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[2015] ZAGPPHC 249
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Van Wyk v S (A507/2014) [2015] ZAGPPHC 249 (12 March 2015)
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO:
A507/2014
DATE: 12 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ANDRÉ
JOHAN VAN
WYK
.......................................................................................................
Appellant
and
THE
STATE
...............................................................................................................................
Respondent
JUDGMENT
JANSEN J
[1]
On 3 October 2007, the appellant (cited as the second accused in the
court
a quo
)
and a certain F J Cilliers (accused number one in the court
a
quo)
were
arraigned in the Vereeniging circuit court on the following counts: —
Count 1: Robbery
with aggravating circumstances;
Count 2:
Contravention of section 3 of Act 60 of 2000
(possession of a
unlicensed firearm);
Count 3:
Contravention of section 90 of Act 60 of 2000
(possession of
ammunition);
Count 4: Murder;
Count 5: Murder;
Count 6: Robbery
with aggravating circumstances;
Count 7:
Housebreaking with the intent to steal and theft;
Count 8: Murder;
Count 9: Robbery
with aggravating circumstances;
Count 10:
Contravention of section 3 of Act 60 of 2000
(possession of a
unlicensed firearm);
Count 11:
Contravention of section 90 of Act 60 of 2000
(possession of
ammunition);
Count 12: Accused 1
only - Culpable Homicide and an alternative count;
Count 13: Accused 1
only - Driving under the influence and an alternative count; and
Count 14:
Contravention of section 117(a) of Act 111 of 1998
(attempting to
escape from lawful custody).
[2] The appellant
pleaded guilty in respect of count 14 and was duly convicted based on
his plea of guilty. Accused number one pleaded
guilty in respect of
count 13 (main count) and count 14 and was convicted on these two
counts.
[3] During the trial
both accused had a change of heart and changed their pleas of
non-guilty to pleas of guilty.
[4] After his change
of plea to guilty the appellant was convicted in respect of counts 1,
4, 5, 6 and 7. (As stated, he had already
been convicted on count
14.)
[5] On 12 October
2007 the appellant was sentenced as follows: —
Count 1: 8 years'
imprisonment (Robbery with aggravating circumstances);
Count 4: 22 years'
imprisonment (Murder);
Count 5: 22 years'
imprisonment (Murder);
Count 6: 12 years'
imprisonment (Robbery with aggravating circumstances);
Count 7: 6 years'
imprisonment (Housebreaking with the intent to steal and theft); and
Count 14: 1 year imprisonment (attempted
escape).
[6] The sentences
imposed on the appellant in respect of counts 4, 5 and 6 were ordered
to run concurrently. In total, the appellant
was thus sentenced to 37
years of imprisonment.
[7] The circuit
court refused leave to appeal in respect of sentence on 7 December
2007. On 16 January 2013, the Supreme Court of
Appeal granted the
appellant “leave to appeal”. Although the learned judges
did not indicate that it was in respect
of sentence only, it is clear
from the context that that is what the learned judges sought to
convey.
[8] The question to
be answered therefore is whether direct imprisonment for a period of
37 years is warranted in the circumstances
of this case?
[9]
The leading case which deals with an appeal court’s power to
interfere with a sentence imposed by a court
a
quo
is
that of
S v
Pieters
1987
(3) SA 717
at 727F-H.
[10]
As stated by SS Terblanche
Guide
to Sentencing in South Africa
2
nd
Edition LexisNexis at pages 410-411
sub cap.
“
The decision to interfere
with a sentence”: —
'The basic
governing principle was restated by Botha JA in S v Pieters.
1
It boils down to the following: The discretion to impose sentence
belongs to the trial court. Owing to this fact the appeal court
may
not and shall not interfere with the imposed sentence unless it is
convinced
2
that the sentence discretion has been exercised improperly or
unreasonably.
3
If the trial court committed a misdirection of the nature and extent
indicated in S v Pillay,
4
it means the presiding officer did not exercise the discretion
properly.
5
The relevant portion in S v Pillay reads as follows:
—
“
[n]ow
the word misdirection in the present context simply means an error
committed by the Court in determining or applying the facts
for
assessing the appropriate sentence
...
[A] mere misdirection is not by itself sufficient to
entitle the Appeal Court to interfere with the sentence; it must be
of such
a nature, degree, or seriousness that it shows, directly or
inferentially, that the Court did not exercise its discretion at all
or exercised it improperly or unreasonably. Such a misdirection is
usually and conveniently termed one that vitiates the Court's
decision on sentence. ”
[11]
In assessing whether the court
a
quo
exercised
its discretion judiciously the following facts are taken into
account: —
[12]
The court may not overemphasise the crime and underemphasise the
personal circumstances of the appellant (or
vice
versa).
[13]
The trial court will have misdirected itself if it could not
reasonably have imposed the sentence which it did. In order to
assess
the reasonableness of a sentence the courts have to use terminology
such as “does the sentence induce a sense of shock?”
or
it is “startlingly (manifestly) inappropriate?”. It has
also been held that the court
a
quo
exercised
its discretion unreasonably where there is a startling disparity
between the imposed sentence and the sentence which the
appeal court
would have imposed. One therefore has regard to the type of sentence
imposed and the extent thereof.
[14] In respect of
robbery with aggravating circumstances the minimum sentence in terms
of the
Criminal Law Amendment Act 105 of 1997
is 15 years.
[15] In respect of
the two robbery charges with aggravating circumstances the court
found substantial and compelling reasons to
deviate from the
prescribed 15 year period which was reduced, in respect of the two
robberies, to eight and 12 years respectively.
[16] Regarding the
murder counts (counts 4 and 5) the minimum sentence was life
imprisonment due to the fact that they are offences
referred to in
Part 1
of Schedule 2, which provides as follows: —
“
Murder
,
when
—
(a)...
(b)
...
(c) the death
of the victim was caused by the accused in committing or attempting
to commit or after having committed or attempted
to commit one of the
following offences:
—
(i) ...
(ii) robbery
with aggravating circumstances as defined in section 1 of the
Criminal Procedure Act, 1977 (Act 51 of1977);
(d) the
offence was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common purpose
or
conspiracy;”
[17] The magistrate
only imposed sentences of 22 years’ imprisonment.
[18]
In the matter of
S v Swart
2004
(2) SACR 370
(SCA)
the
following is stated at 378c-e: —
“
What
appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal weight,
but instead proper weight must be accorded to each according to the
circumstances. Serious crimes will usually require that retribution
and deterrence should come to the fore and that the rehabilitation of
the offender will consequently play a relatively smaller
role.”
[19]
In
S v Valley
1998
(1) SACR 417
(W)
at
420C the seriousness of the crime of robbery with aggravating
circumstances was also emphasised: —
“
The
crimes which the appellant committed are extremely serious. We live
in a society which is becoming increasingly lawless; firearms
are
frequently used in robberies and victims are not uncommonly shot to
death or badly wounded. Persons who perpetrate such crimes
must be
punished severely. Society demands this and it is absolutely
necessary that the message go out to the world that people
who commit
these sorts of crimes will be dealt with severely.”
Relevant facts
of this case
[20] The crime spree
of the appellant and accused number one stretched over a period of
approximately one month (12 February to
13 March 2005). It resulted
in the death of three persons. (The third death was of a person in
respect of which accused number
one was convicted and the appellant
was acquitted.) The attempt to escape from custody (count 14) was
committed on 25 July 2005,
after the appellant’s arrest.
[21] As far as count
1 is concerned, the appellant, without being identified by any state
witness, admitted to being the driver
of the get-away car when he and
accused number one robbed the complainant in count 1 (JA Botha) of
his possessions, namely a 9MM
pistol and a two-way radio. A .45
calibre pistol was used which belonged to the appellant’s
stepfather (which he replaced
after the robbery).
[22] A mere five
days later, on 17 February 2005, the appellant and accused number one
planned another robbery. They acted in concert
to rob the Rothman
couple of an amount of R44 400.00 which resulted in the death of Mr
Rothman as the appellant and Mr Rothman
fought for possession of the
9MM pistol and a shot went off. Mrs Rothman was first violently
assaulted by accused number one who
then forcefully removed her from
the house, applied acute/extreme??? pressure to her neck and left her
tied up in the veldt after
ordering her to lift her head up and
strangling her. The accused then left her in the veldt and proceeded
to a bar.
[23] Twenty three
days later, on 12 March 2005, the appellant and accused number one
broke into the premises of “Anapsids
Reptilia” (count 7).
They stole reptiles valued at approximately R40 000.00.
[24] On 25 July the
appellant’s mother smuggled a saw into the court and the
appellant attempted to escape by sawing through
the bars of the court
cells where he was incarcerated.
Mitigating
factors
[25] As a
“mitigating factor” the age of the appellant, namely 18
years old when the offences were committed, was taken
into account.
[26] The appellant’s
counsel further emphasised the following factors: —
[26.1 ] He passed
standard 7 at school.
[26.2] His father
passed away on 24 November 1991.
[26.3] His mother
remarried twice and as a result he had two consecutive stepfathers.
[26.4] The first
stepfather did not treat him well but he had a good relationship with
his second stepfather.
[26.5] His mother’s
conduct was not exemplary in many respects.
[26.6] He worked at
a DROS restaurant where he received tips.
[26.7] He inherited
money after his father was killed in a hit and run accident.
[26.8] The appellant
and his two siblings were placed in a hostel after they were removed
by welfare officials.
[26.9] After
spending one and a half years at the hostel he went to live with his
maternal grandmother whereafter he moved back
to Boksburg and lived
with his stepfather. The appellant and his siblings then moved to
Cape Town (where his mother was a caretaker
of a block of flats) and
lived there for eight years.
[26.10] Due to him
being employed he was earning an income.
[27] Furthermore,
accused number one, who was 27 years old when the appellant met him,
was a manipulative and experienced criminal.
He told the appellant
that he deserved a better life style. The appellant regarded accused
number one as a leader and mentor, and
stated in his evidence that he
was manipulated by him. (The appellant, however, then freely admitted
that the only reason for the
offences was monetary gain.)
[28] It is clearly
for these reasons that the court, in sentencing the appellant, did
not impose the prescribed minimum sentences.
Aggravating
factors
[29]
It was argued by the appellant that even though the court found
substantial and compelling circumstances to deviate from the
prescribed minimum sentence, the court
a
quo
misdirected
itself in not giving sufficient weight to the following factors: —
[30]
It was strongly argued that the evidence of the psychologist Mr CP de
Jager, who emphasised the fact that the appellant acted
with
diminished criminal capacity and had the emotional development of a
16 year old child and had only passed standard seven (even
though
having an above average intellect) had been ignored by the court
a
quo.
The
psychologist had further opined that the appellant had good prospects
for rehabilitation. He had also gone to the trouble to
interview the
appellant’s mother and grandmother.
[31] The court also
held that the appellant did not show genuine remorse (even though it
was argued that he did).
[32]
Upon an analysis of the court’s judgment, it is clear that the
court
a quo
did
take these factors into account, but also, correctly, took into
account that the appellant, with an above average intelligence,
conceded during cross-examination that he was neither forced nor
influenced to partake in the commission of the offences. He testified
that the reason why he became involved in the crimes was because of
accused number one’s promise of a better life. He was
adamant
that he committed the crimes not because of need but because of the
prospects of a better financial life.
[33]
It should be borne in mind that in terms of the common law the age
when a person is
doli
capax
is
fourteen years. Hence the appellant was not only legally regarded as
knowing the difference between right and wrong but also
factually. He
willingly and with full knowledge that his deeds were wrong
participated in the crimes.
[34]
The appellant’s counsel referred the court to the case of
S
v Matyityi
2011 (1) SACR
40
(SCA)
at
47E-48B regarding the role that an accused’s age plays when
imposing an appropriate sentence: —
“
It
is trite that a teenager is prima facie to be
regarded as immature and that the youthfulness of an offender will
invariably be a
mitigating factor, unless it appears that the
viciousness of his or her deeds rule out immaturity. Although the
exact extent of
the mitigation will depend on all of the
circumstances of the case, in general a court will not punish an
immature young person
as severely as it would an adult. It is well
established that the younger the offender the clearer the evidence
needs to be about
his or her background, education, level of
intelligence and mental capacity in order to enable a court to
determine the level of
maturity and therefore moral blameworthiness.
The question, in
the final
analysis, is whether the offender’s immaturity, lack of
experience, indiscretion and susceptibility to beins
influenced by
others reduces his
blameworthiness. Thus whilst someone under
the
ase of 18 years is to be resarded as naturally immature
the same does not hold true for an adult. In my view a person
of 20 years or more must show by acceptable evidence that he was
immature
to such an extent that his immaturity can operate as a
mitigating factor. ”
[emphasis
added]
[35]
The court
a quo
correctly
held that the appellant’s age was a substantial and compelling
reason why the minimum sentence should not be imposed.
Nonetheless,
the court held that, proportionally, the nature of the crimes
committed by the appellant compelled the court to impose
a severe
sentence. The court, in this regard, stated the following: —
“
Mindful
of your age and the role that you played when the offences were
committed, the circumstances of your case cry out for severe
sentences. Your conduct of the days in question was despicable,
repugnant and abhorrent. It is respectfully submitted that the
appellants’ deeds and the active role that he played in the
commission of the offences, are indicative of a hardened criminal
rather than that of a youthful offender. His brutal actions, in my
respectful submission, largely negated immaturity.”
[36]
Hence the court
a
quo
held
that the callousness and brazenness of the offences committed during
a killing spree lasting a month, the use of a firearm
belonging to
the appellant’s stepfather, the use of their illegal gains to
purchase luxury items, the brutality of the Rothmans’
deaths in
the full knowledge that accused number one knew the deceased as their
son was married to his sister, the manner in which
the Rothmans were
overpowered in their own home after being deceived by the appellant
asking them for water, the callous murder
of Mrs Rothman merely
because she would be able to identify her husband’s murderers
and the appellant’s effrontery
in attending their funerals and
Mrs Rothman in the hospital (in all likelihood to see whether she
would live and be able to identify
them); the fact that Mrs Rothman
was so brutally attacked that her son could hardly recognise her in
the hospital, the devastating
effect which their deaths had on the
family as their business closed down (which resulted in their
employees losing their employment
and livelihood) and the senseless
theft of reptiles due to their greed - were all factors which
warranted a harsh sentence. It
is clearly for this reason that the
sentences in respect of counts 1, 7 and 14 were ordered to run
consecutively.
[37]
In
S v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
(CC)
at
paragraph
[38]
the
Constitutional Court confirmed the principle of
Proportionality
and
the
“
Determinative
Test
”
in
order to prevent prescribed sentences being imposed as a norm. It was
also held that: —
"
To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without
inauirins into
the proportionality between the
offence and the period of
imprisonment, is to
isnore. if not to deny, that which lies at the
very
heart of human dignity. Human beinss are not commodities
to which a price can be attached; they are creatures with
inherent
and infinite worth; they ousht to be
treated as ends in themselves,
never merely as
means to an end.
Where the length of a sentence,
which has been imposed because of its general deterrent effect on
others, bears no relation to the
gravity of the offence ... the
offender is being used essentially as a means to another end and the
offender’s dignity assailed.
So too where the reformative
effect of the punishment is predominant and the offender sentenced to
lengthy imprisonment, principally
because he cannot be reformed in a
shorter period, but the length of imprisonment bears no relationship
to what the committed offence
merits. Even in the absence of such
features, mere disproportionality between the offence and the period
of imprisonment would
also tend to treat the offender as a means to
an end, thereby denying the offender’s humanity.'’'
[emphasis
added]
[38] In the instant
case, the court clearly took into account the proportionality of the
sentence with the severity of the crimes.
[39]
It was further held in
S v Matyityi
supra
at
47A-E
that
genuine remorse and regret are two wholly different concepts: —
“
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct but that does not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely remorseful
and
not simply feeling sorry for himself or herself at having been caught
is a factual question. It is to the surrounding actions
of the
accused rather than what he says in court that one should rather
look. In order for the remorse to be a valid consideration,
the
penitence must be sincere and the accused must take the court fully
into his or her confidence. Until and unless that happens
the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find that an accused person
is
genuinely remorseful, it needs to have a proper appreciation of inter
alia: what motivated the accused to commit the deed; what
has since
provoked his or her change of heart; and whether he or she does
indeed have a true appreciation of the consequences of
those
actions.”
[40] The callousness
of the appellant is demonstrated by the facts set out above, namely
that he initially pleaded not guilty and
even went to the hospital to
check on the condition of Mrs Rothman before her death.
[41] The fact that
discretionary minimum sentences for certain serious offences as
prescribed by section 51 (1) and 51(2) are not
applicable in respect
of an accused person who was under the age of 18 years at the time of
the commission of an offence as contemplated
by
section 51(1)
and
51
(2) of the
Criminal Procedure Act is
dealt with in
section 51(6)
of
the said Act. Section 51(6) reads as follows: —
“
51(6)
This section does not apply in respect of an accused person who was
under the age of 18 years at the time of the commission
of an offence
contemplated in subsection (1) or (2)”
[42] However,
ordering all the sentences to run consecutively, resulting in a
prison sentence of 37 years in respect of an 18 year
old with the
emotional development of a 16 year old, is inordinately harsh.
[43] Ordering all
the sentences to run concurrently would result in a sentence of 22
years only. On mature consideration, a sentence
of 25 years would be
proportionate to the brutality and severity of the plethora of
crimes, yet lessen the period of imprisonment
by 12 years. Such a
substantially lesser term of imprisonment takes due cognisance of the
age and immaturity of the appellant.
[44]
The court
a quo
correctly
ordered the sentences in respect of counts 4, 5 and 6 to run
concurrently as they related to one occurrence only.
[45] In the result,
the appeal in respect of sentence is upheld and the following order
is made: —
1. A prison term of
25 years is imposed.
2. The sentence is
antedated, in terms of
section 282
of the
Criminal Procedure Act 51
of 1977
, to 12 October 2007.
JANSEN J
JUDGE OF THE HIGH
COURT
I agree
ISMAIL J
JUDGE OF THE HIGH
COURT
JANSE
VAN NIEWENHUIZEN J
JUDGE
OF THE HIGH COURT
For
the Appellant
Advocate
L Kok (083 625 1706)
Instructed
by
Legal
Aid (Pretoria Justice Centre)
For
the Respondent
Advocate
AP Wilsenach
Instructed
by
The
State Attorney Pretoria (012-309 1563)
1
1987
3 SA 717
(A) at 727F-H. For a more recent, but essentially
unchanged, version, see
S
v
Sadler
2000
(1) SACR 331
(SCA) at para 8;
S
v Swart
2000
(2) SACR 566
(SCA) at a para 21. See also, eg.
S
v
L
1998
(1) SACR 463
(SCA) at 468/ff;
S
v Blank
1995
(1) SACR 62
(A) at 65
h-i.
2
Op
cit
728B-C
.
This means that the appellant has the burden of proof to convince
the appeal court of the merits of the appeal.
3
Although
various tests, aids and yardsticks have been formulated and applied
by various courts in the practical application of
the basic
principle, too much must not be made of the differences between
these tests - 727H-728A.
4
1977
(4) SA 531
(A) at 534H-535G.
5
A
paraphrasing
of
“
[i]ndien
dit sou blyk dat daar ‘n mistasting begaan is, van die aard en
omvang wat aangedui is in S v Pillay, dan sou dit
beteken dat die
Verhoorregter nie sy diskresie behoorlik uitgeofen het nie.”