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[2015] ZAGPPHC 146
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S v Bashford (CC54/94) [2015] ZAGPPHC 146 (13 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE NO: CC54/94
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE:
13 MARCH 2015
In
the matter between:
THE
STATE
And
BASHFORD,
ANDRE ROBERT
GEORGE
...................................................................
ACCUSED
JUDGMENT
ON SENTENCE
MUDAU AJ,
[1] The accused in
this matter initially appeared with a co-accused (Norris) on a number
of charges that include, murder as well
as robbery with aggravating
circumstances. After a change of a not guilty plea to that of guilty,
the accused was convicted on
his plea by this court (Els J) on 13
March 1995 for murder as well as theft. The plea had been amplified
by a statement and his
confession regarding the crimes charged
to a magistrate.
[2]
Consequently, a separation of trial was ordered by the trial court
between the two accused. After relevant evidence was presented,
the
accused was in terms of s 286A of the Criminal Procedure Act 51 of
1977 (“the Act”), declared a dangerous criminal.
In this
instance, the trial court had found that the accused
showed anti-social personality traits and that, he
represents
a danger to the physical or mental well-being of other persons.
Further that, there was a need to protect the community
against him.
The s 286A declaration had been preceded by an enquiry followed by a
unanimous finding by a team of psychiatrists
in support of the
declaration. Following upon this declaration, the accused was in
terms of s286B of the Act sentenced to undergo
imprisonment for an
indefinite period subject to a direction that he brought before court
on 12 March 2015.
[3]
S286B, in so far as relevant, read as follows:
“
286B.
Imprisonment for indefinite period. –
(1)
The court which declares a person a dangerous criminal shall –
(a)
sentence such person to undergo imprisonment for an indefinite
period; and
(b)
direct that such person be brought before the court on the expiration
of a period determined by it, which shall not exceed the
jurisdiction
of the court.
(2)
A person sentenced under subsection (1) to undergo imprisonment for
an indefinite period shall, notwithstanding the provisions
of
subsection (1)(b) but subject to the provisions of subsection (3),
within seven days after the expiration of the period contemplated
in
subsection (1)(b) be brought before the court which sentenced him in
order to enable such court to reconsider the said sentence:
Provided
that in the absence of the judicial officer who sentenced the person
any other judicial officer of that court may, after
consideration of
the evidence recorded and in the presence of the person, make such
order as the judicial officer who is absent
could lawfully have made
in the proceedings in question if he had not been absent.
(3)
(a)-(c)
...............
(4)
(a)
Whenever a court reconsiders a sentence in terms of this section, it
shall have the same powers as it would have had if it were
considering sentence after conviction of a person and the procedure
adopted at such proceedings shall apply
mutatis mutandis
during such reconsideration: Provided that the court shall make no
finding before it has considered a report of a parole board
as
contemplated in section 5C of the Correctional Services Act, 1959
(Act No. 8 of 1959).
(b)
After a court has considered a sentence in terms of this section, it
may –
(i)
confirm the sentence of imprisonment for an indefinite period, in
which case the court shall direct that such person be brought
before
the court on the expiration of a further period determined by it,
which shall not exceed the jurisdiction of the court;
(ii)
convert the sentence into correctional supervision on the conditions
it deems fit; or
(iii)
release the person unconditionally or on such conditions as it deems
fit.
(5)-
(7)
....................................................."
[4]
This court therefore has three options In terms of s 286B (4) when a
prisoner is brought for a reconsideration of the sentence:
it may
confirm the sentence for an indefinite period, in which case it must
fix a period upon the expiration of which the prisoner
must again be
brought to court, it may convert the sentence into correctional
supervision or it may release the prisoner unconditionally
or on such
conditions as it deems fit. In essence, the law provides for
the confirmation, conversion or termination of the
sentence but not
for a new sentence to be imposed.
[5]
The Correctional Services Act No 8 of 1959 has since been repealed
and replaced by The
Correctional Services Act 111 of 1998
. Therefore,
reference in
s 286B
(4) (a) to s 5C of the Correctional Services Act
8 of 1959, can safely be construed as a reference to ss74 and 75 (1)
(b) of the
Correctional Services Act 111 of 1998 (Moetjie v The State
and another
2009 (1) SACR 95
(T
) at [10]).
[6]
In this matter, the trial judge has since, sadly, passed on. The
proviso to s286B (2) with reference to “the court”
is the
equivalent of S 275 of the Act which provides as follows:
“
(1)
…
(2)
Whenever-
(a)
a judge is
required to sentence an accused convicted by him or her of any
offence; or
(b)
any matter
is remitted on appeal or otherwise to the judge who presided at the
trial of an accused, and that judge is for any reason
not available,
any other judge of the provincial or local division concerned may,
after consideration of the evidence recorded
and in the presence of
the accused, sentence the accused or, as the case may be, take such
other steps as the former judge could
lawfully have taken in the
proceedings in question if he or she had been available
”
.
[7]
For purposes of the reconsideration of sentence as contemplated in s
286B (4) (a) of the Act, I have the benefit of the record
of
proceedings as well as the judgment regarding this matter, albeit
without the exhibits and the photos. The accused is before
court. The
facts leading to the accused’s conviction briefly stated are
essentially as follows. The accused and his co-accused
were at the
time, on bail for a separate charge of housebreaking and theft in
respect of which, they decided not to stand trial.
The accused was
homeless but was for a period of at least 2 weeks before the murder
and theft, given free lodging; food; and other
concomitant benefits
by the deceased. The deceased lived in a small holding.
[8]
The deceased’s smallholding, it would seem, was a popular
drinking place for young people. The attack on the deceased
was
pre-planned. When the deceased was alone with the accused and his
companion (Norris), he was assaulted and thereafter, his
feet and
hands were tied up with neckties. The assault on the deceased
continued during the course of which, he was stabbed several
times,
hit severely with 2 knobkerries all over his body and head, by the
accused. The knobkerries were used by the deceased as
ornaments in
his house. During the course of the attack the knobkerries which,
were being used as weapons in turn, broke. The accused
went to the
garage from where he fetched a steel pipe with which, he continued to
attack the deceased all over his body and head.
The attack was so
severe that the body seem mutilated; the head was crushed to extent
that one of the eyeballs was disgorged and
was missing. The victim,
who offered no real resistance, was ruthlessly killed in cold blood,
but also died a painful death. The
accused and his companion stole
the deceased’s car, cash and other valuables after the murder
and thereafter fled from the
scene only to be arrested months later.
[9]
From the pre-sentencing reports submitted then, and from the report
of the parole board which, I am bound to consider, it is
clear that
the accused had a troubled background. His biological parents abused
alcohol. The accused and his elder brother were
given up for
adoption. He was raised by his adoptive parents as their only child.
He was subjected to abuse in his adoptive home
from an early age. He
had behavioural problems from the early stages of his life and
started smoking marijuana by the age of 12.
Between the ages of 12
and 13 he started abusing alcohol. By the age of 15, he was already
abusing drugs such as Mandrax. At that
stage already, his parents
were divorced. It was during the same period that his girlfriend,
whom he married, became pregnant then
with their 1
st
child. But the time he was arrested, he was already a divorced father
of 2 minor children. The fact that he was 19 years of age
at the time
of the commission of crimes as well as the fact that alcohol and
drugs played a role persuaded the trial judge not
to consider a death
sentence applicable at the time.
[10]
The accused has been incarceration for approximately 23 years since
his arrest. During this period, he gained skills in wood
carving,
cabinetmaking, and computer skills. During the latter part of his
incarceration, the accused attended a number of rehabilitation
programmes and courses
viz
- anger management,
self-development, drugs and alcohol programmes. To this end Ms
Dreyer, the clinical psychologist, wrote in a
report to the parole
board about the accused that:
“
He
had a positive attitude throughout the program and incorporated well.
He made the following contributions in the group and gave
valuable
feedback to other group members. He never behaved disrespectfully was
the facilitator or other group members and responded
well when he was
challenged about certain personal issues and behavioural patterns
during the group process.
”
Ms
Dreyer also reported that:
“…
Many
positive changes were evident in his personal life. His relationship
with his daughters has played a major role in his rehabilitation
process and has brought a sense of meaning and responsibility to his
life. This could probably be viewed as his biggest protective
factor
which might reduce probability of engaging in further offending
behaviour and increase his likelihood to be more resilient
to
presented risk.
”
[11]
A written report was also attached in which, an incident is referred
to, where the accused saved the life of a uniformed correctional
service official who was being attacked by another offender, by
disarming the latter.
[12]
The state and the defence in this matter, support a consideration of
a non-custodial sentence consistent with the recommendation
by the
parole board. Under the circumstances therefore, I am satisfied that
regard being had to the totality of the facts regarding
this matter,
circumstances permit to reconsider the question of sentence of an
indefinite period imposed 20 years ago on the accused.
It would seem
in his favour that lot of positive developments have since occurred
in his personal life which would help him reintegrate
with his
immediate family members and the greater society. This court was told
that, the accused’s brother, who lives at
an address in
Bronkhorstspruit, Gauteng, is willing to take the accused in for
better employment opportunities in view of his newly
found skills.
[13]
The right approach to the reconsideration of sentence in the
circumstances must yield to an appropriate balance which, is also
what is referred to in the Zinn triad (S v Zinn
1969
(2) SA 537
(A)
consisting of the
accused, the offence as well as the interest of the community.
Whereas there is merit in not extending the
accused’s indefinite sentence by another period, his
unconditional release regard
being had to the seriousness of the
crimes and other relevant factors is out of the question.
Consideration has to be given not
only to his conduct, but also his
adaption, training, mental state and possible relapse into crime. In
my view, the accused
is under the circumstances a suitable candidate
to be subjected to community corrections. Community corrections
objectives are
clearly set out in
s 50(1)
(a) of the
Correctional Services Act as
follows:
The
objectives of community corrections are-
(i)
to afford sentenced offenders an opportunity to serve their sentences
in a non-custodial manner;
(ii)
to enable persons subject to community corrections to lead a socially
responsible and crime-free life during the period of
their sentence
and in future;
(iii)
to enable persons subject to community corrections to be
rehabilitated in a manner that best keeps them as an integral part
of
society; and
(iv)
to enable persons subject to community corrections to be fully
integrated into society when they have completed their sentences.
[14]
In
S v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at Para 54 Sachs J stated:
‘
The
sentencing courts must themselves identify the specifics of the
correctional supervision sentence, but not necessarily the manner
in
which it is to be implemented. In Govender it was held that while the
court should clearly indicate the duration and extent
of the specific
components of the sentence, it was not desirable for it to specify
the manner in which the sentence is to be carried
out. It was
held that the court must retain effective control over the sentence
without compromising flexibility. This
appears to be a sound
principle.
’
(cf DPP, KZN v P
2006(1) SACR 243
(SCA).
[15]
In the premises the following order regarding the conversion of
sentence is made:
1.
That the accused undergo a period of three years of correctional
supervision in terms of
s 276(1)(h)
of the
Criminal Procedure
Act 51 of 1977
comprising of the following community corrections:
(a)
House arrest for the full duration of the period of correctional
supervision at the given fixed address (no 107 Durley Plot,
Bronkhorstspruit) or such other place as might be determined by the
Commissioner for Correctional Services on written application
by the
accused and on terms to be determined by the Commissioner of
Correctional Services, but which shall provide that the accused
shall
be confined to his place of abode for no less than eight hours on any
day in which they are engaged in employment and for
no less than 12
hours on any day in which they are not so engaged.
(b)
200 hours of community service to be undertaken at the rate of not
less than 8 hours of service per calendar month during the
period of
correctional supervision. Subject to the foregoing, the nature
of the community service and the place and times
during which it
shall be undertaken shall be determined by the Commissioner of
Correctional Services.
(c)
His conscientiously, and to the satisfaction of the Commissioner of
Correctional Services, seeking employment during the period
of
correctional supervision. In the event that the accused is for
any time during the period of correctional supervision
unemployed he
shall submit at the end of each month to a correctional official
designated by the Commissioner of Correctional Services
a report
detailing the steps he has taken to seek employment vouched by such
supporting documentation as the Commissioner or the
designated
official may require. The Commissioner’s attention is
directed to the provisions of
s 61(2)
of the
Correctional
Services Act 111 of 1998
, which require the Commissioner to assist in
the attempt to find employment.
(d)
Participation in such treatment, development and support programmes
as may be determined by the Commissioner of Correctional
Services.
The accused is directed to submit to a complete assessment by a
social worker of the Department of Correctional
Services to
facilitate the determination of the programmes in which he should
participate.
(e)
Restriction to the Bronkhorstspruit magisterial district, Gauteng,
and such other magisterial(s) district as the Commissioner
of
Correctional Services may on written application by the accused
determine for the purposes of facilitating the accused’s
engagement in employment, or for compassionate reasons.
(f)
Refrains for the whole of the period of correctional supervision from
the use of alcohol or illegal drugs.
(g)
Prohibition during the whole of the period of correctional
supervision from attendance at any place such as a tavern, pub or
shebeen where alcoholic beverages are served.
(h)
Monitoring by the Department of Correctional Services, including
electronic tagging if so determined by the Commissioner, in
order to
ensure compliance with the conditions of correctional supervision.
(i)
The obligation to inform the Commissioner of Correctional Services in
advance of any change of residential and/or work address.
(j)
In the event of any breach by the accused of any of these conditions,
the correctional officer is directed to immediately report
such
breach on affidavit to the Director of Public Prosecutions who may
then apply for the necessary relief.
MUDAU TP
ACTING JUDGE OF
THE HIGH COURT
DATE
OF HEARING: 12 MARCH 2015
DATE
OF JUDGMENT: 13 MARCH 2015
APPEARANCES:
FOR
THE STATE: ADV L WILLIAMS
FOR
THE ACCUSED: H ALBERTS