Republic  of  South Africa

REPORTABLE

	IN THE HIGH  COURT  OF  SOUTH  AFRICA	

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

							CASE No:	SS 70/2007

THE  STATE

versus

THEUNIS CHRISTIAAN OLIVIER

_______________________________________________________________________

SENTENCE  :   8  AUGUST  2007
________________________________________________________________________

MOOSA, J:

1.	Mr Olivier, we have now reached the most difficult part of these proceedings.  The court is required to impose a suitable punishment for the serious crimes you have perpetrated on a young and defenceless child.  It has been said, time and again, that the punishment should fit the crime – it should fit the criminal;  it should be responsive to the needs of society and be blended with a measure of mercy, depending on the circumstances.  It is not the function of this court to exact revenge.  At times, because of the heinous nature of a crime, the community calls for the “blood” of the perpetrator.  The object is not to satisfy public opinion, but rather to serve the public interests.  Before turning to such interests, we need to examine and evaluate the evidence tendered by the Defence and the State in connection with sentence.

2.	In your evidence in mitigation, you acknowledged that you were a paedophile, but disputed the findings of Prof Kaliski and Dr Panieri-Peter that you did not suffer from multiple personality disorder.  The findings of Prof Kaliski and Dr Panieri-Peter were  as follows:
“Mr Olivier has a long history of paedophilia and is not mentally ill.  He will continue to be at high risk of engaging behaviours related to this assessment.  He does not suffer from multiple personality (dissociative) disorder.”
Dr Czech made the following assessment in EXHIBIT B:
“Mr Olivier gives an inconsistent and sporadic account of auditory hallucinations at the time of the incident.  His account of auditory hallucinations is inconsistent and vague.  In contrast he gives a clear history of having acted systematically and under his own volition during the incident.”

3.	There is no independent evidence that you suffer from multiple personality disorder.  The only evidence is your ipse dixit.  There is also no independent collateral support for such disorder.  It is also not reflected in your confession that you made immediately after the offences were committed.  You alleged that you made mention of the existence of “Theo”, who allegedly committed the offences as your alter ego, in your confession. But such statement on the tape and the typed transcript mysteriously went missing.  You stated that such statement went missing after the tape and transcript were handed to the investigating officer.  You indicated that either the investigating officer and/or the prosecutor, were responsible for erasing such statement from the tape and the typed transcript signed  by you.  You could give no reasonable explanation why no blank spaces  caused by such erasure, was visible on the transcript or, how your signature came to be on EXHIBIT Q if such document was allegedly doctored.  This allegation is so far fetched and highly improbable, that it is devoid of all truth.  In my view, this is a figment of your imagination and the court has no hesitation in rejecting it as false.  

4.	I am strengthened in this conclusion by the questions posed to you by Magistrate Strydom and the answers given by you at the time you made your confession.  The following interaction occurred (I quote from EXHIBIT Q):
“Magistrate:  Have you in any manner by anybody been influenced to make a statement?
Mr Sinclair:  No.
Magistrate:  Did anyone prescribe to you as to what to come and tell me in this statement?
Mr Sinclair:  No.”
             These answers are inconsistent with the existence of Theo and his alleged participation in the crime.  I must say, without fear of contradiction, that the investigating officer as well as the two State counsel that appeared  before me, acted in a most highly professional manner and as far as the court is concerned, their integrity is beyond reproach.  

5.	Similarly, in your open letter addressed to the Editor, EXHIBIT G, as well as EXHIBIT S, you also make no mention of your multiple personality disorder or the existence of “Theo”.  In EXHIBIT G you unequivocally say:  “What I did was nothing less than first degree, premeditated cold-blooded murder in which I callously abused and killed him.  I deprived Steven of his life and I in turn must be deprived of my life”.  You go further to say:   “I cannot and will not attempt to make any excuses, as there are none”.  In EXHIBIT S, dated 6 May 2006, you admit that you are a paedophile, and say:
“I cannot and will not pretend that I have overcome my inner desires, lusts and perversions at this time.  Far from it.  I have a long way to go before I can truly and honestly say I have overcome them.  There is no miracle cure and I know it is going to be a long hard battle to rid myself of these perversions.”

6.	In your evidence you testified that you wrote these letters in the first person. Whereas you should have written them in the plural.  You could give no reasonable explanation why you did not do so.  The only inference the court can draw is that your alleged multiple personality disorder, is an after thought and you adapted your evidence to coincide with such alleged disorder.  In my view, your evidence that the letter should have been written in the plural to include “Theo”, is highly suspect and improbable and the court rejects the allegation as false.  I am supported in this conclusion by the fact that nowhere in EXHIBITS G and S do you condemn your alter ego, but you condemn paedophiles and want a campaign started to expose them in society.

7.	Your past history, as presented by you, is punctuated by sexual, physical and emotional abuse, starting at early childhood until adulthood.  During that time you were also involved in satanic rituals and sexual orgies.  Thereafter you became the abuser.  You testified that in 1980 you were arrested in Zimbabwe for two counts of indecent assault on two 11 year old victims.  You were sentenced to five months imprisonment in respect of each count, of which four months were conditionally suspended.  In 1985 you were arrested for rape and multiple charges of indecent assault and declared a State President’s patient.  In your evidence you say that you were diagnosed by Dr Vermeulen, the head of psychiatry, as a borderline case of multiple personality disorder.  You do not state that you were diagnosed and treated for paedophilia, although you admitted that you were a paedophile.  You testified that you tried to castrate yourself.  The only reasonable inference the court can draw from the facts is that you manifested signs of sexual deviancy that were consistent with the symptoms of paedophilia at that point in time.

8.	From the evidence, it appears that the treatment you received while a State President’s patient did not help.  After you were released by President Robert Mugabe of Zimbabwe, you continued with your paedophiliac spree.  While you were working in Ladysmith (KwaZulu Natal) as a farm manager, you were arrested on five counts of indecent assault.  For technical reasons, the charges were withdrawn.  Nothing stops the State from recharging you.  After you were discharged from prison, you found your way to Plettenberg Bay, where you again committed indecent assault on little Steven. 

9.	Mr Olivier, you challenged  the reports of the psychiatrists as well as that of  your own clinical psychologist, Mr Hattingh.  You criticised your psychologist’s report on the basis that he did not do the test that you requested him to do.  As a professional person, he must have had good reason not to do such test.  You also indicated that you accepted part of the report, but not the other, as he was misled by your ex wife from whom he received certain collateral information.  You admitted in your evidence that certain tests conducted by Mr Hattingh indicated that you were lying and the collateral information he received from your ex wife likewise indicated that you were not telling the truth.

10.	The report of the other psychiatrists you challenged on the basis that they were unprofessional.  Your complaint was that at Valkenberg you were seen by four psychiatrists, each for approximately 30 minutes.  As far as you are concerned, no proper tests were conducted by them.  Prof Kaliski disputed your allegations.  He explained in detail how the assessment is done, who all are involved in gathering the necessary information to enable the assessment to be made and how they arrive at a decision.  He says that it is a collective effort, but the final report is his.  He presented your file to court.  It consisted of a lever arch file comprising notes and documents relating to you.  It was estimated that the file consisted of a few hundred pages of notes and documents.  Prof Kaliski has testified in this and other courts on numerous occasions in his capacity as a forensic psychiatrist.  Professionally, he is held in high regard by his colleagues as well as by the courts. His evidence and findings are reported in many cases.  His professional integrity, as far as this court is concerned, is beyond reproach.  His evidence is accordingly accepted without any reservation.  The same applies to the evidence of Dr Czech.

11.	Mr Olivier, I am satisfied that from all the evidence adduced before this court that you are a confirmed paedophile and have psychopathic tendencies.  I accept the evidence of Prof Kaliski, Dr Panieri-Peter  and Dr Czech that you do not suffer from multiple personality disorder.  I am convinced that you have simulated the condition of multiple personality disorder in order to apportion the blame of your conduct on the day of the incident to your imaginary alter ego, “Theo”.  You testified that at the time of the incident “Theo” was the dominant personality  and that you were the host personality and that you accepted joint responsibility for the commission of the crimes.  I am also convinced that you simulated multiple personality disorder in order to distance yourself, at least partially, from your unequivocal confession of guilt.  I am satisfied that you are a pathological liar and you will go to any lengths to falsely discredit people who do not agree with you.

12.	I have not been able to find any case law in our jurisdiction on the issues of multiple personality disorder.  In my view, if such defence is raised in the South African context, the usual tests in determining criminal capacity in our courts, will apply.  In this case the matter was not raised as a defence, but in mitigation.  I have found that you do not suffer from multiple personality disorder and, in the circumstances, the question of diminished responsibility does not arise.   Whether it would arise if it is found that an accused person has such a disorder,  is a matter which is left open.

13.	On the basis of the evidence before me, I reiterate that at the time of the commission of the offence, you, Theunis Christiaan Olivier, was able to appreciate the wrongfulness of the offences and act in terms of such appreciation.   Despite your paedophilia and psychopathic tendencies, you exercised complete self control and acted rationally, logically and on your own volition.  This I deduce from your conduct prior, during and after the commission of the crimes.  You accordingly had the criminal capacity to commit the crimes, as I have found earlier.

14.	I now return to the question of sentence.  You have been convicted of kidnapping, indecent assault and murder.  For indecent assault (sodomy) on a child under the age of 16 years and when it is accompanied by bodily harm, certain minimum sentences are prescribed as set out in the Indictment.  For a first offender, the prescribed minimum sentence is 10 years imprisonment.  For a second offender, it is 15 years and for a third offender it is 20 years.  In respect of this count, Mr Olivier, you are a first offender and qualify for a minimum sentence of 10 years imprisonment.  This court can only impose a lesser sentence if it finds that substantial and compelling circumstances are present.  Nothing, however, prevents the court from imposing a heavier sentence than that prescribed.

15.	For murder, which is pre-planned, or premeditated or where a person is killed to prevent him or her from testifying against an accused, the law prescribes a sentence of life imprisonment, unless substantial and compelling circumstances  justify a lesser sentence.  Mr Olivier, for the murder conviction you accordingly qualify for a sentence of life imprisonment, in the absence of substantial and compelling circumstances. 

16.	The crucial question is:  What are substantial and compelling circumstances and does such circumstances exist in respect of count 2 (indecent assault) and count 3 (murder)?  The Criminal Law Amendment Act, No 105 of 1997 (“the Act”) does not define such circumstances.  Our courts have set out certain guidelines to determine whether such circumstances exist or not.  In S v Malgas 2001 (2) SA 1222 at 1235F-1236E, the court sets out the following guidelines:
16.1	    The particular Act has limited, but not eliminated the court’s discretion in imposing sentences in respect of those offences for which the Act prescribes a minimum sentence.
16.2	    The courts are required to approach the imposition of sentence, conscious of the fact that the lawgiver has ordained certain minimum sentences.
16.3     The particular crimes are required to elicit a severe, standardised and consistent response from the courts unless there are very convincing reasons to the contrary.  The prescribed sentences are not to be departed from lightly.
16.4    Each case has to be considered on its own facts and circumstances, without losing sight of the objective gravity of the offence and the need for effective sanctions.
16.5    All factors traditionally taken into account in sentencing and to which I alluded earlier, must be taken into consideration in the sentencing process.
16.6       Such factors and circumstances must be measured against the yardstick “substantial and compelling circumstances” and must be such which collectively impels the court to depart from the prescribed response of the lawmaker.
16.7       Finally, if the court, upon considering the circumstances of the particular case, is satisfied that they render the prescribed sentence unjust, in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

17.	The traditional factors that the court takes into consideration in imposing sentence are the interests of the victim, the interests of society, the nature and seriousness of the crime and the personal circumstances of the accused.  In the light of the quartet, the court will now proceed to examine the facts and circumstances of this case to determine whether there are  substantial and compelling circumstances to depart from the minimum sentences prescribed in respect of the indecent assault and murder.

18.	In the open letter to the Editor, you refer to your criminal conduct and say the following:
“It was an act which destroyed a beautiful family forever and brought great pain and sorrow to them.  An act which has broken their hearts and of those who knew and loved Steven.  An act that shocked the nation.  It was an act in which I robbed little Steven of his love, his innocence, his purity;  an act in which I robbed him of his little private body and worst, an act in which I robbed him of life – his right to live.  I took away little Steven’s life – the life of a 6 year old child who never did any harm – and my life should be taken away from me, no matter how many tears I’ve shed or how great my remorse.  And in this, I call upon the nation to stand with me and petition the Government to bring back the death sentence, and in the judgment it be passed onto me and that I be executed for this terrible deed.  The full wrath of the law must fall upon me and in no way should it have any mercy, for I did not have mercy on little Steven and therefore deserve no mercy.”

19.	Mr Olivier, these are not the words of the State advocate;  these are not the words of the parents or family of little Steven;  these are your own words.  They portray   very eloquently the effect your criminal conduct had on the Siebert family.    Unfortunately, I cannot accede to your request to impose the death penalty as such punishment is contrary to our Constitution.  Our Constitution guarantees the right to life, including your life, despite the heinous crime you committed by robbing little Steven of his precious life.  You also violated other rights of his which the Constitution guarantees.  His right to human dignity;  his right to security of his person and the right not to be subjected to torture, abuse, cruel, inhuman or degrading punishment.  

20.	Little Steven must have endured excruciating suffering and pain when you indecently assaulted him.  This is evident from the gaping anus.  The last few moments must have been an even more frightening experience.  I am sure he could not make any sense of what was happening to him.  He was too innocent, too young to realise what was happening.  A man who could have been his grandfather, spoke to him to win his trust and confidence.  Little knowing of the evil designs that person had in his mind.  You lured him away to your home where you abused him.  The sexual assault, according to you, lasted between 15 and 20 minutes.  To little Steven it must have been an eternity.  When little Steven protested, you threatened to throw him into the sea.  Dr Van der Heyde testified that it must have been a devastating experience to little Steven.  This can be deduced from the multiple injuries and wounds he sustained.  After defiling little Steven, you set about strangling him with a telephone cord and watched him die.  After you killed him, you had the temerity to stash his body in a cupboard and later dumped it in the bushes.  Your conduct has been cold, callous, cunning and calculated.    

21.	Little Steven died  a lonely and terrible death.  His parents were not there to protect and comfort him – they were near, yet so far!  Imagine the mental anguish endured by the parents when they discovered that he had disappeared.  Their  mental anguish, punctuated by hope, desperation and despair – hope that they will find him alive and well;  desperate that he has not yet been found and despair that he will not be returning to them alive and well.  They must have waited for anxious moments while the search for little Steven was taking place.  Little did they know the fear, the anguish, the pain and the hurt that little Steven, as an innocent victim, endured during the attack.  The next day when the lifeless body of Steven was found, their lives were shattered, their dreams were destroyed and the holiday came to an abrupt end.

22.	Only the previous day they, as a family, enjoyed themselves at the beach.  You saw and greeted little Steven.  They returned home and you followed.   While playing outside their home, you accosted and lured him away.  That was the last time the family saw little Steven alive.  You robbed them of his love, his company and his affection.  His mother testified in tears and described the devastating effect the loss of their little Steven had on their lives.  Shedding tears, she said “why did he have to die?”  Reading from a prepared statement, she testified to what impact the incident had on her and the family:  
“When I realised that Steven was missing and gone forever I felt that I had died as well.  Nothing can stop these negative emotions which even now recur.  I have had to have counselling from a trauma therapist since that time and I have had to take medication prescribed by a psychiatrist.  My feelings of guilt are amplified by the fact that I am sure that I recognised the accused when we were leaving the beach.  I believe, although I have no proof, Olivier greeted us and Steven’s natural instinct was to ignore him.  I then prompted him to be polite and ‘say hallo to the man’.  It plagues me that I may have been instrumental in providing Olivier with a means of establishing contact with Steven, who otherwise knew not to talk to strangers.”
She went on to describe what impact it had on Christopher:
“My surviving child, Steven’s younger brother Christopher, who was two at the time of Steven’s death has also had to see a child psychologist for intensive therapy – he still can not understand why his brother is dead.  He asks for his Stevie, his butterfly and angel, constantly and has been severely traumatised.”
She pitied you as a child when you were abused, but not as an adult when you became an abuser.
“As a mother of two small boys there have been times when I have thought long and hard about the alleged crimes committed against the accused as a child.  I wish that I could feel pity for him and do feel pity for the child that he once was.  But he chose as an adult, in fact as an abused adult, to perpetrate the same and worse crimes against my child and others.  I wish with all my heart that he left Stevie as a molested child instead of a dead one.  I think it is pertinent to remind the court that the victim of these crimes was our little boy, a small sweet six year old child, and not Theunis Olivier.”
            The court has great understanding and appreciation for the feelings of the mother who carried little Steven in her womb, brought him into this world, only to be torn apart permanently and violently.

23.	Mr Olivier, as far as the offences are concerned, all three are of a very serious nature.  Where such offences are perpetrated on a young and defenceless child, the gravity of the offences takes on a more serious dimension.  Because of the serious nature of crimes like murder, rape, indecent assault and other violent crimes and because of the prevalence thereof in our society, the majority of our society have demanded that heavier sentences be imposed on those who make themselves guilty of such crimes.  The pressure on our law makers has impelled them to place on the Statute book, legislation that prescribes certain minimum sentences for certain violent crimes.  Our courts have accordingly  been impelled to impose heavier sentences for such crimes, in the absence of substantial and compelling circumstances.

24.	Mr Olivier, as far as the community is concerned, its members have become increasingly vocal in expressing their anger, outrage and disapproval at such criminal conduct.  They have organised demonstrations, protest marches and petitions to call upon the Executive to take strong measures to combat crime.  They have also demanded that our courts refuse bail for such perpetrators and impose heavier sentences on those found guilty.  I have mentioned earlier that the object of sentencing is to serve the public interest and not necessarily be swayed by public opinion.  I have no doubt that those open letters you yourself addressed to the Editors, calling for the return of the death penalty, were to manipulate public opinion in your favour.

25.	The violent crimes of which you have been convicted, have become a common feature in our country.  We read or hear daily in both the printed and electronic media, of young children, male and female, abducted, raped, indecently assaulted and murdered.  Our court rolls, both in the Regional Courts and in the High Courts, are proof of the rising incidence of these crimes.  Our children are abused, molested, raped, indecently assaulted and killed.  Courts need to send a clear message that it will act firmly against the offenders of such heinous crimes less the members of the community take the law into their own hands.  Something the court cannot tolerate and allow as that would lead to anarchy and chaos in our society.  In your open letter to the nation and the world you said:
“Paedophilia (sexual delight with children) is everywhere and has become an epidemic.  The fact that only very few cases are reported does not mean there are only a few paedophiles around.  Paedophiles are everywhere and there are millions of them in South Africa.”

26.	Mr Olivier, I must now turn to you as a person.  Adv Benadè submitted mitigating circumstances on your behalf.  He said that you are 48 years old, you have been in custody for 18 months and you are a first offender as far as your criminal record in South Africa is concerned.  From the evidence tendered in court, you are divorced with two children.  It appears that you have no contact with them as they are overseas.  The court accepts that you had a traumatic childhood that had a bearing on your later disturbed and troubled background.  Adv Benadè submitted that insofar as counts 2 and 3 are concerned, ie the indecent assault and murder charges, there are substantial and compelling circumstances to enable the court  to depart from the minimum prescribed sentences.  Adv Theron for the State, on the other hand argued that there were no such circumstances and the court is duty bound to impose the prescribed minimum sentences.

27.	Mr Olivier, this court cannot close its eyes to the fact that you were declared a State President’s patient after your convictions for charges of rape and indecent assault.  According to you, you spent approximately 15 years in a psychiatric hospital.  You were discharged as a State President’s patient and entered this country illegally.  In your host country you were arrested and charged on five counts of indecent assault.   The victims were children. These charges were withdrawn on technical grounds and you were released.  You made your way to Plettenberg Bay where you committed the present offences for which you were convicted.  It appears that whatever treatment you had received in Zimbabwe for your condition, did not prevent you from committing similar offences thereafter.  Except that in the present instance, you went further and murdered your victim.  What is aggravating is your evidence that while you strangled the child, you watched him die and you displayed no emotions.

28.	With that as the backdrop, the court has to determine whether there are substantial and compelling circumstances to depart from the prescribed sentences.  Adv Benadè found it very difficult to put forward, with any degree of conviction, substantial and compelling circumstances.  He mentioned your age, the 18 months you have spent as an awaiting trial prisoner and that you are a first offender.  Adv Theron refuted those factors as substantial and compelling circumstances.

29.	The court needs to take cognisance of the fact that you are a paedophile and that you have psychopathic tendencies.  The psychiatrists who testified are ad idem that the prognosis for recovery is poor, you yourself have admitted that if you do not receive effective treatment, you will become a repeat offender.  Both Prof Kaliski and Dr Czech testified that you are a danger to children and you must be kept away from them permanently.  The only way to keep you away from them permanently is to remove you permanently from society.

30.	Insofar as the murder charge is concerned, you admitted that Steven was killed so that he could not identify you and later possibly testify against you.  The murder was therefore premeditated.  From the manner in which the murder was executed and the injuries Steven sustained to his neck, the only reasonable inference that the court can draw, is that you had the direct intention (ie dolus directus) to kill him.

31.	 The court takes into consideration all the facts and circumstances that bear on the question of sentence.  The court also takes into consideration the object and purpose of punishment.  The court weighs all these factors against the concept “substantial and compelling circumstances”.  After very careful consideration I have come to the conclusion that there are no substantial and compelling circumstances to depart from the minimum sentences prescribed in respect of counts 2 and 3.

32.	I now proceed to consider the imposition of an appropriate sentence in respect of count 1 (kidnapping) for which no sentence has been prescribed.  The court accordingly has a discretion to consider a suitable sentence in the light of all the circumstances.  You lured little Steven away under false pretences and with unlawful designs.  This was the trigger that set in motion the perpetration of the more serious crimes.  Taking into consideration all the circumstances, the court is of the view that 10 years imprisonment is an appropriate sentence.

33.	In respect of count 2 (indecent assault) the court has found that there are no substantial and compelling circumstances and the court is not bound to impose the minimum sentence as prescribed by the law-maker.  Nothing prevents the court from imposing a sentence exceeding the prescribed minimum. The indecent assault was particularly gruesome as it accompanied the infliction of bodily harm on an unsuspecting and defenceless child of 6 years.  Taking all the circumstances into consideration, I am of the view that an appropriate sentence would be one of 14 years imprisonment.

34.	In respect of count 3 (murder), I have no alternative but to impose the prescribed sentence of life imprisonment.  

35.	The offences arose from the same conduct perpetrated at the same time and at the same place on the same victim by the same accused.  I am cognisant of the cumulative affect of the sentences.  In the circumstances I will order that they run concurrently.

36.	The following sentences are accordingly imposed:
(a)	On count 1 (kidnapping) you are sentenced to 10 (ten) years imprisonment.
(b)	On count 2 (indecent assault) you are sentenced to 14 (fourteen) years imprisonment.
(c)	On count 3 (murder) you are sentenced to life imprisonment.
The sentences shall run concurrently.