Swartz v S (A441/11) [2012] ZAWCHC 128 (1 February 2012)

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A441/11

In the matter between

MANFRED

RAYMOND SWARTZ …..............................................Appellant

and

THE

STATE …..............................................................................Respondent

JUDGMENT DELIVERED ON 01 FEBRUARY 2012

ZONDI, J Introduction

[1] The appellant appeared before this Court (Samela AJ) facing four counts, namely abduction, two counts of rape and murder. The

allegations against the appellant are that on 15 June 2009 and at or near Wesbank in Kuilsriver he unlawfully and intentionally abducted a seven year old girl and at the same time and place raped her twice, vaginally and anally and thereafter murdered her. The two counts of rape were subject to the provisions of section 3 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2007. The fourth count, (murder) was also subject to the provisions of section 51 of Act 105 of 1997 read with Part 1 of Schedule 2 of the Act which prescribe a minimum sentence of life imprisonment for murder and rape committed in the circumstances set out in the Schedule. The sentence prescribed for the offences of rape and murder with which the appellant was charged and convicted of is life imprisonment.

[2] The appellant, who was legally represented in the Court a quo, pleaded not guilty to abduction and two counts of rape. He pleaded guilty to murder. After the evidence was led he was convicted on all the four counts and sentenced to 6 (six) years' imprisonment on the count of abduction and 20 (twenty) years' imprisonment for murder. The two counts of rape were taken together for the purposes of sentencing and the appellant was sentenced to life imprisonment as the trial Court found that there were no substantial and compelling circumstances justifying the imposition of a lesser sentence than the prescribed sentence.

[3] The appeal against sentence only is before this Court with the leave of the Court a quo. In his notice of appeal the appellant contends that the Court a quo erred in over-emphasising the seriousness of the offence and the interest of society at the expense of his personal circumstances. In particular it is averred that the Court a quo erred in failing to take into account that the appellant had shown remorse and had asked for forgiveness during the evidence. It is also contended that the Court a quo erred in not finding that substantial and compelling circumstances existed which justified the deviation from imposing life imprisonment for the offences of rape. [4] The evidence which formed the basis of the appellant's conviction and sentence is to the following effect. On the day of the incident the deceased, a 7 (seven) year old girl, together with her friends was playing at the back of a certain church located next to her house. The appellant, who was a tenant at the deceased's house, approached her and invited her to accompany him to a nearby shop and promised to buy her sweets if she did so. When she refused to accompany him he offered to buy her sweets and a packet of chips. She agreed to walk with him. Instead of taking her to the shop he took her to the nearby bushes where he raped her vaginally and anally and then killed her by strangling her. [5] The appellant, who

was 33 (thirty-three) years of age at the time of the incident, was renting a backroom at the deceased's premises. He was unemployed and was addicted to tik. He stole goods to finance his drug addiction. He spent almost 14 (fourteen) months as a waiting trial prisoner. He had a number of previous convictions mostly related to theft and drug dealing. His upbringing was not a happy one. His father physically and emotionally abused him. He left school in Grade 7 (seven) because of financial constraints and a lack of interest in schooling on his part. After leaving school he did some odd jobs. [6] Dr Tiemensma who performed a post mortem examination on the deceased confirmed that the cause of death was consistent with strangulation but could not say with certainty whether hands or some other objects were used in doing so. On examining the deceased's genital organs he found blood in her vulva, vagina and anus. He noted that the external genitalia showed lacerations with surrounding contutions at the six o' clock position. The hymen was lacerated. He also noted extensive lacerations and contutions in the internal lateral vaginal walls. In his opinion the deceased was still alive when the appellant raped her. He explained that the deceased must have undergone severe pains because of her age and the severe injuries she sustained in her genitalia and neck before she died. [7] As

required the Court a quo investigated the question of whether there were substantial and compelling circumstances which would have justified it to impose a sentence less than the minimum sentences prescribed by the Act. It found none and continued to sentence the appellant accordingly. The trial Court also found that the appellant showed no remorse. [8] It is submitted on behalf of the appellant the trial Court misdirected itself in making these findings. In argument Mr Calitz, who appeared for the appellant, submitted that the trial Court's finding that the appellant had used Tik to give him the courage to commit the offences was incorrect. He argued that the evidence showed that the appellant was a drug addict and this fact together with other factors was a fact which should have counted in his favour. In my view the submission is without any basis as it is clear upon a proper analysis of the trial Court's judgment that it gave proper consideration to the circumstances which were in the appellant's favour and those which where against him. It weighed these circumstances and found that the aggravating circumstances

outweighed his personal circumstances. It further held that it was mindful of the fact that initially the appellant did not show any remorse at all. I agree with the trial Court's finding. [9] The offences with which the appellant was charged and convicted of are very serious. They were perpetrated on a young defenceless girl by a person whom she trusted and who should have protected her. He abducted her and took her to nearby bushes where he raped her both vaginally and anally before he murdered her. The appellant's conduct cannot be tolerated in a civilized society. [10] The suggestion that the appellant should have been treated differently because he was remorseful for what he did is rejected.

When the deceased's family discovered that the deceased had disappeared they confronted the appellant about her whereabouts as

there was evidence that he was the last one to have been seen with her before her disappearance. He claimed ignorance of her

whereabouts only to make a full disclosure after he was cornered by the police. In S v Seegers 1970 (2) SA 506 (AD) at 511G - H the Court held that remorse, is "an important consideration, in suitable cases, when the different effect of a sentence on the accused is adjudged. But, in order to be a valid consideration, the penitence must be sincere and the accused must take the Court fully into his confidence and unless that happens its genuineness cannot be established". In the present case the appellant certainly did not take the Court into his confidence when he suggested that he raped the deceased when she was already dead. This suggestion was correctly rejected by the trial Court. The appellant was known to the deceased and the former was therefore at risk. Hence it would have been necessary from his perspective to murder her after having raped her. [11] There is one aspect of the trial Court's judgment in relation to which a concern was raised during argument and upon which I wish to comment. And this relates to the sentence of 20 (twenty) years' imprisonment that the trial Court imposed for murder. As I have pointed out the murder with which the appellant was charged and convicted of is one which falls within the provision of section 51(1) of the Act 105 of 1997 read with Part 1 of Schedule 2 which prescribes life imprisonment absent a finding of substantial and compelling circumstances to justify the imposition of a lesser sentence. [12] The trial Court investigated the existence of the substantial and compelling circumstances. It found none to exist. In the

circumstances the appropriate sentence which it should have imposed is one of life imprisonment. The imposition of 20 (twenty) years' imprisonment for murder is in the circumstances inexplicable. To the extent that the trial Court imposed 20 (twenty) years' imprisonment instead of life imprisonment for murder it committed misdirection. But the question is wholly academic in light of the fact that the trial Court imposed life imprisonment for the two offences of rape and there is no cross-appeal by the State against the sentence imposed for murder. [13] In the circumstances the appeal against sentence should be dismissed. ZONDI, J I agree. STEYN, J I agree and it is so ordered ERASMUS, J

[3] The appeal against sentence only is before this Court with the leave of the Court a quo. In his notice of appeal the appellant contends that the Court a quo erred in over-emphasising the seriousness of the offence and the interest of society at the expense of his personal circumstances. In particular it is averred that the Court a quo erred in failing to take into account that the appellant had shown remorse and had asked for forgiveness during the evidence. It is also contended that the Court a quo erred in not finding that substantial and compelling circumstances existed which justified the deviation from imposing life imprisonment for the offences of rape.

[4] The evidence which formed the basis of the appellant's conviction and sentence is to the following effect. On the day of the incident the deceased, a 7 (seven) year old girl, together with her friends was playing at the back of a certain church located next to her house. The appellant, who was a tenant at the deceased's house, approached her and invited her to accompany him to a nearby shop and promised to buy her sweets if she did so. When she refused to accompany him he offered to buy her sweets and a packet of chips. She agreed to walk with him. Instead of taking her to the shop he took her to the nearby bushes where he raped her vaginally and anally and then killed her by strangling her.

[5] The appellant, who was 33 (thirty-three) years of age at the time of the incident, was renting a backroom at the deceased's premises. He was unemployed and was addicted to tik. He stole goods to finance his drug addiction. He spent almost 14 (fourteen) months as a waiting trial prisoner. He had a number of previous convictions mostly related to theft and drug dealing. His upbringing was not a happy one. His father physically and emotionally abused him. He left school in Grade 7 (seven) because of financial constraints and a lack of interest in schooling on his part. After leaving school he did some odd jobs.

[6] Dr Tiemensma who performed a post mortem examination on the deceased confirmed that the cause of death was consistent with strangulation but could not say with certainty whether hands or some other objects were used in doing so. On examining the deceased's genital organs he found blood in her vulva, vagina and anus. He noted that the external genitalia showed lacerations with surrounding contutions at the six o' clock position. The hymen was lacerated. He also noted extensive lacerations and contutions in the internal lateral vaginal walls. In his opinion the deceased was still alive when the appellant raped her. He explained that the deceased must have undergone severe pains because of her age and the severe injuries she sustained in her genitalia and neck before she died.

[7] As required the Court a quo investigated the question of whether there were substantial and compelling circumstances which would have justified it to impose a sentence less than the minimum sentences prescribed by the Act. It found none and continued to sentence the appellant accordingly. The trial Court also found that the appellant showed no remorse.

[8] It is submitted on behalf of the appellant the trial Court misdirected itself in making these findings. In argument Mr Calitz, who appeared for the appellant, submitted that the trial Court's finding that the appellant had used Tik to give him the courage to commit the offences was incorrect. He argued that the evidence showed that the appellant was a drug addict and this fact together with other factors was a fact which should have counted in his favour. In my view the submission is without any basis as it is clear upon a proper analysis of the trial Court's judgment that it gave proper consideration to the circumstances which were in the appellant's favour and those which where against him. It weighed these circumstances and found that the aggravating circumstances

outweighed his personal circumstances. It further held that it was mindful of the fact that initially the appellant did not show any remorse at all. I agree with the trial Court's finding.

[9] The offences with which the appellant was charged and convicted of are very serious. They were perpetrated on a young defenceless girl by a person whom she trusted and who should have protected her. He abducted her and took her to nearby bushes where he raped her both vaginally and anally before he murdered her. The appellant's conduct cannot be tolerated in a civilized society.

[10] The suggestion that the appellant should have been treated differently because he was remorseful for what he did is rejected.

When the deceased's family discovered that the deceased had disappeared they confronted the appellant about her whereabouts as

there was evidence that he was the last one to have been seen with her before her disappearance. He claimed ignorance of her

whereabouts only to make a full disclosure after he was cornered by the police. In S v Seegers 1970 (2) SA 506 (AD) at 511G - H the Court held that remorse, is "an important consideration, in suitable cases, when the different effect of a sentence on the accused is adjudged. But, in order to be a valid consideration, the penitence must be sincere and the accused must take the Court fully into his confidence and unless that happens its genuineness cannot be established". In the present case the appellant certainly did not take the Court into his confidence when he suggested that he raped the deceased when she was already dead. This suggestion was correctly rejected by the trial Court. The appellant was known to the deceased and the former was therefore at risk. Hence it would have been necessary from his perspective to murder her after having raped her.

[11] There is one aspect of the trial Court's judgment in relation to which a concern was raised during argument and upon which I wish to comment. And this relates to the sentence of 20 (twenty) years' imprisonment that the trial Court imposed for murder. As I have pointed out the murder with which the appellant was charged and convicted of is one which falls within the provision of section 51(1) of the Act 105 of 1997 read with Part 1 of Schedule 2 which prescribes life imprisonment absent a finding of substantial and compelling circumstances to justify the imposition of a lesser sentence.

[12] The trial Court investigated the existence of the substantial and compelling circumstances. It found none to exist. In the

circumstances the appropriate sentence which it should have imposed is one of life imprisonment. The imposition of 20 (twenty) years' imprisonment for murder is in the circumstances inexplicable. To the extent that the trial Court imposed 20 (twenty) years' imprisonment instead of life imprisonment for murder it committed misdirection. But the question is wholly academic in light of the fact that the trial Court imposed life imprisonment for the two offences of rape and there is no cross-appeal by the State against the sentence imposed for murder.

[13] In the circumstances the appeal against sentence should be dismissed.

ZONDI,

J

I agree.

STEYN,

J

I agree and it is so ordered

ERASMUS, J