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[2016] ZASCA 171
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Plekenpol v S (722/2015) [2016] ZASCA 171 (24 November 2016)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 722/2015
In
the matter between:
JUDA
JOSEPH PLEKENPOL
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Plekenpol v The State
(722/15)
[2016] ZASCA 171
(24 November 2016).
Coram:
Bosielo, Pillay, and Petse JJA
Heard:
11 November 2016
Delivered:
24 November 2016
Summary:
Sentence: fatal
assault with knobkierie: subsequent robbery: plea of guilty to murder
read with
Criminal Law Amendment Act 105 of 1997
and robbery: appeal
against sentence of 24 years’ imprisonment for murder only:
failure to consider the
Criminal Law Amendment Act 105 of 1997
misdirection: 24 years’ imprisonment found to be too harsh,
inappropriate and amounts to misdirection interference on appeal
warranted.
ORDER
On
appeal from:
Gauteng
Division of the High Court
,
Pretoria (Maumela J sitting as court of first instance):
1
The appeal is upheld.
2
The sentence of 24 years’ imprisonment imposed by the court
below in respect of murder and the order antedating the operation
of
the sentences to 28 July 2014 are set aside. The order of the court
below is substituted with the following:
‘
On
count 1, the accused is sentenced to undergo 18 years’
imprisonment. On count 2, the accused is sentenced to undergo 4
years’ imprisonment which is ordered to run concurrently with
the sentence imposed on count 1.’
3
The effective sentence of 18 years’ imprisonment is antedated
to 4 June 2015.
JUDGMENT
Pillay
JA (Bosielo and Petse JJA
concurring)
[1]
The appellant, a 31 year old man, was arraigned before the Gauteng
Division, Pretoria on charges of murder (count 1) and robbery
with
aggravating circumstances (count 2) - as defined in s 1 of the
Criminal Procedure Act 51 of 1977 (the CPA). Both charges were
subject to the provisions of s 51(1) of the Criminal Law Amendment
Act 105 of 1997 (the Act). He stood accused of murdering one
Louis
Cornelius Eksteen (the deceased) by repeatedly assaulting him and
thereafter robbing him of a number of items, including
his motor
vehicle, cash and credit cards.
[2]
He pleaded guilty to murder and robbery as envisaged in s 51(2) of
the Act. His legal representative tendered a rather lengthy
written
statement in substantiation of his plea in terms of s 112 of the CPA
wherein the events during which these offences were
committed were
fully described. The appellant signed this statement and indeed
confirmed it in court. The prosecution accepted
the plea as tendered.
A number of documents such as the medico-legal examination (of the
deceased), formal admissions, a photograph
album and a sketch, a
report in terms of ss 77, 78 and 79 of the CPA were handed into
evidence by agreement. He was then convicted
of the offences he
pleaded guilty to and on the 4 June 2016. The court found that the
Act was not applicable in this case and proceeded
to impose on the
appellant a sentence of 24 years’ imprisonment on count 1 and 4
years’ imprisonment on count 2. The
sentences were backdated to
24 July 2014, this being the date of conviction and were ordered to
run concurrently.
[3]
The appellant was granted leave to appeal against the sentence to
this court. Similarly the respondent (the State) was granted
leave to
appeal against the sentence. I will refer to the parties as such
hereunder in order to avoid any confusion.
[4]
It is perhaps necessary at this stage to refer to important factors
contained in the appellant’s written plea explanation
and
relevant to the question of sentence. According to this statement the
appellant became friends with the deceased shortly prior
to the
latter’s death. It seems that a group, including the deceased
and the appellant, were involved in homosexual activities
though the
deceased and appellant had not had a sexual relationship by the time
the former died.
[5]
On or about 11 April 2013 the appellant visited the deceased at his
abode, as he had done twice before. They ate, consumed liquor
and
indulged in a drug referred to as CAT, as they had done before. At
some time during that evening, the deceased suggested to
the
appellant that they engage in homosexual sex. The appellant ignored
the suggestion and carried on drinking. He had already
had a dose of
CAT. Later the deceased grabbed hold of his arm. The appellant
interpreted that as the deceased wanting to lead him
to the bedroom
in order to fulfill his earlier suggestion. The appellant felt
offended and pulled loose from the grip but in doing
so, tripped and
fell to the floor. As he tried to get up, he saw the deceased coming
towards him. He lost his temper, felt humiliated,
provoked and lost
his self-control. He got hold of what is commonly referred to as a
knobkierie
[1]
and struck the
deceased with it many times, randomly over his upper body and head.
This assault caused the deceased to fall to
the floor. Though he
realised that the deceased was seriously injured the appellant kicked
the deceased when he tried to stand
up.
[6]
Notwithstanding the realisation that the injuries were severe and
that the deceased might possibly die as a result, he nonetheless
continued to assault the deceased. Impulsively he decided to rob the
deceased of some of his property in order to sell these to
buy drugs.
He then tied the deceased’s hands behind his back so that the
latter would not stop the robbery. He also demanded
the pin number of
the deceased’s bank card which was provided to him. He
thereafter put a cloth around the deceased’s
mouth so as to
prevent him from screaming. After incapacitating the deceased he
loaded a number of items into the deceased’s
motor vehicle. He
thereafter locked the house and left with the vehicle. He sold some
of the items and managed to withdraw R700
from the deceased’s
bank account. He was arrested on 17 April 2013.
[7]
He admitted that at the time he knew that his actions were unlawful.
It is clear from his admissions that he intended to severely
injure
the deceased even if it led to death. The appellant also admitted
that the appropriation of the deceased’s property
was unlawful
and that he had the intention of permanently depriving the deceased
thereof. Finally he accepted the severity of the
injuries he
inflicted on the deceased and expressed sincere remorse for what he
had done.
[8]
In regard to sentence, the State called Doctor Janette Verster (Dr
Verster) who had been appointed as a specialist forensic
pathologist
at the University of Pretoria on 1 January 2013 to demonstrate the
seriousness of the injuries sustained by the deceased.
She testified
that she had performed the post-mortem examination on the deceased
and had recorded her findings in a report which
gives a graphic and
gruesome description of the injuries sustained by the deceased. She
recorded the following:
(a)
A large 63 mm x 36 mm laceration across the right eyebrow containing
bone fragments with associated bruising, contusion of the
eye and a
haematoma surrounding that eye; (b) a small 27 mm x 8 mm laceration
on the right temple, (c) a v-shaped laceration on
the bridge of the
nose associated with a comminuted fracture of the nasal bones, the
fragments of which could be seen in it; (d)
small abrasions on the
tip of the nose, on the left cheek and on the right corner of the
mouth; (e) a 11 mm x 2 mm laceration perforated
the right side of the
lower lip; (f) the doctor observed that the head was covered with
blood as was the strips of linen found
around the neck and; (g) there
were a number of lacerations, some superficial, found on the scalp of
the deceased. She estimated
the number of blows to the head that
caused these injuries to be at least 13. She also found a tramline
contusion across the superior
aspect of the anterior chest wall as
well as a large contusion over the front chest. Further, she also
found bruising to the left
shoulder, linear contusions on the upper
back, bruising of the right elbow and abrasion wounds on the wrists
caused by a cord used
to tie the deceased’s hands. Smaller
bruises were also noted on the lower area of the stomach, an
irregular abrasion on the
anterior aspect of the left knee,
superficial abrasions on the left lower leg. All of these were the
observations of the external
appearance of the body of the deceased.
[9]
The internal examination disclosed a comminuted fracture of the left
side of the skull. She also noted the comminuted fracture
of the
nasal bridge as well as one on the right cheek bone together with a
fracture of the right jaw. She also found that the neck
contained
extreme contusions caused by pressure exerted on the neck. Dr Verster
was of the opinion that the cause of these fractures
were multiple
blows of sufficient blunt velocity impact on the head and jaw so as
to expel one of the deceased’s teeth and
shatter the bone
structure where impact occurred. She also noted contusions to the
brain likely to have been caused by the blows
which resulted in the
skull fracture(s).
[10]
She opined that a combination of the ligature pressure and a blow to
the neck could conceivably have lead to heart failure.
She also
discovered that the second, third and fifth ribs on the right side of
the thoracic cage were fractured, as was the fourth
rib on the left
side. She also found that the sternum had been fractured. This could
also have led to cardiac arrest. As I understand
the evidence, the
examination of the internal organs disclosed that they were generally
pale and this indicates that the deceased
lost a large amount of
blood.
[11]
Dr Verster found that the cause of death of the deceased was
‘multiple blunt force injuries to the head and chest, as
well
as injury to the neck, in the form of pressure to the neck
structures’. In evidence she qualified this by testifying
that
any one of four sets of injuries, were sufficiently severe enough to
cause the death on its own. Viz:
(a)
the impact to the chest with contusions to the heart;
(b)
multiple impacts to the head with brain injury(s);
(c)
massive loss of blood arising from all the lacerations; and
(d)
the impact to the neck which could have caused the death - not
excluding asphyxia as a result of obstruction to the airways.
None
of her findings were challenged by the defence.
[12]
The State also called Mr Theunis Jacobus Eksteen the brother of the
deceased. He testified that his mother was shocked at having
discovered her mutilated dead son, aged 45 and losing her son
compounded her already fragile emotional state as she had shortly
before lost her own mother and her husband. He described his brother
as a caring gentleman who would give more to others than to
himself.
He was a musical artist and generally knowledgeable. He was a father
of a 13 year old daughter born of his marriage which
subsequently
ended in divorce. His daughter lived with her mother but had a good
relationship with her father.
[13]
He testified that he had an open relationship with his late brother
and had his brother had homosexual preferences, he would
have been
aware of it. In fact he did not come across any signs indicative that
he was so inclined when he cleared his brother’s
belongings
from the house. Consequently he found it hard to believe that his
brother would indulge in such activities. This view
is however
insignificant given the plea which the State accepted. He said that
his mother had forgiven the appellant for what he
has done and they
accepted his apology as set out in a letter dated 26 July 2014 which
he sent the deceased’s family.
[14]
The appellant himself testified in mitigation of sentence. He said
that at the time of his testimony on 30 April 2015, he was
in custody
for a little more than two years, having been arrested for these
offences on 17 April 2013. He had passed standard six
as it was then
referred to. He was married and has fathered a daughter who was 10
years old at the time. He had an inconsistent
primary school career.
He was raised primarily by his grandmother, since his father was
absent in his life and his mother was working
most of the time. It
emanates that the appellant worked as a male prostitute since the age
of 12, and at times as a security guard.
During his adult life, he
worked as a prostitute to generate an income. During all this, he
resorted to the use of alcohol and
drugs.
[15]
He referred to a report drafted by a Dr Henk J Swanepoel, a clinical
psychologist, which was handed in as an exhibit. Dr Swanepoel
confirmed the finding that the appellant is a man with a low
self-esteem suffering with a borderline personality disorder. He
presents as a depressed person from a dysfunctional family background
who had already spent a substantial period in prison. He was
found to
have developed suicidal ideation. He confirmed that he had also
consulted with three psychologists as well as two psychiatrists.
He
confirmed that he was diagnosed with a borderline personality
disorder. The appellant pointed out that the treatment for the
disorder is not forthcoming in prison - motivating a kind of reform
therapy punishment. He exclaimed that he was extremely remorseful
about the incident and did not think that he would ever forgive
himself - hence he sent the family the aforementioned letter of
apology.
[16]
As stated above, the court below granted leave to appeal against
sentence to this court. It is, however, not clear against
which
sentence(s) such leave was granted. However, the appellant’s
notice of appeal is clearly directed at the sentence imposed
in
respect of the murder only. There was no such notice filed by the
respondent and hence there is no ‘cross-appeal’
on its
behalf. The appeal is therefore restricted to the question of the
appropriateness of the sentence of 24 years’ imprisonment
in
respect of murder in terms of s 51(2) of the Act.
[17]
Counsel for the appellant argued that the court below misdirected
itself in that it approached the sentence incorrectly as
it did not
deal with the question of imposing a sentence in terms of s 51(2) of
the Act read with sub-section (3) thereof. This
was conceded by the
respondent. Furthermore, it failed to consider whether a period of 24
years’ imprisonment was shockingly
inappropriate and
consequently amounted to a misdirection. This too was conceded by the
respondent.
[18]
On the other hand, counsel for the respondent argued that antedating
the sentence was not permissible in these circumstances
and neither
should the sentences have been ordered to run concurrently.
Consequently, these also constituted misdirections. The
approach by
the court below towards the Act, is encapsulated by a single
paragraph in its judgment on sentence which reads as follows:
‘
It
is beyond dispute that the offences, of which the accused stands
convicted, do not attract minimum sentences in terms of the
Criminal
Law Amendment Act in
the sense that he was convicted of offences that
do not entail the implementation of the minimum sentencing
legislation.’
This
is clearly a material misdirection as the offence falls squarely
within the ambit of s 51(2) of the Act. This section prescribes
a
minimum sentence in respect, inter alia, of murder. Deviation from
prescribed sentences is only possible if substantial and compelling
circumstances as envisaged by s 51(3) of the Act are found to exist.
Consequently this court is at large to interfere and assess
the
sentence afresh.
[19]
In
S v Malgas
2001 (1) SACR 469
(SCA) para 20 it is stated
that:
‘…
acknowledge
that one is obliged to keep in the forefront of one’s mind that
the specified sentence has been prescribed by
law as the sentence
which must be regarded as ordinarily appropriate and that personal
distaste for such legislative generalisation
cannot justify an
indulgent approach to the characterisation of circumstances as
substantial and compelling.’
And
at para 25D -
‘
The
specified sentences are not to be departed from lightly and for
flimsy reasons.’
[20]
It was argued on behalf of the appellant that the following would
globally constitute substantial and compelling circumstances
as
envisaged by the Act:
(a)
that at the time of the commission of the offence he was under the
influence of alcohol and drugs;
(b)
that he was angered by the suggestion that he engage in sexual
activities with the deceased;
(c)
he was a product of a dysfunctional family with an unsavoury
background and did not have the benefit of the influences of a
mother
and father during his upbringing; and
(d)
that he was remorseful.
[21]
It is clear that the brutality of the assault, evident from the
photographs, was both gratuitous and inhumane. Moreover, the
deceased
was unarmed and helpless soon after the attack commenced. Any
prospective sexual advances or attack by the deceased had
ceased soon
after the initial assault. There was no need to continue therewith.
The appellant admitted that he realised that the
continued assault
could lead to the death of the deceased. Further, he tied the
deceased up when he was in such a state in order
to incapacitate him
while he appropriated the deceased’s property. The greed
clearly blunted his sense of compassion. These
factors constitute, in
my view, extreme aggravating circumstances.
[22]
In balancing the two sets of factors as set out above, I am, in this
case, unpersuaded that there exists any substantial and
compelling
circumstances which would allow a deviation from the prescribed
sentence for this offence.
[23]
The appellant was convicted of murder as envisaged in Part II of
Schedule 2 of the Act. Being a first offender to murder, the
minimum
sentence prescribed by s 51(2)
(a)
(i)
of the Act is imprisonment for a period not less than 15 years. Using
this as a benchmark, it is necessary also to examine whether
this
punishment is sufficiently appropriate in light of the gravity of the
crimes.
[24]
It is worth mentioning that the record did not include a detailed
list of the appellant’s previous convictions. While
there was
an attempt to read this into the record, it became blurred, because
of the interruptions and unclear explanations that
it cannot serve
any useful purpose. However, the appellant himself testified about
one of them - viz an assault with intent to
do grievous bodily harm
for which he was sentenced to seven years’ imprisonment. In
that incident, because the victim irritated
him in some way, the
appellant clubbed him with a wooden lamp stand. As a result he broke
the victim’s arm and inflicted
other serious injuries in the
assault. This must certainly be taken into account.
[25]
All that could be said in favour of the appellant has been said and
his personal circumstances set out above do not lend themselves
to an
overly sympathetic consideration of what sentence should be imposed
on him. Violent crimes have become endemic and prevalent
in our
country. These crimes pose a serious threat to the wellbeing of
society. The public seeks the courts to send out a stern
message
which reflects the abhorrence of the public towards the scourge of
crime. This public call is legitimate. Chaskalson P
appropriately
stated in
S v Makwanyane & another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC)
para 117 that:
‘
The
need for a strong deterrent to violent crime is an end the validity
of which is not open to question. The State is clearly entitled,
indeed obliged, to take action to protect human life against
violation by others. In all societies there are laws which regulate
the behaviour of people and which authorise the imposition of civil
or criminal sanctions on those who act unlawfully. This is
necessary
for the preservation and protection of society. Without law, society
cannot exist. Without law, individuals in society
have no rights. The
level of violent crime in our country has reached alarming
proportions. It poses a threat to the transition
to democracy, and
the creation of development opportunities for all, which are primary
goals of the Constitution. The high level
of violent crime is a
matter of common knowledge and is amply borne out by the statistics
provided by the Commissioner of Police
in his
amicus
brief. The power of the State to impose sanctions on those who break
the law cannot be doubted. It is of fundamental importance
to the
future of our country that respect for the law should be restored,
and that dangerous criminals should be apprehended and
dealt with
firmly. Nothing in this judgment should be understood as detracting
in any way from that proposition. But the question
is not whether
criminals should go free and be allowed to escape the consequences of
their anti-social behaviour. Clearly they
should not; and equally
clearly those who engage in violent crime should be met with the full
rigour of the law.’
[26]
In
S v Mhlakaza & another
1997 (1) SACR 515
(SCA) at
519c-e, the following was said:
‘
Given
the current levels of violence and serious crimes in this country, it
seems proper that, in sentencing especially such crimes,
the emphasis
should be more on retribution and deterrence….’
[27]
In
S v Swart
2004 (2) SACR 370
(SCA) at 378 para 12, it was
said that:
‘
Each
of the elements [to be considered] of punishment is not required to
be accorded equal weight … and serious crimes will
usually
require that retribution and deterrence should come to the fore and
that the rehabilitation of the offender will consequently
play a
relatively smaller role.’
[28]
As stated above, the appellant has been in trouble with the law
before. The last time he spent a long time in prison for an
assault,
the nature of which is not too dissimilar to the assault which lead
to the death of the deceased. What is more, he committed
this murder
relatively soon after his release. It is evident that he has not
benefitted nor learnt from that punishment. It furthermore
seems that
he has a propensity to break the law and certainly does not have the
will power to resist resorting to violence when
angered or irritated.
Thus, he is clearly a threat to society. There is no evidence that
there is much hope of him being rehabilitated
any time soon.
Consequently, a prison sentence of a substantial period is what is
called for.
[29]
In my view, this murder is of such a nature that it requires more
than the prescribed minimum sentence. I have, however, taken
into
account that the appellant was in custody for two years awaiting
trial prior to his being sentenced. However, the indignation
which
the general community would feel about a person like the appellant
with his history of quickly resorting to extreme violence
must be
reflected in an appropriate sentence.
[30]
In balancing all of the favourable factors as against the aggravating
factors pertaining to this murder, I have come to the
conclusion that
24 years’ imprisonment is indeed shockingly inappropriate. In
my view, a sentence of 18 years’ imprisonment
would strike a
delicate balance between the nature and gravity of the offences, the
interests of society and the personal circumstances
of the appellant.
I would regard such a sentence as appropriate.
[31]
While the respondent made much of the order to allow the sentence on
count 2 to run concurrently with that on count 1, there
is no appeal
in regard thereto. Neither is it declared impermissible in the Act.
To interfere therewith, absent an appeal directed
at it, would be
unfair on the appellant. In brief, all that has been appealed against
is the inappropriateness of a 24 year period
of imprisonment.
Consequently the sentence on count 2 must remain intact as also the
condition of concurrency attached thereto.
The trial court’s
order antedating the sentences is however incompetent and thus cannot
be allowed to stand. That power is
in terms of sections 304 and 309
of the CPA reserved for reviewing and appellate courts respectively.
However, I think it would
be wise to set out in this order the full
sentence so as to avoid any misunderstanding that could otherwise
occur.
[32]
In the result, the following order is made:
1
The appeal is upheld.
2
The sentence of 24 years’ imprisonment imposed by the court
below in respect of murder and the order antedating the operation
of
the sentences to 28 July 2014 are set aside. The order of the court
below is substituted with the following:
‘
On
count 1, the accused is sentenced to undergo 18 years’
imprisonment. On count 2, the accused is sentenced to undergo 4
years’ imprisonment which is ordered to run concurrently with
the sentence imposed on count 1.’
3
The effective sentence of 18 years’ imprisonment is antedated
to 4 June 2015.
R Pillay
Judge of Appeal
Appearances
:
For
Appellant:
M G Ndalane (with J Mojuto)
Instructed by:
Legal Aid South Africa,
Pretoria
Legal Aid South Africa,
Bloemfontein
For
Respondent:
P Vorster
Instructed by:
Director of Public
Prosecution, Pretoria
Director of Public
Prosecution, Bloemfontein
[1]
A
knobkierie is indeed depicted on the floor in a photograph taken
during the immediate investigation at the scene of the murder
- part
of Exhibit F of the record.