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[2008] ZAWCHC 84
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S v Van Dalen and Others (SS57/2008) [2008] ZAWCHC 84 (31 October 2008)
SENTENCE
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
SS57/2008
DATE
:
31
OCTOBER 2008
In
the matter between:
THE STATE
and
EMILY VAN
DALEN
Accused
1
ANGELIQUE
VAN DALEN
Accused
2
CHRISTO
PRETORIUS
Accused
3
SENTENCE
NGEWU, AJ
The
matter was postponed to today for sentence. In passing sentence the
Court has to consider the following:
The
seriousness of the offence, the interests of the community and those
of the accused. The Court will consider the personal circumstances
of each accused as raised by their defence counsel. All
accused are first offenders. They all did not participate
in the
actual murder, however the Court will not turn a blind eye on the
fact that the idea of murder was precipitated by them
and was
actually sold to Mr Roy Swan by them.
The
mastermind behind the murder was accused number 1. Accused number 1
and 2 were present when the deceased got murdered and did
nothing to
intervene or even frustrate the well orchestrated plan to have the
deceased killed. The offence was a 10 very serious
one, the deceased
was murdered in his home, where he was supposed to be protected from
crime.
I
must further add that offences of this nature are becoming
increasingly common in this division. The family of the deceased
lost a member, and the community look to the Courts for the
protection of their own interests. It is therefore the duty of the
Court not to betray the trust the community lays on them by imposing
inappropriate sentences. Appropriate sentences also serve to
deter
would be offenders. Of course the Court is to blend these sentences
with a measure of mercy.
It was
brought to the attention of the Court that there was a minor child
involved. The Court considered all the reports that
were filed on
behalf of the best interests of the minor child. However, though it
is a paramount consideration, that does not have
to be accentuated at
the expense of the other pillars of sentencing.
As a result
of the plan the deceased was brutally assaulted at his own home. We
have heard from the report that the minor child
in question is quite
happy living with the grandparents, and the eating disorders have
since vanished. The person who compiled
this report, I must say, was
focusing only on the best interests of 10 the child, without
balancing all the relevant factors of
sentencing. I must say of
course that hers was a recommendation that serves to influence the
Court but it is not to say that the
Court would be bound by what the
officer said. All that was required is that the Court must take into
account the contents of the
report.
What
is aggravating the offence is that accused number 1 was related, or
had a domestic relationship with the deceased, they were
married for
some time, divorced and married and then divorced. It would seem that
the deceased was in their way of 20 happiness.
There is an
allegation, though not testified to, to the fact that the deceased
abused accused number 2 as well.
Having
considered every relevant aspect of sentencing the Court has arrived
at the following sentence.
ACCUSED 1
you are
SENTENCED
TO UNDERGO A PERIOD
OF
7 (SEVEN) YEARS DIRECT IMPRISONMENT
;
In terms of
Section 276(1 )(i) of the Criminal Procedure Act the
ACCUSED
2 IS SENTENCED TO UNDERGO 5 (FIVE) YEARS IMPRISONMENT
.
ACCUSED 3
IS SENTENCED TO UNDERGO 7 (SEVEN) YEARS IMPRISONMENT
.
NGEWU, AJ