---

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

 

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

Case No:  CC31/2017

In the matter between:                                                                     

THE STATE

And

DESWIN KLEINBOOI

ESTON AFRIKANER                                                                                              Accused

Coram:                       Chetty J

Heard:                        10 May 2018

Delivered:                  17 May 2018              

JUDGMENT

Chetty J:

[1] In the main judgment I found that the two accused were part of a group of three persons dawdling on the pavement in Fitchard Street in the early hours of 12 May 2016. I further found that it had been established beyond a reasonable doubt that the two accused were at the scene of the deceased’s murder at Bramwell Markman later that morning. It is not in issue that the distance between the two points is, depending on the criterion adopted, either 700 or 900 metres. The evidence adduced further established that the bread delivery truck followed an habitual route daily and this routine justifies the inference that the accused proceeded to Bramwell Markman with the knowledge that it would be parked there. The trajectory of the bullet and the deceased’s position in the truck in the aftermath of the shooting furthermore proves that the deceased was waylaid, in all probability oblivious of the accused’s presence in the vicinity of the truck. I further found that evidentially, accused no. 2’s conduct was goal directed, that he had the direct intent to kill the deceased and, having done so, opened the vehicle’s door and robbed the lifeless body of its possessions. Given the association between the two accused, the inference may properly be drawn that they shared in the spoils of their ill-gotten gain.

[2] Crimes of this ilk to wit, murder, robbery with aggravating circumstances and the unlawful and intentional possession of an automatic or semi-automatic firearm attract the mandatory sentences listed in the Criminal Law Amendment Act[1], to wit life imprisonment and 15 years respectively, absent a finding by the sentencing court that there are substantial and compelling circumstances attendant which militate against its imposition. The locus classicus on the subject is Malgas[2]., where Marais JA, writing for the court, trenchantly concluded his discourse, stating: - 

“[18] Here lies the rub. Somewhere between these two extremes the intention of the Legislature is located and must be found. The absence of any pertinent guidance from the legislature by way of definition or otherwise as to what circumstances should rank as substantial and compelling or what should not, does not make the task any easier. That it has refrained from giving such guidance as was done in Minnesota from whence the concept of 'substantial and compelling circumstances' was derived is significant. It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence. In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so. A departure must be justified by reference to circumstances which can be seen to be substantial and compelling as contrasted with circumstances of little significance or of debatable validity or which reflect a purely personal preference unlikely to be shared by many.

[19]      . . .

[20] It would be an impossible task to attempt to catalogue exhaustively either those circumstances or combinations of circumstances which could rank as substantial and compelling or those which could not. The best one can do is to acknowledge that one is obliged to keep in the forefront of one's mind that the specified sentence has been prescribed by law as the sentence which must be regarded as ordinarily appropriate and that personal distaste for such legislative generalisation cannot justify an indulgent approach to the characterisation of circumstances as substantial and compelling. When justifying a departure a court is to guard against lapses, conscious or unconscious, into sophistry or spurious rationalisations or the drawing of distinctions so subtle that they can hardly be seen to exist.

[21]      . . .

[22] . . . The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hardened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.”

[3] Accused no. 1 was born on 11 May 1995 and aged 21 at the time of the commission of this offence. He is unmarried and has no progeny. His scholastic career was minimal. He passed grade 6 and dropped out of school shortly thereafter whence he has been unemployed. I accept that he is a product of challenging socio-economic circumstances but am enjoined to have regard to the fact that prior to the commission of the present offence he, on 21 November 2015 committed the offences of attempted murder, malicious injury to property and the unlawful possession of a firearm and ammunition. Whilst awaiting trial on the present charges he was duly convicted on those counts and sentenced to varying terms of imprisonment, the effective custodial sentence being one of 15 years imprisonment. Whilst those offences are strictly not to be construed as previous convictions, I am entitled to have regard thereto in exercising my sentencing discretion.  

[4] Accused no. 2 was born on […]1997 and was 18 years old at the time of the commission of this offence. Given his age, I directed that a pre-sentence report be obtained and it documents the accused’s unfortunate upbringing. It appears therefrom that notwithstanding his deprived childhood, he has, for the past six years, through the grace of Ms Maqoqa been ensconced in a stable family environment where his basic needs are taken care of.

[5] The sheer audacity of this crime has not only deprived the deceased’s wife and daughter of a husband and father but has caused them untold misfortune. Their financial stability has been jeopardised and so too their emotional wellbeing. It is obvious from Mrs Desai’s evidence that the deceased’s death has negatively impacted upon them both on a personal and social level. The community has itself been deprived of one of its stalwarts. Mrs Goss highlighted the enormous contribution the deceased had made to ensure the safety and wellbeing of suburban society. His loss, she ventured, left a deep void within not only the community policing forum but the community at large.

[6] As adumbrated hereinbefore, the deceased was executed in circumstances where the accused could have had no inkling what his possessions were. It could, given the time of the deliveries, never have been in their contemplation that the deceased would have had a substantial amount of money on him. And yet, he was shot in the mere hope that they would benefit from his death.

[7] The youthfulness of an offender has for aeons been regarded as a mitigatory circumstance, and rightly so. Whilst it denotes immaturity it cannot, per se, elicit maudlin sympathy for an offender. It is difficult to conceive of a situation where the act of ambushing an unsuspecting individual and deliberately firing a shot into his head can be attributed to immaturity. On the contrary, on the facts as I found proved, accused no. 2’s did not only play a leading role but his actions were moreover goal directed. The accused’s associative conduct justifies the conclusion that the killing was actuated by greed and not by reason of their immaturity. Singularly or collectively, the factors advanced on behalf of the accused do not, in my view, pass the benchmark enjoined by the minimum sentencing regime meriting a lesser sentence. In the result, the accused are sentenced as follows: -

Accused No. 1

On count 1, accused no. 1 is sentenced to imprisonment for life;

On count 2, he is sentenced to fifteen years imprisonment. 

Accused No. 2

On count 1, accused no. 2 is sentenced to imprisonment for life;

On count 2, 15 years imprisonment;

On count 3, 15 years imprisonment;

On count 4, 3 years imprisonment.

________________________

D. CHETTY

JUDGE OF THE HIGH COURT

 

 

Obo the State:                                  Adv. G. Baartman

                                                            National Director of Public Prosecutions

                                                            Uitenhage Road, North End, Port Elizabeth

                                                            Tel: (012) 842 1400

 

Obo the Defence:                             Adv. J. Coertzen / Mr P.J. Schoonraad

                                                            Legal-Aid South Africa

                                                            Uitenhage Road, North End, Port Elizabeth

                                                            Tel: (041) 408 2800

---

---