S v Maarman and Others (K/S 1/06) [2006] ZANCHC 57 (13 November 2006)

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[2006] ZANCHC 57
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S v Maarman and Others (K/S 1/06) [2006] ZANCHC 57 (13 November 2006)

IN THE
HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case number:
K/S 1/06
Date delivered:
13/11/2006
In the
matter between:
THE
STATE
and
MAARMAN,
J Accused 1
THWENEYAGAE,
D
Accused 2
Tsame,
G
Accused 3
SENTENCE
MOKGOHLOA
AJ:
Accused 1, Mr John
Maarman, has been found guilty of housebreaking with intent to rob
and robbery with aggravating circumstances
in count 1; murder in
count 2; and theft in count 3.
Accused 2, Mr
Tshweneyagae, has been found guilty of housebreaking with the intent
to rob and robbery with aggravating circumstances
in count 1; murder
in count 2; and theft in count 3.
Accused
3, Mr Tsame, has been found guilty of receiving stolen property
emanating from the robbery of the items by accused 1 and 2.
What
I have to do is to determine an appropriate sentence for all three of
you.
The basic consideration
in imposing sentence have been developed by the Courts over a long
period. These are deterrent, preventive,
reformative and
retributive.
By deterrent the aim is
to discourage the specific offender or would be offenders from
committing similar crimes.
Preventive is to protect
the public from further criminal conduct by the accused.
Reformative is to
rehabilitate the offender where possible by educational or other
correctional treatment in the most effective
way.
Retributive is to impose
a sentence which reflects the seriousness of the offence in order to
promote the respect for the law and
proper punishment for the
accused.
The triad enunciated in
S v Zinn 1969(2) SA 537 (A) at 540 G
remains instructive to this Court. This consist of the crime, the
offender and the interest of the society.
A Court should strike a
judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated
at the expense of, and
to the exclusion of other elements.
To achieve this
counterbalance a Court must evaluate and balance evenly the nature
and the circumstances of the offence, the characteristics
of the
offender and his circumstances and the impact of the crime on the
community, its welfare and concern.
The murder committed by
accused 1 and 2 was insensitive and cruel. The deceased was
evidently, as Dr Lourens testified, attacked
and assaulted, using a
blunt instrument, like an iron bar or brick. The deceased’s body
was tied up, probably to make it impossible
for him to try to
ward-off blows. For instance, Dr Lourens noted, inter alia, the
following on her post mortem report:
External appearance of body and
condition of limbs
The body had been tied up:
White/black nylon rope once
around the lower legs with a double knot.
Brown sock once around the
lower legs.
Cream sock once around the
forearms.
Brown sock just around the left
wrist.
Cream sock around the head and
through the mouth.
These ligature left deep
indentation in the body. The face and arms underneath the ligatures
revealed bruises and vital reaction,
but the indentation underneath
the sock of the legs left no soft tissue vital reaction.
Bruising of the distal and dorsal
left forearm: 110 x 90mm.
Bruise over the superior aspect
of the right shoulder: 70 x 40mm.
Bruises and superficial open
wounds just to the anterior of the right ear, caused by the sock
tied through the mouth.
Two open wounds extending from
the right ear and onto the scalp tissue behind the right ear. The
two open wounds joined in a V-shape
over the right ear. The total
lengths of these two wounds measured 60mm each, with the scalp
wounds that measured 35mm and 45m
respectively. The more superior
wound (45mm) had well defined edges, an abrasion ring and no tissue
bridges. No foreign material
was present. There was some hair
loss. The more inferior wound (35mm) had well defined edges, an
abrasion ring, hair loss and
tissue bridges.”
To ensure that the
deceased would not survive the attack or that he dies a slow but
certain death, a cream sock was tied around
his head and through
his mouth. The deceased would not have been able to remove or
untie this sock because his hands were tied
together and his feet
also tied together to restrict his mobility. Dr Lourens stated
further that according to her the cause
of death of the deceased
is:
“…
the person died because of
the head injury and blows to the head, more than one blow to the
head. I think a very important contributing
to the fact of the death
of the deceased one must not overlook the fact that the sock was tied
through the mouth of the person.
Because of the sock could have also
impaired the breathing effort of the person and he probably could not
breath properly. He already
got a head injury that is going to
interfere with his breathing. Now there is another obstruction in
his mouth and he cannot breath
properly.”
Sec. 51(1) of the
Criminal Procedure Act 105 of 1997 (the Act) provides that: if a
High Court has convicted an accused person
or persons amongst other
offences, of murder where the death of the victim was caused by the
accused in committing or attempting
to commit or after committing
robbery with aggravating circumstances; or the murder was committed
by a person or group of persons
in acting in the execution of
furtherance of a common purpose or conspiracy, he/she should be
sentenced to life imprisonment:
Provided the Court is satisfied
that substantial and compelling circumstances exist to justify the
imposition of a lesser sentence.
In
S
v Malgas 2001(1) SACR 469 (SCA) 482 C to E
the Supreme Court of Appeal expressed itself as follows:
“
All factors (with a few
exceptions) traditionally taken into account in sentencing (whether
or not they diminish moral guilt) thus
continue to play a role; none
is excluded at the outset from consideration in the sentencing
process.
The
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yardstick ('substantial
and
compelling') and must be such as cumulatively justify a departure
from the standardised response that the Legislature has ordained.
In
applying the statutory provisions, it is inappropriately constricting
to use the concepts developed in dealing with appeals against
sentence as the sole criterion.
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice would
be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
These offences are very
serious and that is why there is a legislation which prescribes the
minimum sentences. The court must
promote respect for the law.
The interest and protection of the community against the accuseds
or would be offenders must be
taken into account. Failure to do so
would result in chaotic society where there is no respect of the
law and vigilantism being
the order of the day. Farm-killings are
rife and prevalent in the Northern Cape Province and the whole of
South Africa. Statistics
………………………………..
when an offence is of such prevalence the courts are obliged to
impose sentences that
will not only defer the accused person
appearing before them but also would be farm killers. The society
expects the courts
to take into account the interests of the
victims of farm-killings in imposing appropriate sentences but in
the context of the
interests and rights of ordinary citizens of
this country.
PERSONAL
CIRCUMSTANCES
Mr Rasethunsa, on behalf
of accused 1 and 2 submitted that the following ought to be taken
into account in mitigation of sentence
in respect of accused 1 and 2.
Accused 1:
That he was born on 3
June 1974 that makes him 32 years old;
That he is not married
and have two children;
That he has no proper
education, never attended school;
That he is self employed
selling veggies;
That he has no pending
case against him.
Accused 2
That he was born on 25
December 1983 that makes him 22 years old and he is still reasonably
youthful;
That the accused is not
married and have no children;
That he attended school
up to Standard 3.
He is employed as a …
Despite
his best endeavours, Mr Rasethunsa was, nevertheless, unable to argue
that the above factors constituted substantial and compelling
circumstances. I cannot blame him because there are none.
The State on the other
hand submitted that there are aggravating circumstances i.e.
The deceased was an old
man 75 years old.
Considerable violence
used.
Previous convictions.
The aggravating
features in this case by far outweigh the mitigating factors. I am
not satisfied that the mitigating factors,
taken together,
constitute substantial and compelling circumstances. I am also not
satisfied that a sentence of life imprisonment
would be
inappropriate to this heinous murder so that an injustice would be
done by imposing such a sentence.
In the premises I have
no option but to impose the ultimate sentence, on accused 1 and 2,
that the law and the constitution allows
being life imprisonment.
On the first count of
housebreaking with intent to rob and robbery with aggravating
circumstances – both accused 1 and 2 are
not first offenders.
They have relatively previous convictions. They were given a
chance to rehabilitate but failed.
Accused 1 and 2 have
also been found guilty of theft of a motor vehicle. The value of
the said motor vehicle a Mitshubishi Colt
bakkie is estimated at
R120 000.00 – R100 000.00. It is a fairly new bakkie.
As far as accused 3
is concerned, he has been convicted of receiving stolen property
knowing to be stolen. The exact value of the property was not
mentioned but it appeared from the exhibits that they are of high
value e.g. sofas, warmer, AMC pots. This is a serious offence
and
I believe in that the courts have to
“cut
the hand that receives there will be no hand to steal”
.
People who receive stolen goods encourage in a way others to
steal.
Accused’s 3 personal
circumstances are favourable. He is 48 years old, married for 15
years with four children all attending
school. Accused 3 attended
school until Standard 6. He is a sole breadwinner operating a taxi
with an income of ± R5 000.00
per month. He was in custody for 3
months until he was released on bail. Accused 3 is a first
offender. Ms Segone, for accused
3 has suggested that a wholly
suspended sentence alternatively an imprisonment sentence coupled
with an option of a fine would
be appropriate. In my view a
sentence of
In respect of all
three accused:
I have had due regard to
the purpose and object of punishment. I also had regard to the
interest of society as represented
by the State. I have also
considered all the mitigating and aggravating circumstances
emanating from the record and the oral
arguments addressed to me by
counsel for the defence and the State.
I regard the following
sentences to be appropriate:
_______________
FE
Mokgohloa
ACTING
JUDGE
NORHTERN
CAPE DIVISION
For
the State:
Adv
Cloete Instructed by: Director of Public Prosecutions
For
Accused 1&2:
Mr Rasethuntsa Instructed by:
For
Accused 3:
Ms
Segone Instructed by: Justice Centre