SACR 552
(SCA);
S v
Dlamini
2012
(2) SACR 1
(SCA);
S v
Radebe and another
2013
(2) SACR 165 (SCA).
[32]
S v
Matyityi
(
op
cit
)
at para 36.
[33]
[1997]
ZASCA 45
;
1997
(2) SACR 3
(SCA)
at 5e.
[34]
Sections 9,
10, 11, 12(2) and 28 of the Constitution of the Republic of South
Africa, 1996.