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2012
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[2012] ZAECBHC 6
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S v Kleinbooi (CC 2/2012) [2012] ZAECBHC 6 (5 September 2012)
IN THE EASTERN CAPE
HIGH COURT
(BHISHO)
CASE NO: CC 2/2012
THE STATE
versus
HERSCHELL KLEINBOOI
Accused
SENTENCE
Y EBRAHIM J:
Introduction
[1]
The accused, HERSCHELL KLEINBOOI, has been
convicted of the crime of murder and I must now impose sentence.
The triad
[2]
In
determining an appropriate sentence the Court takes account of the
personal circumstances of the accused, the nature of the crime,
and
the interests of society.
[1]
The Court will also, depending on the circumstances of the case,
endeavour to exercise a measure of mercy.
[2]
Personal circumstances
of the accused
[3]
Mr Kleinbooi you exercised your right not
to testify or call any witnesses in mitigation of sentence.
Mr van Breda conveyed
your personal circumstances to the Court.
Your mother left you at the age of 9 months and thereafter your
grandfather reared
you. Your father had no hand in your
upbringing. You are now 28 years old with no dependants but
assist with the rearing
of your sister’s child. Since
2005, after re uniting with your father who suffers from Aids,
you have been caring
for him. In 2002 you matriculated and in
2006 joined the S A Police Services. After a period of
initial training
you underwent practical training for 6 months before
being posted to Tamara police station. On 9 June 2007 you
married
the deceased, who was also a member of the police services
and stationed similarly at Tamara police station.
Nature of the crime
[4]
I need hardly emphasise the seriousness of
the crime of murder. Every person’s right to life, a
right that you continue
to enjoy despite your unlawful conduct, is
entrenched in our Constitution, Act 108 of 1996. You deprived
the deceased, someone
as young as yourself and whom you professed to
love, of her enjoyment to life. She was pregnant at the time
and probably
looking forward to motherhood and the challenge of
raising a child. I have no doubt that her parents must have
been excited
at having a grandchild but your actions have denied them
this. They must now face life without their daughter and the
loss
of an unborn grandchild. An added shock for them is the
fact that their son in law, whom they welcomed into their
home, is the one responsible for this tragic state of affairs.
It is not difficult to imagine the severe psychological trauma
this
has caused them. They will have to live with the disappointment
and grief caused by your actions. The deceased’s
death
will also have affected other family members and friends. There
is now a void in their lives that may never be filled.
Interests of society
[5]
In considering the interests of society I
am confronted with the fact that violent crime remains a serious
problem in our society.
What is of great concern is the
increasing tendency to ignore lawful remedies available to deal with
conflicts. Individuals
are taking the law into their own hands
and resorting to violent means to resolve disputes. The
slightest disagreement flares
up into violent, and often deadly,
confrontation. The news media reports virtually daily on
incidents of such a nature.
We appear to be blind to the damage
inflicted on us by the violence that prevailed in our society prior
to the coming into being
of the present political system.
Violence as a mean of resolving conflict, whether it is a domestic
dispute or of some other
kind, has no place in a democratic society.
The sooner each person realises that respect for the sanctity of life
is fundamental
to a civilised society the greater the prospect of
transforming our society into a more peaceful one and, hopefully,
free of crime.
High levels of crime invariably result in the
public demanding that ever more severe sentences be imposed on
perpetrators
of crime. However, while a Court should be alive
to the interests of society and its duty to protect law abiding
citizens
it cannot succumb to every demand that harsher penalties be
applied.
Purposes of sentence
[6]
The
purposes of sentence are deterrent, preventative, reformative and
retributive.
[3]
A sentence
must deter others from committing similar offences and crime in
general. In regard to retribution, a court
takes account of
society’s moral outrage at the nature of a particular crime and
its frequency. While the Court is
mindful of providing an
accused with the opportunity for rehabilitation this must be balanced
against the fact that the seriousness
of the offence demands a
lengthy term of imprisonment. If a sentence is unduly lenient
public confidence in the justice system
may be undermined.
Determination of an
appropriate sentence
[7]
In the written statement in terms of
s
112(2)
of the
Criminal Procedure Act 51 of 1977
in amplification of
your plea of guilty you stated in paragraph 4: ‘
My
plea of guilty to the crime is on the basis of diminished
responsibility as a result of certain traumatic experiences leading
to a condition that disrupted my logical thinking as set out
herein
.’ The State accepted
this occurred and your conviction for murder was on the basis that
you acted in a state of diminished
responsibility. This is
common cause.
[8]
However, no matter how upset you were about
the deceased’s alleged previous infidelity, or the suspicion
that you might not
be the father of the child she was expecting, it
did not warrant the extreme solution of killing her. Numerous
peaceful and
lawful methods were available for dealing with your
marital problems. An aggravating factor in your case is that as
a police
officer you were fully aware of the consequences of criminal
conduct. You were sworn to uphold the law and well knew that
resorting to violence to resolve problems was not a solution.
[9]
Mr van Breda referred to a number of cases
in which diminished responsibility was taken into account in
determining sentence.
These are:
S
v Smith
1990 (1) SACR 130
(A);
S
v Shapiro
1994 (1) SACR 112
(A);
S v Di Blasi
1996 (1) SACR 1
(A);
S v Pederson
1998 (2) SACR 383
(NPD);
S v D D
Schwarz
, an unreported judgment of the
Supreme Court of Appeal delivered on 29 November 1999 (Case No.
69/99);
S v Litchfield
an unreported judgment of the High Court of South Africa (East London
Circuit Local Division) delivered on 16 April 2007 (Case
No.
CC 118/06);
DPP Transvaal v Venter
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA);
S v Mnisi
2009 (2) SACR 227
(SCA);
S v Marx
2009 (2) SACR 562
(E);
DPP v Mngoma
2010 (1) SACR 427
(SCA) and
S v Romer
2011 (2) SACR 153
(SCA).
[10]
Mr van Breda contended that an appropriate
sentence in the circumstances of this case is a period of
imprisonment of not more than
five years. He submitted that
this Court should not follow the rationale in the judgment of the
majority in the case of
DPP Transvaal v
Venter
(
supra
),
namely that of Mlambo JA (with which Nugent JA had concurred), but
rather what Cloete JA had stated in his minority judgment.
According to Mr van Breda the issue of diminished
responsibility, as espoused by Cloete JA, was the correct approach
to
follow.
[11]
The submission that this Court is not bound
by the decision of the majority and the reasoning employed but is
free to follow the
minority judgment is quite clearly without legal
merit. In our law this Court is bound to follow the majority
decision of
the Supreme Court of Appeal and not the minority.
Having said that, there is no suggestion in the majority judgment
that
due cognisance should not be given to diminished criminal
responsibility on the part of the accused. The point of
difference
between the two judgments was clearly set out by Nugent JA
in his concurring judgment at paragraphs [64] to [66], and it was
this:
‘
[
64
]
I do not understand Mlambo JA to suggest that the
criminal responsibility of the respondent was undiminished at the
time he committed
the crimes. I think it is perfectly clear
that the respondent was in a state of distress that contributed to
his conduct
.
H
ad
that not been the case I would have sentenced him to life
imprisonment.
[
65
]
The difference between my colleagues seems to m
e
to lie rather in the degree to which each
considers the respondent’s powers of restraint and self control
to have been
diminished
.
For what has come to be referred to as diminished criminal
responsibility is not a definite condition. It is a state
of
mind varying in degree that might be brought about by a variety of
circumstances. The circumstances that produce that
state of
mind—the effects of alcohol, jealousy, distress, provocation,
and the like—have always been matters to be
taken account of in
mitigation and I do not think anything is altered when they are
brought together under a label. My colleague
Cloete JA views
those circumstances in this case as having substantially reduced the
respondent’s powers of restraint and
self control—my
colleague Mlambo JA views them as being considerably less than
substantial—and it seems to me
that that is where the
difference between them lies.’
[66]
My colleague Cloete JA is of the view that we have a choice of only
two courses in this case.
Either we must accept his view of the
matter or the matter must be referred back to the court below for
further evidence.
But of course my colleague is not correct.
There is a third option that is always available to a court, which is
for members
of the court to each proceed in the ordinary way to reach
their independent conclusions notwithstanding that they differ, and
in
that way the process of justice will take its ordinary course.’
[12]
I turn to submissions of the state.
Mrs De Kock has stressed that violence was far too rife and readily
employed as a solution
to problems. During the month of August
attention had been focussed on violence perpetrated on women and
children.
The family of the deceased were heart broken at
the fact that the deceased had killed her. They accepted the
accused
and had shown him the love he never received from his own
parents. Mrs De Kock contended that the accused’s
act of murdering the deceased had been a selfish one and the life of
an unborn child had been taken away. Even though the
state
accepted that the accused acted with diminished responsibility a
sentence of imprisonment for five years is inappropriate.
The
fact that the accused had been in custody for such a long time
awaiting trial was not due to any delay on the part of the state
but
entirely of the accused’s own making. Accordingly, the
state considered a sentence of imprisonment for a period
of between
eight to ten years as appropriate.
[13]
Where an accused is convicted of murder
that is not premeditated and acted with diminished responsibility the
sentence that the
Court imposes is, in most instances, less severe
than might otherwise be the case. It is evident that due weight
has to be
accorded to the fact that there was diminished
responsibility on the part of the accused. I am giving due
attention to the
approaches adopted by the Court in all the cases
referred to by Mr van Breda.
[14]
I recognise that the State abandoned
reliance on the provisions of
s 51(1)
of
Criminal Law Amendment Act
No. 105 of 1997
regarding a prescribed minimum sentence for
murder which is not premeditated. However, I cannot ignore that
the legislature
ordained a sentence of imprisonment for fifteen years
for such a crime.
[15]
It goes without saying that I accept you
acted with diminished responsibility. I am taking into
account, in mitigation,
that you have been in custody for over two
years and four months. Further, that you are remorseful for
your actions.
The fact that you pleaded guilty is not a strong
mitigating factor but rather a neutral one as the shooting took place
in the presence
of other people. Had you decided to dispute
guilt their evidence would have established without any difficulty
that you fired
the fatal shots. I also accept that the issue of
deterrence is not of much, if any, consideration in your case.
I am
mindful further of the fact that you are still relatively young
and, most probably, a good candidate for rehabilitation. You
will have enough time in prison to work on improving the emotional
factors that played a part in your commission of this offence.
Sentence
[16]
In the result, after weighing up all the
relevant factors I consider the following sentence appropriate:
The
accused is sentenced
to a term of
imprisonment for eight (8) years.
Y EBRAHIM
ACTING DEPUTY JUDGE
PRESIDENT
5 SEPTEMBER 2012
S v KLEINBOOI.SEN
[1]
S
v Zinn
1969
(2) SA 537
(AD) and
S
v Rabie
1975 (4) SA 855 (AD)
[2]
S v Rabie
(
supra
)
[3]
R
v Swanepoel
1945 (AD)