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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No. JPV 2007/0403

Date:20/06/2008

In the matter of:

THE STATE

versus

KEITH PIETERSON............................................................................................Accused 1

PEDRO DELANO................................................................................................Accused 2

SENTENCE

[1] On 15 March 2008, the two accused, Keith Pieterson (accused 1) and Pedro Delano (accused 2) were convicted of the murder of the late Mr Sallie Gassant (count 1) and the robbery with aggravating circumstances of the deceased’s motor vehicle (count 2). Accused 2 was also convicted of the unlawful possession of a firearm (count 3) and the unlawful possession of ammunition (count 4).

[2] The State, represented by Adv Nel, led the evidence of the deceased’s son, Mr Mohammed Faiez Sallie in aggravation of sentence. Both accused were represented by counsel - accused 1 by Adv Mpanza and accused 2 by Adv Roothman. Information outlining social, behavioural and psychological functioning of the accused was provided in the form of pre-sentence reports from senior probation officers – in the case of accused 1 from Ms J Mamabolo (exhibit L) and in the case of accused 2 from Ms J Payne (exhibit L). They also testified and I thank them for their assistance. The accused elected not to testify, but their counsel placed facts before me in mitigation of sentence from the bar. Counsel for the State and for the accused addressed me on the matter of sentence.

[3] The death of the deceased was caused by the accused in committing robbery with aggravating circumstances and they acted in the execution of a common purpose. The murder for which they were convicted is accordingly an offence referred to in Part I of Schedule 2 to the Criminal Law Amendment Act 105 of 1997 (“the Act”) for which it is necessary, in terms of s. 51(1), to impose a sentence of imprisonment for life, and the robbery with aggravating circumstances for which they were convicted is an offence referred to in Part II of Schedule 2 to the Act for which it is necessary, in terms of s. 51(2), to impose a sentence of imprisonment for a period of not less than fifteen years, unless ‘substantial and compelling circumstances’ within the meaning of s. 51(3)(a) justify a lesser sentence.

[4] In considering whether or not substantial and compelling circumstances exist which would justify the imposition of lesser sentences than those prescribed, the traditional objectives of punishment, namely prevention, retribution, deterrence and rehabilitation, still apply, and I am enjoined to weigh the personal circumstances of each accused against the seriousness of the crimes committed by them and the interests of society.

[5] The murder and robbery crimes committed by the accused in this matter are very serious. During the late afternoon of the 1^st September 2006, accused 1 met with accused 2 and two other friends and they listened to the radio, consumed alcohol and used drugs. Between 8:00 and 9:00 pm, while the accused were walking to the residence of a friend of accused 1, they came across a parked vehicle wherein the deceased and a Mr Enver Ally were sitting. The deceased had given Ally a lift home from the Mosque and they were still talking in the deceased’s vehicle which was parked in the street outside Ally’s home. Accused 2 appeared at the driver’s window with accused 1 shortly behind him, he knocked on the window with a firearm, and he told the deceased to get out. The deceased alighted from the vehicle and he tried to get away from it, but he was followed by the accused and he was shot by accused 2 a few metres away from the vehicle. The accused got into the deceased’s vehicle and drove off. Accused 1 was found liable on the basis of a common purpose between him and accused 2 on both the murder and robbery charges.

[6] The motive for the murder is not clear, but from the surrounding circumstances there seem to be only three inferences which could be drawn: to prevent him from identifying the accused, but this seems improbable since Ally was not shot; to prevent him from resisting the robbery, but this also seems improbable since he was an elderly man of 62 years old, he was unarmed, and he tried to get away; or simply because of their callousness, unscrupulousness and inherent wickedness, which seem to me to be the most probable in all the circumstances.

[7] The deceased’s family was, and still is, deeply affected by his murder and experience great difficulty in coming to terms with his sudden and unexpected death. Mrs Salie and the deceased were married for approximately forty years and had seven children and nine grandchildren at the time of his death. All their children have left their parental home and the deceased and Mrs Salie lived alone in their home which they had occupied for many years. Their parental home remained the family’s centre, which the children and grandchildren often visited, but it was sold after the deceased’s death since Mrs Salie could not stay there alone. The deceased enjoyed great respect in his community and society too has lost a valuable member.

[8] Our country at present suffers an unacceptable and distressing incidence of violence and the community demands that courts deal seriously and severely with such offenders and for appropriately severe punishments to be imposed for such crimes as those which have been committed by the accused.

[9] Accused 1 has a previous conviction for possession of dependence-producing substances which bears no relationship to his present convictions, and such will not be taken into account.

[10] Accused 1 was born on 24 November 1980, and he is presently 27 years of age. He was brought up in Bosmont and the surrounding areas. He is the youngest of three children and he has had a stable upbringing even though his parents separated when he was still young. He passed grade 8 at Langlaagte College. He then attended a technical boarding school in Aliwal North where he qualified as a boiler maker in 2005. He was employed as a boiler maker by Inkwe Company in Modderfontein from January 2006 until his arrest on the 1^st September 2006. He never married, but is the father of two children from the same mother. He has a positive relationship with the mother of their children, and, before his incarceration, supported them financially, and she now relies on a child support grant to maintain them. The negative impact of long term imprisonment on their relationships and the negative financial consequences for them are obvious.

[11] Accused 1 was 24 years of age at the time of the offences. The fact that he did not pull the trigger and that dolus eventualis was proved in his case count as a mitigating factor. I do not, however, lose sight of the fact that he was older than accused 2 and that he actively participated in the incident.

[12] Accused 1 testified at the trial that he, accused 2, and two other friends consumed alcohol and drugs prior to the event and that they were under the influence of the narcotic drugs. Accused 1 was introduced to narcotic drugs through peer pressure, and he had been using drugs for a period of three years prior to his arrest. He admitted his addiction to the probation officer, Ms Mamabolo, and, according to him, he has not used drugs since he has been incarcerated. Any influence of drugs and alcohol on his faculties could not have been extreme in the light of their actions prior to, at the time of, and after the event. When giving his evidence at the trial, accused 1 was able to furnish a full account of his version of the incident and of their actions. I do, however, accept that accused 1 was to a limited extent influenced by the liquor and drugs that he had taken prior to the event.

[13] Ms Mamabolo testified that accused 1 expressed remorse for his actions during their interview, although he still denied the full extent of his participation. The sincerity of his remorse is, in my view, doubtful. It was certainly not evident in any way. It would have carried greater weight had he testified to that effect [see: S v M 1998 (1) SACR 162 (WLD)]. The deceased’s son also testified how he perceives the accused as lacking remorse. Ms Mamabolo conceded that one cannot really tell what his prognosis for rehabilitation is where he does not fully admit his part in the commission of the crimes and that to consider the possibility of him in future admitting his full participation in the commission of the crimes in question would be mere speculation. Adv Nel referred me to S v Ntuli 1978 (1) SA 523 (AD). Wessels JA, said this at p 528 B – C:

‘Appellant throughout falsely denied complicity in the commission of the crimes in question. At no time did he show any remorse for his criminal activities. To have considered the possibility of appellant’s possible rehabilitation in these circumstances would, in my opinion, have constituted an essay in futility.’

Accused 1’s age, in my view, increases his prospects of rehabilitation, however speculative such prospects might be.

[14] A further factor that I take into account is that accused 1 has spent almost one year and ten months in prison awaiting the finalisation of these proceedings. He was arrested on 1 September 2006.

[15] Accused 2 was born on 2 December 1986, and he is presently 21 years of age. He grew up in Westbury, Johannesburg. He has two brothers, one older who is married and self-supporting and one younger who is still school-going. His parents’ marriage was plagued by alcohol abuse and domestic violence, and they divorced in 2006. His mother moved to a flat in Claremont with his school-going brother, and his father remained in the family home in Westbury where accused 2 also stayed at the time of his arrest although he had also spent a lot of time at the home of his mother and brother in Claremont. Accused 2 dropped out of school when he was doing grade 8. His parents are both employed and they have always taken care of his financial needs. The accused has never been formally employed, but instead became involved in criminal activities.

[16] In this regard Ms Payne reported as follows:

‘The environment of Westbury and the surrounding areas are plagued with various social ills such as poverty, unemployment, drug and alcohol abuse and violence. These factors all negatively impact on the growth and development of young people such as the accused growing up in the community, hence the accused dropping out of school and getting involved in criminal activities. Facilities and resources are however accessible to the members of the community.’

[17] Accused 2 has previously been involved in the selling of stolen vehicles. In this regard Ms Payne reported as follows:

He acknowledges dealing with the selling of stolen vehicles; however he explained to the Probation Officer that he is never involved in the actual hijacking or robbery of these vehicles. He does not even know when or how it takes place; neither does he even know the perpetrators, as his involvement is in the selling of the vehicle and receiving a portion of this money. He further expressed that he is not a violent person, he does not commit murder or robbery and he does not even break into people’s homes or rob people on the road. That is not who he is, he however verbalized his remorse and he regrets his actions of being involved in the bigger syndicate of car hijackings and trading in stolen motor vehicles. Therefore he apologizes to the court and the larger society and he asks of the court to be lenient toward him in passing sentence.’

[18] When giving his evidence at the trial, accused 2 also testified that there are many people with ‘chop shops’ in the Westbury area who deal in stolen vehicles. He further admitted that he attempted to sell the deceased’s vehicle to a ‘buyer’ known to him in Westbury.

[19] On 19 May 2005, accused 2 was convicted of the offence of possession of presumably stolen property and sentenced to three years imprisonment suspended for a period of three years on certain conditions. Such offence, in my view, bears a relationship with his present convictions. But even if I am wrong, his previous criminal conduct is at least relevant as an indication of ‘…his uncontrollable urge to lawlessness which reduces the chances of reform.’ [see: S v Muggel 1998 (2) SACR 414 (CPD) at p 419 f – g].

[20] Accused 2 has shown no remorse. He persists in his denial of any involvement in the crimes of which he has been convicted other than his attempt at selling the stolen vehicle. His lack of remorse, according to Ms Payne, makes his prognosis towards rehabilitation negative, but rehabilitation, according to her, is a process. I accept that youth generally increases prospects of rehabilitation.

[21] Accused 2 was not yet 20 when he murdered the deceased. Youth per se is generally a mitigating factor of substance. But the probation officer considers him a threat to society, and so do I. He has been involved in criminal activities for some time before he committed the offences under consideration. On the night in question, he walked the streets of Claremont and Bosmont with an unlicensed firearm in his possession. It is youngsters like him who ‘plague’ the environment of Westbury and the surrounding areas with violence.

[22] I take into account that accused 2 has already spent one year and nine months in custody awaiting the finalisation of these proceedings. He was arrested on 20 September 2006.

[23] I have carefully considered the evidence, the reports by the probation officers, the information relating to the accused placed before me by counsel, and the addresses by counsel for the State in aggravation of sentence and for the accused in mitigation of sentence. The personal circumstances of each accused, the other mitigating factors to which I have referred, and the time spent in custody awaiting the finalisation of these proceedings cumulatively do not, in my view, amount to substantial and compelling circumstances which would justify lesser sentences than the prescribed minimum sentences when balanced against the enormity of the crimes committed, the aggravating factors, and the public interest in appropriately severe punishments being imposed for such crimes.

[24] I arrive at this conclusion in full recognition that life imprisonment is the heaviest sentence a person can legally be obliged to serve, that the emphasis in sentencing should generally be on rehabilitation and prevention, especially when the accused are young, and that youth per se constitutes a mitigating factor of substance. I have dealt with these factors hereinbefore. Deterrence also plays a prominent role in this instance, because of the seriousness and senselessness of the particular murder, the seriousness of the robbery, and their prevalence. A consideration of all the circumstances of this particular case satisfies me that the imposition of the minimum sentences prescribed by the Act on both accused would not be unjust. Such sentences would not be disproportionate to the crimes, the criminal and the legitimate interests of society in the case of each accused.

[25] In the result:

Accused 1 is sentenced to:

1. 1. Imprisonment for life for the murder conviction (count 1); and

2. Imprisonment for a period of fifteen years for the robbery conviction (count 2).

B. The sentence of fifteen years imprisonment runs concurrently with the sentence of life imprisonment.

Accused 2 is sentenced to:

A. 1. Imprisonment for life for the murder conviction (count 1);

2. Imprisonment for a period of fifteen years for the robbery conviction (count 2);

3. Imprisonment for a period of three years for the unlawful possession of a firearm conviction (count 3); and

4. Imprisonment for a period of one year for the unlawful possession of ammunition conviction (count 4).

B. The sentences of fifteen years, three years, and one year imprisonment run concurrently with the sentence of life imprisonment.

P.A. MEYER

JUDGE OF THE HIGH COURT

20 June 2008

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