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[2009] ZAECGHC 90
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Paulos v S (CC98/09) [2009] ZAECGHC 90 (7 December 2009)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE - GRAHAMSTOWN)
CASE NO: CC98/09
DATE HEARD: 1-2/12/2009 DATE DELIVERED: 7/12/09
NOT REPORTABLE
In the matter between
THE STATE
and
BONGANI PAULOS Accused
SENTENCE
PLASKET J:
[1] The accused was charged with the offences of murder and theft. He pleaded guilty to both. The State accepted his plea and by so doing accepted the facts upon which it was based and which were set out in detail in a statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977. See S v Nel 2007 (2) SACR 481 (SCA), at paragraph 20. I duly convicted the accused of both offences on the basis of his plea. It is now my task to sentence him for his crimes.
[2] The imposition of sentence is one of the most difficult aspects of the work of a judge. It is not a mechanical process in terms of which predetermined sentences are imposed for specific crimes. Instead, it is a nuanced process in which the court is required to weigh and balance a variety of factors to determine a measure of the moral, as opposed to legal, blameworthiness of an accused. That measure is achieved by a consideration and an appropriate balancing of what the well known case of S v Zinn 1969 (2) SA 537 (A), at 540G-H described as a ‘triad consisting of the crime, the offender and the interests of society’.
[3] A sentencing court does not always have an untrammelled discretion to determine sentence – a clean slate on which to work. In certain cases – and this applies to the accused’s conviction for murder – a prescribed minimum sentence is provided for by the Criminal Law Amendment Act 105 of 1997. That sentence, in the circumstances of the present case, is 15 years imprisonment. No such prescribed sentence has been set for the conviction of theft.
[4] In the case of S v Malgas 2001 (1) SACR 469 (SCA), at paragraph 8, Marais JA held that the sentence prescribed by the Act for a particular offence is ordinarily to be imposed. In other words, all things being equal, it will be regarded as the appropriate sentence.
[5] Courts are, however, given the power to deviate from the prescribed sentence. If, in terms of s 51(3) of the Act, a court finds substantial and compelling circumstances to be present, it is free to impose a less severe sentence than that prescribed. If, on the other hand, the court is of the view that the prescribed sentence is not severe enough for the crime in question, it may impose a more severe sentence than that prescribed. (This latter possibility, I hasten to add, is not applicable in this case.)
[6] In S v Malgas at paragraphs 8 and 9, Marais JA stated that for a deviation from a prescribed sentence to be justified, there must be ‘truly convincing reasons’ for the deviation and that a prescribed sentence is not to be departed from ‘lightly and for flimsy reasons’. That said, however, the learned judge of appeal stressed that, in determining whether substantial and compelling circumstances exist, all factors traditionally taken into account in sentencing are still to be taken into account. He said (at paragraph 9):
‘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. The use of the epithets “substantial” and “compelling” cannot be interpreted as excluding even from consideration any of those factors. They are neither notionally nor linguistically appropriate to achieve that. What they are apt to convey is that the ultimate cumulative impact of those circumstances must be such as to justify a departure.’
[7] I turn now to the facts. As I have indicated, the State accepted the factual basis of the accused’s plea of guilty. In the circumstances, no doubt, it had no choice because the accused and the deceased were the only people present at all material times. There is, furthermore, nothing inherently impropbable in these facts. The accused also testified in mitigation and his evidence supplements the facts set out in his statement in terms of s 112(2) of the Criminal Procedure Act. Once again no gainsaying evidence was led by the State and, in all likelihood, none could be.
[8] On 5 November 2009, the accused was hitchhiking from Cape Town to his home in Aliwal North. At Colchester he was given a lift by the deceased, a priest at the College of the Transfiguration in Grahamstown. It was late in the day when they arrived in Grahamstown. The deceased offered the accused a place to stay over night and something to eat. He accepted the offer.
[9] They went to the deceased’s living quarters at the college where they ate and the accused had a bath. After he had bathed the deceased entered the bathroom and touched the accused’s buttocks. When the deceased saw the shocked expression on the face of the accused, he apologised and left the bathroom.
[10] The deceased left to attend a meeting but he took the accused to a shop and gave him money. The accused later walked back to the college and watched television in a communal television room with a number of others to whom he had earlier been introduced.
[11] That night the deceased told the accused that there was only one bed in his room and asked if he minded sharing it. The accused agreed to this. While in bed, however, the deceased proceeded to touch the accused but he told him to stop. These advances were repeated a few more times and, on each occasion, the accused asked the deceased to desist, which he did. The next morning, after giving the accused breakfast, the deceased showed him pictures of naked men on his laptop computer. He asked the accused whether he liked these pictures but the accused told him that he did not.
[12] The deceased then contacted a computer business in Grahamstown to enquire if any work was available for the accused. He was not able to arrange an interview for the accused and he then took him to a place outside of Grahamstown on the Fort Beaufort road from where the accused was going to hitchhike to Aliwal North. He was unable to get a lift and when it began to get dark, he decided to return to the deceased’s rooms, as he felt he could not sleep where he was and the deceased was the only person he knew in Grahamstown.
[13] When he arrived at the college, the deceased was not there so he waited in the television room. When the deceased arrived, he invited the accused to his rooms. They again shared the bed and again the deceased made advances on the accused. When the accused resisted his advances, the deceased said – and I quote from the accused’s s 112(2) statement – that ‘people don’t thank him for the help he gives them’. Even after this, the deceased moved closer the accused and put his arms around him. When he saw that the accused was angry, he moved away from him.
[14] The next morning, the deceased asked the accused to massage his back, which he did. The deceased then asked him to massage lower down on his back and this the accused refused to do. He stated in his plea explanation:
‘I had refused his advances numerous times by then. I got up from the bed and went to fetch a knobkierie that he had in the room and I hit him over the head.’
[15] Although the accused has no recollection of how many times he struck the deceased, he accepted that it must have been three times. This is in accordance with the post-mortem report. He stopped hitting the deceased when he cried out for him to stop. He cleaned the knobkierie and hid it behind a cupboard in the passage outside the room. He then took the keys of the deceased’s car, a Hyundai Tucson, a laptop computer, a cell phone, some cash, binoculars and a box of wine. He left in the car with these articles and drove to his home in Aliwal North. While there he heard that the deceased had died. He left Aliwal North for Johannesburg.
[16] He was arrested, about three weeks after the incident, when, after the car had run out of petrol near Vereeniging, policemen who had stopped next to his car ascertained that it had been stolen. Captain Havenga of the South African Police Service in Grahamstown, the investigating officer, went to fetch the accused from Vereeniging. The accused gave Captain Havenga a detailed account of what had happened, told him where he had hidden the knobkierie and thrown away his blood stained T-shirt, informed him that he wished to plead guilty as soon as possible and requested Captain Havenga’s assistance in this regard.
[17] He stated that he did not have the direct intention to kill the deceased but that he realised that by hitting him with a dangerous object, death could ensue and he continued nonetheless. He admitted that he had no right to steal the items that he had taken from the deceased.
[18] When the accused gave evidence in mitigation of sentence he said that he chose to testify so that he could express his remorse. He said that although he could not reverse what he had done, he regretted it and apologised to the family of the deceased for their loss.
[19] He also testified about his personal circumstances. He was born on 3 December 1984 and was thus 24 years old at the time that the offences were committed. He never knew his father. His mother, who died in 2002, had left him and his younger brother in Aliwal North when she had gone to Johannesburg to work. They were raised in a foster home. He attended school and was one of the brightest students in his class. He passed matric and then studied for two years at a college. He studied courses in economics, business English, legal environment, computer studies and accounting. He obviously has good linguistic skills as he speaks seven of the 11 official languages.
[20] Since leaving the college where he studied, the accused has been unable to find permanent work. He has, however, held temporary jobs – one in Aliwal North and one in Vanderbylpark. He had gone to Cape Town to look for work and was returning to Aliwal North when the deceased gave him a lift and took him to Grahamstown.
[21] The accused is a first offender. He is married in terms of custom and he is the father of two children. They are girls aged five years old and two years old.
[22] Having considered the accused’s explanation of plea and having seen and heard him in the witness box, it is my view that his decision to plead guilty and his full and frank disclosure of what had happened were motivated by remorse and are indicative of a person who is prepared to take responsibility for his actions. I am also of the view that the accused’s expression of remorse when he was in the witness box was heartfelt and genuine.
[23] It is so that the accused was taxed in certain respects when he was cross-examined by Mr. Marais, who appeared for the State. For instance, he experienced difficulties in explaining why, when he returned to the deceased’s rooms on the second night, he did not insist on sleeping on the couch in the lounge. Despite this and one or two other instances, I am of the view that the accused was an honest and open witness.
[24] It is clear that he had little choice but to return to the deceased’s rooms on the second night: he could not reasonably be expected to choose to spend the night on the side of the road outside town, the only person he knew in Grahamstown was the deceased and he had little, if any, money for food. Given his rebuffing of the deceased’s advances the day before, he had hoped that they would not be repeated -- that, as he put it, the deceased would listen to him.
[25] The crimes the accused committed were both serious. The deceased’s persistent advances in the face of the accused telling him repeatedly to desist amounts to provocation. His response was, however, grossly disproportionate to the provocation. The degree of force that the accused used was extreme: although he only struck the deceased three times, these blows caused three ragged lacerations, bleeding, a large depressed fracture of the left parietal bone and depressed and linear segmental fractures across the left temporal bone.
[26] What makes the matter even more serious is that the accused, when he left the deceased’s rooms, added to a note on the door giving the contact details of the deceased, the words: ‘Out of town. Back on Monday.’ By doing this – and taking the deceased’s car – he ensured that the deceased would not be missed for a while.
[27] The fact that the accused also decided to steal the deceased’s property compounds the seriousness of the accused’s crimes. While one can understand why he stole the car – he wanted to get away from Grahamstown as quickly as possible – it is noteworthy that he then used the car as his own for the next three weeks. Even if the theft of the car is understandable in the circumstances, the theft of the deceased’s computer, cell phone, binoculars, money and wine are not.
[28] Despite the force used in the deadly assault on the deceased I am of the view that the circumstances of this case – and the personal circumstances of the accused – render it markedly different to the usual type of case involving violence that comes before the criminal courts in this Division. Both Mr. De Jager, who appeared for the accused, and Mr. Marais held the view that this case displays a number of unique features. In these circumstances, the interests of society are not necessarily served by the type of retributive sentence that has become the norm in answer to the plague of violent crimes.
[29] I have set out the personal circumstances of the accused. Mr. Marais has conceded that he is not the type of person that one would expect to see in the dock on so serious a charge. He has made the most of unfortunate circumstances while growing up and has taken responsibility for his life and for his criminal acts in this case. He is clearly an intelligent young man and, in my view, he was to large extent overwhelmed by a situation that he was unable to control or deal with. I have no doubt that the accused is a person who is capable of rehabilitation.
[30] In all of these circumstances – and I have not lost sight of the aggravating factors that I have mentioned -- I am of the view that substantial and compelling circumstances exist to justify the imposition of a sentence, in respect of the murder conviction, of less than the prescribed sentence of 15 years imprisonment. The circumstances are the cumulative effect of: the provocation that the accused endured over a protracted period; his remorse for what he has done; the fact that he co-operated with the police, made a clean breast of it and pleaded guilty; the fact that he is a first offender; and his favourable personal circumstances, which indicates a person who is capable of rehabilitation.
[31] I turn now to the sentence for the theft conviction. Taken on its own this was a serious offence. The value of the items taken was considerable. They were taken after the deceased had been disabled by the attack on him. While, as I have said, there may be a slight connection between the murder of the deceased and the theft of his car, the sentence I shall impose will reflect that, for the most part, the theft was a separate and distinct act. In other words, I shall not order that the sentence for the theft will run concurrently with the sentence for the murder.
[32] Having found that substantial and compelling circumstances are present, I am of the view that when the seriousness of the crimes, the personal circumstances of the accused and the interests of society are weighed and balanced, an appropriate sentence for the murder conviction is 12 years imprisonment and for the theft conviction is four years imprisonment.
[33] I accordingly make the following order:
(a) The accused is sentenced to 12 years imprisonment in respect of count 1, the conviction of murder.
(b) The accused is sentenced to four years imprisonment in respect of count 2, the conviction of theft.
________________
C. PLASKET
JUDGE OF THE HIGH COURT
APPEARANCES
For the State: Mr. M. Marais S.C of the Office of the Director of Public Prosecutions, Grahamstown
For the accused: Mr. A. De Jager of Legal Aid South Africa, Grahamstown