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[2018] ZANCHC 22
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De Besch v S (CA&R31/04) [2018] ZANCHC 22; 2018 (2) SACR 22 (NCK) (30 April 2018)
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HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
CASE
CA&R
31/04
In
the matter between:
JOHN
HENRY DE
BESCH
Appellant
v
THE
STATE
Respondent
Judgment:
Tlaletsi
JP
Heard
on:
12
March 2018
Decided
on:
30
April 2018
Coram:
Tlaletsi
JP, Williams J, Phatshoane J,
ORDER
1.
The
appeal against sentence succeeds and the sentence of Life
Imprisonment imposed on 06 May 2004 is set aside and replaced with
the sentence of 23 years imprisonment.
2.
The
sentence of 23 years imprisonment is antedated to 06 May 2004.
FULL BENCH
APPEAL JUDGMENT
TLALETSI
JP (Williams J and Phatshoane J concurring)
[1]
This is an appeal with leave of the Supreme Court of Appeal, which
was granted on 10 January 2008, against a sentence of life
imprisonment imposed on the appellant on 06 May 2004 following his
conviction on a charge of murder by this Court.
[2]
The appeal process has been delayed by the inability of the appellant
and the Registrar to produce a complete record of the
trial
proceedings. Counsel for the appellant, Mr Steynberg, initially urged
that the sentence be set aside and the matter be remitted
to the
trial court for sentencing the appellant afresh because of the
incomplete record. He however reconsidered his position when
the
appeal was heard and aligned himself with the submissions by Ms Van
Heerden, counsel for respondent, that the record as it
stood was
sufficient for purposes of disposing of the appeal in that it
consisted of the trial Court’s comprehensive judgments
on the
merits, reasons for sentence and a reasoned ruling on the application
for leave to appeal. In my view, based on the grounds
of appeal and
the central issue to be determined, the submission is well founded.
[3]
The factual background leading to the death of the deceased is
uncomplicated. The appellant had a quarrel with the deceased.
The deceased, who the appellant claimed to be his girlfriend, was
holding a three year old child in her arms when he stabbed her
several times with his knife on the upper part of the body. He
alleged that the deceased voluntarily handed the knife to
him,
whereas the eye witness testified that he got the knife from her son
who was standing with them when he summoned the eye witness
to the
scene during their brawl.
[4]
The deceased sustained the following injuries as depicted in the
post-mortem report: superficial scratch over centre of
neck;
4 cm wound above clavicle, 1cm wound above 2
nd
rib – 2 cm from midline; 0,25 cm cut at base of 5
th
right finger (this wound was described as a defensive wound); 3 cm
at back of neck; and her epidermis was stripped off on
her elbow.
There was extensive bleeding from the neck tissue with the left
carotid severed. Both lungs were collapsed
but had not
sustained tissue injuries. The cause of death was described as
“
Hypovolemia
– stab wound”.
[5]
The knife used to kill the deceased had a 20 cm blade and an
18 cm handle. The trial court found that the appellant
had
direct intent to kill the deceased.
[6]
The appellant was 35 years old and unmarried at the time of
sentencing. He was intoxicated at the time of the commission
of
the offence. He was not a first offender and has a long list of
previous convictions of a violent nature. In October
1982 he
was sentenced to R200-00 fine or six months imprisonment for Assault
with Intent to do Grievous Bodily Harm (Assault GBH);
In January 1987
he was sentenced to 12 months imprisonment wholly suspended for five
years with some conditions, for Assault GBH.
On 6 March 1987 he
was convicted of Assault GBH and sentenced to corporal punishment of
seven strokes with a light cane; He was
on the same date sentenced to
three months imprisonment wholly suspended for five years with some
conditions attached to the suspension.
On 3 March 1987 he was
convicted of Assault GBH and sentenced to three months imprisonment,
wholly suspended on some conditions.
On 3 June 1988 the
appellant was convicted of Robbery read with the provisions of s 294
of Act, 51 of 1977, and sentenced to six
strokes with a light care.
During January 1989 he was convicted of Assault GBH and sentenced to
three months imprisonment.
During March 1991 he was convicted of
Assault GBH and sentenced to R400-00 or four months imprisonment and
a further eight months
imprisonment which was suspended on specified
conditions. During May 1991 he was convicted of Indecent
Assault of a mentally
retarded person and sentenced to three months
imprisonment. During December 1991 he was sentenced to R100-00
or 50 days imprisonment
for failure to appear in court. On or
during March 1995 he was sentenced to R300-00 or 73 days imprisonment
for theft. In
1996 he was convicted of Malicious Damage to Property
and sentenced to R100-00 or 25 days imprisonment and a further 3
months imprisonment
suspended on certain conditions. During
September 1998 the appellant was once again convicted of Assault GBH
and was sentenced
to 18 months imprisonment.
[7]
In passing sentence, the trial court relevant to this appeal, held
inter
alia,
that this is not a case where the appellant “suddenly”
(“
skielik”)
grabbed a knife and stabbed the deceased; that even though the
appellant claimed that the deceased’s alleged lover, one
Bennett Taylor, who was at the time serving a term of imprisonment
threatened the appellant, it was not the deceased who threatened
him;
and that the reason the deceased was killed is that if the appellant
could not have her as his girlfriend, then Bennett Taylor
would also
not have her.
[8]
The trial court held further that although jealousy is a mitigating
factor, in this case it could not be regarded as substantial
and
compelling circumstance; that had the appellant only made himself
guilty of attempted murder or assault and not murder, a sentence
less
than 15 years imprisonment would still not have been appropriate in
view of the appellant’s previous convictions which
demonstrated
that he is a habitual criminal; further that even if the provisions
of Criminal Law Amendment Act
[1]
(the minimum sentence regime) were not applicable, life imprisonment
would still have been the appropriate sentence in the circumstances
of this case.
[9]
The grounds upon which the sentence is challenged are mainly that the
trial court erred: in not handing down a balanced sentence;
erred in
not finding that the murder was committed on the spur of the moment;
misdirected itself by not finding compelling and
substantial
circumstances; and, that the circumstances of the case do not justify
the imposition of life imprisonment.
[10]
It remains to be considered in this appeal, firstly, whether the
trial court found that the murder was premeditated. Secondly,
if the
trial court did not make a finding that the murder was premeditated,
whether the offence of murder fell within the ambit
of the Act
(minimum sentence regime) insofar as life imprisonment is a mandatory
sentence unless the court finds that there are
substantial and
compelling circumstances justifying a departure from the imposition
of that mandatory sentence.
[11]
It is common cause that trial court, in convicting the appellant,
pronounced that the appellant is guilty of murder with
dolus
directus
as a form of intent. The trial court did not pronounce that the
murder was premeditated in the judgment on the verdict.
[12]
For purposes of the Act, there is a distinction between murder
committed with
dolus
directus
,
dolus
indirectus
and
dolus
eventualis
on the one hand, and murder which is planned or premeditated on the
other hand. The reason for the distinction is that the
Act
prescribes different sentences for murder committed in any of the
circumstances described in the Act. The position was
aptly
explained by Satchwell J in
Taunyane
v S
[2]
as follows:-
“
[10]
Section 51(1) requires the court to have “convicted of an
offence referred to in Part 1 of Schedule
1”. It is prior to
the conviction stage that the matter must have been fully ventilated,
argued and considered. Only then
can the necessary finding be made.
It is only when such a conviction is determined and full reasons
given in respect of an identified
offence ‘referred to in Part
1 of Schedule 1’, that an appropriate sentence can be
handed down.
[11]
That a conviction of murder must be
identified as being ‘planned or premeditated’
at the conviction stage indicates the standard of the burden of
proof which applies to the description of or the circumstances
of the murder of which an accused is convicted.
[12]
I do not suggest that a new class of
‘murder’ (other than those identified as murder committed
with ‘dolus directus’, ‘dolus indirectus’,
or, ‘dolus eventualis’) has been created in Act,
105 of
1997. I understand that the court has always been required to
indicate at the time of conviction the class of
intention with
which an accused acted and is also now required to indicate whether
or not such murder was committed within any
one of the
circumstances set out in Part 1 of Schedule 2.
[13]
For this particular appeal, the relevance of this
consideration is the nature of the burden of proof
which applies to a
finding of the circumstances set out in Part 1 of Schedule 2. For a
court to convict of murder which was ‘planned
or premeditated’
it certainly seems that the usual standard of ‘proof beyond
reasonable doubt’ must be applied
at the conviction stage as to
the existence or otherwise of planning or premeditation.”
[13]
Murder committed with
dolus
directus
as a form of intent attracts a different minimum sentence as compared
to the same murder but planned or premeditated. It
is therefore
imperative that during the verdict a court should specify whether the
murder the accused person is found guilty of
was planned or
premeditated.
Dolus
directus
does not necessarily mean that premeditation was present.
[3]
In this matter since the trial court did not specify during verdict
that the murder was planned or premeditated, it follows that
the
applicable provision for purposes of sentence is s 51(2) of the
Act and the prescribed minimum sentence is 15 years imprisonment.
[4]
[14]
Sentencing an accused person on the basis that the prescribed
sentence of life imprisonment is applicable if there are no
substantial and compelling circumstances without having found that
the murder was planned or premeditated during verdict, amounts
to a
misdirection warranting interference by the appellate court. I
am mindful of the fact that the trial court did indicate
that it
would still have imposed the same sentence if the provisions of the
Act were not applicable. It is reasonable to
infer that the
appellant may not have conducted his case on the basis that he was
facing possible mandatory life imprisonment as
prescribed by the in
the Act.
[15]
Having found that the trial court misdirected itself, the next
inquiry is whether the matter should be referred to the trial
court
for reconsideration of an appropriate sentence; or whether this Court
should exercise such discretion. Section 322(2)
of the Criminal
Procedure Act
[5]
empowers the court of appeal to amend or set aside the sentence of
the trial court and impose punishment that should have been
imposed
by the trial court.
[16]
As already alluded to, there has been a considerable delay from the
date the appellant was sentenced to life imprisonment to
date when
this appeal was heard. The judgment of the court a quo sets out
in great detail the factual background relating
to the commission of
the offence. The personal circumstances of the appellant are
also traversed at length in the reasons
for sentence.
Furthermore, it is not the appellant’s contention that the
trial court omitted or disregarded any of
his personal circumstances
in its reasons for sentence. His contention is that the trial
court in its consideration of all
relevant factors and evidence
regarding sentence, accentuated the gravity of the offence and the
interests of the society and failed
to attach sufficient weight to
his personal circumstance. This Court therefore, is in as good
a position as the trial court
to consider the sentence afresh.
To my mind, this approach is in the interests of justice.
[17]
To recap, the personal circumstances of the appellant are that he was
35 years old when the trial court imposed sentence. He
is not
married. He was intoxicated at the time of the commission of the
offence and there is nothing to gainsay his contention
that the
incident stems from a love triangle. The appellant has a plethora of
previous convictions involving the grievous bodily
harm to other
persons. As the trial court pointed out he is a violent person and
poses a serious threat to other persons.
[18]
Regarding the offence itself: the appellant viciously attacked
a defenceless woman carrying a three year old child in
full view of
her other child. There can be no doubt that the incident on its own
was traumatic to the children who are now left
without a mother. The
effect of trauma on her children and extended family is permanent.
Neither the deceased nor Bennett Taylor
posed any danger to the
appellant. The appellant has shown no remorse. Despite
overwhelming direct evidence against
him he pleaded not guilty and
offered an illogical defence that all that he remembered is that he
only aimed the knife at the deceased
and thereafter walked away with
that weapon.
[19]
In my view the appellant’s personal circumstances and any
mitigating factors that may exist are by far outweighed by
the
aggravating features of the case. I am unable to find any
factors that could be said to amount to substantial and compelling
circumstances justifying any sentence short of the prescribed minimum
sentence of 15 years imprisonment. I am also of the view
that the
minimum sentence of 15 years imprisonment will be wholly inadequate
to address the seriousness of the offence, appellant’s
long
list of violent previous convictions and the interests of the
community. Such a sentence would send a wrong message
and
cause public outcry. The appellant has on previous occasions been
given short imprisonment terms which appear to have failed
to
rehabilitate him. From a penology point of view, this is a text
book case that shows that short terms of imprisonment
are not always
beneficial and may not have any rehabilitative effect. On the
contrary in this case the short terms of imprisonment
seem to have
turned the appellant into a hardened criminal. The many
incidents of violence should have warned the previous
sentencing
courts that the appellant would one day cause the death of a human
being. The remark by the trial court that he
should have been
declared a habitual criminal is not farfetched. A lengthy jail
term would, in my view, be appropriate in
the circumstances of this
case. Such a sentence would cater for the deterrent,
preventative, retributive and to some extent,
rehabilitative purposes
of punishment.
[20]
In the result the following order is made:
a)
The
appeal against sentence succeeds and the sentence of Life
Imprisonment imposed on 06 May 2004 is set aside and substituted with
the following:
“
The
accused is sentenced to 23 years imprisonment.”
b)
The
sentence of 23 years imprisonment is antedated to 06 May 2004.
___________________
LP Tlaletsi
Judge
President.
Williams
J and Phatshoane J concur in the judgment of Tlaletsi JP.
APPEARANCES
:
For
the Appellant:
H Steynberg
Legal Aid South
Africa
For
the Respondent:
A H van Heerden
Director of Public
Prosecutions
Kimberley.
[1]
105 of 1997
[2]
2018 (1) SACR 163 (GJ).
[3]
S v Raath
2009 (2) SACR 46
(C) para 23.
[4]
S v Smous 2018(1) SACR 108 (NCK).
[5]
51 of 1977 which provides
“322 Powers of court of
appeal
(1) ………..
(2) Upon an appeal under section 316 or
316B against any sentence, the court of appeal may confirm the
sentence or may delete
or amend the sentence and impose such
punishment as ought to have been imposed at the trial”