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[2017] ZANCHC 21
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S v Van Staden (KS21/2016) [2017] ZANCHC 21 (20 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH
AFRICA
(Northern
Cape High Court, Kimberley)
Case
No:
KS
21/2016
Heard:
15/02/2017
Delivered:
20/03/2017
In
the matter between:
STATE
V
NEVILLE
VAN
STADEN
ACCUSE
D
JUDGMENT
ON SENTENCE
MAMOSEBO.J
[1]
On 07 December 2016 the accused, Mr Van
Staden, was convicted as follows: Count l : murder read
with
the provisions of s 51 of the General Law Amendment Act 105 of 1997,
as amended; Count 2: assault common;
Count
3: assault with intent to
cause grievous bodily harm and Count 4: assault
common.
[2]
It is trite that the
triad comprising the personal circumstances of the accused, the
nature and seriousness of the offences as well
as the interests of
the society must be taken into consideration when imposing sentence.
See
S
v
Zinn
1969 (2) SA 537
(A) at 540. The offences with which the accused has been convicted
are prevalent in this province. However, taking cue from the
pronouncements by the Supreme Com1 of Appeal in
S
v
Scott-Crossley
2008 (1) SACR 223
(SCA) at
241
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 overriding ones. Against that must be weighed the appellant's
prospects of reformation and rehabilitation,
.....
It is true
that it is in the interests a/justice that crime should be punished.
However, punishment that is excessive serves neither
the interests of
justice nor those of society.
'
[3]
The personal
circumstances of the accused are the·following: He is a
43-year old man and resides
in Prieska
in the Northern Cape. He is unmarried
and has six children two of whom are
with the deceased. Their
ages range from 15 to 23 years
old. Before
his incarceration his highest
academic achievement was Grade
I
0
(Standard 8) but he furthered his studies and completed Grade 12 in
prison. At the time of
his
arrest he was employed by a
compan
called
Schletter whose trade is the installation of solar panels. He
earned R5200 per month. He was in a love relationship
with the
deceased since 1995.
[4]
The accused admitted all
his previous convictions. Counsel conceded that it would be difficult
to argue that his previous
convictions do
not make a sorry reading. Also
conceded is that the accused is short tempered
and
gets
infuriated
quickly wondering which
may be
a
personality problem. The last
concession by counsel was
not
based
on
any expert reports
of
either
a psychologist or a psychiatrist. Counsel added that the assault
charges on counts 2, 3 and
4 support
his
assertion that the
accused is
a
short-tempered person.
[5]
Adv Schereuder submitted
that the fact that the accused did not plan to kill the deceased
should serve to warrant a deviation from
the imposition of life
imprisonment. He suggested that in relation
to the murder count, a sentence of 15
years or even 20 years
would serve as a deterrent. Counsel further urged me to order the
sentences in counts 2, 3 and
4 to run concurrently with the sentence
on the murder count. Counsel made no submissions in as far as
the accused's fitness
to possess a firearm. The Court
has already declared the accused unfit to possess a firearm on
30 July
2004. In as far as the suspended sentence of 17 September
2015 is concerned, counsel for the
state did not apply for
it
to
be put in
operation.
[6]
In aggravation of
sentence Adv Kgatwe called the deceased's
brother,
Mr
Hendrik Jas, to testify on the
impact the deceased's death has on the family. He is the
uncle
to the deceased's daughters, J. and N.. He resides
with J. , the 16 year old younger daughter who still attends school
and in Grade 9. N. is 20 years old and has a
child. She dropped out of school and is unemployed.
He explained that
the deceased's death was a tragedy. His
niece, J., failed a
class and
had to repeat it, she
continuously speaks to the deceased ' s photo that
is displayed on
the wall at his house. Although she is receiving therapy at Prieska
hospital twice a week her behaviour has changed.
[7]
Mr Jas testified that the
accused has not contributed towards the maintenance of his children.
Charity organizations, F
AMSA
and Hospice,
donated clothes to
his
niece. The accused
contributed
an
amount of about one thousand rand (R1 000.00) towards transportation
of the children to attend their mother's funeral and
did
not contribute towards funeral
costs. Mr Jas stated that
the deceased ran away from the accused at some point and went to live
in Johannesburg. He and the accused
fought
physically
because
the accused broke his grandmother's rib s. When the deceased was six
months pregnant with his child he pushed her in front
of a moving
vehicle which, fortunately, was not fatal.
[8]
The accused has been
convicted of murder with direct intent
(dolus
directus).
The cause
of death was asphyxiation due to strangulation, as well as the
consequences of multiple assault injuries. The doctor had
already
confirmed that the deceased had no chance of survival after
sustaining such injuries. All the deceased'
s
ribs were fractured. The
accused cannot stand before Court and
claim that with such extensive use of blunt force that broke all
ribs, caused sub-cutaneous
bruising of the scalp on both sides, a
laceration in the upper lobe of the right Jung, a pulpified left
lung, as well as
the pulpification of the
right lobe of the liver, plus strangulation intention was
not to
kill the deceased. The colour
photographs of the deceased' s multiple external and
internal injuries
are too ghastly to view.
[9]
The accused has a
catalogue of previous convictions, comprising 5 (five) pages, which,
on the face of it, may show a propensity
for criminality but more
pertinently violence. He had his first clash with the law
in 1990 and his last conviction
and sentence was on 17 September
2015. He has one previous conviction of
rape.
[10]
Section 27IA of the Criminal Procedure Act, 51 of 1977 (the CPA),
determines that certain convictions fall away as previous
convictions
after the expiration of IO years unless during that time the person
has been convicted of an offence in respect of
which a sentence of
imprisonment for a period exceeding six months without the
option of a fine may be imposed.
See Du Toit: Commentary
on the Criminal Procedure act, Service 56, 2016 at 27-8. Although
most of the accused's previous
convictions are older
than the 10 years, the number and
nature of the convictions do signify a
trend hence I hold
the view that they should be taken into account.
[11]
In
S
v
Kruger
2012 (I) SACR 369
(SCA) the Supreme Court of Appeal held that,
even where previous convictions are
an
aggravating
factor, it remains the duty of a sentencing court 'to
tirelessly balance the mitigating and aggravating factors in order to
reach
an appropriate sentence'.
The
remarks by Majiedt JA in
Mudau
v
The
State
(764/2012)
[2012] ZASCA 56
(09 May 2013)
at para 13 are apposite:
"Courts
must
therefore always strive to arrive at a sentence
which is just and fair to both
the
victim and
the
perpetrator, has regard to the nature of the crime and takes
account of the interests of
society.
Sentencing
involves
a very
high
degree of
responsib
ility
which should be carried out with
equanimity, as Corbett JA put it in
S
v
Rabi
e
[1975 (4)
SA
855
(A) at 866
A-CJ:]
'[a]
judicial officer should not approach punishment in a spirit of anger,
because, being human, that will make it difficult for
him to
achieve
that delicate balance between the crime, the criminal and the
interest of society which his task and the objects of
punishment demand of him. Nor should he strive after severity; nor,
on the
other hand, surrender himself to misplaced pity. While not
flinching from firmness, where firmness is called for, he should
approach
his task with a humane and compassionate understanding of
human frailties and the pressures of society which contribute to
criminality.
'"
[12]
In Count 1: murder, the
accused undermined the deceased and insulted her dignity by
brutally assaulting her and eventually
strangling her. His defence of
an alibi was bizarre. He was placed at the scene by state witnesses
whose evidence I found to be
credible. The accused has not shown any
sign of remorse throughout the trial. The remarks on remorse by
Ponnan
JA in
S
v
Matyityi
2011
(1)
SACR 40 (SCA) at para 13 are paramount.
[13]
In
S
v
Malgas
2001
(1) SACR 469
(SCA) at 481j Marais JA exhorted judicial officers not
to depart from the specified
sentences for flimsy
reasons. See also
S
v
Fatyi
2001 (I) SACR 485
(SCA) at 488 para 5. The accused has already been convicted of murder
with direct intent to
kill. Sec 51(1) of the General Law Amendment Act, 105 of 1997
finds
application
in that the
prescribed
minimum legislation is applicable. Counsel for the accused did
not point out any compelling or substantiating circumstances
that
would warrant a deviation from the prescribed
minimum
sentence. I
did not find any
either.
The
circumstances
under which this murder was committed are, undoubtedly,
such that the imposition of the prescribed minimum
sentence is
consequential.
[14]
Murder committed by a man
on a woman should not be treated lightly. It becomes worse
where the perpetrator, as in this instance,
was the deceased's
partner, who had the duty and the responsibility to protect her and
not to harm her.
It
is
killings like the one committed by the accused which
necessitate the imposition of sentence to serve not only as a
deterrent
but also to have a retributive effect. Violence against
women is rife and the community expects
the Courts to protect
women against the
commission of such
crimes.
In
the unreported judgment
S
v
Mudau
2014 JDR 0641 (SCA); (547/13)
[2014] ZASCA 43
(31
March 2014) (at para 6 Mathopo AJA pronounced:
"
Domestic violence has become a scourge in our society and
should
not be treated lightly, but
deplored and also severely punished.
Hardly a day passes without a report
in the media
of a woman or child being beaten, raped or even killed in
this country. Many women and
children live in constant fear. This is
in some respects a negation of many of their fundamental rights
such as equality,
human dignity and bodily integrity.
This was well articulated in
S v Chapman
[1997] ZASCA 45
;
1997
(3)
SA 341
(SCA) at 345A-B when the Court said the following: 'Women in
this country 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.
'"
[15]
In
S v
Siluale en Ander
1999
(2) SACR 102
(SCA) from the headnote at 103 Grosskopf JA
remarked:
"If
the circumstances of a case require that an offender
should receive a sentence which for all practical
purposes
removes him permanently from society, life imprisonment is the only
appropriate sentence. It is intended to be the most
severe sentence
that can be imposed."
[16]
In
considering
whether the accused is a
candidate for
rehabilitation or not I am mindful of the pronouncements
by
the Supreme Court of Appeal in
Ravele v S
(20079/14)
[2014]
ZASCA 118
(19 September 2014) where Mocumie AJA (concurred in
by
Cachalia and Bosielo JJA)
pronounced:
"[19]
He has a long list of previous convictions which, on the face of
it,
shows a propensity for criminality. He had his first clash with the
law at the tender age of 13 years. Amongst his previous
convictions
is one of indecent assault for which he was convicted when he was 14
years old. Nonetheless,
it
was
wrong for the court a quo to look at the appellant's previous
convictions and conclude therefrom that there were no prospects
for
his rehabilitation. There is no evidence to inform the court of
his upbringing, his social and cultural background,
his family
structure and whether his upbringing had any influence on his
susceptibility to crime and his anti-social behaviour
and
whether he would have been receptive
to any
rehabilitation program. What is clear is
that he is still relatively young. He
requires
correction and
rehabilitation,
but
not
destruction,[9]
lest
he
returns to the very society from which he comes more hardened
and desensitised to living amongst law abiding citizens.
Programs aimed at rehabilitation of young offenders may give him an
opportunity
to change his behaviour, especially
that
towards women.
"
As
alluded to earlier, the accused is not youthful anymore but 43 years
of age. He still has an option to avail himself for rehabilitative
programs that will assist him to mend his ways and to change his
approach to women and people in general. It is unclear at
this
stage what informed the accused' s behavioural
patterns.
[17]
In respect of the assault
on
Mr
Wewu
in Count 2: The assault was on a 55 year old man and was
unprovoked. Although Mr Wewu suffered a 1
cm laceration
which was healed his dignity of being assaulted for no apparent
reason by the accused was affected.
The accused
displayed utter lack of respect for
the older folk which
must be
frowned upon.
[18]
The fear that the accused
instilled in his victims is inexcusable.
Mr
Wewu abandoned his plans
for the evening after the incident at the tuckshop. Mr Phillip Kers,
the complainant in Counts 3 and 4,
had to flee from the accused
neglecting his visitors on the same evening . He was forced by
circumstances imposed by the accused
to flee from his own home due to
fearing him. Seeking refuge from his
relatives
was also short-lived because the accused caught up with him
and assaulted him again. Mr. Kers' fear was glaring to Ms Patosi the
community leader in the area who was summoned by Mr Kers to intervene
between them. This is blatant terror on the members of the
community.
I find no justification in the conduct
of the accused attacking defenseless people.
That
evening his belligerent behavior was like a ticking-bomb waiting to
explode. It is conduct similar to the accused's that justifies
protection of the members of the society by the courts.
In my view the aggravating circumstances
by far outweigh the mitigating circumstances.
[19]
In
S
v
SD
2015
(2) SACR 363
(SCA) at 368 para 16 Brand JA's remarks are
instructive:
"[16]
When one looks at the offences under present consideration and the
interests of society, 1 can come to one conclusion
only: the offences
for which the appellant has been convicted are so severe that
incarceration cannot be avoided. In that sense
it is 'the last resort
of punishment'.
...
....Any sentence which
fails to recognise
the severity of these crimes may
lead to society losing its confidence in the criminal justice system.
Especially in a society where
violence has become prevalent and
endemic, one simply cannot afford that risk"
[20]
In the result, the
following sentences are
imposed:
1.
On
Count
1: Murder: Life
Imprisonment
2.
On Count 2: Assault
Common:
12
Months
Imprisonment
3.
On Count 3: Assault with
intent to cause Grievous Bodily Harm: Two (2)
years
imprisonment.
4.
On Count 4: Assault
Common: 12 Months
Imprisonment.
5.
The sentences in respect
of Counts 2, 3 and 4 are to run concurrently with the sentence
of Life Imprisonment for murder in
Count
1.
6.
The Registrar of the South
African Police Service is directed to
enter an endorsement in the
register in terms of s
1
3
STYLE="font-size: 12pt">03
(3) of the
Firearms Control Act, 60 of
2000
.
___________________________
M
C MAMOSEBO
JUDGE:
NORTHERN CAPE HIGH COURT
On
behalf of the State:
Adv. K Kgatwe
Office of the Director Public
Prosecutions
On
behalf of the Accussed: Adv. JJ Schreunder
The Justice Centre, Kimberley