|This CLE will provide a practical example of how the courts, in respect of criminal matters involving serious offences, hand down their sentences. In this case, the accused, Mr D, was accused of the kidnapping, rape and murder of his 10-year-old niece. The accused was earlier convicted on the aforesaid counts in addition to offences pertaining to defeating the ends of justice in terms of concealing his crimes and was before the current court to await sentencing.
The precise facts insofar as they pertain to the accused being convicted of the charges in which he faced are not the focus of this CLE, however, in brief, the accused’s niece went to the accused’s house on the morning of 19 October 2017 looking for her cousins to accompany her to school. The accused then violently grabbed the victim by the neck and pushed her onto the floor of his house where he proceeded attack his victim.
Upon investigation of the crime scene and the post mortem reports, the state pathologist determined that the cause of death was as a result of multiple blunt force injuries to the head, neck and genitalia. Further, the body was discovered on 20 October 2017, alongside a dam nearby a local road, which is indicative of the fact that the accused had moved the victim’s body post-mortem to a site wherein he attempted to conceal the evidence. The victim sustained numerous extensive injuries including a severe skull fracture, a large vaginal laceration as a result of the rape, the victim’s lungs contained aspirated blood and gastric content which the victim subsequently inhaled during the attack.
The state pathologist’s findings were indicative of the fact that the victim has suffered a great ordeal and experienced suffering both physically and psychologically in the ending moments of her life. Further, death was not found to be instant according to the pathologist, sometime would have passed between infliction of the injuries until the moment of death. Thus further indicative of the aggravating circumstances in which surrounded the conclusion of the attack and the victim’s death.
|At the outset the Court emphasised that the determination of a suitable sentence to be imposed is no easy task and there exists no “mechanical process” in order to determine same. In determining an appropriate sentence, the Judge reiterated that a measure of mercy must underlie its rationale and it must strive to meet the objectives of punishment being retribution, prevention, deterrence and rehabilitation.
The precedent setting case of S v Zinn outlined the three most important aspects a court needs to take into consideration when determining sentencing of an accused. Accordingly, courts must take into account, inter alia, the personal circumstances of the accused, the nature of the crime, including the gravity and extent thereof and the interest of the community. Cumulatively, the Court must then afford the appropriate weight to the aforementioned factors and strike a balance between the various interests to consider.
In addition to the factors as highlighted above, the Court also considered certain sections of the Criminal Law Amendment Act namely section 51(1) read with schedule 2 Part 1 which sets out that a sentence of life imprisonment is prescribed in respect of rape, in circumstances where the victim had been under the age of 16 years, and in instances where grievous bodily harm was inflicted, and further, it was applicable in instances where the victim was a person who was likely to give material evidence in the criminal proceedings against the accused in respect of the act of rape, which further satisfied a sentence of life imprisonment.
The Court duly considered the accused’s personal circumstances and adduced that although the accused had far from a perfect upbringing, with the inclusion of drug abuse, this aspect weighed up against the nature and seriousness of the crime and the impact thereof, taking into consideration the manner of execution and other aggravating factors, could not excuse the accused’s actions. Further, the accused was in a position of trust, as the victim’s uncle, a further aggravating factor which could not be ignored when assessing the circumstances at hand.
Interests of the Community
The community where the accused resides and where the crime was committed was outraged by the brutal crime. Subsequently, a petition by the community was handed over to the Court at the beginning of the sentencing procedure in order to highlight their feelings and reasons for why the accused should not be granted the mercy of the Court in terms of a lesser sentence.
Ultimately, the Court ruled that due to the triad of factors, namely the interest of the community, the accused’s personal circumstances and the nature of the crime, together with the aggravated circumstances associated thereto, there could be no other sentence suitable other than the prescribed minimum sentence of life imprisonment in respect of each of the charges faced, being rape and murder. The Judge further concluded that no other sentence in relation to the brazen and violent nature of the crime would have precluded a sentence of life imprisonment. The accused was deemed to be a danger to the community whom should be removed from society.
Sentencing accused persons in terms of serious offences is an intricate procedure which involves striking a balance between the accused’s personal circumstances, the interest of the community and the nature of the crime. The court must adopt a measure of mercy in order to meet its objectives of punishment.
Written by Divina Naidoo and Charlotte Clarke