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[2016] ZAGPPHC 724
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S v Pistorius (CC113/2013) [2016] ZAGPPHC 724 (6 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO
:
CC113/2013
DATE
:
2016-07-06
Reportable:
No
Of
interest to other judges: No
Revised.
THE
STATE
and
OSCAR
LEONARD CARL
PISTORIUS Accused
JUDGMENT
MASIPA.
J:
On 11 September 2014 this court convicted
the accused of
inter alia
culpable
homicide and sentenced him to imprisonment for a period of not
exceeding 5 years in terms of
Section 276(1)(i)
of the
Criminal
Procedure Act, 51 of 1977
Subsequently,
this court acting in terms of the
Criminal Procedure Act, Section
319
and on application by the State, reserved three questions of Jaw for
the consideration of the Supreme Court of Appeal. Having
heard
counsel, the Supreme Court of Appeal made the following finding:
"1. The first two
questions of law reserved are answered in favour of the Director of
Public Prosecutions.
2. The accused's
conviction and sentence on count 1 are set aside and replaced with
the following:
'Guilty of murder with
the accused having had criminal intent in the form of
do/us
eventualis.'
3. The matter is referred
back to the trial court to consider an appropriate sentence afresh in
the light of the comments in this
judgment."
(See
the
Director of Public Prosecution Gauteng v Pistorius,
2016(1) SACR 431 (SCA) paragraph 52).
It
now remains for this court to impose an appropriate sentence. To
determine a fitting punishment based on fairness and proportion,
I
have
to consider several factors, namely the offender, the
offence and the interests of society as well as the victims of the
offence.
I am also obliged to have regard to the main purposes of
punishment which are retribution, deterrence, prevention and
rehabilitation.
Lastly, because of the nature of the offence that the
accused has been found guilty of, I have to determine whether there
exist
substantial and compelling circumstances, justifying the
imposition of a lesser sentence than 15 years imprisonment, which is
the
prescribed minimum sentence in this case.
The
evidence
. Both the accused and the state led
the evidence of various witnesses in mitigation and in aggravation of
sentence. For purposes
of this sentencing exercise, it is not
necessary to set out in detail every piece of evidence that was led.
I have confined myself
to what I consider strictly necessary,
although I have had regard all the evidence as well as submissions
placed before this court
The only evidence that shall be set out in
detail is that of Professor Scholtz, only because of its nature as
expert evidence and
the detailed report he compiled. Such evidence
shall be summarised under this heading only briefly and be set out in
detail under
the personal circumstances of the accused. The evidence
of the various witnesses shall be discussed under relevant headings
hereunder.
The
first and main witness for the defence was Professor Scholtz, a
clinical psychologist, who assessed the accused and compiled
a pre-
sentencing report marked EXHIBIT SA. He had initially featured in
this matter as one of the panellists appointed to assess
the accused
during the trial in 2014 in terms of
Sections 78
and
79
of the
Criminal Procedure Act. Professor
Scholtz explained that in view of
his previous involvement in the matter, he had sought and obtained
confirmation from the Health
Professions Council of South Africa
(HPSCA) to proceed with the assessment for the purposes of sentence.
In
assessment of the accused, Professor Scholtz found
inter alia
that
the accused displayed signs and reported symptoms of posttraumatic
stress disorder, anxiety disorder and depressive disorder.
The short
to midterm memory was compromised. In his opinion the accused's
condition was so severe that he would not be able to
testify in the
proceedings. He also formed an opinion that he should have been
hospitalised as his condition had worsened since
the last time he had
seen him in 2014. I shall say more about this when I deal with the
personal circumstances of the accused.
The
next witness was Amber Goodmontomondo Teo from Iceland. She got to
know about the accused a little more than 11 years ago when
she was
about 20 weeks pregnant and her doctors informed her that her son
would be born without legs. She and her family were anxious
as no one
in Iceland had been born without legs before. She had seen an article
about the accused and his photograph taken while
he was running in
Athens. Her mother had written to the person who had interviewed the
accused to thank him for being visible.
Soon thereafter, and quite
unexpectedly, the accused had written back to her mother to say that
it would be a pleasure for him
to help in whatever way he could.
Since then he has visited the family often and cares for his son as
well for his sister.
The
third witness was Mr Marius Nel, the accused's Pastor of 3C
Ministries based in Centurion. His evidence was short and to the
point. The accused is a member of his Ministry. While the accused was
incarcerated Mr Nel often paid him a visit to pray with him,
minister
to him and to encourage him. He found him a broken man. His Ministry
was involved in a number of projects, to Assist Disadvantaged
Children in various schools. He had discussed with the accused the
possibility of his involvement in sports and athletics training
in
some of these schools and the accused had shown an interest and was
keen to assist.
I
am now dealing with the personal circumstances of the accused. was
assured by counsel that the personal circumstances of the accused
as
they appear on the trial record, had not changed much. Additional
information was obtained from Professor Scholtz' report, EXHIBIT
SA.
The accused is 29 years old, single and has no children. He is a
renowned athlete. He has no previous convictions. The middle
of three
children, he was born with a congenital abnormality and at the age of
11 months, he had a bilateral below the knee amputation.
He uses
prosthetic legs. He attended both primary and high school in
Pretoria. When he was in Grade 9 his mother passed on. According
to
Professor Scholtz the accused felt the loss deeply as he and his
mother had a very close bond while he had a not so good relationship
with his father. After Grade 12 the accused enrolled at the
University of Pretoria for a Bachelor of Commerce Degree in Business
Economics, but had to drop out because of the demands of his career
as an athlete.
The
background of the accused and his family is set out in paragraph 2.2
of EXHIBIT SA. In part it reads as follows:
"History and
development of Mr Pistorius, family constellation and relationships.
Mother.
Even though there was never any violence or serious
aggression between his mother and father, the couple divorced when Mr
Pistorius
was 6 years old. Mr Pistorius' mother did her best after
the divorce and remained positive and strong even though her family
had
to adapt in difficult circumstances, especially financially. She
motivated Pistorius to live his life as normal as possible in spite
of the problems he experienced as a double amputee. She was, however,
also an anxious person and got startled easily. She acquired
a pistol
when she met her husband and learned to shoot. After the divorce she
would become scared and anxious at times when she
felt they were
under threat. Unfortunately there were a few incidents of crime that
the family experienced directly or indirectly
and this exacerbated
her anxiety. These experiences left a lasting impression on the young
Pistorius, making him aware of his family's
and his own vulnerability
to crime and increasing his fear of being a victim of crime."
Professor
Scholtz states that the sudden passing of his mother when he was 15
years old left the accused feeling traumatised and
abandoned. He
states that the accused's relationship with his father after the
divorce was poor but he subsequently found
father figures, mainly his
uncle Arnold. He has a close relationship with both his elder brother
and his younger sister. His sister
left the country recently. This
also was felt by the accused as a loss.
The
accused was incarcerated for 12 months at Kgosi Mampuru Correctional
Centre. After his release he was placed under house arrest
at the
residence of his uncle and aunt. During his incarceration the accused
completed a number of courses and workshops as part
of his
rehabilitation program. According to Professor Scholtz the accused's
views about possession and use of firearms has changed.
He sold all
his firearms and never wants to touch a firearm again. He is not
anti- social or psychopathic. He is currently enrolled
for a BSc
degree at the University of London.
Professor
Scholtz' views are that the accused's mental health has deteriorated
since 2014. He states:
"Since the offence
he has developed a serious psychiatric condition which has got worse
over the past two years. Major depression
and posttraumatic stress
disorders. His level of anxiety have (as I see) also increased. He
has become isolated and fearful of
venturing out in public."
Professor
Scholtz is also of the opinion that the accused's current condition:
"Warrants
hospitalisation."
He
also states that because of the accused's international profile, he
has had to endure intense media attention and negative reports
about
the incident. He also had to endure constant pressure and harassment
from the media. In his report, Professor Scholtz also
deals with what
he refers to as traumatic and humiliating experiences that the
accused allegedly had during his incarceration.
These, however, were
unsupported by anything concrete. Most of these experiences were
denied or put in perspective by Mrs MC Mashabane,
the assistant
health manager at the Kgosi Mampuru prison.
Mrs
Mashabane explained that the accused could not have overheard the
rape of a young man or seen the body after the young man had
hanged
himself, as the accused had alleged, as the section where the
incident happened was far from where the accused was accommodated.
Ms
Mashabane appeared to be an honest witness and I was given no reason
to reject her evidence and I accepted it as true and reliable.
On the
other hand, this court accords very little weight to most of what the
accused told Professor Scholtz for the following:
reasons.
There
was no way to test the veracity of the complaints as the accused did
not give evidence. Secondly, Professor Scholtz did not
fare well
under cross-examination. When asked details about the infection
allegedly suffered by the accused because he had no seat
or chair in
his shower for the first five weeks, he could provide none. In
addition, the allegation that the accused's health had
deteriorated
was irreconcilable with what was put to state witnesses that the
accused was hoarding medication which he had legally
obtained over
time from the nurses.
The
circumstances/gravity of the crime.
Murder is
always a very serious crime. The fact that the accused thought that
it was intruder does not make it less serious. Serious
as the crime
is, for purposes of sentencing, it is always useful to place facts
that led to the particular matter in perspective.
A short background
of circumstances in which the crime was committed is therefore
important. In the early hours of 14 February
2013 the accused shot
and killed his girlfriend Reeva Steenkamp, the deceased, in his home
in Pretoria. At the trial, the accused
explained that he had
mistakenly shot and killed the deceased through the locked toilet
door in his bathroom, as he had thought
then that there was an
intruder who had entered the house through the bathroom window and
imposed a threat to him and the deceased.
At
the time of the shooting he was on his stumps. When he discovered his
mistake, he put on his prosthetic legs and, using the cricket
bat to
bash open the door, he was able to unlock it and reach the deceased.
The accused picked her up and took her downstairs hoping
to get her
to hospital. Minutes later, still at the accused's house, the
deceased was declared dead by the paramedics. Witnesses
who saw the
accused soon after the incident told this court that the accused
looked distraught. A state witness, who had earlier
heard what he had
referred to as shots and screams, had no doubt that the accused's
distress was genuine. There was also evidence
that the accused was
crying and calling upon God to intervene.
Notwithstanding
the above circumstances, it is worth repeating that the murder is a
serious offence. In the present case,
a deadly weapon in the
form of a firearm was used and the results were devastating. The fact
that the murder took place under circumstances
as described above,
does not in any way make the offence any less serious.
I
now deal with
the interests of society
. The interests of
society demand that people who commit serious crimes such as murder
be punished severely. The interests of society
that are considered
and protected, however, must be legitimate interests. Counsel for the
defence correctly submitted that there
was an unfortunate perception
in the minds of some people that on the night of the murder, there
was an argument between the accused
and the deceased and that this is
what led to the murder of the deceased.
The
existence of such a perception was inadvertently confirmed by the
father of the deceased, Barry Steenkamp, who, during the course
of
his evidence, let slip this very perception. That counsel for the
state stopped Mr Steenkamp from proceeding any further, does
not
change the fact that such a perception does exist. It, therefore,
cannot be ignored by this court. The unfortunate part of
it is that
there is not a shred of evidence placed before this court that
supports such a perception.
Courts
deal with facts placed before them, not with assumptions and not with
suspicions. The fact that an accused may not have taken
a court into
his confidence or that he lied in certain respects, does not give
such court the right to speculate against the accused
and to act on
such speculations. I might also add that although this case
attracted the attention of groups fighting for
women's rights, there
is no indication at all that the deceased was in an abusive
relationship. There is also no evidence whatsoever
that this case is
based on gender violence. Had there been such evidence, it would
certainly have been a definite aggravating factor.
I shall return to
this issue of the misperceptions from the public in my judgment when
I deal with the submissions by counsel on
the appropriate sentence.
Society
at large has a real interest in the present matter mainly because
both the accused and the deceased were well-known personalities
with
illustrious careers. There were celebrated
both here at home and abroad. It is, therefore, not surprising
that
there would be an unprecedented level of interest in the proceedings
and in the outcome and that the incident, the trial and
the possible
outcome, would become talking points for some time. Society has a
right to have certain expectations and to demand
justice. However,
such expectations must be legitimate expectations before the court
can take heed of them. It follows that expectations
cannot be
legitimate if they are based on wrong perceptions.
I
deal with the deceased and her family. Although the deceased belonged
to a family which is part of the wider community, it is
necessary to
deal with the deceased and her family separately. The deceased was
young, vivacious, full of life and hope for the
future. This picture
was painted by the deceased's father, Mr Barry Steenkamp and the
deceased cousin, Kim Michelle Martin. Both
told of the pain that the
family has suffered and continues to suffer as a result of the
deceased's untimely death. Ms Martin described
the deceased as a
loving and wonderful person. She stated that as a family they would
never completely get over the death of the
deceased. The deceased had
plans, not only for herself, but for her parents as well. She
supported her parents financially
and expressed the wish to continue
to do so to make their lives easy.
According
to Mr Steenkamp the deceased used to call home almost every weekend
to talk to him and his wife separately. It is, therefore,
not
surprising that three years later, the family is still grieving. lt
is clear from the evidence that the Steenkamps had a very
close bond
and used to celebrate special occasions together as a family. Now,
Christmas, birthdays and Valentine's day are a painful
reminder that
the deceased is no longer with them. It is on such days that
they feel the loss deeply. Mr Steenkamp spoke
of the impact the
deceased's death has had on him specifically. He now suffers from ill
health, he thinks of the deceased every
day. He has her photographs
everywhere in the house. He now avoids meeting people and often gets
up at 03:00 to sit in the veranda
smoking and talking to the
deceased. He told this court that his wife also suffers as much as he
does.
The
evidence of both Mr Steenkamp and Ms Martin shows that the pain runs
deep and that the impact of the accused conduct on the
family of the
deceased has been devastating. Ms Martin told this court that the
family is anxious and depressed, they have been
exposed to the media.
She is loathe to meet people or go places as she never knows when
someone might say something about the deceased,
the accused or about
the incident. She, however, has to cope and go on with her life for
the sake of her children. That fact is
relevant and must be taken
into consideration in the sentencing process.
The
Criminal Law Amendment Act. 105 of 1997 (Act 105 of 1997).
In
terms of the provisions of Act 105 of 1997, as amended, this court is
obliged to impose the prescribed minimum sentence which
is 15 years
imprisonment unless, of course, there exist substantial and
compelling circumstances justifying the imposition of a
lesser
sentence than the prescribed minimum sentence. Section 51(2)(a) of
the Act, that is Act 105 1997, specifically provides
that when an
accused who is a first offender is convicted of murder that is not
planned or premeditated, the court shall sentence
him or her to
imprisonment for a period of not less than 15 years. The Act does not
define the phrase:
"substantial and
compelling circumstances"
but
has left it to the courts to make that determination. Fortunately,
the correct approach in this regard is set out in
S v Ma/gas,
2001(1) SACR 469 (SCA). There the Supreme Court of Appeal stated
the following:
"In short, the
legislature aimed at ensuring a severe standardised consistent
response from the courts to the commission of
such crimes, unless
there were, and could be seen to be, truly convincing reasons for a
different response. When
considering sentence the
emphasis was to be shifted to the objective gravity of the type of
the crime and the public's need for
effective sanctions against it.
But that did not mean that all other considerations were to be
ignored. The residual discretion
to decline to pass the sentence
which the commission of such an offence would ordinarily attract,
[plainly] was given to the courts
in recognition of the easily
foreseeable injustices which could result from obliging them to pass
the specific sentences come what
may."
In
S v Vilakazi,
2012(6) SACR 353 (SCA) at paragraph 15 the
following was said:
"[15] It is clear
from the terms in which the test was framed in
Ma/gas
and
endorsed in
Dodo
that it is incumbent upon a court in every
case before it imposes a prescribed sentence to assess upon a
consideration of all the
circumstances of the particular case whether
the prescribed sentence is indeed proportionate to the particular
offence. The
Constitutional Court may be clear that what it
meant by the offence in that context... consist of all factors
relevant to the nature
and seriousness of the criminal act itself as
well as all the relevant personal and other circumstances relating to
the offender
which could have a bearing on the seriousness of the
offence and the culpability of the offender. If a court is indeed
satisfied
that a lesser sentence is called for in a particular case,
thus justifying the departure from the prescribed sentence, then it
hardly need saying that the court is bound to impose that lesser
sentence. That was also made clear in
Malgas
which said that
the relevant provision in the Act vests the sentencing court with
power indeed the obligation to consider whether
the particular
circumstances of the case require a different sentence to be imposed.
And a different sentence must be imposed if
the court is satisfied
that substantial and compelling circumstances exist which justify ...
it.”
Malgas
in paragraph 22 puts it this way:
"The more a court
feels uneasy about an imposition of a prescribed sentence, the
greater its anxiety will be that it may be
perpetrating an injustice
and that once that uneasiness becomes a conviction then an injustice
will be done."
In
my view the above is a reminder that each case ought to still to be
decided on its own peculiar facts. A useful point of departure
therefore, is a proper investigation of the pertinent facts and
circumstances in the present matter. In addition to answer the
question whether there exist substantial and compelling circumstances
justifying a lesser sentence, courts must also consider aggravating
factors as well as mitigating factors in a particular matter.
I
deal with aggravating facts and mitigating factors.
In
the present case there are a number of aggravating factors. The
accused used a lethal weapon, a high calibre firearm and ammunition
and fired not one, but four shots into the toilet door knowing full
well that there was someone behind the door. The toilet was
a small
cubicle and there was no room for escape for the person behind the
door. The accused had been trained in the use of and
in handling
firearms. He used the firearm without taking precaution of firing a
warning shot, as found by the Supreme Court of
Appeal.
Mitigating
factors are the following.
The accused
approached the bathroom in the belief that an intruder had entered
his house. At the time he was without his prosthesis
and felt
vulnerable. His belief that there was an intruder in the house is
supported by his actions when he realised that it was
the deceased in
the toilet. Details of the sequence of events after the shooting,
most of which were not disputed, are on record.
It is not necessary
to repeat them for purposes of sentencing. It is sufficient to state
that the accused immediately took steps
to try to save the deceased's
life. Dr Stipp, who lived in the same complex, gave evidence that
when he went to the accused's house,
soon after the shooting, the
accused implored him to do something to save the deceased life. He
was distraught and kept on asking
God to save the deceased's life and
promising to serve him in return. What is significant about this
evidence is that it was volunteered
by a state witness and that no
other evidence was led to contradict it.
Counsel
for the state submitted that there were no substantial and compelling
circumstances justifying a lesser sentence than the
prescribed
minimum sentence. He reiterated that the accused showed no remorse as
he did not come clean before this court. I disagree.
At the
commencement of the proceedings the accused apologised to the family
of the deceased. This public apology could easily have
been
interpreted as a ploy to gain public sympathy. Had it not been
for the fact that the accused had previously, unsuccessfully,
tried
to meet the parents of the deceased to apologise for the pain that he
had caused them and to ask for forgiveness, i might
have doubted his
bona tides.
What
weighs heavily with me, amongst other things, is that the request was
repeated more than once. This court was informed that
after his
release from incarceration, the accused tried once more to approach
the deceased's family with an apology without success.
Mr Steenkamp
confirmed that the accused had made such a request through lawyers,
but the Steenkamp family was not yet ready to
meet the accused.
It
is my view that it must be one of the most difficult things for any
accused to have to face the victims of his crime and to apologise.
It
is highly improbable, therefore, that the accused would persist in
his request to meet the parents of the deceased and ask for
forgiveness, if he was not genuinely remorseful. Counsel for the
state submitted further that in the event the court found that
substantial and compelling circumstances exist justifying a lesser
sentence than the prescribed minimum sentence, the court still
ought
to impose a very long term of imprisonment on the basis that the
crime the accused was found guilty of bordered on
dolus directus.
I disagree with this submission. There is no suggestion in the
judgment of the Supreme Court of Appeal that this is the case. The
finding of the Supreme Court of Appeal was that the accused had
intent in the form of
dolus eventualis.
It is this finding
that this court has to bear in mind and use as a basis to impose a
sentence afresh.
I
have taken all the
above
into consideration and am of the view
that mitigating circumstances outweigh the aggravating factors. I
find that there are substantial
and compelling circumstances which
justify a deviation from the imposition of the prescribed minimum
sentence of 15 years.
The
appropriate sentence.
While it is true that
sentences ought to be standardised or consistent, each case is
different and sentences must be individualised.
This court is
indebted to both counsel who referred to a number of cases during
their submissions. Although none of the cases can
be said to be on
all fours with the present case, they certainly assisted as a guide.
As a starting point counsel for the defence
zeroed in on concerns
that he submitted had a potential to cloud the real issues. The first
had to do with an impression gained
by the public that the accused
was found guilty of
do/us directus
when
in fact he was found guilty of
dolus
eventualis.
The
second had to do with the fact that the accused was, in the minds of
most people, portrayed as the confident 1.84 metres tall,
strong,
ambitious person, winning gold medals. This obscured the relevant
fact that at
the
time the accused shot at the toilet door and
killed the deceased, it was 03:00 and dark, he was not wearing his
prosthesis but was
on his stumps and measured 1.5 metres in height
and felt vulnerable.
The
third had to
do
with emotions of the public emanating from the
perceptions
above.
Defence counsel submitted that because of
these emotions, there was a danger that the true facts might escape
the general public
who may then have unreasonable expectations in
terms of an outcome. I shall come back to these submissions later.
Counsel
for the state sought to argue that Mr Steenkamp's pain had nothing to
do with any perception he might have had about what
led to the death
of the deceased and that in fact to link the two, would be to
diminish a father's real pain. I do not think that
anything anyone
says or does can diminish the pain suffered by the deceased's family.
The pain is there, it is real and it is tangible.
Nevertheless, the
misperception that there was an argument before the deceased was shot
and killed and that the accused was guilty
of murder
dolus
directus,
cannot be ignored, as to do so, may not serve the ends
of justice.
I
return to submissions by counsel for the accused concerning the
public's perception of what may have happened on 14 February 2013.
That the submissions by defence counsel have merit insofar as some
members of the public are concerned cannot be disputed. I am,
therefore, constrained to accept that all the submissions which were
made, were made with good reason. Had it not been for the
unique
features of this case and the wide publicity the case has attracted,
I would probably have dismissed such submissions as
improper and
unnecessary. I say this for the following reasons.
Our
courts are courts of law, not courts of public opinion while judicial
officers are expected to and should adjudicate matters
without fear,
without favour and without prejudice. The court is aware that natural
indignation of interested persons and of the
community at large
should and does receive some recognition in the sentences that courts
impose as counsel for the state correctly
argued.
(See R v Karg,
1961(1) SA 231 (A) at 236). However, in my view such indignation
must be based on facts as reflected in the evidence properly placed
before court under oath and tested under cross-examination. Where a
wrong perception about a particular fact exists as it does
in this
matter, and has been brought to the attention of a court, it is the
duty of the court to correct it and put the correct
facts in
perspective to prevent unjustified outrage from the public.
It
is appropriate at this stage to say something about the limited role
of public opinion in sentencing as set out in
S v Mhlakaza
&
Another,
1997(1) SACR 515 (SCA). There Harms JA stated
inter
alia
that the object of sentencing was not to satisfy public
opinion but to serve or lead public opinion or the public interest.
He stated
that a sentencing policy that catered predominantly or
exclusively for public opinion was inherently flawed as it was the
court's
duty to impose an appropriate and fair sentence fearlessly,
even if the sentence did not satisfy the public. He further stated
the following:
"Public opinion may
have some relevance to the enquiry, but in itself, it is not a
substitute for the duty vested in the court.
The court cannot allow
itself to be diverted from its duty to act as an independent
[indistinct] by making choices on the basis
that they will find
favour with the public."
In
the present case public opinion may be loud and persistent, but it
can play no role in the decision of this court. The objective
facts
on the merits in this matter are on record and do not warrant
repetition for purposes of the present procedure. Suffice it
to state
that as defence counsel correctly submitted, those facts have not
been disturbed as no further evidence was led on appeal.
It is those
facts, not conjecture and certainly not suppositions, which are
guiding this court in its decision.
Defence
counsel is correct in his submission that this court ought not to
lose sight of the fact that the 'Oscar' who shot and killed
the
deceased on the morning of 14 February 2013, was not the acclaimed
'Oscar' who defied odds on the racetrack and won medals.
My
view is that even without the physical demonstration that took place
in court to show the difference between the accused on his
stumps and
the accused on his prosthetic legs, it is easy to see that we are
here dealing with two different persons. This was
clearly set out by
Professor Scholtz in his earlier report, EXHIBIT QQQ. This evidence
was not contradicted and the assessment
of the accused's personality
in this manner is not farfetched in
my
view. To ignore this
fact would lead to an injustice, in my judgment. However, it is also
important to keep in mind that the accused's
personal circumstances
are just one consideration amongst many in the sentencing process.
There are other equally important considerations
to be taken into
account.
I
understood counsel for the defence to be contending, (although not in
so many words), for a non-custodial sentence. Relying on
the report
of Professor Scholtz, he submitted,
inter alia,
that a
custodial sentence would serve no purpose as the accused had been
rehabilitated. He based his submissions on the fact
that the
accused had completed a number of courses and had attended workshops
while
he
was incarcerated. This submission loses sight of
the
fact that rehabilitation is only one of the purposes of
punishment. The other purposes mainly retribution, deterrence,
reformation
and prevention are just as important and ought to be
properly addressed as well. The degree with which each will feature
in any
sentencing procedure will depend on the crime the accused has
been found guilty of as well as on the circumstances of each case.
The
circumstances in this matter have changed as the accused has now been
found guilty of murder
dolus evantualis,
which is a more
serious offence than culpable homicide. Having regard to the changed
circumstances the rehabilitation programs that
the accused was
exposed to during his incarceration may or may not be sufficient for
present purposes, now that the accused has
been found guilty of a
more serious crime. lt is not for this court to determine their
sufficiency or insufficiency. That is the
prerogative of
the
prison authorities if the accused is sent to prison. This court,
however, is obliged to and does take into consideration the fact
that
the accused successfully completed the programs referred to above.
This, in my view, is an indication that the accused is
a good
candidate for rehabilitation and that the other purposes of
punishment, although important, ought not to play a dominant
role in
the sentencing process.
Also
to be taken into consideration is the fact that the accused has
already spent some time in prison serving his original sentence.
I
may add that a contrary impression
to
whether the accused was
a good candidate for rehabilitation, may have been created, perhaps
inadvertently, during the cross-examination
of Professor Scholtz when
it was put to him that initially the accused had difficulty adjusting
as an inmate. Professor Scholtz
was quick to disagree with such a
statement, stating that the accused was not a violent person. The
basis of the disagreement was
not clear to me as no one had said
anything about the accused being violent by nature. What was said was
simply a fact, as observed
by the author of the report, that
initially the accused struggled to adjust as an inmate and cited
relevant examples of unacceptable
conduct.
I
did not get the impression from this report or from anything stated
by anyone, during the proceedings, that prison authorities
were
trying to vilify the accused or brand him as a violent person. On the
contrary, from the documentation placed before this
court and the
evidence, the impression I got was that, after the initial challenges
the accused had in adjusti ng, he had made
progress and was
cooperating with prison authorities. I
may
add that the fact
that the accused may perhaps be quick tempered, does not necessarily
mean he is a violent person.
Defence
also sought to rely on Professor Scholtz's evidence that the accused
needed to be hospitalised as his condition had worsened
since the
last time he saw him in 2014. I am in agreement with counsel for the
state that Professor Scholtz evidence in this regard
is not
convincing. I say this for the following reasons:
1.
There was no confirmation from the accused's
treating psychiatrist that the accused's condition was such that his
admission to hospital
was warranted.
2.
No
steps were taken to have the accused admitted to hospital,
notwithstanding
that
according
to Professor Scholtz, he had discussed the issue with the accused's
psychiatrist, Dr Bosch. The inference is irresistible
that Dr Bosch
does not support Professor Scholtz's view on the matter.
Conclusion.
The determination of an appropriate sentence that
satisfies every relevant interest is never easy. It is made even more
difficult
by
the
fact
that nothing that this court will do or say today shall bring back
the life of the deceased. As stated earlier, each
case must be
assessed on its own facts in search of a balance between the
accused's personal circumstances, the gravity of
the offence,
the interests of society as well the victim
of
the offence committed. All these have been
taken into account. Earlier I set out the impact that the crime
committed by the accused
has had on the family of the deceased.
It
is difficult
to
fully
describe its ramifications. What was evident from the testimony of
both Mr Steenkamp and Ms Martins that their lives shall
never be the
same. Details of what they went through and are still going through
as a family, have been described above. Thankfully
healing has
already started as both Mr Steenkamp and Mrs Steenkamp have stated
that they have forgiven the accused.
The
life of the accused shall also never be the same. He is a fallen
hero, he has lost his career and is ruined financially. The
worst is
that, having taken the life of a fellow human being in the manner
that he did, he cannot be at peace. It came as
no
surprise,
therefore, when both Mr Nel, his Pastor, and Professor Scholtz
described him as a broken man. Recovery is possible, but
it will
depend mostly on the accused's attitude to the punishment imposed
on
him. This court is aware that the accused, through his Pastor,
has shown a willingness and expressed a wish to do community work
as
punishment.
That
is a noble gesture. However, punishment is not what you choose to do.
It
is something that is imposed on you. By its very nature,
punishment is unpleasant, it is uncomfortable, it is painful and it
is
inconvenient. It is certainly not what you love to do.
I
have considered the evidence in this matter, the submissions and
argument by counsel as well as the relevant case law and other
authorities. Although a custodial sentence is a proper sentence, I am
of the view that a long term of imprisonment will not serve
justice
in this matter. The accused has already served a sentence of 12
months imprisonment. He is a first offender
and
considering
the facts of this matter, he is not likely to re-offend.
The
sentence that I impose will have to reflect not only that fact, but
also the seriousness of the offence. It will, insofar as
it is
possible, have to be fair to the accused as well as to the deceased
family
and
society at
large.
In
the result the sentence that I impose on the accused for the murder
dolus eventualis of the deceased, that is Reeva Steenkamp,
is 6 years
imprisonment.
Once
more I would like to thank counsel, all counsel involved, for their
assistance. I would like to thank all the officers of this
court and
all the staff of this court. In the meantime, I will adjourn and I
will be in chambers, just in case I have to come back
to court.
Counsel might like to consider whether or not they want to apply for
leave to appeal. I am willing to hear it today if
that is what
counsel want. Court will adjourn.