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[2010] ZASCA 146
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Van de Venter v S (342/10) [2010] ZASCA 146; 2011 (1) SACR 238 (SCA) (29 November 2010)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 342/10
ANDRÉ
VAN DE VENTER
.....................................................................
Appellant
and
THE
STATE
.......................................................................................
Respondent
____________________________________________________________
Neutral
citation:
Van de Venter v The State
(342/10)
[2010] ZASCA 146
(29 November 2010)
BENCH:
PONNAN, CACHALIA and LEACH JJA
HEARD: 12 NOVEMBER 2010
DELIVERED: 29 NOVEMBER 2010
SUMMARY
:
Sentence – misdirection by trial
court – court on appeal substituting an effective term of
imprisonment of 18 years
for that of 33 years imposed by the trial
court.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from
:
North Gauteng High Court
(Pretoria) (Moabi AJ sitting as court of first instance).
The appeal is allowed to the extent set out below:
1 The sentence of 28 years’ imprisonment imposed by the court
below pursuant to the appellant’s conviction on count
1, the
murder, is set aside and in its stead is substituted a term of 18
years’ imprisonment.
2 The sentence of 5 years’ imprisonment imposed by the court
below pursuant to the appellant’s conviction on count
2, the
theft, is ordered to run concurrently with the sentence imposed on
count 1.
3 The appellant is thus sentenced to an effective term of
imprisonment of 18 years.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PONNAN JA (CACHALIA and LEACH JJA concurring):
[1] During February 2000 the appellant, André van de Venter,
was convicted in the North Gauteng High Court (Pretoria) (per
Moabi
AJ) on one charge each of murder and theft and sentenced to an
effective term of imprisonment of 33 years - being 28 years
for the
murder and five years for the theft.
[2] Leave to appeal was granted to this court by the trial judge
solely in respect of sentence on 3 March 2000. A petition to this
court to expand the scope of the appeal to include the convictions as
well, was dismissed on 9 July 2001.
[3] For reasons that do not emerge on the record and in any event are
unnecessary to fully traverse no further steps were taken
to
prosecute the appeal for close on nine years. When the record was
eventually filed with this court on 2 June 2010, it was accompanied
by affidavits from the registrar and two clerks of the high court to
the effect that the complete record of the proceedings could
not be
located. The record that now serves before us on appeal has
accordingly been reconstructed by those officials. Before us
counsel
were agreed that the reconstructed record was adequate for a full and
proper ventilation of the appeal. I agree.
[4] The facts giving rise to the appellant’s conviction were:
On 27 March 1998 and in consequence of a report that he had
received,
Peter Thomas called on the home of his friend Eric Nezar (the
deceased). As the door was locked he had to gain forcible
entry into
the flat. On entering the premises he came upon the body of the
deceased on his bed with his face and the upper side
of his head
bloody. The deceased's hand clutched an electrical cord and there
were visible blood spots on one of the walls. He
summoned the police.
Later that day the deceased's brother, Willem, was contacted by
Captain van Aswegen of the Pretoria Murder
and Robbery Unit of the
SAPS and informed of the deceased's death. Two days later, whilst
sifting through the deceased’s
belongings, Willem chanced upon
certain ornamental stones that appeared to have blood on them. Those
he handed to the police.
[5] It would seem that whilst the investigating officer, Sergeant van
Rensburg, was interviewing people who knew the deceased,
the
appellant came to be mentioned. Sergeant van Rensburg interviewed the
appellant and secured a statement from him. When Captain
van Aswegen
perused that statement his curiosity was piqued and he resolved to
question the appellant. On 6 April 1998 Sergeant
van Rensburg and
Captain van Aswegen proceeded to the appellant's home. During the
course of their questioning of the appellant
they enquired about the
clothes that he (the appellant) had worn on the night when the
deceased had met his death. His shoes in
particular appeared to them
to link the appellant to certain footprints at the deceased's home.
The appellant was arrested.
[6] The next day the appellant intimated his willingness to
participate in a pointing out. Arrangements were then made by the
investigating officer for an independent commissioned officer,
Captain van der Spuy, to oversee the pointing out. That evidence
and
its import is summarised in the judgment of the court below as
follows:
'Van der Spuy . . . produced the photos which showed the
accused at the scene and where he was pointed out where different
aspects
relating to the crime were found in the room. He brought in
photos . . . all these show the accused at the premises of the
deceased
and indicating various points where the deceased was, where
he got the stone which he used to hit the deceased, where the blood
spots were and where they were removed. In brief, these photographs
and voluntarily pointing out squarely put the accused at the
scene
and he knew what happened on that particular night when the deceased
was killed.'
[7] There was as well the evidence of Elmarie Horak linking the
appellant to the commission of the offences. Miss Horak testified
that the appellant had come to her shop, Cash Converters, to sell 63
CDs and a cell phone. She asked him to go to the Sunnyside
Police
Station to depose to an affidavit confirming his ownership of those
items and his entitlement to dispose of them. The appellant
did
indeed do so. He returned with a sworn statement. He also signed an
in-store declaration that he had lawful title to sell and
'transfer
full ownership thereof to Cash Converters'. He was paid R300 in total
for those items.
[8] Marno Boshoff, who knew both the deceased and the appellant,
testified that at some stage he had asked the appellant why he
had
killed the deceased. His response is summarised by the trial court as
follows:
'And he said the accused said he did not know why he did
it. He was asked if he, the accused, was angry, if the deceased did
anything
wrong to him; but he replied and said no, the deceased did
nothing wrong to me. He says he, the accused, did not understand what
happened, in essence. He said on that particular morning he, the
accused, woke up – maybe I should here indicate that there
is
evidence to the effect that the night before the accused went to the
deceased's room and he slept over there. Now when he woke
up in the
morning he was in the flat of the deceased. He went to the bathroom
and when he came back he saw a stone or a rock lying
down. He says he
does not know what happened next. He said afterwards he realised what
he had done and that there was a problem
and he ran away, he left the
flat.'
The appellant did not testify in his defence. That was his right. But
it is not without its consequences. For, approaching the
evidence
holistically, as one must, the irresistible inference to be drawn
from the facts that I have briefly outlined, is that
the appellant
killed the deceased and thereafter stole the deceased’s
possessions the subject of the theft charge. It follows
that the
conclusion of the trial court on the convictions cannot be faulted.
[9] As to sentence: The judgment of the court below on sentence is
singularly unhelpful. It spans a total of three pages in the
record.
It alludes to the objective gravity of the offence, the brutality of
the deed and the lack of remorse displayed by the
appellant as
reflected in his failure to take the court into his confidence and
his disposing of the deceased's possessions the
morning after the
murder.
[10] The judgment then proceeds:
'. . . because maybe the most serious issue that must be
addressed is that of if the satanism influence, if any, is on you.
The
state argues that there is no evidence that you were in any way
afflicted by this issue of satanism and if you were then you did
it
knowing what would be the consequences. Where the court would not
take that view, it will take a very lenient view, it will
give you
the benefit of the doubt even if you did not testify that you were to
an extent maybe affected by these satanism tendencies.
We were told
that satanism preaches death, destruction, contempt of religion, of
God, and maybe as we do not really have a good
motive of why you did
what you did, one can maybe say yes, satanism had the better of you
because how can a person act so cruelly?
When somebody is sleeping on
the bed, you bash him with a stone and proceed to kill him; what is
the motive? We do not have a clear
motive her, that is why I will
give you the benefit that you had this influence on you of satanism.
But this expert on satanism
also turns and says people who get
involved in that type of practice do it with their eyes right open
and they know what probably
will be the consequences of their
activities.'
The judgment then concludes:
'The court is conversant with the authorities which have
been referred to in address in mitigation. The court is of the
opinion
that you must get a direct jail sentence and that, if really
you are under the influence of satanism or it is still affecting you,
which the court does not know, you may get help inside prison, but
the court is of the opinion that maybe you were and it gives
you the
benefit and strongly will direct that facilities be made available
for your rehabilitation in prison.'
[11] What the judgment ignored though was the evidence contained in
the reports of Prof Roos and Dr Plomp, psychiatrists in the
employ of
Weskoppies Hospital. Both had concluded that whilst the appellant
appreciated what he was doing at the time of the commission
of the
offences, his moral responsibility was diminished because he was a
schizoid personality, who was emotionally depressed.
Both described
people who are diagnosed as such as lonely and not able to develop
intimate relationships with others.
[12] The report of the social worker, Ms du Preez, paints a picture
of a sad, lonely youngster - the product of a broken home.
Although
he matriculated, the appellant acknowledges that he struggled
academically. As the product of a broken home, he appears
to have
moved between his mother and father. That resulted in his schooling
being disrupted. After he failed standard 9 he was
moved to his
father and stepmother and had to adjust to a new school environment.
At that stage he started abusing alcohol and
dabbling in satanism.
The appellant seems to have formed the impression since the age of
about 10 years that life was senseless
and that he did not want to
continue living. Whilst in standard 10 he attempted on three
different occasions to take his own life.
[13] Since leaving school the appellant has been unable to hold down
permanent employment and his employment history has been quite
sporadic. Although on the cusp of adulthood at 23 years, the
appellant has not been involved in any meaningful relationships. Nor
for that matter has he had any real friends. According to his mother
he spent all of his time at home writing letters to his pen
friends
and viewing television. His mother informed the social worker that
the appellant manifested very low self-esteem and that
if he did go
out it was usually late at night when he was less likely to be seen
by others. In an endeavour to assist him to address
those various
issues, the appellant's mother suggested that he contact the deceased
who was very active in counselling, Bible study
groups and a cell
leader at his church. That is how the appellant first came to have
contact with the deceased. According to the
appellant, he was
contemplating joining a Buddhist retreat which he was then discussing
with the deceased at the time of the latter's
death. In his warning
statement to the police the appellant stated that despite the fact
that he was heterosexual that the deceased
had massaged him but as he
put it 'Ek nie daarvan hou nie, ek hou nie daarvan dat 'n manspersoon
so aan my vat nie'.
[14] The circumstances entitling a court of appeal to interfere in a
sentence imposed by a trial court were recapitulated in
S v Malgas
2001 (1) SACR 469
(SCA) para 12, where Marais JA held:
‘
A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question
of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do
so would be to usurp the sentencing
discretion of the trial court. . . . However, even in the absence of
material misdirection,
an appellate court may yet be justified in
interfering with the sentence imposed by the trial court. It may do
so when the disparity
between the sentence of the trial court and the
sentence which the appellate Court would have imposed had it been the
trial court
is so marked that it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”.’
[15] In my view the test for intervention on the first leg is
satisfied. None of the mitigating factors that I have alluded to
merited even a mention in the judgment of the trial court. They ought
to have. Nor were they balanced against what were perceived
to be the
aggravating features in the commission of the offences. In failing to
afford any recognition to those factors in the
determination of an
appropriate sentence, the trial court disregarded the traditional
triad of the crime, the offender and the
interests of society.
Instead the learned judge appears to have emphasised the public
interest and general deterrence in arriving
at what he considered to
be a just sentence, whilst ignoring the other traditional aims of
sentencing such as personal deterrence,
rehabilitation and
reformation. It follows that the sentence imposed by the learned
judge falls to be set aside and this court
is accordingly free to
impose the sentence it considers appropriate.
[16] It remains to consider what sentence should be substituted for
that of the trial court. How and why the learned trial judge
arrived
at a sentence of 28 years for the murder and why the sentence of 5
years imposed for the theft, which was part and parcel
of the same
criminal transaction was not ordered to run concurrently, is not
explained. Despite the fact that the appellant was
represented before
the learned judge there nonetheless remained a duty on him to call
for such evidence as was necessary to enable
him to exercise a proper
judicial sentencing discretion. For, as
S v Siebert
1998 (1)
SACR 554
(SCA) at 558i–559a made plain:
'Sentencing is a judicial function
sui
generis
. It should not be governed by
considerations based on notions akin to onus of proof. In this field
of law, public interest requires
the court to play a more active,
inquisitorial role. The accused should not be sentenced unless and
until all the facts and circumstances
necessary for the responsible
exercise of such discretion have been placed before the court.’
The judgment added: ‘[A]n accused should not be sentenced on
the basis of his or her legal representative’s diligence
or
ignorance’.
[17] The natural indignation that the community must feel at the
appellant’s conduct warrants appropriate recognition in
the
sentence. Nevertheless that can hardly invite a sentence that is out
of proportion to the nature and gravity of the offence.
As it was put
in
S v Scott-Crossley
2008 (1) SACR 223
(SCA) para 35:
'Plainly any sentence imposed must have deterrent and
retributive force. But of course one must not sacrifice an accused
person
on the altar of deterrence. Whilst deterrence and retribution
are legitimate elements of punishments, they are not the only ones,
or for that matter, even the over-riding ones.’
The judgment continues ‘[i]t is true that it is in the
interests of justice that crime should be punished. However,
punishment
that is excessive serves neither the interests of justice
nor those of society.'
[18] The conclusion to which I have come bearing in mind all the
above factors, as also the fact that the appellant spent a period
of
approximately one year in custody prior to the finalisation of the
matter, is that a proper sentence on the murder conviction
would be
one of 18 years’ imprisonment. I would, moreover, order the
sentence of five years’ imprisonment imposed on
the appellant
for the theft conviction to run concurrently with the 18 years.
[19] One final aspect requires comment. It is unclear why the learned
judge saw fit to grant leave to the appellant to appeal to
this
court. In
S v Monyane & others
2008 (1) SACR 543
(SCA)
para 28 this court stated:
‘
It does not appear from the
record that the trial judge considered whether leave to appeal should
have been granted to the full
court. In terms of s 315(2)(a) of the
Criminal Procedure Act 51 of 1977
when an application for leave to
appeal in a criminal case heard by a single judge is granted under
s
316
, the trial judge shall, if satisfied that the questions of law
and of fact and the other considerations involved in the appeal are
of such a nature that the appeal does not require the attention of
the Supreme Court of Appeal, direct that the appeal be heard
by a
full court. The present appeal is a case in which the trial judge
should have been so satisfied. There were no questions of
law
involved; the case raised no question of principle; and there were no
considerations which called for the attention of this
court (
S
v Myaka
1993
(2) SACR 660
(A) at 661i-662b). It frequently happens that simple
appeals have to be heard by this court. In order to avoid the
unnecessary
clogging of the roll of this court with matter that does
not require its attention, it is important that trial judges should
not
overlook the provisions of
s 315(2)(a)
(
S
v Sinama
1998
(1) SACR 225
(SCA)). The inappropriate granting of leave to appeal to
this court results in cases of greater complexity and which are truly
deserving of the attention of this court having to compete for a
place on the court roll with a case which is not (
Shoprite
Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others
2003
(5) SA 354
(SCA) para 23).’
[20] In the result the appeal is allowed to the extent set out below.
1 The sentence of 28 years’ imprisonment imposed by the court
below pursuant to the appellant’s conviction on count
1, the
murder, is set aside and in its stead is substituted a term of 18
years’ imprisonment.
2 The sentence of 5 years’ imprisonment imposed by the court
below pursuant to the appellant’s conviction on count
2, the
theft, is ordered to run concurrently with the sentence imposed on
count 1.
3 The appellant is thus sentenced to an effective term of
imprisonment of 18 years.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: L A van Wyk (Ms)
Instructed
by:
Pretoria
Justice Centre
Pretoria
Bloemfontein
Justice Centre
Bloemfontein
For
Respondent: P W Coetzer
Instructed
by:
Director
of Public Prosecutions
Pretoria
Director
of Public Prosecutions
Bloemfontein