S v Roslee (296/05) [2006] ZASCA 14; 2006 (1) SACR 537 (SCA) (17 March 2006)

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[2006] ZASCA 14
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S v Roslee (296/05) [2006] ZASCA 14; 2006 (1) SACR 537 (SCA) (17 March 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case no:
296/05
In
the matter between:
THE
STATE
Appellant
and
GERT
JOHANNES ROSLEE
Respondent
_______________________________________________________
Coram
:
Navsa,
Cloete JJA et Cachalia AJA
Date of hearing:
6
March 2006
Date of delivery:
17
March 2006
Summary
: Appeal
against sentence by State ─ misdirections ─ sentence shockingly
light ─ minimum sentence provisions ─ approach to
be followed ─
sentence set aside and substituted.
Neutral citation:
This judgment
may be referred to as
S v Roslee
[2006] SCA 15 (RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] The respondent, Mr Gert Johannes
Roslee, premeditated the murder of his former girlfriend, Elizabeth
Magdaleen Minny (Liz-Marie).
On Wednesday 29 October 2003,
he waited for her in the parental home of her new boyfriend, Jaco
Greyling (Jaco). Whilst
he was waiting he was confronted by Jaco’s
brother, Abraham Greyling (Abraham), whom he stabbed to death. A
young woman, Heloise
van der Westhuisen (Heloise), accompanied by her
three-year-old son Donovan (Donovan), arrived at the house to deliver
biscuits.
He stabbed and killed them both. When Liz-Marie arrived
from work he stabbed and killed her. He stole two cellular telephones
which
belonged to Abraham and Heloise as well as Liz-Marie’s
cellular telephone, her diary, bank card and money she had in her
possession.
He also stole Heloise’s motor vehicle, which he later
abandoned. He was convicted in the Pretoria High Court (Mabuse AJ)
on four
counts of murder and two counts of theft. In respect of the
murders of Abraham, Heloise and Donovan (counts 2, 3 and 4), he was
sentenced
to 15 years’ imprisonment on each count. In respect of
the murder of Liz-Marie (count 5), he received a sentence of 18
years’
imprisonment. On the two counts of theft, he received a
sentence of 6 and 7 years’ imprisonment respectively. The sentences
were
ordered to run concurrently. This amounted to an effective
sentence of 18 years imprisonment.
[2] The State appeals, with the leave
of the court below, against the sentences imposed on counts 2, 3, 4
and 5, on the basis that
they are shockingly and inappropriately
light and that they are based on a number of misdirections. The
question to be addressed
in this appeal is whether these contentions
are correct.
[3] I will, in due course, refer to
material parts of the respondent’s statement in terms of section
112(2) of the Criminal Procedure
Act 51 of 1977 (the CPA) on the
strength of which he was convicted. At this stage it is useful to
consider the facts that emerged
from evidence presented by the State
in aggravation of sentence. The accused chose not to testify and led
only the evidence of a
psychologist in mitigation of sentence.
[4] For reasons that will become
apparent it is necessary to set out the factual background in some
detail.
[5] Liz-Marie was 19 years old at the
time of her death. She and the respondent became romantically
involved during 2001 when she
was in grade 11. He had left school and
was in employment. In February 2003, after she had matriculated, the
relationship was terminated.
It was rekindled in April 2003. In May
2003 they became engaged to be married. The relationship was
tempestuous and, in August 2003,
the engagement was called off and
Liz-Marie finally terminated the relationship.
[6] During August 2003 Liz-Marie
developed a new love interest, Jaco. He and Abraham lived with their
parents. As Liz-Marie’s relationship
with Jaco developed she went
to live with the Greylings after her mother had agreed to it.
Liz-Marie had intended to live on her
own in a flat which her mother
had hired for her, but decided against it because of death threats
she had received from the respondent.
[7] Liz-Marie worked as a receptionist
for a dentist. According to her mother, Mrs Helena Pieterse, she was
a loving person who served
as a role model for her younger sisters.
Mrs Pieterse accepted that the respondent loved her daughter but
did not believe he
was obsessed with her. On 8 October 2003 the
respondent visited Mrs Pieterse, to enquire of her whether she
thought there was any
hope of Liz-Marie reconsidering her decision to
terminate their relationship. She told him that it was up to
Liz-Marie to decide.
Her evidence that Liz-Marie had received several
telephonic death threats from the respondent was not challenged.
[8] According to Mrs Maria Greyling,
Jaco and Abraham’s mother, Liz-Marie and her son were very much in
love.
[9] Abraham was 21 years old when he
was killed. He was at home at the fateful time because it was his day
off from work. Mrs Greyling
was not at home because she and her
husband had errands to run. Upon their return they found Liz-Marie’s
room in a chaotic state.
Liz-Marie was on the bed. She had been
gagged and her arms and legs were tied. A ball had been inserted in
her mouth. A meat knife
was lying on the ground. Liz-Marie’s body
was still warm but she was dead. She had cuts on her legs and a hole
in her chest.
[10] Heloise, a family friend, had
come to deliver biscuits (ordered by Mrs Greyling) when she and
Donovan were killed.
[11] Mrs Greyling described Abraham as
a son who was a gift from God. He was very close to her and was
sorely missed by the family.
As a result of the murders they could no
longer continue to live in the house and were in the process of
selling it. Her husband
had been asked to testify but could not face
the trauma that would accompany that exercise.
[12] Mrs Johanna Grobler, Heloise’s
adoptive mother, testified. Mrs Grobler and her husband had adopted
Heloise in 1997 and she
had been an ‘angel’ to them. Heloise was
23 years old at the time that she was killed. Donovan was her only
child. Mrs Grobler
and her husband could not have children of their
own. According to Mrs Grobler, the impact of Heloise’s death was
such that it
was as if she and her husband had been robbed of their
own lives. Heloise and Donovan had been loved by everyone in their
family.
[13] The investigating officer,
Inspector Doubell, testified. When he first confronted the respondent
concerning the murders, the
respondent denied any involvement. He
stated that he loved Liz-Marie too much to have caused her harm. On
30 October 2003 Doubell
was summoned to a hospital in Heidelberg
where he found the respondent threatening to commit suicide. The
respondent was dressed
only in a pair of short pants and had cuts on
his thigh, both wrists and his throat. He was wielding a meat knife.
After a standoff
lasting hours the police were forced to shoot him in
the shoulder to get him to drop the knife.
[14] DNA tests linked a cigarette butt
and fragments of nails found at the murder scene to the respondent
and consequently linked
him to the offences in question. Furthermore,
blood found on a T-shirt seized by the police from the respondent was
positively identified
as Liz-Marie’s blood by way of forensic
testing. Doubell found two knives at the crime scene that appeared to
have been used to
commit the murders. One was bloody.
[15] The last witness to testify was
Ms Gayle Anne Schmidt, a psychologist. She first saw the respondent
on 13 October 2003 as a
patient at Heidelberg Hospital. He had been
referred to her after he had attempted to commit suicide because he
felt he could not
live without Liz-Marie. Schmidt consulted with the
respondent on only two occasions, the last being on the day of the
murders before
they were committed.
[16] Schmidt recalled the day which
Doubell had described, when the respondent had threatened to kill
himself with a knife. She was
present when the respondent stated that
he wished to apologise to Liz-Marie’s parents but did not admit to
killing her. He admitted
only to killing Abraham. He wanted to tell
her parents that he was sorry about what had happened to her. He also
appeared to be upset
because he had read in her diary that she loved
a horse more than she had loved him.
[17] Schmidt testified that, at the
time that he was threatening to commit suicide at Heidelberg
Hospital, the respondent did not
say what had motivated him to commit
the offences. At that stage he was under stress and was overwhelmed
by thoughts that he described
as ‘demons or devils’ in his head.
[18] On the morning of the day on
which he committed the murders, when Schmidt consulted with the
respondent, he told her that he
had come to terms with the
termination of his relationship with Liz-Marie and was intent on
making a new beginning. He appeared to
be wrestling with inner
frustration and aggression. However, when he left, Schmidt was under
the impression that he had indeed come
to terms with the termination
of his relationship with Liz-Marie. The respondent told Schmidt that
he had spoken to Liz-Marie recently
and they had agreed to be
friends.
[19] The day after Liz-Marie’s death
Schmidt spoke to the respondent telephonically. He was tearful and
made an appointment to see
her later that day. The appointment was
not kept because he was arrested.
[20] The correctness of the
post-mortem reports were admitted by the respondent. In respect of
Abraham, the relevant report shows
that three stab wounds were
inflicted to the chest, two of which penetrated the lungs. He
sustained a third stab wound to the right
shoulder, one wound on the
left forearm and a superficial wound close to the left wrist.
[21] In respect of Heloise, the
post-mortem reveals that she sustained multiple stab wounds. She had
been stabbed four times in her
chest area and twice in the left side
of her back. From the size of one of the wounds in the left side of
her back it appears to
have been a double stab wound. Heloise was
also stabbed in the middle and right side of her back. One of the
stab wounds penetrated
her heart. The left lung was pierced twice.
[22] Three-year-old Donovan was
stabbed four times. He was stabbed three times in the chest and once
in the back. His heart and left
lung were pierced.
[23] Liz-Marie sustained eight stab
wounds to the chest. Six wounds penetrated her right lung. Her heart
was pierced. She was stabbed
in her right leg and in her right thigh.
All in all, she sustained 14 wounds, four of which were described as
superficial.
[24] In the respondent’s statement
in terms of s 112(2) of the CPA, the following is revealed. He
planned to kill Liz-Marie. He
had established telephonically that she
had already left work and he intended to get to her home before she
did. The respondent’s
encounter with Abraham was unexpected. First
they exchanged harsh words. Then, according to the respondent,
Abraham pushed him from
behind as he made his way towards the kitchen
door. The respondent saw a knife which he grabbed and used to stab
Abraham in the chest.
Abraham grappled with him and the respondent
thereupon stabbed him several times until he collapsed. At that time
Heloise, who had
arrived with her son, started screaming. The
respondent attempted to quieten them down. Heloise and Donovan were
both hysterical.
He did not hesitate to kill them both. He did so to
prevent them from identifying him. He used black plastic cable to
bind Heloise’s
arms and legs to make it look like a robbery.
Liz-Marie arrived as he was cleaning up blood and she started
screaming. The respondent
forced her into the bedroom and onto the
bed where he stabbed her repeatedly until she was dead. He removed
all her clothing and
tied her up with the plastic cables and an
electrical cord. He wanted to create the impression that she had been
robbed and raped.
[25] At the beginning of his statement
in terms of s 112(2) of the CPA, the respondent stated that the
termination of his relationship
with Liz-Marie ‘het my verpletter
en ek het dag in en dag uit daaroor getob en gebroei’. Immediately
after this he stated that
he had decided to kill her but
did not
provide any motivation.
[26] Against that background the court
below considered the provisions of s 51 of the Criminal Law
Amendment Act 105 of 1997
(the Act) which prescribes minimum
sentences for certain offences. Section 51(1)(a) provides that, if a
person is convicted of a
murder that was planned or premeditated,
that person
shall
be sentenced to imprisonment for life.
Section 51(3)(a) provides that, if any court which convicts someone
who planned or premeditated
a murder is satisfied that substantial
and compelling circumstances exist which justify a lesser sentence
than that prescribed, it
shall enter those circumstances on the
record of proceedings and may thereupon impose such lesser sentence.
[27] The court below correctly
concluded that the murder of Liz-Marie was premeditated. Mabuse AJ,
however, found that the respondent
had murdered her because of the
broken love-relationship and went on to conclude, after referring to
case law, that the emotional
trauma brought on by the termination of
that relationship constituted an ‘extenuating circumstance’. In
particular, he relied
on
S v Rammutla
1992 (1) SACR
564
(BA). The court below did not hold it against the respondent that
he did not testify in mitigation of sentence and held, after
reference
to authorities, that extenuating circumstances could be
deduced from the evidence led by the State.
[28] The court below said the
following:
‘
The court is
accordingly satisfied that the evidence by both Liz-Marie’s mother
and Gayle Schmidt proved that the accused killed
Liz-Marie because of
the broken love-relationship. The court finds guidance again in the
case of
S v Rammutla
on page 567, where it was stated that “it
has been accepted by our courts that where there has been a
love-relationship which has
been broken, the ‘injured’ party may
well be so emotionally affected and disturbed that he will resort to
violence resulting
in the death of the erstwhile lover. Such an
emotional state has been regarded as an extenuating circumstance.”
’
[29] In respect of the murder of
Abraham, Donovan and Heloise, the court below found that, since the
respondent was unaware that they
would be on the scene, those murders
could not be said to have been premeditated. The court below reasoned
as follows:
‘
[T]he cumulative
impact of the accused’s personal circumstances and the conditions
that led to this tragedy can be regarded as substantial
and
compelling . . . .’
This comprises the court below’s
entire reasoning for the sentences imposed in respect of these three
murders.
[30] In my view, the court’s
reasoning in respect of the murder of Liz-Marie is flawed. Her mother
stated clearly that she did not
regard the respondent as being
obsessed with Liz-Marie. Schmidt testified that, on the morning of
the murders, although wrestling
with feelings of frustration, the
respondent appeared to have made peace with the termination of his
relationship with Liz-Marie.
He told Schmidt that they were now
friends. The respondent himself provided no motivation for the
murder. He
chose
not to testify in mitigation of sentence. His
statement in terms of s 112(2) of the CPA reflects methodical,
rational and calculating
behaviour, not only in respect of the murder
of Liz-Marie, but in regard to the other three murders as well. The
relationship with
Liz-Marie had been terminated many weeks before the
murders were committed. The court below’s reliance on the
Rammutla
case
is misplaced. In that matter the murder was not planned and
was committed after violence had been perpetrated against the accused
and occurred in the heat of the moment. The termination of a
love-relationship does not per se constitute a mitigating,
extenuating,
or substantial and compelling circumstance. Every case
must be carefully considered and decided on its own facts.
[31] In
S v Malgas
2001 (2) SA
1222
(SCA), this court, in considering ‘substantial and compelling
circumstances’, stated the following (at 1231A-D):
‘
Whatever nuances of
meaning may lurk in those words, their central thrust seems obvious.
The specified sentences were not to be departed
from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin
sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy implicit in the amending legislation,
and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have justified
differentiating between them. But for the rest I can see no warrant
for deducing that the Legislature intended a court to exclude
from
consideration,
ante omnia
as it were, any or all of the many
factors traditionally and rightly taken into account by courts when
sentencing offenders.’
[32] Earlier in the
Malgas
judgment (at 1230E-G), Marais JA said the following concerning the
Act:
‘
In what respects was
it no longer business as usual? First, a court was not to be given a
clean slate on which to inscribe whatever
sentence it thought fit.
Instead, it was required to approach that question conscious of the
fact that the Legislature has ordained
life imprisonment or the
particular prescribed period of imprisonment as the sentence which
should
ordinarily
be imposed for the commission of the listed
crimes in the specified circumstances. In short, the Legislature
aimed at ensuring a
severe, standardised, and 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 the sentence the emphasis were to shifted
to the objective
gravity of the type of crime and the public’s need
for sanctions against it. But that does 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 specified sentences come what may.’
(Emphasis in the original.)
[33] Although there is no onus on an
accused to prove the presence of substantial and compelling
circumstances, it must be so that
an accused who intends to persuade
a court to impose a sentence less than that prescribed should
pertinently raise such circumstances
for consideration.
1
In a given case it may not be enough for an accused to argue that
such circumstances should be inferred from or found in the evidence
adduced by the State. See in this regard Du Toit
et al
Commentary on the
Criminal Procedure Act
at
28-16DD.
[34] The court below did not approach
the matter in the manner set out in the
Malgas
judgment. It
engaged in speculation in favour of the appellant. It did not
consider whether there were
truly
convincing reasons for
departing from the prescribed minimum sentence. It did not consider
all of the many factors traditionally and
rightly taken into account
in the process of sentencing. These are material misdirections
entitling this court to intervene.
[35] To fully appreciate the degree of
savagery of the murders, an unpleasant but necessary exercise is an
examination of the post-mortem
photographs. Terrible injuries were
inflicted by the respondent. The photograph of three-year-old Donovan
is particularly heart-rending.
The total number of stab wounds bear
testimony to the degree of violence and callousness. The murders have
had a devastating effect
on relatives of the victims, not least
because of the manner in which they were carried out. The public
requires effective sanctions
against the perpetrators of such
savagery.
[36] The court below’s scant
treatment of the circumstances surrounding the murders of Abraham,
Heloise and Donovan is regrettable.
Heloise and Donovan were murdered
to prevent them from identifying the respondent. It is true that
their murders were not planned.
However, the post-mortem photographs
and reports show the savage nature of the attack on a young woman and
her three-year-old child
who were defenceless. The respondent was an
intruder in Abraham’s home. He was entitled to resist the
intrusion. In his statement
in terms of
s 112(2)
of the CPA the
respondent describes how he murdered Abraham:
‘
. . . Ek het ‘n mes,
een van ‘n stel wat op ‘n kas gelê het, gegryp, omgedraai
en die gesegde Abraham Greyling in die
bors gesteek. Dit het hom nie
gestuit nie en hy het gepoog om my vas te gryp. Ek het hom verskeie
steekwonde toegedien totdat hy
skielik inmekaar gesak het. Deurentyd
het ek geweet en besef dat ek hom kan dood deur hom aldus so met die
mes te steek, maar ek
het nie omgegee nie.’
Abraham’s murder was wanton. In
respect of these three murders, the court below did not properly
consider the seriousness of the
offence and did not pay sufficient
attention to the community interest. Maintaining the sentences
imposed by the court below in respect
of any one of the murders
committed by the respondent, would, in my view, bring the
administration of justice into disrepute. The
State’s contentions
as set out in para [2] above are fully justified.
[37] In respect of the murders of
Abraham, Heloise and Donovan, and considering the seriousness of the
offence, the personal circumstances
of the respondent, including his
relative youthfulness (he was approximately 24 years old at the time
of trial) and the community
interest, as well as the factors referred
to earlier in this judgment, it appears to me that in respect of each
of these murders
a sentence of 20 years’ imprisonment is justified.
[38] For all the reasons stated above,
the appeal is upheld. In respect of counts 2, 3, 4 and 5, the
sentence of the court below is
set aside and substituted as follows:
‘
1 On counts 2, 3 and
4, the accused is sentenced to 20 years’ imprisonment in respect of
each count.
2. In respect of count 5,
the accused is sentenced to life imprisonment.’
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
CLOETE JA
CACHALIA AJA
1
This is an aspect that trial courts and legal representatives should
take into account.