IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: CC23/2016

In the matter between:

THE STATE

and

ANGELO KOESTER	Accused

JUDGMENT ON SENTENCE

RUGUNANAN AJ:

[1] The accused was convicted of murder. The indictment brings the matter within the purview of Section 51(2) read with Part 2 of Schedule 2 of the Criminal Law Amendment Act, No. 105 of 1997 (“the Act”). The Act prescribes a mandatory minimum sentence of 15 years’ imprisonment. The sentence can only be departed from if a court is satisfied that substantial and compelling circumstances are found to exist which justify the imposition of a sentence lesser than the prescribed minimum (Section 51(3)(a)).

[2] The approach applicable to the enquiry into the existence of substantial and compelling circumstances envisaged in the Act was laid down in S v Malgas 2001 (1) SACR 469 (SCA) and endorsed by the Constitutional Court in S v Dodo 2001 (1) SACR 594 (CC). The approach finds resonance in several decisions of the Supreme Court of Appeal, notably; S v Fatyi 2001 (1) SACR 485 (SCA); S v Vilakazi 2009 (1) SACR 552 (SCA) and S v Matyiyi 2011 (1) SACR 40 (SCA).

[3] In attenuated form, the approach to the enquiry into the existence of substantial and compelling circumstances is set out as follows :

[3.1] A court has a duty to consider all the circumstances of the case cumulatively, including factors traditionally taken into account, such as the personal circumstances of the accused, the crime committed and the legitimate interests of society; this aims at testing the proportionality of the prescribed sentence (Luthando Mqikela v S Case No 119/07 (ECHC), delivered 26 October 2009);

[3.2] For the circumstances to qualify as substantial and compelling, they need not be exceptional in the sense of seldom encountered or rare, nor are they limited to those which have a diminishing effect on the moral guilt of an offender;

[3.3] The Act is intended to ensure a severe, standardised and consistent response from the courts unless there were truly convincing reasons for a different response. Put differently, the mandatory sentences are to be regarded

as generally appropriate for the specified crimes and should not be departed from without weighty justification; and

[3.4] Where a court is convinced, after considering all the circumstances, that the imposition of the minimum sentence would be unjust, only then is it entitled to characterise the circumstances as substantial and compelling.

[4] With these prescripts in mind, the enquiry as to the existence of substantial and compelling circumstances is considered in relation to what is set out in the ensuing paragraphs.

[5] From the bar it was placed on record that the accused was born on 25 December 1982. By calculation he would be approaching age 34 within the next few months. His highest level of education is Standard 5. Since 23 May 2016 he has been in custody awaiting trial. Prior to this date, he erected fences and earned between R1 500.00 to R1 700.00 per month. He also lived with his grandmother in Bedford. The accused had a relationship with the deceased, Belinda Olivier, for more than 10 years. He has two children, boys aged 3 and 6, with someone else. The children are living with the accused’s maternal grandmother and he contributes to their maintenance.

[6] While conceding the accused has been convicted of a serious offence, Mr Geldenhuys submitted that the accused’s personal circumstances cumulatively

assessed with the form of intent which he submitted was dolus eventualis, constituted substantial and compelling circumstances. In this submission he factored the accused’s consumption of alcohol which, as is evident from the judgment on conviction, occurred pervasively on Saturday and Monday, respectively 3 October and 5 October 2015. As such, Mr Geldenhuys contended that a departure from the prescribed minimum sentence of 15 years’ imprisonment was competent, but did not venture to suggest what would constitute an appropriate sentence.

[7] It must immediately be stated that the accused’s consumption of liquor assumes neutral significance since there is no evidence of its effect on his capacity to have appreciated the implications of his conduct throughout the weekend in question. In this regard, Mr Engelbrecht for the State contended, and correctly in my view, that the accused, on the Monday morning, had a conversation with the State witnesses. In that conversation he recalled and admitted that the hit the deceased with a spade; the accused also visited a moneylender on the farm and travelled to Bedford. These facts, according to Mr Engelbrecht, suggest that the accsused could not have been so intoxicated or befogged that his appreciation of what he said and did was impaired. (Mqikela supra at paragraph [4]).

[8] As for the form of intention which Mr Geldenhuys submitted was dolus evantualis, this simply means that the commission of the unlawful act is not the

main aim of the perpetrator. (Snyman, Criminal Law, Lexisnexis 5th ed at 184- 187). I am not certain whether the facts in the judgment on conviction pertinently reflect this conclusion. The accused admitted that he hit the deceased with a spade. Doubtless she sustained injuries. In the instances of all the injuries detailed in the report by Dr De Beer (“Exhibit B”), the medical evidence does not exclude considerable force (“redelike geweld”). Based on the accused’s admission and the medical evidence, the view I take is that is that the assault on the deceased was brutal and sustained. On the supposition that the accused foresaw the fatal consequences of his act he must have had a real or reasonable appreciation that death would possibly ensue and reconciled himself to that possibility (cf. S v Oosthuizen 1991 (2) SACR 298 (AD) at 302b-d; Snyman op cit at 184-187). In the latter instance the accused was clearly reckless.

[9] The medical evidence dealing with the deceased’s injuries has been dealt with in considerable detail in the judgment on conviction and should be treated as if incorporated herein. Such evidence reveals that that assault on the deceased was callous and brutal. It was perpetrated with a flagrant disregard for  the sanctity of her life and the inviolability of her physical integrity. A society striving towards the ideals of equality and dignity does not sit back and adopt a passive and indulgent approach to crimes of violence against women. This aspect, as a manifestation of the interests of the community, along with the accused’s previous convictions were the principal aggravating factors relied upon by Mr Engelbrecht.

[10] The accused’s previous convictions (“Exhibit E”) reveal, inter alia, three convictions for assault with intent to commit grievous bodily harm. It is unnecessary to proffer detail threover save to state that the sentences of imprisonment for periods of 30 days in two instances and 6 months in another, have had no deterrent effect. Deductive reasoning suggests that the accused has a propensity to commit offences involving violence and has not learnt a lesson from his previous sentences. It cannot be concluded with confidence that he can be rehabilitated and will not in future resort to violence. On the contrary, and without in any manner suggesting that his previous convictions are trivial , the accused’s conviction for murder aptly demonstrates that he graduated to committing a crime of a more serious nature.

[11] I take cognisance of the fact that the accused has two minor children for whose maintenance he contributes. Any resultant mitigatory value is countered however by the circumstance that they are living with the accused’s maternal grandmother and further, that nothing is known of their influence and involvement in his life, nor of his in theirs. Turning to the accused’s age, he is clearly not a youth; but where the Court has not been told anything about his level of maturity or any other influence in his life experience which may have been of assistance for determining sentence, then it is doubtful if his age has any inherent mitigatory value.  By  itself  the  accused’s  age,  insubstantiated  by  such  detail,  is  a

chronological calibration that assumes neutral status (S v Matyiyi supra at 48 a- c).
[12] As  a matter  of course, when considering sentence, a court will  have regard to the period the accused person has endured in custody while awaiting trial. The accused has been in custody since May 2016. He was convicted on 10 August 2016. In the enquiry directed at whether substantial and compelling circumstances may be found to exist, his period in custody while awaiting trial carries little weight, and pales into insignificance when consideration is given to the penalty he must sustain.

[13] The accused’s personal circumstances are clearly outweighed  by  the gravity of the offence and its detrimental consequence which on the medical evidence was a prolonged and, of course as common sense would dictate, a painful death for deceased. A finding that the accused’s personal circumstances on their own amount to substantial and compelling circumstances would be unduly sympathetic and amount to a departure from the specified sentence, “lightly and for flimsy reasons” (S v Malgas supra at 477d).

[14] The effect of the evidence in aggravation considerably outweighs the mitigating circumstances pleaded for the accused. I am satisfied that substantial and compelling circumstances are significantly absent. In the event, the State contended for the imposition of a sentence of imprisonment in excess of 15 years and urged that 20 years would not be inappropriate.

[15] This brings me to the question whether a sentence in excess of 15 years’ imprisonment is competent. The purpose of the Act is :

“to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by s 51”

(S v Dodo supra at 603 i-j; and S v Abraham 2002 (1) SACR 116 (SCA) at 126 c)

[16] To ensure that consistently heavier sentences are imposed the Legislature did not limit the discretion of the court to impose a sentence in excess of the prescribed minimum (S v Mthembu 2011 (1) SACR 272 (KZP) at 278 g).

[17] Having considered the matter anxiously, I am of the view that, in the circumstances of this matter, a heavy sentence in excess of the prescribed minimum is justified. The accused committed a brutal and callous act for no justifiable reason and for which no explanation exists other than a blatant denial premised on the notion of a conspiracy against him. This kind of brutality has unfortunately become a regular occurrence of life in South Africa and courts are enjoined to signal a clear message that such behaviour will not escape the full force and effect of the law (DPP Kwazulu-Natal v Ngcobo 2009 (2) SACR 361 (SCA) at 367 g).   It is noted the accused elected not to testify in mitigation of

sentence. Whatever his reasons, that was his right but it is not without consequences (S v Matyiyi supra at 52). His silence simply meant there was nothing to be said in his favour.

[18] Accordingly, a sentence of 18 years’ direct imprisonment is one that I consider proportionate to the nature and seriousness of the crime and which takes due cognisance of the Legislature’s desire to impose a firm punishment, the circumstances of the accused and the interests of society. In addition, the accused is declared unfit to possess a firearm in terms of Section 103(2) of The Firearms Control Act 60 of 2000.

S RUGUNANAN
Acting Judge of the High Court

12 August 2016

Appearances :

Counsel for  the  State  :  Adv J  Engelbrecht,  Director  of  Public Prosecutions, Grahamstown

Counsel for the Accused : Adv D Geldenhuys, Legal Aid Board Grahamstown