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[2010] ZAWCHC 498
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Williams v S (A342/2010) [2010] ZAWCHC 498 (15 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A342/2010
DATE
:
15
OCTOBER 2010
In
the matter between:
CHESLIN
WILLIAMS
….........................................................................
Appellant
and
THE
STATE
…..................................................................................
Respondent
JUDGMENT
BOZALEK,
J
The
appellant was charged with one count of robbery with aggravating
circumstances, one count of murder and once count of rape committed
between 13 and 14 July 2006 in Durbanville, in the Regional District
of the Western Cape. It was alleged that he had raped and
murdered Ms
Renata Kellerman ("the deceased") in the guesthouse which
she ran and occupied and then robbed her of goods
to the value of R65
000,00, including her motor vehicle. The appellant pleaded not guilty
to all the charges and was legally represented
both at the plea stage
and during the trial.
On
25 June 2009, the appellant was convicted of theft, murder and
attempted rape. He was sentenced to life imprisonment on the
conviction of murder, five years imprisonment on the theft conviction
and eight years on the conviction of attempted murder. He
now appeals
only against the conviction of attempted rape and against the
sentence of life imprisonment. No application for leave
to appeal
appears to have been made, but in terms of section 309(1 )(a)(ii), as
it then stood, of Act 51 of 1977, the appellant
was entitled to
appeal against his conviction and sentence on the murder charge
without leave to appeal, since the sentence of
life imprisonment was
imposed in terms of
section 51(1)
of the
Criminal Law Amendment Act
105 of 1997
.
This
exception to the general rule was brought about by an amendment of
section 309
effected by
section 6
of the
Criminal Law (Sentencing)
Amendment Act 38 of 2007
. Section 309(1) of the Criminal Procedure
Act was again amended with effect from 1 April 2010 by the Child
Justice Act 75 of 1997,
which apparently removed this exception.
Counsel in fact advised during the hearing, and after they had
furnished supplementary
heads on this point, that the exception has
in fact been removed but apparently this was an omission, an
oversight, on the part
of the legislature which has now been pointed
out to the authorities and will be remedied. This is welcome in the
sense that there
is presently a lacuna, and has been since April of
this year, in that, notwithstanding the legislature's apparent
intention, persons
sentenced in the magistrate's court to life
imprisonment have no automatic right of appeal against their
conviction or sentence.
Be
that as it may, the appellant was sentenced before 1 April 2010 and
thus had the automatic right of appeal against his life sentence
and
conviction of murder. As far as the conviction for rape is concerned,
that conviction triggered the sentencing regime established
by
section 51 of Act 105 of 1997. In these circumstances it would be
anomalous were it required of an appellant to still seek leave
to
appeal against the triggering conviction and, therefore, the
provisions of section 309(1 )(a)(ii), as it then stood, must be
held
to cover such a conviction as well. In any event this Court can
exercise its review powers in terms of section 304(4) of the
Criminal
Procedure Act to hear the appeal against the rape conviction and this
would be an appropriate case to exercise such powers.
I should add
that the notice of appeal in this matter was filed a month or two
late but the appellant has sought condonation therefor.
It is not
opposed by the State and it is, therefore, granted.
Ad
conviction
:
Although
the accused pleaded not guilty to all charges, after pleading he made
a series of admissions in terms of section 220 of
the Criminal
Procedure Act, in which, in essence, he admitted all the elements of
the murder charge and all the elements necessary
to find him guilty
of theft of the goods of the deceased after her death as listed in
the robbery charge. He made no admissions,
however, relating to any
rape, attempted rape or sexual assault upon the deceased. The
appellant, in the same document, gave a
version of what took place
between himself and the deceased.
Briefly
he explained that he had been a guest at the guesthouse and had been
alone with the deceased late that night. They had consumed
alcohol
and an argument had taken place. The version proceeds:
"Op
die betrokke tyd het ek 'n mes in die kombuis geneem om die oorledene
skrik te maak. Sy het haar egter nie veel gesteur
aan die mes nie en
ons het verder beweeg na die kamer op die boonste verdieping, waar ek
en Karin (I interpose, his partner) geslaap
het. Sy moes die kamer
vir my oopsluit, aangesien ek nie Yi sleutel gehad het vir die kamer
nie. Dit was duidelik uit haar optrede
dat sy nie gedink het dat ek
enige iets sou doen met die mes nie. In die kamer het sy seksuele
voorstelle gemaak. Sy het haar langbroek
uitgetrek en haar klein
broekie afgetrek. Dit was ongeveer die tyd wat Karin sou huis toe
kom. Ek wou nie gemeenskap met haar gehad
het nie. Sy het my gedreig
dat sy vir Karin sal se dat ons seks gehad het. Ek het my bloediglik
vir haar vererg en haar op die
ingewing van die oomblik met die mes
gesteek."
This
version was not accepted by the State. The balance of the State's
case was largely made up of the contents of numerous documents
and
statements in the police docket, which were admitted by and on behalf
of the appellant, either in terms of section 220 or 212
of the
Criminal Code. Amongst these documents and statements were the
post-mortem
report,
photographs taken at the crime scene, a video taken at the scene,
photos of the deceased taken during the
post-mortem,
numerous
witness statements and forensic evidence and testing results,
including DNA testing results. In addition the State led
three
witnesses who gave forensic evidence relating to the rape charge.
The
first State witness was Captain Kunze, an assistant forensic analyst
in the forensic science laboratory. He testified that vaginal
swabs
taken from the deceased had tested positive for the presence or
possible presence of seminal fluid but that no male DNA could
be
isolated from the swabs. A Mr D McPherson, a specialist auxiliary
service officer at the same forensic science laboratory, testified
in
greater detail on these tests and finally, Dr E H Burger, a medical
doctor in forensic pathology gave expert evidence. This
she did on
the basis of having considered all the relevant material to be found
in the docket (and admitted on behalf of the appellant),
relating to
the crime scene, the
post-mortem
and
the forensic tests conducted. She expressed the opinion that it was
probable that there had been recent sexual penetration of
the
deceased and that this had been accompanied by a measure of force.
The
appellant did not testify nor call any witnesses on his behalf. The
magistrate concluded, on the basis of circumstantial evidence,
that
the appellant had attempted to rape the deceased and it is this
finding which is attacked on appeal. Before setting out the
basis
upon which the magistrate convicted the appellant, a short summary of
the background facts is appropriate. At the material
time the
deceased was separated from her husband and living with her two young
children in the guesthouse cum house, which she
ran in Durbanville.
On
11 July 2006, the appellant, his partner, a Ms Karin Kortje, and her
manager booked into the guesthouse. On the night of 13/14
July, Ms
Kortje and her manager were busy elsewhere and the appellant returned
to the guesthouse at approximately 10 p.m. alone
to find the
deceased, her four year old son and her friend, a Ms Griesel. The
three adults enjoyed some drinks in the course of
which the deceased
scolded the appellant for causing his partner to be late for an
appointment and told him that he must not ruin
her singing career. Ms
Griesel left for home, leaving the appellant still in the lounge.
In
the early hours of the morning Ms Kortje and her manager returned to
find the deceased's vehicle missing and the front door the
guesthouse
standing open. They found her child sleeping in his mother's bedroom
and eventually discovered the deceased's body on
the floor of the
room occupied by Ms Kortje and the appellant. The deceased was lying
in a pool of blood, with gaping linear stab
wounds on both the right
and the left side of her neck which wounds had completely severed the
respective jugular veins. The deceased
was in a state of undress,
being naked from the waist down save for the one shoe, sock and panty
around her right ankle. Above
her waist she wore a brassiere and a
long sleeve top.
Her
upper body and face was covered with a duvet. The deceased's legs
were spread and her pants were at the side of her head with
a belt
lying partly over her face. In addition to the stab wounds in her
neck, the deceased had suffered another four stab wounds
either to
the neck or the chest. Her death had been caused by these multiple
stab wounds. The pathologist also noted multiple bruises
on the neck
and chest, scratches and bruises on the right and left upper arm,
bruises on the right elbow and the left forearm,
as well as bruises
on the medial inner aspects of both the left and right thighs. A
laboratory test revealed that the deceased's
blood alcohol level was
0,27 grams per 100 millilitres.
The
appellant's luggage was missing from the room. After a police search
he was arrested the following day. He pointed out to the
police where
he had left the vehicle which he had stolen from the deceased, where
he had thrown the deceased's bank cards and keys
to the vehicle. It
was duly recovered as was the deceased's cell phone which was found
by a family member in one of the appellant's
suitcases. The
blood-stained clothing which the appellant had worn when he had
stabbed the deceased were also recovered. Soon after
his arrest the
appellant was taken to the district surgeon who examined him and
found nail scratch marks on his neck which the
doctor estimated to be
about two hours old.
In
the statements taken by the police from the appellant on the day
after the murder, it is recorded that these scratch marks were
respectively three, nine and 10 centimetres in length. The appellant
made two statements to the police, the first on 14 July 2006
in which
he stated that his father, accompanied by a friend, had stabbed the
deceased in his presence, that is the appellant's
presence, in the
course of a robbery and after the appellant had rejected her sexual
advances. Three days later the appellant made
a further statement
stating that he had lied regarding the involvement of his father and
his father's friend in the murder. He
repeated his version of the
deceased having made sexual advances to him. He stated that he had
repeatedly stabbed her after she
had threatened to tell Ms Kortje
that he had raped her.
The
magistrate based the conviction of attempted rape primarily on eight
pieces of circumstantial evidence. These were the circumstances
in
which the deceased was found, including her state of partial undress,
the bruises on her body, tissue damage or bleeding in
her posterior
fourchette, indicative of blunt trauma, seminal liquid found in her
vagina, a pubic hair of the appellant found on
the carpet between the
deceased's legs, fresh scratch marks on the appellant, blood on the
appellant's tracksuit pants and the
stab wounds to the deceased which
the magistrate regarded as being indicative of having been inflicted
during the course of a sexual
assault.
The
magistrate noted that the appellant's plea-explanation and the
contents of the two statements which he had made were not evidence.
He nonetheless analysed their content and highlighted what he
considered to be contradictions and discrepancies therein and between
such contents and the proven evidence. Using the admitted evidence
the magistrate considered the probabilities and concluded that,
notwithstanding the fact that she was under the influence of alcohol
at the time, it was most unlikely that the deceased had made
sexual
advances towards the appellant. He emphasised that the circumstantial
evidence needed to be considered as a whole and not
on a piecemeal
basis.
He
concluded further that, notwithstanding the evidence regarding the
tissue damage and the presence of seminal fluid, the State
had not
succeeded in proving that there had been penetration by the appellant
of the deceased. He concluded, however, that the
State had, by virtue
of the evidence referred to earlier, built a strong
prima
facie
case
of attempted rape against the appellant based on circumstantial
evidence which in effect called for an answer from him but
which had
not been forthcoming. He concluded that the only reasonable inference
to be drawn from the accepted evidence was that
the appellant had
attacked the deceased intending to rape her and that his acts had
reached such a stage that they amounted to
an attempt to rape and
that he thereafter fatally stabbed the deceased.
The
Case on Appeal
:
On
appeal it was contended on behalf of the appellant that the
magistrate erred in not accepting the appellant's version as
reasonably
possibly true, in relying on the expert opinion of Dr
Burger, in failing to ascribe a role to the effect that alcohol may
have
had on the behaviour of the deceased, in finding that the
statements of the appellant had no evidential value yet drawing a
negative
inference therefrom. In particular, counsel criticised Dr
Burger's opinion for focusing only on the possibility of rape rather
than other possibilities which could have caused the injuries which
the deceased suffered. Counsel also pointed to the fact that
Dr
Burger admitted under cross-examination that other factors could have
influenced the test for seminal fluids.
Analysis
:
There
can be no doubt that the substantial body of circumstantial evidence
pointed towards a sexual assault by the appellant upon
the deceased.
The state of semi-nakedness in which the deceased's body was found,
as well as the position of her legs points, in
my view, unmistakably
towards some form of sexual contact or encounter. This was borne out
or recognised by the appellant who sought
to explain, both in his
section 220 admissions and in his statements to the police, that the
deceased's state of undress was a
result of her making sexual
advances. A central question which arises is whether the
circumstantial evidence found is compatible
with an explanation other
than an attempted rape of the deceased.
One
such explanation is that found in the appellant's purported
admissions and in his statements, namely sexual advances by the
deceased upon him and therefore the magistrate was, in my view,
correct in analysing the probabilities of this having taken place,
taking into account the unchallenged evidence admitted on behalf of
the appellant. A highly relevant factor is the nature of the
injuries
which the deceased sustained and, to a lesser extent, those found on
the appellant. The bruises found on the deceased's
body were not only
indicative of a physical struggle between herself and the appellant
but point towards an attempt by him to sexually
assault or rape her.
The pathologist identified bruises on the inside of both the
appellant's thighs which would be consistent
with an attempt to force
her legs open.
In
addition there was medical evidence, undisputed, that a histological
examination revealed at least four instances of soft tissue
bleeding
within the deceased's genitalia, suggestive of recent trauma.
Further, there was the evidence of fresh nail scratch marks
on the
appellant's neck or throat and of the possible presence of seminal
fluid in the deceased's vagina. Finally in this regard,
there was
undisputed evidence that a pubic hair emanating from the appellant
was found between the deceased's legs. The closest
that the appellant
came to giving a version of the events were his purported admissions
regarding the circumstances in which he
stabbed the deceased. It
should first be noted that these purported admissions hardly
constitute evidence but were at most "probative
or evidential
material". See
S
v Sesetse
1981(3)
SA 353 (A) 373H and
S
v Makqathla
1977-9
BSC 79 85E.
It
must further be said that the version, namely that contained in
paragraphs 2.3 and 2.4of the section 220 admissions, bristles
with
discrepancies and improbabilities. On the one hand the appellant says
that he and the deceased were involved in an argument
but shortly
thereafter she made sexual advances to him. He states that he seized
the knife in the kitchen to frighten the deceased
but that she paid
little attention to this and in fact accompanied him upstairs to his
room. Not only did he claim that the deceased
made sexual advances to
him, but in the very room which he occupied with his partners and in
the early hours of the morning when
his partner was expected back.
Equally
improbable is that on her advances being rejected, the deceased
threatened the appellant that she would tell his partner
that they
had had sex. There was undisputed evidence that the deceased had
chided the appellant not to ruin Ms Kortje's career,
an attitude
which is difficult to reconcile with her making sexual advances to
him in Ms Kortje's absence. That evidence emanated
from the
deceased's friend, Ms Petronella Griesel (Exhibit J), who testified
that she left the house on the night of the murder
after 10 p.m. and
after there had been an exchange of words between the deceased and
the appellant. She added that upon leaving,
feeling uneasy, she had
advised the deceased to lock herself and her child into her room.
Again this evidence appears inconsistent
with the deceased making
advances to the appellant after Ms Griesel's departure.
The
appellant clearly implied that the deceased had removed her long
trousers and her underpants. Again this was not consistent
with the
state of undress in which the deceased was found with one shoe and
one sock still on and her underpants still around her
one ankle, but
is consistent with her clothing being forcibly removed by the
appellant and with her putting up resistance to this.
Such a scenario
would also account for the scratch marks on the appellant's
neck/throat area.
The
magistrate took the view that the contents of the appellant's
statements were similarly not evidence but that nonetheless regard
could be had thereto in order to evaluate the probabilities and
determine whether an attempted rape was the only reasonable inference
to draw from the accepted evidence. These admitted statements were
not evidence of their contents of course, but having been admitted
by
the appellant, were evidence that he had made these statements
shortly after his arrest. I can see no reason why regard cannot
be
had to their contents in evaluating whether the inference of rape or
attempted rape could legitimately be drawn from the proven
evidence.
Here
further difficulties arise for the appellant. The first statement in
which he falsely implicated his father and another person
in the
deceased's murder illustrates that even after his arrest he was
seemingly prepared to lie about the circumstances of the
crimes which
he had committed. In his second statement the appellant confirms what
he said in his first statement, namely that
the deceased accompanied
him to his room in order to unlock it since Ms Kortje had the key. He
again stated that the deceased then
made sexual advances to him and
that he rejected these. He then grabbed her around the neck and tried
to push her out of the room
whereupon the deceased insulted him.
Notwithstanding this, she removed her underclothing and said that she
was going to tell Ms
Kortje that he had raped her whereupon the
appellant lost his temper, ran down to the kitchen to fetch a knife
and returned to
his room where he again told the deceased to leave.
The deceased then grabbed his neck and that is when, he thinks, she
scratched
him. He began to stab her and then left her on the floor.
Immediately
apparent are the glaring discrepancies between the appellant's two
versions of how he came to be in possession of the
murder weapon, as
also the improbability of the deceased refusing to leave the
appellant's room, notwithstanding his rejection
of her advances, and
returning with the knife, as also the discrepancies between the
deceased allegedly threatening to cry rape
in one version as opposed
to allegedly falsely claiming consensual sex in the other version.
Not
only is the notion of the deceased making such persistent sexual
advances to the appellant improbable, particularly in the light
of
the earlier quarrel, but his response, to savagely and repeatedly
stab her with a steak knife, was out of all proportion to
any alleged
provocation and adds to the improbability of the overall picture.
The
magistrate correctly noted, as a further relevant factor, that
forensic evidence as well as the bloodstains on the appellant's
clothing, indicated that the deceased had been stabbed as she lay on
the floor, probably whilst the accused knelt or sat astride
her. The
magistrate was criticised for not ascribing a role to the effect upon
the deceased of her consumption of alcohol. However,
he expressly
took this evidence into account. Furthermore, this criticism loses
sight of the fact that only the appellant could
testify directly on
this score. Nor does it follow that because the deceased was under
the influence of alcohol, even strongly
so, that intemperate sexual
behaviour must be ascribed to her. The possible effect of alcohol
upon the deceased is but one factor
to take into account in the
evaluation of the circumstantial evidence.
The
appellant criticised the magistrate's reliance on the expert opinion
of Dr Burger, suggesting that she concentrated on the possibility
of
a rape or attempted rape to the exclusion of all other possibilities.
I cannot find any undue reliance by the magistrate on
Dr Burger's
opinion, as opposed to his reliance on her observations about
specific aspects of the injuries suffered by the deceased
and their
incidence in rape cases.
Secondly,
Dr Burger was called to furnish her opinion on the likelihood on the
deceased's injuries being associated with the rape
or sexual assault,
which she did. It was not for her to invent other possibilities,
farfetched or otherwise, which would account
for these injuries. Such
alternative scenarios or explanations could either have been put to
her in cross-examination, or dealt
with by the appellant either
through his evidence or by calling a witness, or simply dealt with in
argument by defence counsel.
Finally,
it was submitted that the magistrate erred in not accepting the
version of the appellant as reasonably possibly true and,
correctly
so, that it was not for the appellant to prove his innocence but for
the State to discharge the onus of proving his guilt
beyond
reasonable doubt. The first part of the argument overlooks the fact
that the appellant offered no version of what took place
on the night
in question. Instead, faced with the substantial body of
circumstantial evidence pointing towards the sexual assault
upon the
deceased, he chose to remain silent and this in circumstances where
he admitted murdering the deceased.
The
magistrate placed reliance on the following dictum of
Zulman
,
AJA in
S
v Reddv & Another
1996(2)
SACR 1 (A) page 8(c), dealing with the approach to circumstantial
evidence which dictum is indeed apposite:
"In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to
subject each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation
given by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted
dictum in
R
v Blom
1939
AD 188
at 202-3 where reference is made to two cardinal rules of
logic which cannot be ignored ..." The matter is well put in the
following remarks of
Davis
,
AJA in
R
v De Villiers
1944
AD 493
at 508-9: "A Court must not take each circumstance
separately and give the accused the benefit of any reasonable doubt
as
to the inference to be drawn from each so taken. It must carefully
weigh the cumulative effect of all of them together and it is
only
after it has done so that the accused is entitled to the benefit of
any reasonable doubt which it may have as to whether the
inference of
guilt is the only inference which can reasonably be drawn. To put the
matter in another way, the Crown must satisfy
the Court not that each
separate fact is inconsistent with the innocence of the accused, but
that the evidence as a whole is beyond
reasonable doubt inconsistent
with such innocence."
The
magistrate also drew an adverse inference from the appellant's
silence in the face of the case made out by the State. In doing
so he
noted that the stronger the State's case the greater is the
expectation that an accused will give an explanation, particularly
where an accused does not testify whilst at the same time he is the
only person aware of the true facts. In
Osman
v Attorney General Transvaal
1998(2)
SACR 493 (CC), the Constitutional Court stated as follows:
"Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case,
an accused who fails to produce evidence to rebut that case is at
risk. The failure to testify does not relieve the prosecution
of its
duty to prove guilty beyond reasonable doubt. An accused, however,
always runs the risk that absent any rebuttal, the prosecution's
case
may be sufficient to prove the elements of the offence. The fact that
an accused has to make such an election is not a breach
of the right
to silence. If the right to silence were to be so interpreted, it
would destroy the fundamental nature of our adversarial
system of
criminal justice." See also
S
v Boesak
2001(1)
SACR 1 (CC) at 24, where the
Court
held that the fact that an accused person is under no obligation to
testify does not mean that there are no consequences attaching
to a
decision to remain silent during the trial. If there is evidence
calling for an answer and an accused person chooses to remain
silent
in the face of such evidence, a Court may well be entitled to
conclude that the evidence is sufficient in the absence of
an
explanation to prove the guilty of the accused. Whether such a
conclusion is justified will depend on the weight of the evidence.
Ultimately,
however, the test is whether the State has managed to prove its case
beyond reasonable doubt. The other salient principle
applicable in
the present case is that where the fact or facts in issue are to be
proved by circumstantial evidence alone, then
the inference which is
drawn must be consistent with all the proved facts and no other
reasonable inference should be capable of
being drawn from those
facts. In my view, there were no facts proved by the evidence
inconsistent with the inference that the appellant,
at the very
least, attempted to rape the deceased. Nor, in my view, is there any
other reasonable inference to be drawn from the
proven facts before
the Court, most notably the nature of the injuries which the deceased
sustained and the circumstances in which
her body was found, other
than a rape or an attempted rape.
In
reaching this conclusion, it must be borne in mind that it is not
incumbent upon the State in order to discharge the onus which
rests
upon it to "indulge in conjecture and find an answer to every
possible inference which ingenuity may suggest any more
than the
Court is called upon to seek speculative explanations for conduct
which, on the face of it, is incriminating", per
Diemont
.
JA in
S
v Sauls & Another
1981(3)
SA 172 (A) at G-H.
I
consider that the absence of direct evidence of penetration [in the
pre-Criminal Law (Sexual Offences and Related Matters) Amendment
Act
32 of 2007 sense] and the questionable strength of the evidence
relating to the presence of seminal fluid in the deceased's
vagina,
it was a salutary finding that a rape had not been proved. But the
overall circumstances, including the bruises on the
deceased's inner
thighs, her state of undress, the evidence of the forcible and/or
hasty removal of her clothing, the scratch marks
on the appellant
and, crucially, the presence of his pubic hair found between her
legs, combine to powerfully suggest both that
the appellant's actions
amounted to more than merely an indecent assault and that they had
gone beyond the stage of preparation
for a rape, and in fact
constituted an attempt to rape.
These
circumstances were sufficient to prove the elements of the offence of
which the appellant was convicted. At the very least
they established
a
prima
facie
case,
calling for a rebuttal from the appellant, which was never
forthcoming. In the result I am not persuaded that the magistrate
erred in finding that the State had proved a case of attempted rape
beyond reasonable doubt.
Ad
Sentence
:
In
terms of the
Criminal Law Amendment Act 105 of 1997
, as amended, read
with
Part I
of Schedule 2, the magistrate was obliged to impose a
sentence of life imprisonment in respect of the murder conviction
unless
satisfied that "substantial and compelling circumstances"
existed which justified the imposition of a lesser sentence.
Section
51(1)
was brought into play as a result of the death of a victim
being caused by the accused attempting, or after having attempted, to
rape the deceased. The magistrate found no such substantial or
compelling circumstances warranting a lesser sentence.
On
appeal it was contended that the magistrate erred in this regard and
should have let the appellant's youth, the fact that he
had a minor
child, that he had been in custody for almost two and a half years
awaiting trial, that he could be rehabilitated and
that he showed
remorse, were factors which constituted, singly or cumulatively, such
circumstances. In addition, relying on
S
v Vilakazi
2009(1)
SACR 552 (SCA), it was argued that the appellant's previous
convictions were not so serious as to ascribe a lawless character
to
him.
In
S
v Malqas
2001(1)
SACR 469 (SCA), the Court held that the ultimate test when sentencing
in terms of the minimum sentencing dispensation, was
that:
"If
the sentencing court, on consideration of the circumstances in that
particular case, is satisfied that they render the
prescribed
sentence unjust in that it will 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."
It
was also held in
Malgas
,
that, of the factors traditionally taken into account in sentencing,
"none is excluded at the outset from consideration in
the
sentencing process". It must also be borne in mind that a court
of appeal will interfere with the sentence imposed by
a trial court
only in limited circumstances.
Scott
,
JA summarised the test to be applied in these circumstances in
S
v Van Eck
2003(2)
SACR 563 (SCA):
"As
has been said time without measure, the power of a court of appeal to
interfere with a sentence imposed by the trial court,
is limited. It
may do so only when the exercise of a trial court's discretion is
vitiated by misdirection or the sentence imposed
is so inappropriate
as to indicate the discretion was not properly exercised."
In
this regard it is also important to bear in mind that:
"The
decisions clearly indicate that a court of appeal will not alter a
determination arrived at by the exercise of a discretionary
power,
merely because it would have exercised that discretion differently.
There must be more than that."
See
S
v M
1976(3)
SA 644 (A) at 649E.
As
regards the circumstances contended for as falling into the category
of or comprising substantial and compelling circumstances,
two can be
disposed of without much ado. The fact that the appellant had a minor
child and that he had been in custody pre-trial
for some two and a
half years, carry little, if any, weight in the greater scheme of
things.
It
is then contended that the accused showed remorse and that he can be
rehabilitated. The record of this matter shows little indication
of
any genuine remorse. The appellant pleaded not guilty and did not
testify either before or after conviction. Neither his admissions
in
terms of
section 220
nor his statements to the police suggest any
remorse and neither do his actions after the murder. He did not
immediately flee the
scene of the crime, but systematically gathered
the deceased's valuables and stole them, leaving in her vehicle. He
did not surrender
himself to the police, but was found by them the
following day. His first statement to the police was, to no small
degree, a tissue
of lies in which he blamed the murder on his father
and a friend.
It
was contended that a further mitigating factor was that the appellant
could be rehabilitated. This may be so, but the appellant's
previous
convictions, his lack of remorse and his history of making threats of
violence, suggests that he is less than promising
material for early
rehabilitation. In this regard the probation officer reported that Ms
Kortje had advised that she personally
knew of five to seven
instances where the appellant had used a knife to threaten or
intimidate someone. Despite being only 21 years
old at the time of
the commission of the offence, the appellant had been convicted on
three previous occasions of offences involving
dishonesty and had
served direct imprisonment. It appears that at the time he committed
the murder, he was serving parole. In my
view the only factor which
could be said to constitute a substantial mitigating factor, was the
appellant's youth.
As
was observed in
S
v Du Toit
1979(3)
SA 846 (A), in dealing with the meaning of the interests of society:
"Die
belange van die gemeenskap by 'n straf wat opgele word, is veelledig.
In sommige gevalle tree die belang na vore wanneer
die gemeenskap
beskerm moet word teen die gedrag van 'n bepaalde individu."
To
my mind this is such a matter. The murder which the appellant
committed was of a particularly brutal and heinous nature. The
appellant inflicted at least five stab wounds upon the deceased,
including two savage and fatal wounds to her neck. The deceased
was a
defenceless woman, murdered in her own home whilst her young child
slept in a nearby room. All this was known to the appellant.
In
S
v Malgas
it
was held that the prescribed minimum sentences are not to be departed
from for flimsy reasons. As I have indicated, the only
mitigating
factor present was the appellant's youth. This factor is far and away
outweighed by the numerous aggravating features
of the murder.
Taking
all these circumstances into account, I can see no basis for a
finding on the part of this Court that the life sentence imposed
was
based on any misdirection on the part of the magistrate, either as to
the law or the facts, that the sentence was inappropriate
in relation
to the offence, the appellant or society or that it constitutes an
injustice.
In
the result, I would dismiss the appeal against both the conviction of
attempted rape and the sentence of life imprisonment on
the
conviction of murder.
BRUSSER,
AJ
:
I agree.
BRUSSER, AJ
BOZALEK,
J:
It
is so ordered.
BOZALEK,
J