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[2017] ZAWCHC 125
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S v Kleynhans (SS45/2016) [2017] ZAWCHC 125 (24 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO
:
SS45/2016
DATE
:
7 DECEMBER 2017
In
the matter between:
THE
STATE
and
ANTHEA
KLEYNHANS
S
E N T E N C E
BOQWANA,
J
:
Introduction
On
24 October 2017 the accused was convicted by this Court on charges of
murder and child abuse of Laché Keira Stols (“the
deceased”) who was three years old at the time the offences
were committed. It is trite that in determining a fair,
balanced and appropriate sentence the Court must consider the triad
consisting of the crime, the offender and the interests of
society.
See
S v Zinn
1969 (2) SA 537
(A) at 540G.
In
Motloung v S
(A240/11)
[2013] ZAFSHC 110
(30 May 2013) with
reference to
S v Rabie
1975 (4) SA 855
(A) at 861D-E Mocumie J
(as she then was) observed at paragraph4:
“
(c)
Then there is the consideration of mercy or compassion or plain
humanity [or what is now, in the new democratic
order known as
‘ubuntu’]. It has nothing to do with maudlin
sympathy for the accused. While recognising
that fair
punishment may sometimes have to be robust, mercy is a balanced and
humane quality of thought which tempers one's approach
when
considering the basic factors of letting the punishment fit the
criminal as well as the crime and being fair to society.”
In
determining an appropriate sentence the Court must keep in mind the
main purposes of punishment. In
R v Swanepoel
1945 AD
444
, at 45,5 these were described as deterrence, prevention,
reformation and retribution. In
Rabie
supra
, with
reference to
Gordon
,
The Criminal Law of Scotland
(1967) page 50, the following is stated at 862A-B:
“
The
retributive theory finds the justification for punishment in a past
act, a wrong which requires punishment or expiation….
The other theories, reformative, preventive and deterrent, all find
their justification in the future, in the good that will be
produced
as a result of the punishment.”
Prescribed
Minimum Sentences
The
legislature has prescribed minimum sentences in respect of a variety
of instances involving serious and violent crimes,
with the
introduction of the Criminal Law Amendment Act 105 of 1997 (“the
Criminal Law Amendment Act&rdquo
;).
Section 51(2)
read with
Part II
of Schedule 2 of the
Criminal Law Amendment Act prescribes
a minimum
sentence of 15 years in the case of a first offender, when murder was
committed in circumstances other than in
Part I.
In
terms of
Section 51(3)(a)
the Court may deviate from the minimum
sentence prescribed, if it finds that there are substantial and
compelling circumstances
justifying imposition of a lesser sentence.
In that regard, it shall enter those circumstances on the record of
the proceedings
and thereupon impose such a lesser sentence.
For a Court to come to that conclusion it must consider the totality
of the
evidence before it, together with other relevant factors
traditionally taken into account when sentencing, together with the
principles
or purposes of sentencing set out in the judgments I have
referred to above.
In
the well-known decision of
S v Malgas
2001 (1) SACR 469
(SCA)
the Supreme Court of Appeal (“the SCA”) set out how the
concept of substantial and compelling circumstances should
be
approached. The Court summarised approach at 470 to 471, as
follows:
“
A.
Section 51
has limited but not eliminated the court's discretion in
imposing sentence in respect of offences referred to in
Part I
of
Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2).
B.
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained
life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
should ordinarily and in the absence
of weighty justification be
imposed for the listed crimes in the specified circumstances.
C.
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes
in question are therefore required
to elicit a severe, standardized and consistent response from the
courts.
D.
The specified sentences are not to be departed from lightly or for
flimsy reasons. Speculative
hypothesis 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.
E.
The Legislature has however deliberately left it to the courts to
decide whether the circumstances of
any particular case call for a
departure from the prescribed 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.
F.
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether
or not they diminish moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing
process.
G. The
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite
yardstick (‘substantial and
compelling’) and must be such as cumulatively justify a
departure from the standardized
response that the Legislature had
ordained.
H.
In applying the statutory provisions, it is inappropriately
constricting to use the concepts developed
in dealing with appeals
against sentence as the sole criterion.
I.
If the sentencing court on consideration of the circumstances of the
particular case is satisfied
that they render the prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of
society, so that an injustice would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
J.
In doing so, account must be taken of the fact that crime of
that particular kind has been singled
out for severe punishment and
that the sentence to be imposed in lieu of the prescribed sentence
should be assessed paying due
regard to the benchmark which the
Legislature has provided.”
The
concept of substantial and compelling circumstances has not been
defined in the legislation. It has been left up to the
courts
to decide, based on the circumstances of each case, as to what
constitutes compelling and substantial factors. What
is
important to note is that such circumstances are not required to be
exceptional, in the sense of being seldom encountered or
rare.
Departure would be warranted if there is justification to do so,
having regard to the due weight of all the relevant
factors
cumulatively. In contrast it will be improper to deviate from
the minimum sentence purely for personal preference
or flimsy
reasons.
Inherent
Jurisdiction to Impose Life Imprisonment
The
State has asked the Court, despite the minimum sentence prescribed,
to exercise its discretion, as stipulated in
section 276(1)(b)
, by
imposing a term of life imprisonment in that the actions of the
accused were particularly heinous, warranting such imposition.
In
Director of Public Prosecutions, Transvaal v Venter
[2008] ZASCA 76
;
2009
(1) SACR 165
(SCA) at paragraph 19 the Court held that:
“
[19]
It needs to be borne in mind that the sentences provided for in the
Act are minimum sentences for the prescribed offences and
Malgas
was directed to whether a lower
sentence might be called for in a particular case. But an
evaluation of the cumulative effect
of all the circumstances, in
accordance with the approach in that case, might well indicate that a
higher sentence is called for.
I think that is applicable in
this case. For had there not been the strong mitigating
circumstances that I will presently
come to, I think a court might
well have been justified in imposing a sentence far in excess of the
minimum. It is only by
applying those mitigating circumstances
that I have come to the conclusion that a proper sentence would be
something less.”
This
was endorsed by the Court in
S v Mthembu
2012 (1) SACR 517
(SCA), which stated at paragraph 8 that the
heading, “Discretionary minimum sentences for certain serious
offences”
and repeated references to the words “not less
than” in
section 51(2)
of the
Criminal Law Amendment Act “is
the clearest indicator that the legislature did not intend to fetter
the discretion of the sentencing court ...”
It
further went on to say, at paragraphs 10 and 11, that:
“
As
Marais JA made plain in
S v Malgas
2001 (1) SACR 469
(SCA) (para 18), the legislature has - deliberately
and advisedly left it to the courts to decide in the final analysis
whether
the circumstances of any particular case called for departure
from the prescribed sentence’. He added (para 25):
‘What stands out quite clearly is that the courts are a good
deal freer to depart from the prescribed sentences that has
been
supposed in some of the previously decided cases ...’
Plainly
what we are dealing with is a legislative provision that fetters only
partially the sentencing discretion of the court.
That much
emerges from ss (3)(a) which entitles a court to impose a lesser
sentence than the sentence prescribed if it is satisfied
that
substantial and compelling circumstances exist which justify the
imposition of such lesser sentence. It follows that,
even were
a court to conclude that substantial and compelling circumstances do
indeed exist, it may in the exercise of its discretion
nonetheless
impose the prescribed minimum or such higher sentence as to it
appears just.”
Having
said that, it must be stated that it is proper and fair for the court
to state reasons why it contemplates imposing a sentence
higher than
the minimum prescribed. The important point being that the sentence
should not be determined in the abstract but by
taking into account
all material circumstances. See
S
v Mathebula and Another
2012 (1) SACR
374
(SCA) at paragraph 10 (although that case dealt with the regional
magistrate who could only exceed the minimum sentence prescribed
by
five years, as stipulated in
section 51(2)
- the High Court's
discretion is however inherent). The
Mathebula
case must therefore, in my view, be read with paragraph 19 of the
Venter
case
supra
which I have already referred to.
In
the final analysis, therefore, the Court has a discretion, which is
not fettered by the minimum sentence legislation insofar
as its
ability to impose a sentence higher than the minimum prescribed, in
appropriate cases.
As
Marais J put it in
Malgas
supra
at
paragraph 8, the purpose of the minimum sentence legislation was that
of:
“
...
ensuring a severe, standardised, and consistent response from the
courts to the commission of such crimes unless there were,
and could
be seen to be, truly convincing reasons for a different response.
When considering sentence the emphasis was to
be shifted to the
objective gravity of the type of crime and the public's need for
effective sanctions against it.”
I
return to this issue later and the approach the Court will take in
this case. The purpose of this exercise was to elucidate
the
law on this particular point and on what the Court can or cannot do.
How this Court will approach sentencing in this
case will follow.
For now, I wish to set out all the circumstances of this case which I
have to take into account in imposing
sentence. I first deal
with the offender.
Offender
Personal
circumstances
The
accused did not testify for purpose of sentencing, her counsel made
submissions
ex-parte
.
The probation officer's report was handed in by agreement between the
parties. The accused's personal circumstances
therefore are
extracted from the probation officer's report, submissions made by
her counsel and the evidence on record, led during
the trial.
The
accused is a 39-year-old unmarried woman. She has two minor
children aged 10 and 13 respectively and a 20-year-old adult
child.
They are all girls. According to the probation officer's report
the accused had four siblings, one of which
is deceased. Both
her parents are still alive. The accused is the third eldest
child, who grew up with both parents.
She and her siblings were
brought up according to Christian values and they knew the difference
between right and wrong.
After
a number of years, her parents' relationship became unstable, with
regular conflict involved. Her parents got divorced
and the
accused primarily lived with her mother and maternal grandmother.
According to her family, the accused had never
displayed any violent
behaviour and her family fails to understand why the offence was
committed.
During
the period of October 2011 and January 2012, the accused lived with
the deceased's biological father, Angelo Jakobus Stols
(“Angelo”),
with whom she had a relationship, as well as with the deceased in an
RDP house owned by her father in Happy
Valley,
Eersterivier
.
They paid rent of approximately R300,00 per month to the accused's
father. Prior to moving into this house, the accused
lived in
Sarepta,
Kuilsriver
with
her mother and two children in a Wendy house situated at her sister's
and brother-in-law's premises. Her eldest daughter
lived in the
main house with the accused's sister and brother-in-law. It
appears from the probation officer's report that
prior to her
incarceration, the accused's living arrangements were as described
above, i.e. she resided in Sarepta with her mother,
maternal aunt and
children in a two-bedroomed Wendy house. Kuilsriver is
described as an area with multiple social problems,
such as
unemployment, substance abuse, crime and gangsterism.
The
accused is unemployed. Her children are financially supported
by her sister and mother for clothing, school fees and other
needs.
When
the accused lived in Happy Valley with Angelo and the deceased, her
children lived with her mother in Sarepta, with the youngest
child
visiting her in Happy Valley on a frequent basis. The youngest
daughter was five years old at the time and attended
crèche in
Sarepta.
The
accused finished schooling up to Grade 12, after which she found
employment at various places. First, she worked as a
general
worker at Seberhoge Transport in Faure and thereafter went to work at
a company called Elpron in Somerset West as a receptionist
for a
period of 10 years. That company was liquidated, according to
the evidence on trial, sometime in mid-2011.
During
her evidence in the trial the accused testified that she continued
looking for a job but was not successful. It was
submitted on
her behalf that she found employment in 2014 at Fresh Shop, Sarepta,
as a cashier, for one year. She then, between
2015 and 2016,
became employed as a caregiver of an elderly person, until that
person passed away. From then she was unemployed.
From
time to time she would try to earn income to assist with the needs of
the children. It was submitted on her behalf
that she was not
in a position to get permanent employment because of this case.
Both
minor children are currently in the care of the accused's mother, who
is 62 years old. The youngest child's father pays
maintenance
and both children receive social grants. Ms Levendall submitted
that once the accused is sentenced the grandmother
would be able to
apply for a foster care grant. The adult daughter, who lives in
the main house, at the same Sarepta address,
is currently employed.
The
accused had applied for an RDP house. It is submitted that she
decided not to reside in it because of this case and also
did not
want to uproot the children. She rented this house out at
R2 000,00 a month. Due to her incarceration,
she has asked
her mother to oversee the rental of that house and to use the rental
for the care of the minor children.
Relationship
with the deceased's biological father, Angelo, and alcohol abuse
It
was submitted on behalf of the accused, in keeping with the evidence
during the trial, that she abused alcohol due to her frustrations
and
that alcohol played a role in the commission of these crimes.
It was further submitted that whilst that did not excuse
her
behaviour, she lived in an area with a high level of unemployment and
with individuals who abused alcohol.
According
to Ms Levendall, the violence she displayed did not come from
nowhere, particularly in a situation where she was not violent
towards her own children. According to her, a question should
be asked therefore as to where this violent behaviour came
from.
She submitted that the accused was also an object of abuse while she
lived with the deceased's father. She was
verbally and
physically abused by him.
According
to the probation officer's report, Angelo was said to be possessive,
disrespectful and would make decisions without consulting
the
accused. According to the accused he unexpectedly brought the
deceased to live with them, without consultation, which
the accused
was not happy about and which caused conflict in the relationship.
Although these did not justify her behaviour,
so it was proposed,
they contributed to the choices she made in how she “cared”
for the deceased.
The
accused was, according to the probation officer, described as a
loving, compassionate, considerate, friendly, soft-spoken,
hardworking and caring person, who was always willing to help
others. She was a member of a church and attended church
services.
It
was stated that before and after the incident she displayed no
violence, she no longer drinks alcohol and is a first offender.
Insofar as the offences are concerned, it was submitted that the
accused admitted responsibility and acknowledged that she hit
the
child in the manner that she did and caused her death. In
regard to the injuries inflicted on 23 January 2012, she has
not
pointed a finger at someone else, even though she could not explain
how other injuries were inflicted. She, accordingly,
can be
rehabilitated.
Ms
Levendall submitted further that the accused is a primary caregiver
and has been in the lives of her minor children and that
care should
be taken by the Court on how an excessively long term imprisonment
will affect the minor children.
The
Nature of the Offences
The
accused was convicted of serious offences of murder and child abuse.
The postmortem report, which is central to the State's
case, revealed
the gruesomeness of the assaults administered on the deceased's
body. It uncovered a systematic pattern of
abuse which was
perpetuated over a period of time. Old scars, healing or recent
wounds as well as fresh injuries were noted
virtually all over the
body of the deceased. Both postmortem and X-ray reports
concluded that non-accidental injury syndrome
or child abuse was
present.
The
accused admitted that from October 2011 to January 2012 she beat the
deceased and her reason for doing so was because she was
soiling
herself frequently, which at some point she thought the deceased did
deliberately. The deceased's toilet problems
started about a
week after she arrived. The accused initially did not beat the
deceased as she thought it was a mistake owing
to a new environment,
the beatings started when the deceased soiled herself next to the
toilet.
The
beatings grew worse as the deceased soiled herself more frequently,
virtually every second day. The accused conceded that
she beat
the deceased severely more than the once or twice incidents she
described in detail during her evidence and that the reason
she could
not remember specific events was because she hit her quite a lot.
According
to her, she also drank alcohol, not only on weekends but during the
week as well. She would beat the deceased whilst
under the
influence of alcohol and the following day would notice blue or
purple marks on the deceased's buttocks, legs and upper
body. She
would feel ashamed of how aggressive she could be, having inflicted
such pain on the deceased's body. At
times the deceased would
exclaim “e
ina, eina, eina
”
,
or “ouch, ouch, ouch” whilst she washed her body.
The accused would resent and tell herself that it would not
happen
again, but it would and this continued for all the months the
deceased was under her care. She never told anybody
about this
nor tried to get help. She thought it was all under control.
She
admitted that she noticed the blue marks on the deceased's body after
15 November 2011, meaning that from that time at least
the deceased
was already being severely beaten, and she continued enduring more
gruesome beatings thereafter on a frequent basis.
So, as the deceased
soiled herself every second day, she would have experienced severe
beatings approximately more than once a
week from about mid-November
2011.
The
gravity of the beatings, at least by end November/early December
period, was supported by Dr Kennis's evidence, who examined
the
deceased in early December for wounds on her feet. When he
examined the rest of her body, he observed bruises and blue
marks
scattered all over her body. The abdomen was swollen and tender
and that could have been caused by blunt force injury.
He
concluded that this was the worst kind of child abuse he had ever
seen.
Dr
Quarrie also testified during cross-examination that in her
experience as a professional forensic pathologist she had never seen
a child more severely beaten than in this case. According to
her this was the most extreme that she had seen of a child sustaining
such blunt force injury and she had seen children who had died with
fewer injuries in their bodies. She stated that when
force is
applied on children, there was a risk that a child would die because
he or she is smaller and has smaller organs and so,
one has to
consider that any injury to a child is potentially fatal, in her
opinion. The post-mortem photographs submitted as an
exhibit paint a
devastating picture of what was done to the deceased's body.
In
her evidence, which was comprehensive and which I will not entirely
repeat, Dr Quarrie sketched out the extensive nature of multiple
bruises, lacerations and abrasions of varying sizes and age, over the
deceased's body, which exhibited repetitive and grave assaults,
some
of which were rarely seen in children. Fractures on the forearm
and skull were noted, with Dr Pitcher also noting a
fracture on the
toe.
The
wounds also showed that severe pain was inflicted on the deceased in
different ways, varying from not only being beaten by a
belt and
hand, but her ears were twisted, neck grabbed, and she was possibly
pinched on her belly multiple times. Circular and
circumscribed burn
wounds were noted on top of both of her feet, with one foot showing
the existence of overlapping wounds at different
stages of healing.
Both
the accused and Angelo attributed these wounds to possible insect
bites but Dr Quarrie stated that those are wounds that would
have
been caused by a round item such as cigarettes, a car cigarette
lighter or any other heated object with a round pattern.
This,
according to Dr Quarrie was synonymous with child abuse. The
deceased was in the care of the accused and/or her father
during the
three-month period when these burn wounds occurred. Aside the burn
wounds and the butterfly-like scars on the deceased's
belly, that the
accused denied knowledge of, the accused admitted that she repeatedly
assaulted the deceased severely during the
three months in her care.
During
the infliction of the fresh injuries, apart from the extensive
multiple deep red-purple contusions on the buttocks, limbs
and other
places showing severe beating, pointed objects were applied to the
deceased's leg, her arm was twisted and broken, with
the breaking of
the ulna bone, showing that she was blocking blows. Her wrist
was held firm so that she could not run away
(according to the
accused). She was also smacked hard on the mouth, causing a cut
on the lip.
The
beating on the day in question, which is the day of her death, was
prolonged as indicated by extensive haemorrhage and overlapping
contusions. The deceased also sustained three focal injuries on
her head and two fractures on the skull, showing that she
must have
been hit by or against a hard object three times or once against a
three-pronged object. She suffered a fracture
on her toe and
her ribcage was bruised, indicative of squeezing, as there were no
palpable external injuries in that area of the
chest.
Old
injuries were noted on the scalp, which the accused said she knew
nothing about. Dr Pitcher also noted an old rib fracture.
It must be noted that Dr Dreyer from Oudtshoorn testified that from
the deceased's medical history, whilst in Oudtshoorn, she had
never
been treated for anything other than infections and ailments that
young children would occasionally suffer from.
As
already known, the deceased died of multiple injuries caused by blunt
force trauma inflicted within 18 hours pre-mortem, which
injuries the
accused admitted she inflicted on the day of the deceased's death
(albeit only admitting to using the belt and hand).
Impact
of Death on the Deceased's Family
The
State called the deceased's biological mother, Lara Boer, and her
paternal grandmother, Katy Stols, as witnesses for purposes
of
sentencing. They both testified about how full of life the
deceased was, always with a smile on her face and that she
always
attracted a lot of people to her. Boer handed a photo of the
deceased to the Court. She testified about how
her daughter's
death affected her. She stated that she struggled to sleep and
that she attended counselling conducted by
someone at her community.
She resented herself and felt that she could have tried harder to
look for her child, where the
child lived with her biological
father. She felt that she could not trust men again with
children. She also felt that
the accused was a mother just like
her and knew what she was doing.
Katy,
who was very emotional when she testified, stated that her mother,
Maria Stols, who looked after the deceased when Katy was
at work,
cannot get over the deceased's death. She walked around with
the deceased's obituary in her handbag. She,
Katy, was broken
by the deceased's death. She felt that she could not go on, as
she had helped raise the deceased like her
own child. She still
goes for counselling. She still has a lot of questions for the
accused about how the deceased
died.
Accused's
Actions and Showing of Remorse
It
is so, that the accused admitted to killing the deceased and to
assaulting her for the period that the deceased was under her
care.
She denies that she intended to kill the deceased and was found
guilty of murder on the basis of
dolus
eventualis
. In the judgment on
conviction, I dealt with the fact that, although the accused admitted
that she killed the deceased, there
remained a gaping hole as to how
the serious injuries on the head, and fractures on the skull, were
caused, whereas the accused
stated that she only used a belt to hit
the deceased; similarly with the injuries to the ribcage, toe and
pinpointed injuries on
the legs.
It
can therefore not be said that the accused took the Court into her
confidence and was completely candid about what actually happened
on
that day. I accept that whilst the accused failed to explain
those injuries she did not point to anyone else, but admitted
that
those would have been only caused by her as the deceased was in her
care. It may be that, as the State puts it, the
evidence was
overwhelming. Angelo was at work and the deceased was in her
care and therefore she had no option but to admit
to those injuries
and could not point to anyone else.
The
accused did not tell anyone about her actions. Had it not been for Dr
Gilbert's discovery on that day and insistence that the
matter be
reported to the police and a postmortem be conducted, the deceased
could have been buried with no-one knowing what happened
to her, like
in many other cases that go unreported, as stated in the study that
Ms Ajam for the state referred me to, which I
shall come to shortly.
Interests
of Society
Ms
Ajam referred to a 2009 study, published in the Bulletin of the World
Health Organization 2013, titled “The Epidemiology
of Child
Homicides in South Africa” by
Shanaaz
Mathews & Others
, which,
inter
alia,
refers to statistics which showed
that homicide resulting from child abuse and neglect was most common
in children under five years
old in South Africa the majority of
which were girl children. According to the study, as at 2009
nearly half, (44.4%) of
all child homicides, involved fatal child
abuse. Deaths involving child abuse are underreported.
The study also showed
that child abuse is endemic in South Africa.
Ms
Levendall submitted that when the Court considers the interests of
society, it must take into account that members of the community
could have done more to help prevent the fatal child abuse.
Members of the community who saw signs of abuse did not react
by
protecting the deceased from the abuse. Angelo allowed the
abuse to occur in his house. Boer could have done more
to look
for her child, the paternal grandaunt who was told by the doctor
about the abuse asked the doctor not to report the matter
to the
police (according to the doctor); she returned the deceased to her
father, Childline failed to act (if regard is to
be had to the
doctor's evidence), maternal aunts noticed that something was not
right with the deceased but did not do much either,
the
great-grandmother was informed about the soiling problem and the
grandmother often spoke to the deceased and I must add, in
Stellenbosch at the family gathering on a Saturday before the
deceased's death, the deceased's swollen hands were noticed, but
nothing was done thereafter, by those who noticed the hands, after
both Angelo and the accused denied assaulting the child.
Accordingly, too many people noticed something was not right, but not
enough was done.
I
agree with Ms Levendall, this is of great concern to the Court as
previously mentioned in the preceding judgment. However,
to be
fair to the general members of the community and some family members
of the deceased, the accused concealed her actions.
She
conceded that nobody knew that she was abusing the deceased and
therefore the severity of her conduct was possibly unsuspected,
by
most.
It
is concerning though, that when direct evidence of suspected child
abuse was observed by a doctor; the matter was not escalated
to the
police. Angelo was called by the doctor and told about child
abuse, but he listened to the accused. How the
deceased was
returned to a home where it was evident that she was subjected to
torturous treatment, is beyond me. Angelo
blocked the maternal
family's access to the child.
The
deceased's mother went to the police but she states that she got no
help because she did not have Angelo's address. She
was in the
process of getting social workers involved when the death of the
deceased occurred, according to her sister, Charmaine
Liebenberg.
Clearly, if investigations were done and action taken, the deceased
could have possibly been rescued. Having
said that, it does
appear that the accused hid her behaviour even from her own family.
Whilst
the community can be blamed for not being vigilant enough, it
certainly cannot mean that its interests, of frowning upon
the
accused's behaviour and its expectations, that strong messages must
be sent out there by the Courts that such behaviour cannot
be
tolerated, should not be taken into account. Does the alleged
lackadaisical attitude lessen the interests of the community?
Not necessarily so, the pervasive nature of fatal child abuse still
needs to be combatted. Hence there are initiatives like the
16 days
of Activism for no violence against women and children, which is
currently being observed.
It
has been stated however that sentencing must be individualised,
accused persons must not be sacrificed at the altar of deterrence.
A sentence must be fair and appropriate, taking into account the
circumstances of a particular case.
Appropriate
Sentence
Returning
to the approach the Court should adopt, I will start by saying that I
do not think it is appropriate to impose a sentence
of life
imprisonment in this case. The circumstances of this case are
such that they do not warrant the imposition of life,
taking into
account that there are mitigating factors present which I have had
regard to. I think that much is evident from
what I have
outlined above in relation to the offender, which need not be
repeated, coupled with the fact that the accused is a
first offender,
where ordinarily, for murder the starting point would have been a
sentence of 15 years. For child abuse the
Court can impose a
sentence of up to 10 years in terms of
section 305(6)
of the
Children's Act 38 of 2005
.
The
Court is of the opinion that, having viewed all the factors, namely,
the personal circumstances of the accused, the seriousness
of the
offence and the interests of society, a long term of imprisonment,
cumulatively, should be imposed, blended with a measure
of mercy.
My
view is that the offences are very serious and brutal; the evidence
led during the trial clearly demonstrates that. Whilst
the
deceased died of fresh injuries inflicted in one day, one can only
imagine the level of pain that she must have endured, for
a period of
three months, with the most recent of the beatings inflicted on the
day of her death, being the Tuesday or Wednesday
before, which the
accused stated she administered when she was sober and used all her
power to beat the deceased, stopping only
when she was tired of doing
so. This was so severe such that swollen hands were noted by
family members at the gathering
in Stellenbosch on the Saturday of
that week.
The
deceased endured the beatings with no-one to run to, because the
person she called “Mommy”, that she lived with
on a daily
basis, when the father was not there, aggressively beat her.
She was helpless and defenceless. She was a
child of only three
years old, weighing a mere 13 kilograms, smaller than the average
children of her age. She was still
developing emotionally and
socially, at that age learning to manage her feelings and talking.
She
was caught in-between the decisions of her father and the accused,
which she innocently knew nothing about. She was simply
uprooted from her loving family in Oudtshoorn, by her father without
her mother's knowledge and consent. As a child she could
do
nothing about that, she is simply dependent on adults to make the
right choices for her. Adults, however, failed her and
made her
the victim of their own frustrations. The accused is however,
in my view, rehabilitatable as the circumstances which
I have
outlined above concerning her, show.
As
to the issue of her being a primary caregiver to her minor children,
the defence's submissions may on this point not necessarily
be
accurate. Whilst she was present in the lives of her minor
children, her children have been and are cared for and supported
by
her mother and sister. Furthermore, even when the accused lived
in Happy Valley, with Angelo and the deceased, her children
remained
with her mother. Although the children would miss growing up
with their mother, they will not necessarily be starting
a new life
with strangers. They have always lived with their grandmother.
Yes,
the younger child visited her mother a lot more in Happy Valley and
the accused had gone back to Sarepta and lived with them
before her
incarceration, the children will, however, not be rooted out of their
familiar surroundings. This is similar to
the situation
recognised in the decision of
MS v S
(Centre for Child Law as
Amicus
Curiae
)
2011 (2) SACR 88
(CC) paraSs 62 and 63
where it was found that Mrs S was not a sole caregiver, as the father
of the children who was a co-resident
and was willing to take care of
them during her incarceration.
The
Court considers that this issue forms part of the cumulative
mitigating considerations and it has considered it.
Conclusion
In
conclusion therefore, a long term of imprisonment is warranted.
However, mitigating factors are present and a term of life
imprisonment asked for by the State is not appropriate in this case.
The Court will, therefore, move from the premise that,
whilst for
murder substantial and compelling circumstances are present, the
severity of the offences, taken cumulatively with child
abuse, call
for an effective term of imprisonment longer than 15 years which
would be a fair and balanced sentence recognising
both aggravating
and mitigating factors.
It
will be recalled that the SCA in
Mthembu
supra
at
paragraph 11, stated that it follows from
Section 52(3)(a)
that:
“
...
even were a court to conclude that
substantial and compelling circumstances do indeed exist, it may in
the exercise of its sentencing
discretion nonetheless impose the
prescribed minimum or such higher sentence as to it appears just.”
I
am alive to the fact that I am using this reasoning in respect of the
cumulative effect of sentences to be imposed in respect
of murder, to
which
section 52
provisions apply, and child abuse, which is not
governed by the minimum sentence legislation. By doing so, I am
not conflating
the principles applicable. My point goes to the
effect of the ultimate sentence imposed and the principles which
govern fairness
and justness in sentencing.
I
thought about whether it could be argued that there may be duplicity
of offences of murder and child abuse and that they should
be viewed
as flowing from the same incident for purposes of sentencing.
My view is that they are appropriately separate offences
and should
be recognised as such (with the appropriate measure of mercy) in that
the abuse occurred over a period of three to four
months prior to the
death of the deceased and in many instances severely so; the death of
the deceased itself, was caused by fresh
injuries inflicted within 18
hours pre-mortem, which the accused admitted to have been on 23
January 2012.
In
the result, having taken all the factors applicable in this case
cumulatively into account I make the following order:
(1)
In respect of
COUNT 1, OF MURDER, THE
ACCUSED IS SENTENCED TO THIRTEEN (13) YEARS IMPRISONMENT;
(2)
In respect of
COUNT 2, OF CHILD
ABUSE, THE ACCUSED IS SENTENCED TO SEVEN (7) YEARS IMPRISONMENT,
of which
TWO
YEARS
will run
CONCURRENTLY
WITH THE SENTENCE IN COUNT 1 OF MURDER
.
(3)
The accused is therefore
SENTENCED
effectively
TO EIGHTEEN (18) YEARS
IMPRISONMENT
.
(4)
The accused is found
UNSUITABLE TO
WORK WITH CHILDREN
in terms of
Section 120(4)
of the
Children's Act 38 of 2005
.
(5)
The Registrar of this Court must, in terms of
Section 122(1)
of the
Children's Act 38 of 2005
, notify the Director General: Department of
Social Development in writing of the findings of this Court made in
terms of
Section 120(4)
of the
Children's Act 38 of 2005
, that the
accused is unsuitable to work with children, for
THE
DIRECTOR GENERAL TO ENTER THE NAME OF THE ACCUSED AS CONTEMPLATED IN
SECTION 120
IN PART B OF THE REGISTER
.
(6)
In terms of the
Firearms Control Act 60 of 2000
, the
ACCUSED
IS UNFIT TO POSSESS A FIREARM
.
___________________
BOQWANA,
J