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S v Deka (SS27/11) [2011] ZAWCHC 477 (27 October 2011)

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SENTENCE

HLOPHE, JP:

Mr Deka, you pleaded guilty when you appeared before me prior to the lunch adjournment. The crimes in respect of which you pleaded guilty are all of a serious nature ranging from crimes of dishonesty to crimes of excessive violence. I want to explain to you what goes through the mind of any judicial officer for purposes of sentencing. In other words, what will any Court take into account for purposes of sentencing.

Any Court will take the following into account for purposes of sentencing: Number 1, the crime: When we talk about crime the Court looks into the nature of the crime, the seriousness thereof and the manner in which the crime was committed, Mr Deka.

All four crimes are of a serious nature, but particularly counts 3 and 4, being rape and murder respectively. The deceased was 84 years old at the time when you raped her, and you were 23 years old. A huge disparity in age. She was even older than your mother who is about 58 years old. You should be ashamed of yourself.

She was in the position of your grandmother. I view that in a very serious light, Mr Deka. The killing of the deceased was totally unnecessary. In other words you had no reason to kill her, having raped her brutally in the manner in which you did in the first place.

She was a defenceless old woman. You are a young man. You were 23 years old at the time and no doubt you are fitter than her. It is no exaggeration to say she was basically a defenceless old woman who was brutally raped and brutally attacked by you.

Having raped her there was no reason whatsoever to kill her, other than to obviously avoid being identified in subsequent proceedings. It is clear from the medico-legal report, which I think is Exhibit B before this Court, that she sustained serious injuries to her neck among other things. That much was conceded by yourself in your police statement, which is Exhibit A before this Court.

So much about the first factor which is the crime. We turn to the second factor which the Court takes into account for purposes of sentencing, which is the criminal.

In this regard the Court would look into your personal circumstances and in this regard you gave evidence earlier on before this Court. I have no intention to rehash the evidence that you gave because that was captured in the record, save to repeat or emphasise that which is necessary for purposes of my judgment on sentence.

Among other things your poor academic background. You went to school up to standard two, which is your highest qualification. You are obviously, like most of us, from a poor family upbringing. Your mother was a domestic worker. You were dependent on drugs such as Tik as you've said earlier. You also assisted your mother from time to time because you were able to secure casual employment, but not fixed employment.

You have been in prison since the day when you were arrested for a period of just under one year now. You pleaded guilty and the police statement under section 112 was accepted by the state. But most importantly you have previous convictions and the most important one relates to housebreaking with intent to steal and theft, which was committed in the year 2007, for which you were sentenced to a term of direct imprisonment.

You were released early on parole and you violated parole conditions. I think that so much relates to your personal circumstances. The Court will take your personal circumstances for purposes of determining an appropriate sentence to be meted out to you.

There is another equally important factor which is the third factor that any Court will take into account for purposes of sentencing. That is the need to protect the interests of the community. The crimes of which you have been found guilty are of a very serious nature, particularly crimes 3 and 4. They are crimes of violence.

This not to suggest that count 2 is not a crime of violence.

Robbery by its nature is a crime of violence. But particularly with regard to counts 3 and 4 which is rape and murder respectively, those crimes are of a very serious nature. You raped an 84 year old defenceless old woman in the privacy of her own home. In other words you invaded her privacy. No doubt that is an aggravating factor. Parliament in its wisdom saw fit to introduce what is commonly known as minimum sentence legislation. According to the minimum sentence legislation there are prescribed minimum sentences which the Court must impose unless there are substantial and compelling factors dictating otherwise.

Count 1 does not carry any minimum sentence. Count 2 carries a minimum sentence of 15 years direct imprisonment. Count 3, which is rape in these circumstances also carries a minimum sentence of 15 years imprisonment. Count 4, which is murder, carries a minimum sentence of life imprisonment.

The point I'm making is simply this. The communities out there expect the Courts to protect citizens who are vulnerable and who fall prey to senseless crimes such as the ones that you have committed. I must add in that context that crimes of violence of this nature, particularly in the Western Cape are on the rise.

It is the duty of this Court to send out a very clear message to people who have a similar propensity to commit such crimes that we will not tolerate this. There is a duty on this Court to protect women from senseless crimes of this nature, particularly those who are elderly, weak and defenceless.

The law is very clear. With regard to these minimum sentences the Court is bound to impose them. The law expects the Courts to impose those minimum sentences unless if the Court finds that there are substantial and compelling circumstances that dictate otherwise.

On the authority of S v Malqas and S v Vilakazi, the well-know Supreme Court of Appeal cases, that is the authority for that proposition. Mr Klopper, your Legal Aid counsel, submitted that there were a number of mitigating factors and he asked the Court to deviate from the prescribed minimum sentences.

He highlighted among other things that you have been in prison for a period of just under a year. The fact that you are from a poor upbringing and the use of drugs. Your rather limited educational background, meaning you went to school only up to standard two. Those were some of the factors that Mr Klopper highlighted to this Court and submitted that the Court should deviate from the prescribed minimum sentence.

While I agree with Mr Klopper that there are some mitigating factors in your favour, including the fact that you pleaded guilty and co-operated with the investigating authorities, there are, in my judgment, a number of aggravating factors in this case which far exceed the mitigating factors that Mr Klopper ably highlighted to this Court.

Mr Theron, who appeared for the State, highlighted some of those aggravating factors. He submitted, and I agree with him entirely, that on your own version you are guilty of murder on the basis of dolus directus, meaning you had a direct intention to kill the deceased.

Furthermore Mr Theron ably highlighted the fact that you had absolutely no reason to kill the deceased having raped her. Other factors which are aggravating include the fact that the deceased was attacked in the privacy of her own home. You also have a relevant previous conviction. These are some of the aggravating factors, which in my judgment far outweigh the mitigating factors highlighted by Mr Klopper.

On the authority of S v Malgas and S v Vilakazi I therefore come to the following conclusion. I do not find that there are substantial and compelling factors which warrant any deviation from the prescribed minimum sentence.

In imposing the sentence which I'm about to impose, I have taken into account al the principles of sentencing, such as the objects of punishment, deterrence which is both general and specific, the need to protect the society and rehabilitation, which is also important.

You are only 24 years old now. It is my hope that one day you will come out of prison and be a responsible South Africa citizen. The sentence which I'm about to impose, however, will send a very clear message to people who have a similar propensity or tendency to commit such crimes. The message will be loud and clear that crimes of this nature will not be tolerated by this Court.

Accordingly, Mr Deka, you are sentenced as follows:

COUNT 1: 5 (FIVE) YEARS DIRECT IMPRISONMENT-

COUNT 2: There is a prescribed minimum sentence of fifteen years direct imprisonment, accordingly you are sentenced to 15 (FIFTEEN) YEARS DIRECT IMPRISONMENT.

COUNT 3: which is rape, you are sentenced to 15 (FIFTEEN) YEARS DIRECT IMPRISONMENT-

COUNT 4: which is murder of the deceased on the basis of dolus directus, you are sentenced to LIFE IMPRISONMENT.

HLOPHE, JP