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[2010] ZAWCHC 648
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S v Swartz (SS09/10) [2010] ZAWCHC 648 (8 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE
TOWN)
CASE NO
:
SS09/10
DATE
:
8
SEPTEMBER 2010
In
the matter between:
THE
STATE
and
MANFRED
RAYMOND SWARTZ
SENTENCE
SAMELA,
AJ
Firstly,
I would like to thank Mr De Villiers, Ms Engelbrecht, the
interpreters, police and other people that have been here that
the
Court never had any problems, and to you Mr de Villiers and Ms
Engelbrecht, I would say thank you for tireless and useful
contributions in this case throughout. I will try to be as brief as
possible.
Mr
Swartz, you have been convicted of, firstly, abduction; secondly,
rape twice as well as murder. There are previous convictions
proved
against you, sir. The counsel for the State and defence have
addressed the Court on sentence.
The
Constitution, which is our supreme law, especially in these two
sections that I am going to read, Section 11 provides that:
"everyone
has the right to life". In other words, no one is allowed to
take anybody's life, without a good reason, or
without a sound
reason, or a just cause. Section 12, which is relevant provides that:
"Everyone
has the right to freedom and security of the person which includes -
(a)
not to be deprived of freedom arbitrary or without a just cause.
…
...............
(c)
To be free from all forms of violence from either public or private
sources.
(d)
Not to be tortured in any way.
(e)
Not to be treated or punished in a cruel, inhuman or degrading way."
The
main purpose for enacting the Minimum Sentences Act was clearly
stated by Marais, JA in S v Malgas 2001(1) SACR 469 (SCA), especially
in paragraph [7] where the learned judge said the following:
"That
situation was and remains notorious. An alarming burgeoning in the
commission of crimes of the kind specified resulting
in the
Government, the Police, Prosecutors and the Courts constantly being
exhorted to use their best efforts to stem the tide
of criminality
which threatened and continues to threaten to engulf society. The
very fact that this amending legislation has been
enacted indicates
that Parliament was not content with that, and that it was no longer
to be 'business as usual' when sentencing
for the commission of the
specified crimes."
It
is trite that prescribed sentence should be imposed in the absence of
genuine convincing reasons, what Marais, JA called "weighty
justifications". The learned judge goes on to say at 483e:
"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."
This
means that if the prescribed sentence would result in an injustice
being perpetrated against the accused, the disproportion
between the
prescribed sentence and just sentence would automatically qualify as
substantial and compelling circumstances.
The
seriousness of rape was clearly stated by Mohamed, CJ in
S
v Chapman
1997(2) SACR 3 (SCA) at 5 where he said the following:
"Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensibly civilisation. Women in this country are
entitled to the protection of these rights, they have
a legitimate
claim to walk peacefully on the streets, to enjoy their shopping, and
their entertainment, to go and come from work,
and to enjoy the peace
and tranquillity of their homes without the fear, the apprehension,
and the insecurity which constantly
diminishes the quality and
enjoyment of their lives."
Also
in this division, in
S
v Jansen
1999(2) SACR at 368 (C), where the learned Davis, J, said at 378-379
the following:
"Rape
of a child is an appalling and perverse abuse of male power. It
strikes a blow at the very core of the claim to be a
civilised
society. The community is entitled to demand that those who perform
such perverse acts of terror be adequately punished
and that the
punishment reflect a societal censure."
The
victim in this matter was a young child of seven years old, at the
time of her abduction she was an unsuspecting, defenceless
and a
vulnerable person. She was unaware that she was being led by you to a
place or a destiny of death, where you planned to quench
your sexual
desires. You did not stop there. You consciously in a merciless and
brutal fashion strangled a young child. Mr Swartz,
indeed, you have
no respect and feelings for your fellow human being.
Your
personal circumstances are as follows: You are now 34 years old, at
the time of the incident you were 33 years. You are married
with no
children, and of your parents, only your mother is still alive. You
left school in Grade 7, and you are unemployed, used
to do odd jobs.
You are also not a first offender. You have been in custody for 14
months. You also unsuccessfully attempted to
commit suicide in
prison.
In
deciding on an appropriate sentence the Court takes into account your
personal circumstances, while not forgetting the victim,
the crimes
of which you have been convicted of, and the interest of society at
large, while at the same time the sentence must
be blended with a
measure of mercy. See S v Roux 1975(3) SA 190 (A) at 190g where the
Court had this to say:
"The
word mercy in the sentence means punishment should fit the criminal
as well as the crime, be fair to society and be blended
with a
measure of mercy according to the circumstances."
I
believe mercy and not a sledgehammer is the concomitant of justice.
The Court must also have regard to the main purposes of punishment
which are prevention, retribution, rehabilitation and deterrence.
Davis, J again, in S v Swartz and Another 1999(2) SACR 380 (C)
at 387
had this to say:
"The
censure must have weight. The sentence of this Court should shout to
the community at large that rape is unacceptable
and that there is no
basis upon which a first offender gets a 'free rape' (by virtue of a
light sentence) and that only
recidivists can expect an
appropriately heavy sentence. In summary, the sentence must take full
account of the nature of
the offence. It must look carefully at the
moral blameworthiness, while confirming the community values of
dignity, equality and
freedom in our society; in this way the Courts
can contribute to ensuring that women should benefit equally from a
society based
on those values. This latter promise is particularly
important in a society in which male power and the abuse thereof has
so perverted
our communal life and threatens to make a mockery of our
promise of gender equality."
The
Court must take into account your personal circumstances, the crimes
which you have been convicted of, the interest of society,
while at
the same time exercising a measure of mercy, as I have explained.
However, while the Court is taking that into account
in
S
v Lister
1993(2) SACR 228 (A) at 232H-I, the Court remarked that:
"To
focus on the wellbeing of the accused at the expense of the other
aims of sentencing such as the interest of the community
is to
distort the process and to produce in all likelihood a warped
sentence."
The
Court's duty is to impose sentences on you, sir, to ensure that the
community is satisfied, as I have said, and that it is unnecessary
not to obey the law. Also to ensure that the crime victims and other
members of the civil society have confidence in our courts.
The
sentences must have deterrent factors as was mentioned above
(Chapman's case) at 5 d-e:
"The
Courts are under a duty to send a clear message to the accused and to
other potential rapists, and to the community: We
are determined to
protect the equality, dignity and freedom of all women and we shall
show no mercy to those who seek to invade
those rights."
I
may mention that the Court associate itself with the sentiments
expressed in all the cases mentioned above. The Court also takes
into
account that the accused has been in custody for fourteen months and
also that he comes from a poor socio-economic background.
However,
the following aggravating factors exist in this matter:
1.
That the deceased was only seven years old when she was abducted by
you.
2.
She knew the accused and trusted the accused, who abused that trust,
as they resided in the same yard.
3.
The accused knew the deceased's mother and father.
4.
The accused raped the deceased twice, in a brutal, barbaric fashion.
5.
The accused smoked "tik" which gave him courage to do his
evil deeds fast and in a cruel and merciless fashion.
6.
According to the doctor's testimony and report the deceased suffered
enormous pain, before her untimely death due to rapes and
strangulation.
7.
The accused killed the deceased in a merciless manner.
8.
He is not a first offender.
I
am of the view, therefore, that aggravating circumstances outweigh
his mitigating factors, and I am convinced that there are no
genuine
convincing reasons why the Court should deviate from imposing the
prescribed minimum sentence in this matter, especially
on counts 2
and 3, that is the rapes, and therefore the Court finds that there
are no substantial and compelling circumstances
in respect of those
two counts.
The
sentences the Court will impose upon you, sir, may be viewed by other
members of the community as being very lenient, whereas
others may
think that they are harsh. Unfortunately, I can never satisfy
everyone. My duty is to do justice, so that the community
can
witness, and that indeed justice is seen to be done and indeed has
been done. The Court believes that whatever sentences will
be imposed
upon you, Mr Swartz, remember it will never bring back Nadine to life
again, and it will never bring her back again
to her beloved family.
She is gone and gone forever.
You,
and only you alone, Mr Swartz, knows the reasons for doing what you
did, and you and you alone, Mr Swartz, have the answers.
The
Court was also mindful of the fact that initially you did not show
any remorse at all, as the Court gave you an opportunity
to apologise
to the deceased's family, and it seemed to the court that your
counsel was the one that was remorseful. It seemed
to the Court that
this is an afterthought that you now wanted to address the deceased's
family. Even in your evidence in chief
you did not indicate at all
that you were sorry for what you did to the family. The Court is of
the view that you are indeed a
very wicked individual, whose actions
on the day of the incident may be summarised as callous, cruel,
inhuman or degrading in the
manner you brutally forced penetration to
the young child, who was extremely traumatised as you told the Court
that when you carried
out all your evil deeds on her she was not even
screaming, but silent. Nevertheless, you continued to strangle her in
a barbaric
way.
I
doubt if you have a conscience. The Court believes that you are a
danger to society, especially to the young children, as you
described
to the Court how you coldbloodedly strangled Nadine without a reason.
Courts are expected to vigorously protect the weaker
members of our
community, such as women, elderly people and the children. You
yourself could not give this Court a guarantee that
you would not
repeat the same, as you informed the Court that previously you also
promised the other courts that you will never
commit the crimes of
which you had been committed previously, but nevertheless you
continued. By your own version then, you told
the Court that you
cannot guarantee that you will not do it again.
The
Court is of the view that you should be permanently taken away from
society as you are a real danger to society. In the result
the
following sentence will be imposed upon you, and are sentenced as
follows:
On
COUNT
1
,
abduction, you are sentenced to
6
(SIX) YEARS
IMPRISONMENT.
On
COUNT
2 and 3
.
rape, for the purposes of sentence they will be taken together and in
terms of the Minimum Sentence Act you are sentenced to
LIFE
IMPRISONMENT
.
On
COUNT
4
,
murder, you are sentenced to
20
(TWENTY) YEARS IMPRISONMENT.
SAMELA,
AJ