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[2018] ZASCA 7
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Director of Public Prosecutions, Eastern Cape, Grahamstown v Booysen (580/2017) [2018] ZASCA 7 (23 February 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 580/2017
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
EASTERN
CAPE,
GRAHAMSTOWN
APPELLANT
and
WINSTON
BOOYSEN
RESPONDENT
Neutral
citation:
DPP v Booysen
(580/2017)
[2018] ZASCA 07
(23 February 2018)
Coram:
Wallis JA and D Pillay and Schippers AJJA
Heard:
15 February 2018
Delivered:
23 February 2018
Summary:
Criminal law and procedure – minimum
sentence legislation - respondent convicted on two counts of murder
and one count of
robbery with aggravating circumstances – court
a quo finding no substantial and compelling circumstances but failing
to impose
prescribed minimum sentences on second count of murder and
robbery with aggravating circumstances - minimum sentences of life
imprisonment
and 15 years’ imprisonment imposed.
ORDER
On
appeal from:
Eastern Cape Division of the
High Court, Grahamstown (Tilana-Mabece AJ sitting as court of first
instance):
The
appeal succeeds and paragraphs 16(2), (3) and (4) of the order of the
High Court are set aside and substituted with the following:
‘
(2)
The accused is sentenced to life imprisonment on count 2.
(3)
The accused is sentenced to 15 years’ imprisonment on count 3.’
JUDGMENT
Schippers
AJA (Wallis JA and D Pillay AJA concurring):
[1]
The respondent was convicted in the Eastern Cape
Division of the High Court, Grahamstown, on two counts of murder
(counts 1 and
2) and one count of robbery with aggravating
circumstances (count 3). The Criminal Law Amendment Act 105 of 1997
(the Act) was
applicable, but the trial court found no substantial
and compelling circumstances justifying a departure from the minimum
sentences
specified in the Act. The minimum sentence prescribed in
respect of count 1 is 15 years’ imprisonment; count 2, life
imprisonment;
and count 3, 15 years’ imprisonment. The trial
court imposed the prescribed minimum sentence of 15 years’
imprisonment
on count 1, but sentenced the respondent to 15 years’
imprisonment on count 2 and eight years’ imprisonment on count
3. It ordered the sentence on count 2 to run concurrently with the
sentence on count 3. Thus, the respondent was sentenced to an
effective term of 30 years’ imprisonment. The Director of
Public Prosecutions (the DPP) now appeals against the sentence
imposed on all three counts, with leave of the trial court.
[2]
The basic facts are these. The respondent was in
a romantic relationship with Ms Brenda Finnis (Brenda), the deceased
in count 1.
In November 2015 she wrote a letter to the respondent in
which she expressed her wish to terminate their relationship. Her
cousin,
Ms Zona Ruiters (Zona), testified that Brenda showed her the
letter; and that on the day in question they, together with some
friends
including one Pietie, with whom Brenda wanted to start a
relationship, were consuming alcohol at Zona’s house in
Aberdeen
in the Eastern Cape. Later that evening, the respondent
arrived and sat outside that house where he drank from a bottle of
wine.
Zona, Brenda and the others went outside because they were
aware that the respondent came to fetch Brenda; they had argued the
day before. The respondent grabbed Brenda by the arm, pulled her and
wanted her to leave with him. She refused to do so and tried
to get
away.
[3]
The police had been called in the interim and
Constable John Jack and two members of the local community policing
forum arrived
on the scene in a police van, and stopped next to the
respondent and Brenda. They saw how the respondent pulled Brenda,
forced
her to accompany him, and that she resisted. In full view of
the police, the respondent stabbed Brenda in the chest and ran away.
Constable Jack gave chase in the vehicle but could not apprehend him.
Brenda died on the scene. According to the post-mortem report,
the
cause of death was a stab wound to the chest which penetrated the
left lung, pulmonary artery and aorta, with resultant blood
loss.
[4]
Five days after the first murder, the respondent
was at the farm of Mr George Featherstone (Featherstone), the second
deceased,
which is some 60 km from Aberdeen. Mr Morne Sas (Sas), who
lived and worked on the farm, came across the respondent in an
ostrich
field some 500 m from the homestead. The respondent had
worked for Featherstone in 2014. He asked Sas for tobacco and told
him
that he was on his way to Aberdeen. The respondent went home with
Sas, but remained outside. Sas gave him the tobacco and the
respondent
left. He told Sas not to tell Featherstone that he had
been on the farm. Sas knew that the respondent was wanted for the
murder
of Brenda. He then telephoned the police to inform them that
the respondent was heading to town so that they could apprehend him.
However, Sas is Afrikaans-speaking and the person at the other end of
the line asked him to speak English and subsequently terminated
the
conversation. Sas called the police again but could not get through.
[5]
On counts 2 and 3, the respondent was convicted
substantially out of his own mouth. Pursuant to a
trial-within-a-trial, the court
a quo ruled that facts stated and
things pointed out by the respondent to Captain van der Merwe, a
justice of the peace, in relation
to the murder and robbery of
Featherstone, were admissible in evidence. Captain van der Merwe’s
evidence may be summarised
as follows. The respondent waited outside
the home of Featherstone (who was 74) until 20h00, before
entering the house through
an open door. He removed a firearm from a
table in the bedroom and went outside again. Featherstone, who had
been watching television,
came to the kitchen door. As he did so, the
respondent shot him. Featherstone then walked to the telephone and
made a call (presumably
for help). The respondent fired another shot,
which struck him in the stomach. Featherstone went to sit on a chair
in the lounge
and the respondent again fired a few shots at him. The
post-mortem report in relation to Featherstone states that he was
shot multiple
times and that the cause of death was gunshot injuries
to the chest and abdomen.
[6]
After the respondent had shot Featherstone whilst
he was sitting in the chair, he put the gun down next to Featherstone
and stole
food from the fridge as well as Featherstone’s Toyota
delivery vehicle, which was parked under a carport with the keys in
it. As he was driving Featherstone’s vehicle on the farm road
he saw the lights of oncoming vehicles. He stopped, abandoned
the
vehicle and fled into the bush. The respondent pointed out the place
where he waited and entered the house; the table from
which the
firearm was removed; the telephone; the chair where Featherstone had
been sitting when he was shot; and the place from
which
Featherstone’s vehicle was removed and where it was abandoned.
[7]
The respondent did not testify in his defence.
The version put to the State witnesses in cross-examination
concerning the first
murder was one of self-defence: Brenda, it was
put, was armed with a knife, stabbed the respondent thrice, and he
took the knife
and stabbed her. The witnesses denied that Brenda was
armed. As regards the murder of Featherstone, it was put to Sas that
the
night before the murder, the respondent and Mr Andries Williams
(Andries) spent the night at his home on the farm. The next day
the
three of them went to Featherstone’s house. They got to the
door of the house and the next thing, they saw Featherstone.
Sas
produced a firearm and shot him more than once. Andries had taken
Featherstone’s vehicle, the respondent jumped into
it and they
left Sas at the house. Sas denied these allegations. As Andries and
the respondent were leaving the farm, they saw
the lights of oncoming
vehicles and abandoned Featherstone’s vehicle. But all of this
was not evidence: the respondent chose
not to testify, called no
witnesses and closed his case.
[8]
The respondent was duly convicted on all three
counts. Section 51(2)
(a)
(i)
of the Act applies to count 1. It provides inter alia that a high
court shall sentence a person convicted of an offence referred
to in
Part II of Schedule 2, in the case of a first offender, to
imprisonment for a period not less than 15 years. In terms of
s
51(1), a high court is enjoined to sentence a person convicted of an
offence referred to in Part I of Schedule 2, to life imprisonment.
Murder, when planned; or the death of the deceased in the commission
of a robbery with aggravating circumstances, is such an offence.
So,
the minimum sentence that had to be imposed on count 2 was life
imprisonment. Count 3 also falls within the ambit of s 51(2)
(a)
(i)
of the Act, which prescribes a minimum sentence of 15 years’
imprisonment for robbery where there are aggravating circumstances
or
the robbery involves the taking of a motor vehicle. This is such a
case. The respondent used a firearm, inflicted serious injuries
on
Featherstone which resulted in his death, and removed his vehicle.
[9]
The
trial court concluded that the minimum sentence specified in the Act
had to be imposed on each count. It referred to
Malgas
,
[1]
and considered whether there were substantial and compelling
circumstances to justify a deviation from the prescribed minimum
sentence. The court was not persuaded that the respondent’s
personal circumstances and other factors submitted by the defence
justified a deviation from the prescribed sentence. It found that the
killings of a 20 year old defenceless woman and an elderly
vulnerable
man were senseless; that the respondent had no respect for human life
and the law; and that he already had a list of
previous convictions.
It concluded that there were no substantial and compelling
circumstances which justified the imposition of
a lesser sentence
than what the lawgiver had ordained.
[10]
Consequently, the trial court imposed the minimum
sentence of 15 years’ imprisonment on count 1. Counsel for the
DPP submitted
that this was a misdirection, and that the court should
have imposed a sentence of 20 years’ imprisonment in light of
the
following aggravating circumstances: the respondent killed his
girlfriend, a defenceless young woman, in full view of the police
because she had broken up with him; and murder is indicative of a
particular arrogance and utter disrespect for the law and the
life of
another. Alternatively, it was submitted that the sentence was
shockingly inappropriate.
[11]
It is
trite that sentencing is within the discretion of the trial court and
that an appeal court can interfere with sentence only
where there has
been an irregularity that results in a failure of justice; or where
the trial court misdirected itself to such
an extent that its
decision on sentence is vitiated, or the sentence is shockingly
inappropriate.
[2]
[12]
In my
view, it cannot be said that the sentence imposed on count 1 is
shockingly inappropriate. The aggravating factors submitted
are not
of the sort that justify a sentence in excess of the prescribed
period, and counsel for the DPP rightly did not press the
argument
that the trial court should have imposed a harsher sentence. Further,
as was held in
Malgas
,
[3]
in deciding whether the circumstances of any particular case warrant
a departure from the prescribed sentence, courts are required
to
regard the prescribed sentences as being generally appropriate for
crimes of the kind specified. And the prescribed sentences
are the
sentences that should ordinarily be imposed. As was said in
Malgas
:
‘
Courts are
required to approach the imposition of sentence conscious that the
legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily
and in the absence of weighty justification, be imposed for the
listed crimes in the specified circumstances.’
[4]
[13]
The sentences imposed on counts 2 and 3 however,
were inappropriate. Having found that there were no substantial and
compelling
circumstances to justify the imposition of a lesser
sentence, the trial court was obliged to impose life imprisonment on
count
2, and 15 years’ imprisonment on count 3. Indeed, in both
the respondent’s written and oral submissions it was fairly
conceded that the trial court’s failure to impose the
prescribed sentences on counts 2 and 3 was a misdirection; and that
the appeal against the sentences imposed on those counts should be
upheld.
[14]
It follows that the sentence imposed by the trial
court on counts 2 and 3 must be set aside. The following order is
made:
The
appeal succeeds and paragraphs 16(2), (3) and (4) of the order of the
High Court are set aside and substituted with the following:
‘
(2)
The accused is sentenced to life imprisonment on count 2.
(3)
The accused is sentenced to 15 years’ imprisonment on count 3.’
_______________________
A
Schippers
Acting
Judge of Appeal
APPEARANCES
For
Appellant: JPJ
Engelbrecht
Instructed by:
Director of Public
Prosecutions, Grahamstown
Director of Public
Prosecutions, Bloemfontein
For
the Respondent: PW Nel
Instructed by:
Justice Centre, Port
Elizabeth
Justice Centre,
Bloemfontein
[1]
S v
Malgas
2001 (1) SACR 469 (SCA).
[2]
Director of Public
Prosecutions, KwaZulu-Natal v P
2006 (1) SACR 243
(SCA), affirmed in
S
v Bogaards
[2012]
ZACC 23; 2013 (1) SACR 1 (CC).
[3]
Malgas
fn 1 para 18.
[4]
Malgas
fn 1 para 25 emphasis in the original;
affirmed
in
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) para 10.