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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN  THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court,  Kimberley)

Case No: KS 21/2016

Heard: 15/02/2017

Delivered: 20/03/2017

In  the matter between:

STATE

V

NEVILLE VAN STADEN                                                         ACCUSED

JUDGMENT  ON SENTENCE

MAMOSEBO.J

[1] On  07 December 2016  the  accused, Mr  Van Staden,  was convicted as follows: Count l : murder read with the provisions of s 51 of the General Law Amendment Act 105 of 1997, as amended; Count 2: assault common;    Count  3:   assault  with   intent  to  cause  grievous bodily harm and Count 4: assault  common.

[2] It is trite that the triad comprising the personal circumstances of the accused, the nature and seriousness of the offences as well as the interests of the society must be taken into consideration when imposing sentence. See S v Zinn 1969 (2) SA 537 (A) at 540. The offences with which the accused has been convicted are prevalent in this province. However, taking cue from the pronouncements by the Supreme Com1 of Appeal in S v Scott-Crossley 2008 (1) SACR 223 (SCA) at 241 para 35:

'Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. Against that must be weighed the appellant's prospects of reformation and rehabilitation, ..... It is true that it is in the interests a/justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society. '

[3] The personal circumstances of the accused are the·following: He is a 43-year old  man  and  resides  in  Prieska  in  the  Northern  Cape.  He  is unmarried and has six children two of whom are with the deceased. Their  ages  range  from  15  to  23  years  old.  Before   his  incarceration his highest academic achievement  was  Grade  I0 (Standard 8) but he furthered his studies and completed Grade 12 in prison.    At  the  time  of  his  arrest  he  was  employed  by  a compan called Schletter whose trade is the installation of solar panels.  He  earned R5200 per month. He was in a love relationship with the  deceased  since 1995.

[4] The accused admitted all his previous convictions. Counsel conceded that it would be difficult to argue that his  previous  convictions  do not make a sorry reading. Also conceded is that the accused is short­ tempered and gets infuriated quickly wondering which   may  be  a personality problem. The last concession by counsel was not based on any expert reports of  either a psychologist or a psychiatrist. Counsel added that the assault charges on counts 2, 3 and 4 support his assertion that the accused is a short-tempered person.

[5] Adv Schereuder submitted that the fact that the accused did not plan to kill the deceased should serve to warrant a deviation from the imposition of life imprisonment. He suggested  that  in  relation  to the murder count, a sentence of 15 years or even 20  years  would serve as a deterrent. Counsel further urged me to order the sentences in counts 2, 3 and 4 to run concurrently with the sentence on the murder count. Counsel made no submissions in as far as  the accused's fitness to possess a firearm.  The  Court  has  already declared the accused unfit to possess a firearm on 30 July 2004. In as far as the suspended sentence of 17 September 2015 is concerned, counsel for the state did not apply for it to be put in operation.

[6] In aggravation  of sentence  Adv Kgatwe  called  the deceased's brother, Mr  Hendrik  Jas,  to  testify  on the impact  the deceased's death  has on the family. He is the uncle to the deceased's daughters,  J.  and N.. He resides with J. , the 16 year old younger daughter who still attends school and in Grade 9. N. is 20 years old  and has    a  child. She dropped out of school and is unemployed. He explained that the  deceased's  death  was a  tragedy. His  niece,  J., failed   a   class  and had to   repeat   it,   she continuously speaks to the deceased ' s photo that is displayed on the wall at his house. Although she is receiving therapy at Prieska hospital twice a week her behaviour has  changed.

[7] Mr Jas testified that the accused has not contributed towards the maintenance of his children. Charity organizations, FAMSA  and Hospice,  donated  clothes  to his niece. The  accused contributed  an amount of about one thousand rand (R1 000.00) towards transportation of the children to attend their mother's funeral  and did  not contribute towards funeral costs. Mr Jas stated that the deceased ran away from the accused at some point and went to live in Johannesburg. He and the accused fought physically because the accused broke his grandmother's rib s. When the deceased was six months pregnant with his child he pushed her in front of a moving vehicle which, fortunately, was not  fatal.

[8] The accused has been convicted of murder with direct intent (dolus directus). The cause of death was asphyxiation due to strangulation, as well as the consequences of multiple assault injuries. The doctor had already confirmed that the deceased had no chance of survival after sustaining such  injuries.   All  the deceased' s ribs were fractured. The accused cannot stand before Court and claim that with such extensive use of blunt force that broke all ribs, caused sub-cutaneous bruising of the scalp on both sides, a laceration in the upper lobe of the right Jung, a pulpified left lung, as  well as the  pulpification  of the  right lobe of the liver, plus strangulation intention  was  not  to  kill  the  deceased. The colour photographs of the deceased' s multiple  external  and internal  injuries are too ghastly to view.

[9] The accused has a catalogue of previous convictions, comprising 5 (five) pages, which, on the face of it, may show a propensity for criminality but more pertinently violence. He had his first clash  with  the law in 1990 and his last conviction and sentence was on 17 September 2015.  He has one previous conviction of  rape.

[10] Section 27IA of the Criminal Procedure Act, 51 of 1977 (the CPA), determines that certain convictions fall away as previous convictions after the expiration of IO years unless during that time the person has been convicted of an offence in respect of which a sentence of imprisonment  for a period exceeding six months without the option of   a fine may be imposed. See Du Toit: Commentary on the Criminal Procedure act, Service 56, 2016 at 27-8. Although most  of  the accused's previous convictions are older than  the  10  years,  the  number and nature of the convictions do signify a  trend  hence I hold the view that they should be taken into  account.

[11] In S v Kruger 2012 (I) SACR 369 (SCA) the  Supreme  Court  of Appeal  held that, even  where previous convictions are an  aggravating factor, it remains the duty of a sentencing court 'to tirelessly balance the mitigating and aggravating factors in order to reach an appropriate sentence'.

The remarks by Majiedt JA in Mudau v The State (764/2012) [2012] ZASCA 56 (09 May 2013) at para 13 are apposite:

"Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interests of society. Sentencing involves a very high degree of responsibility which should be carried out with equanimity, as Corbett JA put it in  S v Rabie [1975 (4) SA 855 (A) at 866 A-CJ:]

'[a] judicial officer should not approach punishment in a spirit of anger, because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interest of society which his task and the objects of punishment demand of him. Nor should he strive after severity; nor, on the other hand, surrender himself to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality. '"

[12] In Count 1: murder, the accused undermined the deceased and  insulted her dignity by brutally assaulting her and eventually strangling her. His defence of an alibi was bizarre. He was placed at the scene by state witnesses whose evidence I found to be credible. The accused has not shown any sign of remorse throughout the trial. The remarks on remorse by Ponnan    JA  in  S  v  Matyityi  2011   (1) SACR 40 (SCA) at para 13 are paramount.

[13] In S v Malgas 2001 (1) SACR 469 (SCA) at 481j Marais JA exhorted judicial officers not to depart from the specified sentences for flimsy reasons. See also S v Fatyi 2001 (I) SACR 485 (SCA) at 488 para 5. The accused has already been convicted of murder with direct intent to kill. Sec 51(1) of the General Law Amendment Act, 105 of  1997 finds  application in   that  the  prescribed minimum  legislation is applicable. Counsel for the accused did not point out any compelling or substantiating circumstances that would warrant a deviation from the  prescribed minimum sentence.  I  did  not  find  any either. The circumstances under which this  murder was  committed are, undoubtedly, such that the imposition of the prescribed minimum sentence is consequential.

[14] Murder committed by a man on a woman should not be  treated lightly. It becomes worse where the perpetrator, as in this instance, was the deceased's partner, who had the duty and the responsibility to protect her and not to harm her. It is killings like the one committed  by the accused which necessitate the imposition of sentence to serve not only as a deterrent but also to have a retributive effect. Violence against women is rife and the community expects the Courts to protect women against the commission of such crimes.

In the unreported judgment S v Mudau 2014 JDR 0641 (SCA); (547/13) [2014] ZASCA 43 (31 March 2014) (at para 6 Mathopo AJA pronounced:

" Domestic violence has become a  scourge in our society and  should not be treated lightly, but deplored  and  also  severely  punished.  Hardly a day passes without a report in  the  media  of a  woman  or child being beaten, raped or even killed in this country. Many women and children live in constant fear. This is in some respects a negation  of many of their fundamental rights such as equality,  human  dignity and bodily integrity.  This was well articulated  in S  v Chapman   [1997] ZASCA 45; 1997

(3) SA 341 (SCA) at 345A-B when the Court said the following: 'Women in this country have a legitimate claim to walk peacefully on the streets to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives. '"

[15] In S v Siluale en  Ander 1999 (2) SACR 102 (SCA)  from  the headnote at 103 Grosskopf JA remarked:

"If the circumstances of a case require that  an  offender  should  receive a sentence which for all practical purposes removes him permanently from society, life imprisonment is the only appropriate sentence. It is intended to be the most severe sentence that can be imposed."

[16] In considering whether the accused is a candidate for rehabilitation or not I am mindful of the pronouncements by the Supreme Court of Appeal in Ravele v S (20079/14) [2014] ZASCA 118 (19 September 2014) where Mocumie AJA (concurred in by Cachalia and Bosielo JJA) pronounced:

"[19] He has a long list of previous convictions which, on the face of it, shows a propensity for criminality. He had his first clash with the law at the tender age of 13 years. Amongst his previous convictions is one of indecent assault for which he was convicted when he was 14 years old. Nonetheless, it was wrong for the court a quo to look at the appellant's previous convictions and conclude therefrom that there were no prospects for his rehabilitation. There is no evidence  to inform the court of his upbringing, his social and cultural  background, his family structure and whether his upbringing had any influence on his susceptibility to crime and his anti-social behaviour and  whether  he  would  have  been  receptive  to  any rehabilitation program. What is clear is that he is still relatively young. He requires correction and rehabilitation, but not destruction,[9] lest he returns to the very society from which he comes more hardened and desensitised to living amongst law abiding citizens. Programs aimed at rehabilitation of young offenders may give him an opportunity to change his behaviour, especially that towards women. "

As alluded to earlier, the accused is not youthful anymore but 43 years of age. He still has an option to avail himself for rehabilitative  programs that will assist him to mend his ways and to change his approach to women and people in general. It is unclear  at this stage what informed the accused' s behavioural patterns.

[17] In respect of the assault on Mr Wewu in Count 2:  The assault was on  a 55 year old man and was unprovoked. Although Mr Wewu suffered   a 1 cm laceration which was healed his dignity of being assaulted for  no apparent reason by the accused was  affected.  The  accused displayed  utter  lack  of  respect  for  the  older  folk  which  must    be frowned upon.

[18] The fear that the accused instilled in his victims is inexcusable. Mr Wewu abandoned his plans for the evening after the incident at the tuckshop. Mr Phillip Kers, the complainant in Counts 3 and 4, had to flee from the accused neglecting his visitors on the same evening . He was forced by circumstances imposed by the accused to flee from his own home due to fearing him. Seeking refuge from  his  relatives was also short-lived because the accused caught up with him and assaulted him again. Mr. Kers' fear was glaring to Ms Patosi the community leader in the area who was summoned by Mr Kers to intervene between them. This is blatant terror on the members of the community. I  find  no justification  in  the conduct  of the accused attacking defenseless people.    That evening his belligerent behavior was like a ticking-bomb waiting to explode. It is conduct similar to the accused's that justifies protection of the members of the society by the  courts.   In  my view  the  aggravating  circumstances by  far outweigh the mitigating circumstances.

[19] In S v SD 2015 (2) SACR 363 (SCA) at 368 para 16 Brand JA's  remarks are instructive:

"[16] When one looks at the offences under present consideration and the interests of society, 1 can come to one conclusion only: the offences for which the appellant has been convicted are so severe that incarceration cannot be avoided. In that sense it is 'the last resort of  punishment'.  ... ....Any sentence  which  fails to   recognise the severity of these crimes may lead to society losing its confidence in the criminal justice system. Especially in a society where violence has become prevalent and endemic, one simply cannot afford that risk"

[20] In the result, the following sentences are imposed:

1.    On Count 1:  Murder: Life Imprisonment

2.     On Count 2:  Assault Common: 12 Months Imprisonment

3.       On Count 3: Assault with intent to cause Grievous Bodily Harm: Two (2) years imprisonment.

4.     On Count 4:  Assault Common:  12 Months Imprisonment.

5.    The sentences in respect of Counts 2, 3 and 4 are to run  concurrently with the sentence of Life Imprisonment for murder in Count 1.

6.     The Registrar of the South African  Police  Service  is  directed  to  enter an endorsement in the register in terms of s 13 STYLE="font-size: 12pt">03 (3) of the Firearms  Control  Act,  60 of 2000.

___________________________

M C MAMOSEBO

JUDGE: NORTHERN CAPE HIGH COURT

On behalf of the State:          Adv. K Kgatwe

                                                    Office of the Director Public Prosecutions

On behalf of the Accussed:     Adv. JJ Schreunder

                                                    The Justice Centre, Kimberley

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