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[2020] ZAWCHC 62
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Pieterse v S (A214/19) [2020] ZAWCHC 62 (2 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
[REPORTABLE]
Case
No: A214/19
In
the matter between:
JOHANNES
PIETERSE Appellant
and
THE
STATE Respondent
Coram:
Dolamo, J et Wille, J et Kusevitsky, J
Date
of Hearing: 29
th
of January 2020
Date
of Judgment: Delivered via email on the 2
nd
of June 2020
JUDGMENT
KUSEVITSKY,
J
:
INTRODUCTION
[1]
This is an appeal with leave of the court of first instance
[1]
,
against sentence only. The appellant was convicted of rape and was
sentenced to (10) years imprisonment. The appellant was also
convicted of murder and was sentenced to life imprisonment.
[2]
[2]
The victim that was murdered by the appellant was the same victim
that was subsequently raped by the appellant. The appellant
received
a sentence of -
life
imprisonment
- because he raped the victim that he had murdered. He was however
,
also sentenced to (10) years imprisonment for the rape. This is the
issue that bears further scrutiny on appeal, bearing in mind
that
in any event
,
the sentence handed down in connection with the rape charge was
ordered to run concurrently with the sentence of life imprisonment.
[3]
The appellant initially pleaded guilty to murder and entered into a
plea and sentence agreement
[3]
in terms of section 105A of the Act.
[4]
Further, certain admissions were recorded in terms of section 220 of
the Act. He was legally represented for the duration of his
trial.
[4] The trial judge questioned
the appellant thoroughly in connection with his agreement and was not
satisfied that the appellant
had admitted guilt on all of the
elements of the offence and accordingly entered a plea of not guilty
on his behalf.
The trial judge correctly
advocated
that the trial of the appellant was to proceed -
de novo
-
before a differently constituted court in view of the ‘proceedings’
that unfolded before him. The appellant and the
appellant’s
counsel however waived all of the appellant’s rights in this
connection.
A
SUMMARY OF THE RELEVANT FACTS
[5]
In a fit of rage and jealousy the appellant raped and murdered the
complainant, who was a family relative. This, because she
did not
want to be romantically involved with him
and
rebuffed him
.
[6]
The appellant admitted to murdering the complainant. During the
trial, it emerged that the deceased had ignored the appellant
at a
family party held the previous evening. When the deceased left this
function, without speaking to the appellant, he followed
her and
confronted her. Thereafter, he
strangled
her and dragged her to a nearby shed. Her torture continued until her
demise.
[7]
Whilst the appellant admitted that he kicked and jumped on the head
of the deceased, he denied that he had raped her. The deceased
was
found in the shed
,
partially naked. The appellant led the police to her body after
confessing both to his employer and his family,
that
he had murdered her.
[8]
The deceased suffered significant injuries. A specialist forensic
pathologist who performed the autopsy on the deceased, concluded,
inter alia, that the deceased suffered a serious assault upon her.
She opined
that the person who inflicted the injuries must have used
extreme
force to have caused these extensive injuries.
She
concluded, from
these
injuries, that it must have been a continuous intensive assault upon
the deceased and she would have suffered because of the
injuries to
her face and head.
[9]
The
cause of death was due to extensive brain damage and bleeding on the
brain. Her
jawbone was fractured. She did not die due to strangulation.
[10]
The
forensic
pathologist
also
testified that the deceased had severe vaginal injuries.
The
combination of the vaginal injuries and the fact that she was found
semi-naked, were strong indicators that she was raped. The
deceased
suffered ‘epithelial’ loss and severe bruising. These
injuries must have been inflicted when she was still
alive, because
the bruising was an inflammatory reaction. Post-demise, bruising does
not occur in this fashion. Further, even though
there was no evidence
of semen found on the deceased, this did not rule
out that no rape had occurred.
THE
APPELANT’S CASE
[11]
The appellant denied having sexual intercourse with the deceased and
suggested that she was severely intoxicated and accordingly
it was
possible that the deceased had indulged in sexual intercourse with
someone else, prior to his assault upon her.
[12] However, the appellant
advised the police officer who was called to the scene that the
deceased was his girlfriend and that
he wanted to have sex with her,
but she refused. Further,
a knife was found next to her
body and the appellant admitted that he wanted to
slit
her throat.
THE
RESPONDENT’S CASE
[13] The respondent relied almost
exclusively on the plea offered up by the appellant, read together
with his recorded admissions
and
upon
the medical evidence presented.
The medical
evidence was not seriously engaged with and was left largely
unchallenged.
DISCUSSION
[14]
After
careful
consideration
and analysis of the totality of the evidence presented, the court a
quo
accepted that the medical evidence supported the conviction of rape.
I say, correctly so
.
The appellant was found guilty of murder on the basis ‘
dolus
eventualis’
.
[15]
The appellant submits in the main, that the court a quo erred
by
failing to find that all the mitigating factors, viewed together,
were not of sufficient weight, to meet the threshold of -
substantial
and compelling circumstances
- to justify the implementation of a lesser sentence as enunciated in
S v
Malgas
[5]
.
It is advanced that the court failed to attach sufficient weight to
the personal circumstances of the appellant, in that; he was
a first
offender; that he showed remorse; that he pleaded guilty; that there
was a prospect of rehabilitation and that the murder
was not
pre-meditated.
[16]
It is trite that matters of appeal on sentence that
an
appeal court is only entitled in law to interfere, if the trial court
misdirected itself, alternatively if the sentence imposed
was so
disturbingly inappropriate or disproportionate that no reasonable
court would impose it. A court of appeal should also be
guided by the
principle that punishment is pre-eminently a matter for the
discretion of the trial court and that a court of appeal
should be
careful not to interfere with this discretion.
[17]
The appellant contends for the position that minimum sentences should
not be imposed lightly. Long term imprisonment such as
life
imprisonment is the most severe sentence that a court may impose. It
was submitted that it was evident that the appellant’s
behavior
was -
materially
influenced
- because he was angry, felt
rebuffed
by
the deceased and was under the influence of dependence producing
substances. Finally, that this was a ‘crime of passion’.
[18]
In my view, these arguments are misplaced for not only does it
perpetuate the stereotypical and patriarchal notion that a woman
‘deserves what she gets’ by her actions, but that the
appellant would consequently have been justified by his actions.
The
appellant,
in
this situation, could never justify his actions
.
The deceased was not interested in having a relationship with the
appellant. She was being harassed by him at a party, and when
she
left the party without his knowledge, this infuriated him.
[19]
I find it unacceptable that the appellant felt that he had some kind
of -
entitlement
-
to the deceased because his advances were not reciprocated. This
behavior, in my view,
would
not justify the imposition of a lesser sentence
.
Rather, in my view, this is an aggravating feature of the appellant’s
behavior.
[20]
The appellant was (30) years old at the date of the commission of the
offences. He is the father of three minor children. He
took care of
his mother. Regrettably, he only advanced to grade eight before he
left school. He worked as a shepherd and earned
R 600,00 per week. He
handed himself over to the police and admitted to the crime of the
murder.
[21]
It is trite that in matters involving serious crime, t
he
personal circumstances of the offender, by themselves, will not
assist the offender in avoiding the consequences of the minimum
sentencing regime. In
Malgas
[6]
,
it was emphasized that flimsy grounds should be avoided when seeking
to deviate from the minimum sentencing regime.
[22]
It is common cause that the
court
a
quo
found no substantial and compelling circumstances present to have
justified a deviation from the minimum sentence. During argument,
an
interesting sentencing issue was debated. This is, whether the
court
a
quo
effectively sentenced the appellant -
twice
- for the rape of the complainant.
[23]
If this did indeed occur, was this purported ‘duplication’
not a substantial and compelling circumstance,
standing
alone
,
to justify a deviation from the minimum sentence regime? The
appellant was sentenced to (10) years imprisonment for raping the
deceased. Thereafter, he was sentenced to life imprisonment because
he murdered and ‘
raped
the deceased’
as contemplated in the ‘offence’ as defined in section
51(1) of the Criminal Law Amendment Act.
[24]
In
Malgas
,
the court stated that the minimum sentence provisions must be
construed in accordance with the values enshrined in our constitution
and interpreted in a manner which respects those values. Due weight
must be given to the fact that these provisions were not intended
to
be permanent fixtures in our law and were initially intended to lapse
after a period of two years, unless extended annually.
Crime in our
country and more specifically crimes against woman remain shocking
and unacceptable. The police, prosecutors and the
courts are
constantly being exhorted to use their best efforts to stem the tide
of criminality which continues to threaten to engulf
our society.
[7]
[25]
The legislature aimed at ensuring a severe, standardized, and
consistent response from the courts to the commission of serious
crimes unless there were, and could be seen to be, truly convincing
reasons for a different response.
[8]
These specified sentences were not to be departed from lightly and
for flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favorable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.
[9]
[26]
The appellant is a first offender and in terms of the minimum
sentence regime, he would be subject to a minimum sentence of
(15)
years’ imprisonment in connection with the murder conviction
,
had he, in addition, not raped the deceased.
[27]
The minimum sentencing regime may, in my view, become somewhat
problematic when it attempts, via its -
sentencing
regime
-
to create new offences defined essentially by the ordained sentence
to be imposed.
This
anomaly may arise in cases where common law offences morph into
statutory offences, primarily due to the sentence that falls
to be
imposed.
[28]
By way of example, reference may be had to offences committed under
the Prevention of Organized Crime Act
[10]
.
A specified offence may on its own constitute a ‘stand-alone’
offence and at the same time render the offender guilty
of another
statutory offence, on exactly the same facts. These offences are also
known as ‘predicate’ offences.
[29]
In such a case, to sentence an accused for both these offences, could
in my view, lead to a ‘duplication’ of sentences.
In
S
v De Vries and Others
[11]
,
Bozalek J, made the following relevant comment;
‘
Secondly,
in regard to a possible duplication of convictions in respect of the
predicate offences, as discussed above in relation
to s 2(1)(f), the
elements of the offence of contravening s 2(1)(e) are quite different
to those involved in the predicate offences
themselves. Again, in my
view, in creating the new statutory offences the legislature must
have foreseen that in given circumstances
an offender could be
convicted of both managing and participating in the affairs of an
enterprise through a pattern of racketeering
activity and of
committing the offences which make up the pattern of racketeering.
Through its sentencing discretion a court will
be able to ameliorate
any possible sentencing anomalies which may arise’
[30]
The
court
a
quo
did order that the sentences run concurrently. That having been said,
I am of the view that the rape of the deceased was taken
into account
-
twice
-
when the sentences were imposed. This is in itself, in these
particular circumstances, is a weighty factor, which may in itself
be
a substantial and compelling reason to deviate from the minimum
sentencing regime. I do not however propose to suggest that
all
potential ‘duplicate’ sentences may as a matter of course
be elevated to be substantial and compelling circumstances
which
would entitle an offender to an automatic deviation from any minimum
sentence imposed. This would water down the efficacy
or render
nugatory the very purpose of the minimum sentencing regime. I must
emphasize that each case must be considered on its
own facts as in
some cases this ostensible ‘duplication’ may not be a
weighty factor worthy of consideration at all.
[31]
The
relevant provisions of the prescribed minimum sentencing regime, in
connection with the murder charge, only become relevant
for the
purposes of sentencing. In my view, the crime of murder, read with
the relevant provisions of the prescribed minimum sentencing
the
regime, is not to be construed as a totally discrete offence. In my
view, it remains the offence of murder, just with more
serious
consequences. No new mental element is required, but rather the
enquiry is to the objective facts surrounding the murder,
which in
turn materially bear down -
only
-
on the sentence to be imposed.
[32]
Whilst I remain mindful of the fact that a court exercising appellate
jurisdiction cannot, in the absence of a material misdirection
by the
trial court, approach the question of sentence as if it were the
trial court and then substitute the sentence arrived at,
by it,
simply because it prefers it. To do so would be to usurp the
sentencing discretion of the trial court.
[12]
However,
taking into account the ‘duplication’ of the appellant’s
sentences on the rape charge, combined with
all the appellant’s
personal circumstances, coupled with the fact that he did exhibit
some remorse, brings me to the conclusion
that the appellant may be
rehabilitated and that he is unlikely to re-offend. Further,
it
is harsh sentence that was imposed on the appellant in connection
with his conviction on the murder charge, that had the effect
of a
possible -
duplication
of the
sentences
- albeit for a single charge of rape.
All
these factors, in my view, are weighty factors that militate for a
deviation from the provisions of the minimum sentencing regime.
The
respondent’s counsel conceded this during her argument.
CONCLUSION
AND ORDER
[33]
In all the circumstances, I propose the following order namely;
1.
That
the appellant’s conviction and sentence on the charge of rape
is hereby confirmed and it is ordered to be served concurrently
with
the sentence imposed in connection with the murder conviction as set
out below.
2.
That
the appeal succeeds only in connection with the sentence imposed on
the conviction of murder, in that the life imprisonment
sentence
imposed by the court a quo, is set aside and replaced with the
following
;
‘
The
appellant is sentenced to direct imprisonment for a period of
(23)
years
to run with effect from the 20
th
of August 2015.
_______________
KUSEVITSKY,
J
I
agree, and it is so ordered
:
____________
WILLE, J
DOLAMO,
J;
[34]
I have read the judgment of Kusevitsky, J and regrettably cannot
agree with the reasoning and the outcome of this appeal. It
is common
cause that the appellant was convicted on (1) count of murder read
with the provisions of section 57 (1) of Act 105 of
1997 and rape. He
was sentenced to life imprisonment on the count of murder and to (10)
years imprisonment for the rape. The appeal
against the sentence of
life imprisonment is with the leave of the
court
a
quo
(Henney, J).
[35]
Before I deal with the question of whether there were any substantial
and compelling circumstances that could have justified
the imposition
of a lesser sentence than life imprisonment which, if they exist,
would entail overturning on appeal, the sentence
of life
imprisonment, I deem it apposite to outline some essential facts,
pertinent to the outcome of this appeal.
[36]
The appellant, who was (30) years old at the time of the commission
of the offence, and was related to the deceased Anita Rochelle
Pieterse who was (28) years old at the time, lived and was employed
on a farm. Appellant claimed to have been in a love relationship
with
the deceased. On the night preceding the one on which he raped and
murdered deceased, appellant and the deceased were socialising
with
other people where alcohol was consumed. Appellant alleged to have
also used drugs on this occasion. In the course of the
evening
deceased, as she was entitled to, engaged socially with other people.
This did not go down well with the appellant who
felt that deceased
was ignoring him. Appellant did not know the reason why deceased did
not want to talk to him, but this made
him
feel
rejected.
[37]
The next day, the deceased and the appellant again socialised with
other people and also consumed alcohol. When, the deceased
later left
the place, the
appellant
followed her. On realising that the appellant was following her,
deceased tried to run away but he chased and caught up
with her. He
dragged her into a barn where an argument or altercation ensued.
Appellant started to strangle her. He had a knife
and allegedly used
it to cut off her clothes. It would appear that the appellant and the
deceased engaged in a struggle, but he
overpowered her, and the
latter ended on the ground. The appellant started to stomp and kick
her all over her body and head with
his booted feet. He continued to
kick and stomp her until she died. After the deceased had died, the
appellant
concealed her body under a canvas. He claimed that he did all this
because he was angry with her, an anger which was sparked
when she
merely ignored him.
[38]
The following day, a Sunday, appellant felt remorseful about what he
did and as a result went to his mother where he confessed
to the
murder. He also confessed to his employer who handed him over to the
police. Upon his arraignment appellant tendered a plea
and sentencing
agreement in terms of the provisions of section 105A of the Criminal
Procedure Act
[13]
(the CPA) but the court
a
quo
did not accept it. The Learned Judge was not satisfied that the
appellant admitted all the requisite elements of the crime, in
particular, whether he had the intention to kill the deceased. Since
there is no provision under section 105A of the CPA to the
effect
that those admissions which appellant correctly made, may stand once
the plea and sentence agreement was rejected, the trial
had to start
de
novo,
as provided for in section 105A (6)(c). Appellant and the State
agreed that the trial may proceed before Henney J.
[39]
The appellant pleaded not guilty to the charge of rape which
necessitated that Dr Hurst, a pathologist who conducted the
post-mortem
examination on the body of the deceased, had to testify.
Dr Hurst’s chief post-mortem findings were that the deceased’s
body had multiple injuries; notably numerous abrasions and
contusions, severe skull, facial bone fractures and a fracture of the
mandible, haemorrhage in and around the brain; blood in the stomach,
trachea and aspiration of blood as well as vaginal injuries
suggesting sexual assault.
[40]
Based on these injuries, Dr Hurst was of the view that the assault on
the deceased was carried out with a blunt object with
such brutal
force as to crush the skull, facial bones and jaws. She conceded,
however, that kicking and stomping on the deceased
with booted feet
could cause these injuries. These injuries showed that the deceased
must have died swiftly but would have endured
severe pain while the
assault was taking place.
[41]
Regarding injuries to the deceased’s vagina, Dr Hurst testified
that there was a 3,5 x 1,5 cm area of epithelial loss
of vagina
posteriorly and laterally, a 1 x 0,5 cm contusion to the left of the
urethral opening, a 2 x 2cm contusion of the inner
aspect of the
vaginal wall anteriorly. There were signs of penetration as well.
These injuries which were on the inside of the
vagina and could not
have been caused by her being kicked, as was suggested in
cross-examination. These injuries and the fact that
the deceased was
naked pointed to a rough and not normal sexual intercourse. The
absence of semen in her vagina could only have
been as a result of
there being no ejaculation or the rapist wearing a condom.
[42]
Based on the evidence, particularly of Dr Hurst and the admissions
made by the appellant in terms of section 220 of the CPA,
the trial
court was satisfied that the State had proved the guilt of the
appellant beyond reasonable doubt and consequently convicted
him of
murder read with the provisions of section 51(2) of Act 105 of 1997
and rape. The trial court remarked that:
‘
Ondanks
die feit dat hy erken het dat hy die oorledene doodgemaak het, hy het
nie ver genoeg gegaan om ’n eerlike relaas van
wat gebeur het
die betrokke dag aan die Hof voor te hou nie. Hy het op ’n
selektiewe wyse vrae geantwoord waar daar van hom
‘n antwoord
verwag was…’
[14]
[43]
Coming to sentencing, the appellant the trial court concluded that
the aggravating factors far outweighed any migratory circumstances.
The court found it aggravating that the deceased knew the appellant;
that during the rape, which preceded the murder, the deceased
suffered serious injuries to her private parts; that the deceased was
small of stature, only weighed (45) kilograms and consequently
was
defenceless against the onslaught mounted by the appellant; that the
appellant repeatedly and continuously stomped on the deceased
and, in
so doing, broke her skull, cheekbones and jaws and, lastly, as if the
assault was not enough, that he left her out there
and only covered
her with a piece of canvass. The trial court also remarked that by
killing her, the
appellant
tried to cover up the rape.
[44]
Before determining whether there were substantial and compelling
circumstances to justify a departure from imposing the minimum
discretionary sentence the trial court, correctly in my view, stated
that it had to also consider the interest of society. In this
respect
it held that the interest of society came strongly to the fore in
matters of this nature, where the crime was one of rape
and where a
defenceless woman, after being raped by someone known to her, is
killed. The trial court was accordingly not persuaded
that the fact
that the appellant was a first offender, as far as violent crime was
concerned; had showed remorse for the murder,
was responsible for the
welfare of his mother and had minor children constituted substantial
and compelling circumstances to justify
a departure from imposing the
minimum discretionary sentences.
[45]
On appeal it was argued on behalf of the appellant that the trial
court erred in not holding that the appellant’s cumulative
personal and mitigating circumstances amounted to substantial and
compelling circumstances to justify the imposition of a lesser
sentence than the minimum sentences prescribed. It was submitted that
it was evident, which was argued to be a relevant factor,
that the
appellant’s behaviour was influenced by rage as he felt
rejected by the deceased, which made this a crime of passion;
that he
was under the influence of substances; and that he showed remorse
which was an indication that he was a candidate for rehabilitation.
The appellant was furthermore lauded for entering into a plea and
sentencing agreement on the count of murder and, when this was
not
accepted by the court, shortened the proceedings by making the
necessary formal admissions.
[46]
It was further argued that a minimum sentence of life imprisonment,
being the most severe sentence a court can impose, should
not be
imposed lightly; that the object of sentencing should not be to
satisfy public opinion but to serve the public interest
and that,
when considering the triad, the one factor should not outweigh the
others. In this respect, it was submitted that a measure
of mercy
should always be considered and coupled to possible prospects of
rehabilitation.
[47]
While conceding that the sentence was severe the respondent argued
that the trial court took into consideration the personal
circumstances of the appellant, the seriousness of the crime as well
as the interest of society but could not be faulted for concluding
that there were no substantial and compelling circumstances to
justify a deviation from the minimum discretionary sentence.
According
to the respondent gender-based violence, especially of a
sexual nature, is a serious crime. The appellant has abused the trust
that the deceased had in him.
[48]
The approach
of a court of appeal to a sentence imposed in terms of the Minimum
Sentence Legislation was formulated by Bosielo
JA
in
S
v PB
[15]
as follows:
‘
[20]
What then is the correct approach by a court on appeal against a
sentence imposed in terms of the Act? Can the appellate court
interfere with such a sentence imposed by the trial court's
exercising its discretion properly, simply because it is not the
sentence
which it would have imposed or that it finds shocking?
The approach to an appeal on sentence imposed in terms of the Act
should,
in my view, be different to an approach to other sentences
imposed under the ordinary sentencing regime. This, in my view, is so
because the minimum sentences to be imposed are ordained by the Act.
They cannot be departed from lightly or for flimsy reasons.
It
follows therefore that a proper enquiry on appeal is whether the
facts which were considered by the sentencing court are substantial
and compelling, or not’
[49]
The central question for determination therefore is whether the facts
which were placed before the trial court for consideration
amounted
to substantial and compelling so as to justify a departure from
imposing life imprisonment.
Although
there is no onus on an accused to prove the presence of substantial
and compelling circumstances, it must be so that an
accused who
intends to persuade a court to impose a sentence less than that
prescribed should pertinently raise such circumstances
for
consideration.
In
a given case it may not be enough for an accused to argue that such
circumstances should be inferred from or found in the evidence
adduced by the State.
[16]
[50]
Life imprisonment is an obligatory sentence for a murder in
circumstances where the victim was first raped by the perpetrator.
Only if the court found the existence of substantial and compelling
circumstances, as described by Marais JA in
S
v Malgas
[17]
(Malgas)
,
can the court deviate from imposing the sentence which is ordained by
the Act. Substantial and compelling circumstances are
[18]
:
‘
[25]
What stands out quite clearly is that the courts are a good deal
freer to depart from the prescribed sentences than has been
supposed
in some of the previously decided cases and that it is they who are
to judge whether or not the circumstances of any particular
case are
such as to justify a departure. However, in doing so, they are to
respect, and not merely pay lip service to, the legislature’s
view that the prescribed periods of imprisonment are to be taken to
be ordinarily appropriate when crimes of the specified kind
are
committed. In summary –
A.
Section
51 has limited but not eliminated the courts’ discretion in
imposing sentence in respect of offences referred to in
Part 1 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, standardised and consistent response from the
courts.
D.
The
specified sentences are not to be departed from lightly and for
flimsy reasons. 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.
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 standardised response that the legislature
has
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 so doing, 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 bench-mark which
the legislature
has provided’
[51]
In an attempt to persuade us that the trial court erred the following
factors and circumstances were present as cumulatively
constituting
substantial and compelling circumstances that this was a crime of
passion. The courts have traditionally treated a
crime of passion
with a measure of compassionate understanding of the strong emotions
which are produced when a person finds his/her
lover in compromising
circumstances. But there must be signs of infidelity and the
appellant’s reaction must be an immediate
response to the
situation unfolding before his eyes which provokes an emotional
upheaval, to serves as a mitigating factor. Pursuing
a person who
merely ignored you is not such a situation. I accordingly do not
agree that this was a crime of passion. Even if appellant
was in a
secret love relationship with his niece his actions were not
motivated by any obsession with her. In his own words he
was angry
after she ignored him. He did not know the reason why she chose to
ignore him. It would be speculative to conclude that
he acted as he
did out of a passion.
[52]
It was also argued that the appellant was under the influence of
substances when he committed the offences. There is no evidence
to
support this conclusion. Appellant admitted to using drugs on the
previous night and not on the day he committed the murder.
Although
on the day of the murder he had consumed alcohol there is no evidence
to indicate the extent to which he was intoxicated.
A call on the use
of substances, without any evidence of the extent to which this
affected him, would be nothing but speculative.
[53]
Appellant was described as remorseful. This conclusion is drawn from
the fact that he tendered a plea of guilty to the murder,
which was
preceded by his confession. Strong evidence of remorse is required
before a court can be satisfied that the offender
is truly
remorseful. It is not what the appellant says but his actions which
would determine whether he is truly remorseful. The
appellant, as the
trial court correctly remarked, was not completely truthful with the
court. He tried to mitigate his blameworthiness
by claiming that he
did not intend to murder the deceased and secondly, he denied raping
her. This conduct is hardly the hallmark
of an accused who is truly
remorseful. It was incumbent on the appellant, if he was truly
remorseful to unequivocally admit all
the elements of the two crimes.
[54]
Lastly, appellant claimed to have been angry as a result of the
deceased ignoring him. Actions based on anger may be mitigating
if
the action of the victim is such that the emotional upheaval in the
perpetrator is considered reasonable in the ordinary reasonable
human
being
[19]
.
Other than to ignore the appellant the deceased did nothing to
provoke the appellant. There is no evidence of any altercation
prior
to the deceased leaving the place. After the deceased had left the
appellant had the opportunity to compose himself but he
elected to
pursue her. He chased, caught up with her and dragged her to an
isolated place. If indeed he was provoked, as he alleged,
he would
have confronted her there and then, where he caught him with her.
His actions, of dragging her to a secluded place,
are not of a
reasonable person who has been provoked by the actions of his victim.
[55]
I turn now to deal with the aspect of the main judgment, with which I
do not agree, which led to upholding the appeal. My Learned
Sister
found that the rape of the deceased was taken into account “
twice
”
when the sentences were imposed. Respectfully, I do not agree with
this conclusion. Nor do I agree with the sentiment that
the minimum
sentencing regime creates new offences defined essentially by the
ordained sentences to be imposed. The rape and the
murder remain two
distinct offences for which all the elements must be separately
proved during the trial on the merits. Only at
the sentencing stage,
when the murder has already been proved, it is opposite to look at
the circumstances under which this was
committed.
[56]
Where an accused has been convicted of murder, section 57(1) requires
of the regional court or the High Court to sentence him
to life
imprisonment if the murder is one that is referred to in Part I of
Schedule 2. Reference to Part I of Schedule 2 is a jurisdictional
factor for imposing the prescribed sentence. It is not an element of
the offence. Even if the jurisdictional fact has been established
the
court is obliged in terms of section 51(3), if it is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the prescribed sentence, to
follow the prescripts of this sub-section and impose a lesser
sentence.
[57]
Any deviation from the minimum sentence prescribed for a particular
offence which is not underpinned by substantial and compelling
circumstances, would be a deviation for flimsy reasons
[20]
.
Weighing the mitigating factors with the aggravating ones, I am not
persuaded that there are substantial and compelling circumstances
to
justify the imposition of a lesser sentence. The trial court
therefore did not misdirect itself in imposing the sentence of
life
imprisonment.
[58]
In my view the trial court did not err in concluding that there were
no substantial and compelling circumstances. The deceased
was killed
in a gruesome manner. The appellant used brutal force to such an
extent that the face and the head of the deceased,
made up of tough
bones, was crushed. Under the repetitive and continuous blows, the
deceased was deprived of her most precious
right: a right to life.
This after she had been sexually violated. As Mohamed CJ remarked in
S
v Chapman
[21]
the courts are
under a duty to send a clear message to the accused, to other
potential rapists and to the community that they are
determined to
protect the equality, dignity and freedom of all woman and shall show
no mercy to those who seek to invade those
rights.
[59]
In the circumstances I will make the following order:
“
the
appeal is dismissed
”.
___________________
DOLAMO, J
[1]
Henney, J
[2]
In
terms of section (c) of Part 1 under Schedule 2 of the
Criminal Law
Amendment Act, 105 of 1997
[3]
The agreement
[4]
Act 51 of
1977
[5]
2001 (1) SACR
469(SCA)
[6]
S v Vilakazi
2012 (6) SA 353
(SCA) para 58
[7]
At para 7
[8]
At para 8
[9]
At para 9
[10]
Act 121 of
1998
[11]
Case 67/2005
[2008] at para 398
[12]
Malgas
supra
at para 12
[13]
Act 51 of
1977.
[14]
Loosely translated:
[15]
2013
(2) SACR 533
at para [20].
[16]
See
S
v Roslee
[2006] ZASCA 14
;
2006
(1) SACR 537
at para
[33]
.
[17]
2001 (1) SACR
469 (SCA).
[18]
Malgas
supra
at para [25].
[19]
S v
Mvuleni
1992
(2) SACR 89
(A) at 94 f – g.
[20]
See
Malgas
supra
at paragraph
[9].
[21]
[1997] ZASCA 45
;
1997 (2) SACR
3
at 5 e.