S v Engelbrecht

• Jurisdiction: South Africa
• Judgment Date: 18 February 2003
• Citation: 2005 (2) SACR 163 (W)

S v Engelbrecht
2005 (2) SACR 163 (W)

2005 (2) SACR p163

Citation	2005 (2) SACR 163 (W)
Case No	64/2003
Court	Witwatersrand Local Division
Judge	Satchwell J
Heard	February 18, 2003
Judgment	February 18, 2003
Counsel	C Geel for the State.; D Vetten for the accused.; K Pillay for the amicus.

Flynote : Sleutelwoorde

Sentence — Imposition E of — Factors to be taken into account — Domestic violence — Abused woman murdering partner — Accused convicted of premeditated murder of her husband — Evidence indicating that accused abused by deceased over period of time — No indication F that broader community in general and abused women in particular had taken sentences imposed in previous cases as encouragement to kill domestic partners with whom they had domestic difficulties — Thought of capture, trial, conviction and punishment playing no part in and having absolutely no influence upon criminal action which Court finding accused to have G performed — There was no prospect that any sentence of greater or lesser harshness would have constituted deterrence at that particular time.

Sentence — Imposition of — Factors to be taken into account — Domestic violence — Any person seeking to ameliorate sentence to be imposed for murder in situation of domestic abuse has to discharge extraordinary evidentiary burden of H proving to court existence, extent, nature, duration and impact of domestic violence upon which such person would seek to rely when sentence considered — Defence having no easy task and no person who seeks to rely upon that defence or those circumstances can do so easily or lightly.

Murder — Sentence — Domestic violence — Accused I convicted of premeditated murder of her husband — Evidence indicating that accused abused by deceased over period of time — Accused having been detained, awaiting trial, for period of 17 months before being granted bail — Accused operating in state of diminished capacity when she committed murder — Accused a first offender, with young daughter, with whom she had not J

2005 (2) SACR p164

been in meaningful contact for two-and-a-half A years — Accused a qualified nursing sister and working in trauma unit, being on 24-hour call — Accused no danger to society — No suggestion she had any predilection towards murder, any crime of violence or indeed any criminal activity at all — No suggestion that accused needing to be turned from immoral or unlawful or innately wicked activities or be weaned of B crimes of violence or of any other sort — Retribution and deterrence not appropriate conditions to try to formulate if suspended sentence considered — Accused punished already and not needing to be deterred from future criminal conduct — Accused already rendering community service, being on 24-hour call as trauma sister — No other service she could perform which would be more beneficial to community — Same considerations applying to sentence of C correctional supervision — Accused sentenced to be detained to rising of Court.

Headnote : Kopnota

The accused had been convicted of the premeditated murder of her husband. The evidence indicated that the accused had been abused by the deceased over a period of time. She had been detained, awaiting trial, D for a period of 17 months before being granted bail. The Court, in convicting the accused, had found that she had been operating in a state of diminished capacity when she committed the murder. The accused was a first offender, who had a young daughter, born of the marriage with the deceased, with whom she had not been in meaningful contact for two-and-a-half years. She was a qualified nursing sister and worked in E a trauma unit, being on 24-hour call.

Held, that the accused had already served a period of imprisonment. Not only had she spent 17 months in prison as an awaiting-trial prisoner with none of the privileges afforded a convicted prisoner, but she had endured the even greater punishment of separation from her daughter. (Paragraph [43] at 175e - f.) F

Held, further, that the accused was no danger to society, she constituted no threat to any person. There was no suggestion that she had any predilection towards the crime for which she had been convicted, any crime of violence or indeed any criminal activity at all. (Paragraph [44] at 175f - g.)

Held, further, that insofar as the purpose of rehabilitation is concerned, it had not been suggested that the accused had an evil G nature, that she needed to be turned from immoral or unlawful or innately wicked activities, or that she needed to be weaned of crimes of violence or of any other sort. Indeed, the expert evidence had suggested that what should be sought was the opportunity to enable her to regain and rebuild her sense of self-worth, her appreciation of her value and dignity as a human being. She needed to learn how to pass those attributes on to her daughter. (Paragraph [45] at 175h - i.) H

Held, further, as to general deterrence, that there was no indication that the broader community in general and abused women in particular had taken the sentences imposed in previous cases as encouragement to kill domestic partners with whom they had domestic difficulties. (Paragraph [46] at 176a - b.)

Held, further, that the thought of capture, trial, I conviction and punishment had played no part in and had absolutely no influence upon the criminal action which the Court had found the accused to have performed. There was no prospect that any sentence of greater or lesser harshness would have constituted deterrence at that particular time. (Paragraph [47] at 176e.)

Held, further, that any person who sought to ameliorate the sentence to be imposed for a murder such as the present one had to discharge an J

2005 (2) SACR p165

extraordinary evidentiary burden of proving to the court A the existence, the extent, the nature, the duration and the impact of the domestic violence upon which such a person would seek to rely when sentence was considered. The defence had no easy task and any person who sought to rely upon that defence or those circumstances could not do so easily or lightly. (Paragraph [47] at 176f - g.)

Held, accordingly, that the accused should not be sentenced B to any direct period of imprisonment. (Paragraph [48] at 176h.)

Held, further, that retribution and deterrence were not appropriate conditions to try to formulate if a suspended sentence were to be considered. The accused had been punished already and did not need to be deterred from future criminal conduct. (Paragraph [53] at 178a.)

Held, further, as to the imposition of conditions which C conduced to rehabilitation or to reparation, the accused already rendered community service, being on 24-hour call as a trauma sister. Should she be sentenced to community service, there was no other service she could perform which would be more beneficial to the community. Further, she should spend time during her non-working hours with her daughter. The same considerations applied to a sentence of correctional supervision. (Paragraphs [54] and [55] at D 178b - f.)

Held, accordingly, that the accused be detained to the rising of the Court.

Annotations:

Cases cited

Reported cases

Jaga v Dönges NO and Another; Bhana v E Dönges NO and Another 1950 (4) SA 653 (A): referred to

R v Von Zell (2) 1953 (4) SA 552 (A): applied

S v Ferreira and Others 2004 (2) SACR 454 (SCA): compared

S v Goldman 1990 (1) SACR 1 (A): referred to

S v Ingram 1995 (1) SACR 1 (SCA): compared F

S v Larsen 1994 (2) SACR 149 (A): compared

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): applied

S v Mtimunye 1994 (2) SACR 482 (T): referred to

S v Potgieter 1994 (1) SACR 61 (A): compared

S v R 1993 (1) SACR 209 (A) (1993 (1) SA 476): considered G

S v S 1977 (3) SA 830 (A): referred to

S v Schulz 1991 (1) SACR 679 (E): applied

S v Serabo and Five Similar Cases 2002 (1) SACR 391 (E): referred to

S v Setnoboko 1981 (3) SA 553 (O): referred to

S v Sokweliti 2002 (1) SACR 632 (Tk): referred to

S v Stephen 1994 (2) SACR 163 (W): applied H

S v V 1968 (2) SA 262 (N): referred to

S v Van Rensburg 1978 (4) SA 481 (T): referred to.

Foreign cases

R v Bennett 1993 OJ 1011: applied.

Case Information

Sentencing during a criminal trial before a High Court. The I facts appear from the reasons for judgment.

C Geel for the State.

D Vetten for the accused.

K Pillay for the amicus. J

2005 (2) SACR p166

Judgment

Satchwell J:

Introduction - 'substantial and compelling circumstances'

[1] Mrs Engelbrecht has been A convicted of the murder of her husband, Mr J J Engelbrecht.

[2] The unanimous opinion of the convicting Court was that the killing of her husband was planned and premeditated. Accordingly the B sentencing of Mrs Engelbrecht falls to be dealt with in terms of s 51 of the Criminal Law and Procedure Act 105 of 1997, which provides that this Court is obliged to impose a minimum sentence of life imprisonment on Mrs Engelbrecht unless, in terms of s 51(3) of that Act, this Court C is of the opinion that 'substantial and compelling circumstances' exist which justify the imposition of a lesser sentence.

[3] It is common cause, as between both the State and the defence, that such substantial and compelling circumstances are indeed to be found in this case. D

[4] The Supreme Court of Appeal, in the seminal judgment S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220), examined the meaning and content of the phrase 'substantial and compelling circumstance' by reference to the intention of the Legislature that the courts are to regard prescribed sentences as being generally appropriate for specified crimes and the E courts are enjoined not to depart therefrom unless they are satisfied that there is weighty justification for so doing. 'A...