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[2018] ZAECPEHC 22
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S v Kleinbooi and Another (CC31/2017) [2018] ZAECPEHC 22 (17 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC31/2017
In
the matter
between:
THE
STATE
And
DESWIN
KLEINBOOI
ESTON
AFRIKANER
Accused
Coram:
Chetty J
Heard:
10
May 2018
Delivered:
17 May 2018
JUDGMENT
Chetty
J:
[1]
In the main judgment I found that the two accused were part of a
group of three persons dawdling on the pavement in Fitchard
Street in
the early hours of 12 May 2016. I further found that it had been
established beyond a reasonable doubt that the two accused
were at
the scene of the deceased’s murder at Bramwell Markman later
that morning. It is not in issue that the distance between
the two
points is, depending on the criterion adopted, either 700 or 900
metres. The evidence adduced further established that
the bread
delivery truck followed an habitual route daily and this routine
justifies the inference that the accused proceeded to
Bramwell
Markman with the knowledge that it would be parked there. The
trajectory of the bullet and the deceased’s position
in the
truck in the aftermath of the shooting furthermore proves that the
deceased was waylaid, in all probability oblivious of
the accused’s
presence in the vicinity of the truck. I further found that
evidentially, accused no. 2’s conduct was
goal directed, that
he had the direct intent to kill the deceased and, having done so,
opened the vehicle’s door and robbed
the lifeless body of its
possessions. Given the association between the two accused, the
inference may properly be drawn that they
shared in the spoils of
their ill-gotten gain.
[2]
Crimes of this ilk to wit, murder, robbery with aggravating
circumstances and the unlawful and intentional possession of an
automatic or semi-automatic firearm attract the mandatory sentences
listed in the
Criminal
Law Amendment Act
[1]
,
to wit life imprisonment and 15 years respectively, absent a finding
by the sentencing court that there are substantial and compelling
circumstances attendant which militate against its imposition. The
locus
classicus
on the subject is
Malgas
[2]
.,
where Marais JA, writing for the court, trenchantly concluded his
discourse, stating: -
“
[18]
Here lies the rub. Somewhere between these two extremes the intention
of the Legislature is located and must be found. The
absence of any
pertinent guidance from the legislature by way of definition or
otherwise as to what circumstances should rank as
substantial and
compelling or what should not, does not make the task any easier.
That it has refrained from giving such guidance
as was done in
Minnesota from whence the concept of 'substantial and compelling
circumstances' was derived is significant. It signals
that it has
deliberately and advisedly left it to the courts to decide in the
final analysis whether the circumstances of any particular
case call
for a departure from the prescribed sentence. In doing so, they are
required to regard the prescribed sentences as being
generally
appropriate for crimes of the kind specified and enjoined not to
depart from them unless they are satisfied that there
is weighty
justification for doing so. A departure must be justified by
reference to circumstances which can be seen to be substantial
and
compelling as contrasted with circumstances of little significance or
of debatable validity or which reflect a purely personal
preference
unlikely to be shared by many.
[19]
. . .
[20] It would be an
impossible task to attempt to catalogue exhaustively either those
circumstances or combinations of circumstances
which could rank as
substantial and compelling or those which could not. The best one can
do is to 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. When justifying a
departure a court is to guard against lapses,
conscious or
unconscious, into sophistry or spurious rationalisations or the
drawing of distinctions so subtle that they can hardly
be seen to
exist.
[21]
. . .
[22] . . . The greater
the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety
will be that it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into a conviction that
an injustice will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed
sentence unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society.
If that is the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.”
[3]
Accused no. 1 was born on 11 May 1995 and aged 21 at the time of the
commission of this offence. He is unmarried and has no
progeny. His
scholastic career was minimal. He passed grade 6 and dropped out of
school shortly thereafter whence he has been unemployed.
I accept
that he is a product of challenging socio-economic circumstances but
am enjoined to have regard to the fact that prior
to the commission
of the present offence he, on 21 November 2015 committed the offences
of attempted murder, malicious injury to
property and the unlawful
possession of a firearm and ammunition. Whilst awaiting trial on the
present charges he was duly convicted
on those counts and sentenced
to varying terms of imprisonment, the effective custodial sentence
being one of 15 years imprisonment.
Whilst those offences are
strictly not to be construed as previous convictions, I am entitled
to have regard thereto in exercising
my sentencing discretion.
[4]
Accused no. 2 was born on […]1997 and was 18 years old at the
time of the commission of this offence. Given his age,
I directed
that a pre-sentence report be obtained and it documents the accused’s
unfortunate upbringing. It appears therefrom
that notwithstanding his
deprived childhood, he has, for the past six years, through the grace
of Ms
Maqoqa
been ensconced in a stable family environment where his basic needs
are taken care of.
[5]
The sheer audacity of this crime has not only deprived the deceased’s
wife and daughter of a husband and father but has
caused them untold
misfortune. Their financial stability has been jeopardised and so too
their emotional wellbeing. It is obvious
from Mrs
Desai’s
evidence that the deceased’s death has negatively impacted upon
them both on a personal and social level. The community has
itself
been deprived of one of its stalwarts. Mrs
Goss
highlighted the enormous contribution the deceased had made to ensure
the safety and wellbeing of suburban society. His loss, she
ventured,
left a deep void within not only the community policing forum but the
community at large.
[6]
As adumbrated hereinbefore, the deceased was executed in
circumstances where the accused could have had no inkling what his
possessions were. It could, given the time of the deliveries, never
have been in their contemplation that the deceased would have
had a
substantial amount of money on him. And yet, he was shot in the mere
hope that they would benefit from his death.
[7]
The youthfulness of an offender has for aeons been regarded as a
mitigatory circumstance, and rightly so. Whilst it denotes
immaturity
it cannot, per se, elicit maudlin sympathy for an offender. It is
difficult to conceive of a situation where the act
of ambushing an
unsuspecting individual and deliberately firing a shot into his head
can be attributed to immaturity. On the contrary,
on the facts as I
found proved, accused no. 2’s did not only play a leading role
but his actions were moreover goal directed.
The accused’s
associative conduct justifies the conclusion that the killing was
actuated by greed and not by reason of their
immaturity. Singularly
or collectively, the factors advanced on behalf of the accused do
not, in my view, pass the benchmark enjoined
by the minimum
sentencing regime meriting a lesser sentence. In the result, the
accused are sentenced as follows: -
Accused
No. 1
On
count 1, accused no. 1 is sentenced to imprisonment for life;
On
count 2, he is sentenced to fifteen years imprisonment.
Accused
No. 2
On
count 1, accused no. 2 is sentenced to imprisonment for life;
On
count 2, 15 years imprisonment;
On
count 3, 15 years imprisonment;
On
count 4, 3 years imprisonment.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv. G. Baartman
National Director of
Public Prosecutions
Uitenhage Road, North
End, Port Elizabeth
Tel: (012) 842 1400
Obo
the Defence:
Adv. J. Coertzen / Mr P.J. Schoonraad
Legal-Aid South Africa
Uitenhage Road, North
End, Port Elizabeth
Tel: (041) 408 2800
[1]
Act No, 105 of 1997
[2]
2001 (1) SACR 468
(A)