S v Martin

• Jurisdiction: South Africa
• Judge: Flemming DJP
• Judgment Date: 27 September 1995
• Counsel: S L Ress for the accused G Nel for the State
• Citation: 1996 (1) SACR 172 (W)
• Court: Witwatersrand Local Division

S v Martin
1996 (1) SACR 172 (W)

1996 (1) SACR p172

Citation	1996 (1) SACR 172 (W)
Court	Witwatersrand Local Division
Judge	Flemming DJP
Heard	September 11, 1995; September 13, 1995
Judgment	September 27, 1995
Counsel	S L Ress for the accused; G Nel for the State

Flynote : Sleutelwoorde

E Murder — Sentence — Imposition of — Appropriate sentence — Accused electing not to testify — Method of placing facts before Court in such circumstances — F Statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977 placing State in position of either accepting accused's version or proceeding with full trial — If first alternative used facts which may seem unimportant to State survive to bind Court during sentence proceedings — Court's ability to impose appropriate sentence thus affected. G

Murder — Sentence — Factors to be taken into account — In determining sentence, particularly for more serious crime, no question to accused more important than 'why did you do it' — Accused assuming some risk by not testifying, in that no answer to such question then forthcoming — In absence of H answer, Court may deduce that accused acted without reason or remorse, thereby leading to harsher sentence than what may have been appropriate.

Murder — Sentence — Life imprisonment — When it should be imposed — Approach that life imprisonment appropriate for bad man committing bad crime disregards that such norm creates disparity — Life imprisonment for man of 30 much harsher sentence than for man of 65 — Aspect of cruelty, arising from hopelessness of situation, inherent in life imprisonment — Semble: An acceptable approach should be that life sentence only appropriate where need I exists to protect community, in that accused not afforded opportunity to repeat his criminal conduct — In casu life imprisonment not appropriate as accused unlikely again to commit serious crimes. J

1996 (1) SACR p173

Headnote : Kopnota

A The accused pleaded guilty to four counts of murder and two counts of attempted murder. All the victims were family members of the accused. A statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 was received to explain the pleas. The accused was duly convicted on all six counts. The problem the Court faced revolved around the determination of an appropriate sentence. The accused had elected not to testify despite the Court pointing out that various factually related contentions seemed unacceptable. The Court was, however, obliged to accept certain facts. It was initially pointed out that a continuing deficiency existed in the B Criminal Procedure Act. Facts could not be brought before Court by utilising s 220 of the Act because that section only related to facts still in dispute. Because of the pleas of guilty there was no dispute between the accused and the State. In an attempt to put facts before the Court the parties decided to add an addendum to the s 112(2) plea explanation. This procedure was also not completely satisfactory and required the State to make an election: the plea explanation either had to be C accepted or the State had to proceed with a full trial. Certain factual contentions were thus accepted which the State would not necessarily have accepted if a full trial had been held. This adversely affected the Court's ability to determine an appropriate sentence. Facts accepted by the State thus survived into the sentence proceedings where it could affect sentence. D

The Court pointed out the factual contentions which created difficulty in the consideration of an appropriate sentence. The factors to be taken into consideration E when determining sentence were restated. The Court pointed out that, in this process, one of the most important questions to be answered by the accused was, 'why did you do it'. Only in exceptional cases would the answer to such a question not be dominant in determining and understanding the influences on the accused. It was also a useful guide in the determination of moral reprehensibility. The accused thus assumed some risk in failing to testify in these circumstances. F

In answer to the State's contention that life imprisonment was the appropriate sentence, the Court held that certain considerations could not be left aside in the determination of whether such sentence was appropriate. The approach that life G imprisonment was the appropriate sentence for a bad man committing a bad crime disregarded that such a norm created disparity. A life sentence for a young man was a much harsher sentence than life imprisonment for an old man. The Court was of the opinion that this disparity, as well as the element of cruelty inherent in the sentence, made it imperative that a sentence of life imprisonment only be imposed in exceptional cases, namely those cases where the established need to use detention H as a means of preventing repetition of crime was a reality. In the instant case the Court was of the opinion that the accused was not likely to again commit serious crimes. This aspect then led to the conclusion that a life sentence was not the appropriate sentence. The accused was sentenced to a cumulative term of 21 years' imprisonment.

Case Information

Criminal trial on charges of murder and attempted murder.

S L Ress for the accused.

G Nel for the State.

Judgment

I Flemming DJP:

The accused pleaded guilty to four counts of murder and two counts of attempted murder. A statement in terms of s 112(2) of the Criminal Procedure Act was received. The accused was convicted on all six counts. He was, on a similar basis, convicted of contravening ss 2 and 36 of the Arms and Ammunition Act of 1969, because of the possession of a J

1996 (1) SACR p174

Flemming DJP

A 9 mm pistol and ammunition therefor which were used to commit the murders.

The problem is to determine an appropriate sentence.

The accused did not testify despite the Court pointing out to his counsel that various factually related contentions seemed unacceptable. However, there are some facts B which the Court is obliged to accept.

Some facts were agreed to by the prosecution and the defence. The Court is bound, I believe, to such understandings between the prosecution and defence, although it is not easy to point to a statutory basis therefor. There seems to be a continuing deficiency in the Criminal Procedure Act 51 of 1977. It was sought to put the facts before the Court as admissions in terms of s 220. That section applies only to the C admission of facts which are still in dispute. Because of the plea of guilty there was no dispute between the State and the defence. It was then attempted to hand up an addendum to the statement in terms of s 112(2). Section 112 refers to confirmation by an accused of what the State alleged in the charge sheet. Here the acceptance was to be recorded, inter alia, of what the State accepted in respect of claims made by the accused and other facts which do not appear from the charge-sheet. The limited notion of an accused, not the State, admitting the allegation in the charge-sheet, as contrasted to other facts, also under s 112(2), reminds of a similar D limited concept in ss 112(1)(b) and 115, as to which compare S v Doud 1978 (2) SA 403 (O) and S v Dingoos 1980 (1) SA 595 (O). But practice has lived beyond the strict authorisations of the statute. I should respect that.

Secondly, certain facts were stated in the original s 112(2) statement. The result of E the absence of a refined procedure is that the State, when desirous of eliminating a trial, feels itself bound to accept the accused's version also in regard to facts which are not relevant to the guilt of the accused but which the defence includes in the statement (where they are not needed). The alternative would be to proceed to a full...