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2017
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[2017] ZANCHC 39
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Riegert v S (CA&R67/15) [2017] ZANCHC 39 (5 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: CA&R 67115
Matter
heard: 06-02-2017
Delivered:
05-05-2017
In
the Appeal of:
ABRAHAM
RIEGERT Appellant
And
THE
STATE Respondent
WILLIAMS
J et LEVER AJ
JUDGMENT
WILLIAMS
J:
1.
The appellant, Mr Abraham Riegert was convicted on 23 June 2015, in
the Regional Court held at Fraserburg, of murder, read with
the
provisions of section 51(2) of Act 105 of 1997 (the Act). He was
thereafter sentenced to 15 years imprisonment. This appeal
lies only
against the sentence imposed.
2.
The appellant, who was initially charged with murder, read with the
provisions of section 51(1) of the Act, pleaded guilty to
murder,
read with the provisions of section 51(2) of the Act on
the basis that the offence was not planned or premeditated.
The state
refused to accept the plea and proceeded to adduce evidence in an
attempt to prove planned or premeditated murder. The
court a
quo
however held that there was no credible evidence upon which a
finding of planned or premeditated murder could be made and convicted
the appellant of murder read with sec 51(2) of the Act and sentenced
him to the minimum prescribed sentence of 15 years imprisonment.
3.
The only issue to be decided on appeal is whether the court a
quo
misdirected itself in finding that no substantial and compelling
circumstances existed which justified a deviation from the prescribed
minimum sentence.
4.
The relevant facts in this matter are the following:
4.1
The deceased was the stepfather of the appellant. It appears to be
widely known that the
two did not have a good relationship due to the
appellant's behavioural problems and that the relationship further
deteriorated
after the appellant's mother died during 2012.
4.2
As a result of the bad relationship between the deceased and the
appellant the deceased would not allow the appellant to stay in the
parental home.
4.3
The appellant, who at 27 years of age has an impressive list
of
previous convictions five
thereof for housebreaking with the intent
to
steal and theft, four for theft and one for housebreaking with the
intent to rape and rape - therefore after his last release
from
prison resorted to living on the local dumping site.
4.4
On the night in question, which was apparently particularly
cold, the appellant proceeded
to his parental home to ask for
shelter. When the deceased refused, the appellant hit him over the
head multiple times with a spade.
The medical evidence is that the
deceased died of head injuries caused by blunt force trauma
consistent with being hit repeatedly
with a large amount of force.
4.5
The appellant then covered the body of the deceased with plastic bags
and clothing, attempted
to clean up the blood from the scene and
proceeded to live in the house with the deceased's body for two days
before he told one
of the state witnesses that he had killed
his stepfather.
5.
The court
a quo
had regard to the nature of the offence, the
personal circumstances of the appellant and the interests of the
community and in my
view correctly found no substantial and
compelling circumstances to exist. The appellant has proved himself
to be a repeat offender
and a danger to society with little
prospect of rehabilitation. Mr Nel who appeared for the appellant,
correctly
conceded that the court
a quo
made
no material misdirections nor can the sentence be described as
startlingly disproportionate or harsh.
In
the circumstances the following order is made:
The
appeal against the sentence imposed is dismissed.
_____________________
CC
WILLIAMS
JUDGE
I
concur
_____________________
LLEVER
ACTING
JUDGE
For
Appellant:
Adv Van Zyl Nel
Legal Aid SA
For
Respondent: Adv Q Hollander
Office of the OPP