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[2021] ZAWCHC 146
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Jordaan v S (A62/2021) [2021] ZAWCHC 146 (30 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number: A 62 / 2021
In
the matter between:
ANDREW
JORDAAN
Appellant
and
THE
STATE
Respondent
Coram:
Baartman
et
Wille
et
Slingers, JJ
Heard:
21
st
of July 2021
Delivered:
30
th
of July 2021
JUDGMENT
WILLE,
J:
(Baartman
et
Slingers JJ, concurring)
INTRODUCTION
[1]
This
is an appeal directed solely against a life sentence imposed upon the
offender. The appeal is with the leave of the court
a quo
[1]
.
The appellant was convicted on a single charge of rape and on a
single charge of murder. The minimum sentencing regime
found
application in connection with the conviction of murder in that the
demise of the victim was caused by the appellant during
the
commission of the crime of rape. This crime is also commonly
known as a ‘rape homicide’.
[2]
The
appellant was sentenced to life imprisonment in connection with his
conviction of murder and was sentenced to (10) years direct
imprisonment in connection with his conviction for the rape of the
deceased. By way of operation of law, the period of
imprisonment
imposed upon the appellant in connection with his rape
conviction is to be served concurrently with his sentence of life
imprisonment
for the murder of the deceased.
GROUNDS
OF APPEAL
[3]
In the appellant’s application for leave to appeal, the
following grounds of
appeal are advanced, namely: that the
sentencing court erred by not finding that there were sufficient
substantial and compelling
circumstances to enable it to deviate from
the prescribed minimum sentencing regime: that the sentencing
court over-emphasized
the need to prevent and protect public safety
at the expense of the offender: that the appellant was under
the influence
of alcohol when he raped and killed the deceased:
that these circumstances amounted to substantial and compelling
circumstances
which obligated the court to deviate from the minimum
sentencing regime and finally, that the appellant’s personal
circumstances,
view holistically, legally placed an obligation upon
the sentencing court to deviate from the minimum sentencing regime.
The personal circumstances contended for, also included a ‘reference’
to the past poor socio-economic conditions experienced
by the
appellant.
THE
APPELLANT’S CASE
[4]
The core arguments advanced on behalf of the offender are: that
he endured a
dysfunctional relationship with his mother: that
this affected the manner in which he dealt with or associated with
woman:
that the appellant exhibited aggressive behaviour when
he consumed alcohol and that the sentence of life imprisonment does
not countenance for his rehabilitation. This, also because he
was only (22) years old at the time of the rape homicide.
THE
CASE FOR THE RESPONDENT
[5]
The respondent advances: that it is common cause that these
offences were committed
during May 2007: that the offender was
convicted of the murder
[2]
of
another female person during June 2007 and that he was sentenced to
(10) years imprisonment for this latter offence: that
the
deceased’s children have suffered unnecessarily as a result of
the offenders actions; that the appellant was well
known to the
deceased and socialized with him and trusted him; that the
ripple effect of the offender’s crimes is very
significant, as
the secondary victims of these crimes have suffered psychological and
emotional trauma: that the offender
has not displayed any
genuine remorse: that the crime scene photograph album and
post-mortem report both demonstrate that
the offender showed no mercy
when he killed the deceased: that the murder of the deceased
was to an extent planned
[3]
, and
finally that the deceased was defenceless and there was no evidence
to suggest that the offender was in any manner provoked
to commit the
rape homicide.
THE
FACTUAL MATRIX
[6]
Briefly the following: that the offender met up with the
deceased one evening
[4]
: that
this was the last time that the deceased was seen alive: that
the deceased’s body was thereafter found
on the 30
th
May 2007; that the deceased died as a result of, inter alia,
blunt force trauma to her head, neck and lower jaw: that
the
deceased had also been forcibly raped: that the expert evidence
demonstrated that the deceased had been strangled to
death: that
the appellant was apprehended in part due to the fact that the police
determined a similar
modus
operandi
between the murder of the deceased in this case and the murder of
another victim
[5]
, during June
2007: that the DNA sample of the offender matched the DNA
sample of the deceased: that the offender initially
denied ever
having sexual intercourse with the deceased: that the offender
advanced an
-
alibi defence -
which
was false and that the offender’s version at his trial was that
he met the deceased at a 21
st
birthday party and they thereafter had consensual sexual intercourse.
DISCUSSION
[7]
I need to examine not only the nature and seriousness of the crimes
committed
by the offender, but also the aggravating circumstances and
weigh these up against the mitigating circumstances (if any), in
order
to determine whether the sentence of life imprisonment was, in
the circumstances of this case, appropriate and proportionate to
the
offence committed. As further held in
Malgas
[6]
,
in
addition, a court of appeal is enjoined to consider all other
circumstances bearing down on this question, to enable it to properly
assess the trial court’s finding and to determine the
proportionality of the sentences imposed upon the offender.
[8]
The constitutional court
[7]
, has
described an appeal court’s discretion to interfere with a
sentence only: when there has been an irregularity
that results
in a failure of justice: or when the court
a
quo
misdirected
itself to such an extent that its decision on sentencing is vitiated:
or when the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.
[9]
In the written argument on behalf of the appellant, it was submitted
that
the trial court had indeed misdirected itself in finding that
there were no substantial and compelling circumstances to justify
the
imposition of a lesser sentence than the prescribed sentence of life
imprisonment that was imposed upon the offender. Further,
it
was suggested that the court a quo misdirected itself by not
exercising its discretion with regard to sentence, in a ‘
fair
and just manner’
and therefore did not consider all the
relevant factors to be taken into account with regard to the
sentencing procedure.
[10]
This, was however not vigorously pursued on behalf of the appellant
during argument
at the hearing of the appeal. The focus shifted
rather to the unfortunate and difficult personal circumstances
endured by
the appellant during his youth and his ultimate
development to maturity, as an adult. The difficulty with this
approach is
that there was no ‘evidential material’
before the court a quo in this connection. Besides, there is no
fresh
‘evidential material’ before us on appeal in this
connection. In my view, the court a quo dealt with all the
material at its disposal, on this score, when the appellant was
sentenced.
[11]
To determine whether a fact is proved, there are of course certain
‘criteria’
which have to be complied with. The noun
‘proof’ should not be confused with ‘evidence’.
Evidence
is merely a means to prove a fact, whereas proof is the goal
aimed at. Whereas, in turn, ‘evidential material’
refers to all the material which can supply proof in a court.
All the facts that a party has at his or her disposal can be
submitted to a court in various ways. Evidence is merely
the most important part of the evidential material and does
not only
include
viva voce
evidence under oath, but also real and
documentary evidence.
[12]
The appellant did not testify in mitigation of sentence and further
no ‘evidential
material’ to which sufficient judicial
probative weight could be attached, was submitted and entered into
the record, on
the appellant’s behalf. It now hardly lies
in the arsenal of the appellant to ‘argue’ that his
peculiar
personal circumstances, as contended for on his behalf,
amount to both sufficient substantial and compelling circumstances
which
enabled or obligated the court a quo, to deviate from the
prescribed minimum sentencing regime. Put in another way, there
was no misdirection or irregularity in the approach adopted by the
court a quo.
[13]
That having been said, the only peculiar personal circumstances
contended for on
behalf of the appellant were, inter alia, the
following: that the accused was (22) years old when he
committed these offences
and was (35) years old when he was
sentenced: that his educational career came to an end after the
completion of grade (7):
that he did not have the benefit and
privilege of a positive and stable father as a role model: that
he suffered from a sense
of an ‘unknown’ or ‘misplaced’
identity in that he did not appreciate his position or place in his
particular
socio-economic society: that the pre-sentence
reports exhibit that the offender was possessed of (2) discrete
personality
traits: that the offender suffers from depression
and is in receipt of therapy and treatment and that the negative
characteristics
connected to his (2) distinct personality traits,
indeed pose a threat and harm to society. Most importantly
however, it
seems evident that the offender does now exhibit insight
into his behaviour.
[14]
Further, it is submitted on behalf of the appellant that he was in
custody awaiting
trial since his arrest and was so incarcerated for
approximately (15) months. Regarding the significance of time
spent in
detention, pre-sentencing, Lewis JA in
Radebe
[8]
,
made it clear that this is merely one of the factors to be taken into
consideration to determine whether the effective sentence
imposed is
proportionate to the crime committed and therefore justified. In
a case involving an armed robbery
[9]
,
she held that in determining whether substantial and compelling
circumstances warrant a lesser sentence, than the prescribed minimum
one, the following:
‘
the test is not whether
on its own that period of detention constitutes a substantial and
compelling circumstance, but whether the
effective sentence proposed
is proportionate to the crime or crimes committed; whether the
sentence in all circumstances, including
the period spent in
detention prior to conviction and sentencing, is a just one’
[15]
The appellant in this case had been incarcerated for almost (2) years
before he was
sentenced in the court a quo. In
Fortune
[10]
,
it
was held that although the fact that a convicted offender has spent
time in prison awaiting trial or for the duration of the
trial, is
undoubtedly a relevant consideration in determining an appropriate
sentence, it is not one that ‘
carries
any mechanical effect’
and
this must be even more so, as a matter of logic, when a life sentence
is imposed.
[16]
The SCA in
Radebe
[11]
,
disapproved
of the previously held notion that time in prison before sentence
should count as the equivalent of double the time
of post-sentence
incarceration. Lewis, JA made it clear that there should be no rule
of thumb or mechanical formula regarding the
calculation of the
weight to be attached to the period spent awaiting trial. Rather,
in each case the court should assess
the individual accused’s
circumstances to determine the extent to which the proposed sentence
should be reduced, if at all.
In determining whether the
effective period of imprisonment is justified and proportionate to
the crime committed, the period
in detention pre-sentencing is but
‘
one
of the factors’
to be taken into account.
[17]
In
Fortune
, it was noted that the enquiry by the court a quo,
in respect of the period spent in custody awaiting or during trial,
was whether
its effect, taken together with the prescribed minimum
sentence, would render the imposed sentence so disproportionate to
the offence
for which the offender had been convicted, so as to
amount in the context of all the relevant factors, to substantial and
compelling
circumstances, therefore warranting the imposition of a
lesser sentence. In the present case, the crime of which the
offender
has been convicted for the purposes of this appeal, is that
of a rape homicide. This manifestation of rape has been
regarded
as so serious by the legislature, enough to make it
punishable with a minimum sentence of life imprisonment, even for
first
offenders.
[18]
I remain persuaded by the submissions on behalf of the respondent
that a severe degree
of violence was used during the murder and rape
of the deceased in the particular circumstances of this case.
Purely by way
of simple illustration, in
Fortune,
where the
appellant had threatened the complainant with a knife on a street in
broad daylight and robbed her of her handbag without
causing her any
physical injury, the court held the offence to have been at the
‘lower end’ of the scale of instances
of robbery with
aggravating circumstances, and stated that this is a factor which
should have been taken into account in the assessment
of an
appropriate sentence. This case on the other hand, may
very well be regarded as one on the ‘higher end’
of the
scale of a rape homicide.
[19]
Further, where there are no substantial and compelling circumstances
to justify a
decremental deviation from the prescribed minimum
sentencing regime, aggravating factors may even in certain
circumstances, persuade
the sentencing court to increase the sentence
to a level above the prescribed minimum sentence. In this case,
this would
not apply as life imprisonment is the highest sentencing
threshold.
[20]
The facts in this appeal are that the evidence exhibited that the
deceased was strangled
and violently murdered by the offender.
One has to keep in mind that in the present case a high degree
of violence
was used in that the victim was not only strangled but
she was thereafter literally
-
bludgeoned -
to
death by the offender. In addition, the following must be born
in mind: that the offender was well known to the deceased:
that the offender socialized with the deceased and her family and
some measure of trust had been established: that the domino
effect of the deceased’s murder manifested in psychological and
emotional trauma
[12]
and the
deceased’s family also endured pain for a significant time
before accepting and finding closure.
[21]
It is in the interests of the community to be rid of such violent
crimes and this
is a material factor in considering whether a
sentence is appropriate and proportional to the crime. As
alluded to earlier,
it is trite that a court of appeal will not
easily interfere with a sentence just because it would not have
imposed the same sentence.
The test rather, is whether the
sentence imposed is vitiated by an irregularity, misdirection or
induces a sense of shock.
The principle being that -
sentencing
- is pre-eminently a matter for the discretion of the trial court and
a court of appeal should be careful not to erode that discretion,
unless it is judicially sound to do so.
[22]
The respondent, inter alia, takes the position that the court a quo,
took into consideration
the relevant ‘triad’ of factors:
being the personal circumstances of the appellant: the
seriousness of the crimes
and the interests of society. It is
accordingly submitted that there was not any striking, startling or
disturbing disparity
between the trial court’s sentence and
that which a court of appeal would have imposed.
[13]
[23]
The argument by the respondent is that the conclusion is therefore
that no interference is justified.
Further, it is submitted
that the court of first instance correctly found no substantive or
compelling circumstances -
justifying
- a deviation from the minimum sentencing regime. Besides, the
domino effect of this rape homicide, in my view, cannot be
discounted.
[14]
Certain
family members of the victims suffered severely as a result of the
crimes perpetrated and seemingly will so suffer
going forward. Their
socio-economic circumstances are not good and their opportunities for
proper counselling are regrettably
very limited.
[24]
By contrast,
the
appellant contends for the position that the prescribed minimum
sentences should not be imposed lightly. It is so that
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
-
by his unfortunate upbringing. However, on this score the
appellant’s counsel wisely conceded that the evidential
material in support of these propositions, was markedly absent.
In summary, it was contended,
that
this in itself, or cumulatively, with the other mitigating factors,
constitute substantial and compelling circumstances which
would
warrant the imposition of a lesser sentence, other than life
imprisonment.
[25]
I disagree. In my view, these arguments are somewhat misplaced
as the appellant,
in this situation, could
never justify his actions
.
I
find it unacceptable that the appellant took the deceased away to a
secluded area and then raped and killed her
.
This
behavior, in my view,
does not justify the
imposition of a lesser sentence and
is an aggravating feature
of this rape homicide.
[26]
Crimes in general, but especially against woman offend against the
aspirations and ethos of all
South Africans. The victim in this
case was a soft target for the offender. The sentences imposed
upon the appellant,
in these circumstances, must accordingly in some
measure reflect a censure to this conduct and behaviour. Not
only do crimes
against woman in this country amount to a serious
invasion of the dignity of the victims, but these crimes do not
contribute towards
our claims that we live in and are a civilized
society.
[27]
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. Flimsy grounds should be avoided when
seeking to deviate from the minimum sentencing regime.
[28]
On this score, in the judgment on sentence, the court a quo, made
some significant observations.
It was, inter alia, noted as
follows: that the appellant did not show any remorse for his
actions: that the appellant
did not divulge to the relevant
probation officer what drove him to committing these offences:
that the appellant elected
not to testify in mitigation of sentence,
this, despite some inconsistencies in the information provided to the
probation officer
and that which was offered up by his family and the
mother of the child of which he was the alleged father.
[29]
In a final throw of the dice, it is contended on behalf of the
appellant that alcohol may have
played a role in the behaviour of the
appellant in these circumstances. Clear and strong ‘evidential
material’
in support of this submission, again is absent.
I accept that it may be so, that in certain cases, that an offender,
because
of a physical or mental impairment, may be lacking of the
substantial capacity for judgment, when certain offences are
committed.
The voluntary use of intoxicants (such as drugs or
alcohol), in my view, falls to be excluded. A careful perusal
of the record
does not uphold a finding of any misdirection by the
trial court in this connection and there is accordingly no room for
this court
to interfere on appeal. Besides, this issue was dealt with
in terms by the court a quo.
[30]
In the present case, I am satisfied that the aggravating
circumstances so far outweigh
the mitigating ones, that the sentences
imposed were appropriate and just, this despite the appellant’s
age, the time spent
awaiting trial and his peculiar personal
circumstances. In my view, there would be no justification for
this court to intervene.
I cannot find any factors or
circumstances which in my view diminish the moral blameworthiness of
the offender’s conduct.
[31]
It is incumbent upon the courts, in circumstances such as these, to
impose heavy
sentences on the grounds of deterrence coupled with the
avoidance of sentences that are grossly disproportionate to the
specific
crimes that have been committed. In my view, the
sentences imposed are not in any manner disproportionate to the
crimes that
were committed by the offender.
[32]
In the result, I propose that the following order should be made: -
‘
That
the appeal against the sentence of life imprisonment imposed upon the
appellant is dismissed and that the appellant’s
convictions and
sentences are hereby confirmed’
WILLE, J
I
agree and it is so ordered
:
BAARTMAN,
J
I
agree:
SLINGERS,
J
[1]
Leave
to appeal the sentence of ‘life imprisonment’ was
granted by the court of first instance.
[2]
It
is conceded that this conviction cannot be regarded as a ‘previous’
conviction.
[3]
This,
inter alia, because the deceased was taken to a secluded area before
she was raped and killed.
[4]
This
was on the 26
th
May 2007.
[5]
It
bears emphasis that this latter incident was not and is not relevant
for the purposes of sentence in this matter.
[6]
S
v Malgas
2001 (1) SACR 469 (SCA)
[7]
S
v Boggards
2013 (1) SACR (CC) at [4]
[8]
S v Radebe
2013
(2) SACR 165
(SCA) at [14]
[9]
Director
of Public Prosecutions, North Gauteng; Pretoria v Gcwala and Others
2014 SACR 337
at [16]
[10]
S v
Fortune
2014
(2) SACR 178 (WCC)
[11]
S v Radebe
2013
(2) SACR 165
(SCA)
[12]
The
deceased’s (3) children suffered severely as a result of the
loss of their mother. They endured for some time
in foster
care. Thereafter, they were placed in the care of their aunt
and then their father. Her youngest child
also sadly passed
away during this time. The deceased’s elder children
both associated themselves with a negative
circle of friends,
dropped out of school and both started using cannabis to ‘ease
their pain’.
[13]
S
v B
1996
(3) SACR 543
(C)
[14]
The
deceased’s family described feelings of , inter alia, shock,
anger, upsetting emotions, anxiety and feelings of depression.