South Africa: Western Cape High Court, Cape Town

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CIRCUIT LOCAL DIVISION, OUDTSHOORN)

CASE NUMBER: SS 89/2008

DATE: 7 MAY 2010

In the matter between:

THE STATE

and

PIET BOTES

SENTENCE

The accused. Mr Botes, has been convicted of two counts of indecent assault and one of murder When considering an appropriate sentence, the Court must take into account and balance three competing factors such as the personal circumstances of the accused, the nature and the seriousness of the offence and the interests of society. In imposing a sentence, the Court must also seek to achieve the objectives of sentencing such as deterrence, rehabilitation, prevention and retribution.

On the charge of murder, of which the accused has been convicted, the provisions of the minimum sentence legislation applies and the Court must, in that regard, also consider whether there are any compelling and substantial circumstances that warrants the deviation from the prescribed minimum sentence of 15 years imprisonment. Marais, JA in the oft quoted decision of S v Maloas 2001(1) SACR 469 states:

"Courts are required to approach the imposition of sentence conscious that the legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily, and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances. Unless there are, and can be seen to be truly convincing reasons for a different response, the crimes in questions are, therefore, required to elicit a severe standardised and consistent response from our courts."

In aggravation of sentence, the State led the evidence of the grandmother of the two complainants on the charges of indecent assault, that is Ms Klara Goliath. Mr Samuel Martiens, the father of the deceased, and Captain Speed, the investigating officer, also testified. The evidence of Professor Gerhard Labuschagne, a clinical and criminal psychologist was also tendered by the State in an endeavour to persuade the Court to order an investigation in terms of section 286A of the Criminal Procedure Act, that is to determine whether the accused is a dangerous criminal and to consider imposing a sentence in terms of section 286B. The Court was not satisfied that a sufficient basis had been established for such an inquiry and in the exercise of its discretion, did not order such an inquiry to be held.

The State nonetheless submitted that the evidence and the findings of Professor Labuschagne was relevant when considering an appropriate sentence by the Court. Professor Labuschange's credentials as an expert were set out in an impressive curriculum vitae. His evidence and opinions were not in the least challenged by the defence. The Court was particularly impressed with the quality of his evidence, his insight and his objective approach to the matter. The accused did not tender any evidence in mitigation of sentence and his legal representative, Mr Wagener, addressed the Court ex parte with regard to his personal circumstances and as to whether substantial and compelling circumstances in respect of the minimum sentence legislation existed.

Briefly. Mr Wagener submitted that it was not the position of the defence that there existed "substantial and compelling circumstances", except that the Court should take into account the fact that the accused had been in custody for three years during the course of the trial Mr Wagener also referred the Court to the inspection in loco which was held during the course of the trial, the residence where the accused lived and his three farms in particular De Hoewes near Leeu-Gamka where the incident on counts 2 and 4 occurred and the farm Weltevrede, where the incident on count 6 occurred. The farm De Hoewes appeared at that stage to have been sold to a third party and the farm Weltevrede appeared to be an inheritance from his parents. The accused also owned a third farm.

Mr Wagener also pointed out that the accused's second marriage had broken down during the course of the trial, which resulted in a divorce. The Court was also referred to the evidence of the brother of the accused who testified during the course of the trial with regard to the accused's upbringing and family circumstances As already indicated by this Court, it was struck by the sense of integrity and honesty of the accused's brother in testifying in very difficult circumstances before this Court. The accused appears to have been brought up in a strict family environment with strong values. Mr Wagener submitted that the accused now appears to be a pariah in his very own community and only receives the support of his brother and sister-in-law, who have attended the court proceedings and who have regularly visited him.

The defence accepted unequivocally the seriousness of the offences of which the accused had been convicted and accepted the impact of the offences on the community of Leeu-Gamka, Merweville, Prince Albert and other surrounding areas. The accused is a father of two minor children, whose mother lives in Wellington and whom he maintains. His farming operations continues with the help of his brother. The accused is a farmer by occupation and Mr Waqener submitted that is all he knew and that is all he ever did. In 1992 he obtained a diploma in marketing, but has remained a farmer. Mr Waqener also submitted that the accused has always lived in the open and incarceration has a serious impact on his life. He also submitted that the accused were under no illusion that he faced a long custodial sentence

Mr Waqener also submitted that the accused had not challenged the diagnosis and in particular the findings of Professor Labuschagne that the accused displayed tendencies of paedophilia and was probably a serial offender. The defence submitted that any other expert would not have differed with such findings, and also accepted that the prospects of rehabilitation of a paedophile, as described by Professor Labuschagne, was indeed poor. The accused is 39 years old and is a first offender with no previous criminal convictions. Mr Wagener submitted that the accused maintained his innocence and his right to silence. That the Court accepts, is his constitutional entitlement.

In response to the address on behalf of the accused, Ms AI lie. on behalf of the State, pointed to various aggravating features in respect of the offences. I will deal with those aggravating features in due course. The facts and circumstances in which the offences were committed, have been set out in detail in the lengthy judgment of the Court, and except for salient aspects thereof, it bears no further repetition at this stage. The accused, as already stated, has been convicted of extremely serious offences, which are compounded by his choice of victims, young, defenceless and vulnerable girls of the age 11, 13 and 15 years respectively.

The complainants, Annelien Briesies and Juliana Stevens, on the charges of indecent assault, had gone to gather firewood at the accused's farm De Hoewes. They lived in modest conditions with their grandmother in the railway settlement of Leeu-Gamka Their livelihood, in the preparation of food and warmth, was dependent on their almost daily gathering of firewood. Such firewood was readily accessible and abundant on the farm of the accused. It is in such circumstances that the accused chose them as his victims, in which he brazenly abused his power and status over them. Their submissiveness was vividly described by Annelien, who explained that she begged the accused to rather "knyp them" when he taunted them about collecting wood on his farm without his permission.

The accused appeared to regard their helpless and desperate situation as an invitation and an opportunity to sexually molest them. Their recounting of the incident in court revealed their painful nightmare at the hands of the accused, who, with complete disregard of their dignity and female privacy, sexually violated them and threatened them with further harm should they attempt to run away. In the case of Annelien, he crudely sought to cajole her about whether she played with her private parts and audaciously said to her that "ons kan probeer". In the case of Juliana, he slapped her when she protested. Had it not been for the bravery of the younger Annelien, they might very well have remained at the mercy of the accused upon his return.

Ms Allie submitted that even had the accused not returned to the scene, the complainants would have been exposed to the elements in dreadful fear of the return of the accused.

Juliana's trauma was patently visible as she testified in court about the ordeal although it appeared that she was shielded by the limited protection of testifying through camera.

Ms Cedras, the social worker from Badisa, Prince Albert, also testified and described the trauma of the children:

"Betrokkenes, veral Juliana, het geweldige emosionele spanning deurgemaak en was verneder en misbruik deur die beskuldigde. Juliana toon nog steeds tekens van senuweeagtigheid, terwyl Annelien geen nadelige effek kon toon me."

Ms Cedras also testified about the consequent impact on the social lives of the complainant and in particular how it would affect their relationships with men in future. Needless to say, these two young women's (as they now are) lives have been drastically impacted on by the incident.

Ms Klara Goliath, their grandmother, testified that they had, and continued to experience fear as a result of the ordeal Their schooling careers have also been affected by it. with Annelien only having completed Standard 8 and Juliana not returning to school as a result of the incident. Ms Goliath exclaimed her serious disappointment "teleurstelling" in the accused, whom she had known as a young child in Leeu-Gamka. She described the accused's parents "baie goeie ouers" and gave a rare glimpse into the life of the accused. She also expressed the frustration at the accused for not having expressed any remorse to her as a parent and to the Court. The complainants, she claimed, did not want to attend court and simply wanted to put the incident behind them and attempt to get on with their lives. Unfortunately, given the trauma that they continue to suffer, it would not be so easy and Captain Speed has very kindly agreed to facilitate a process of ensuring that they receive the necessary and ongoing counselling.

Professor Labuschagne described the circumstances of the incident of the two girls as of particular concern and that it indicated paedophilic conduct on the part of the accused. He also found the circumstances of the assault on the complainants as unusual, in particular the use of the tape, the type of the assault and the location and in a situation where Annelien was within sight of the assault on her by the accused. He claimed that his observations supported his view of the psychological dimension of the assaults.

The actual circumstances of the death of Elizabeth Martiens, remains a mystery and is reposed in the dark recesses of the conscience of the accused. What has been revealed in evidence is the peculiar and almost macabre manner in which her body and personal belongings were disposed of. Dr Hurst, the State pathologist who testified during the trial, claimed that the suspicious circumstances in which the body was found, had indicated to her the possibility of a homicide.

Professor Labuschagne insightfully describes it as characteristic of a psychologically motivated crime, where perpetrators are known to have souvenirs or trophies of the incident. This, sexual offenders do, to remind them what was crudely described by Professor Labuschagne (with the support of various psychology authorities) as a "pleasurable experience" that fulfils a psychological remembering function, which allows for a continuance of the offence. Professor Labuschagne classified the accused as exhibiting the traits of a serial offender that has escalated his behaviour from sexual activity (with regard to the first two victims) to that of murder.

The small bottle that was found in the box in the work shed, he described as typically being a souvenir of the incident. So too did he regard the place in which the body of the deceased was found, the metal tank, to be of particular psychological significance. He remarked that the body of the child could very easily have been hidden without it ever being found. The accused had ample opportunity of doing so prior to his arrest for some three months after the disappearance of the child. He explained "that it allowed the accused to maintain a form of psychological nexus with the crime, rekindling the memories of the act". It has also been noted and documented in academic literature, he claimed, that offenders who commit psychologically motivated murders, such as serial murders, often revisit the crime scenes of their victims, even after a body has been removed "to re-experience the feelings of the murder".

Mr Samuel Martiens, the father of the deceased, described his anguish at the death of his daughter, Elizabeth, whom he described as the apple of his eye. His trust in the accused, his previous employer, was shattered He described their relationship as having gotten on well with one another and that he had believed the accused when he had claimed that he had dropped off his daughter in Merweville. He described how he still lay awake at night, haunted by the incident. It appeared almost with a measure of self-inflicted guilt in having allowed his daughter to have travelled alone with the accused. No doubt the mother of the deceased, Ms Johanna Mouers and the deceased's grandmother and sibling have experienced similar trauma at the gruesomeness of the death of Elizabeth. They too, will receive the necessary counselling to deal with their trauma

With regard to the question of rehabilitation, Professor Labuschagne was recalled by the Court to elaborate on his findings in his report that the accused's prospect of rehabilitation was "severely limited". In evidence he cogently tabulated five factors that supported his opinion and I note them very briefly:

1. The serial nature of the offences.

2. The psychological motive for the offences. This is contrary to where the motive is one for financial or other material benefit.

3. The profile of the victims as young defenceless girls.

4. The sexual nature of the incidents in respect of the two complainants with the indication of paedophilic conduct on the part of the accused.

5. The escalation in the nature of the offences from a sexual assault to murder.

6. The complete disregard for State control mechanisms in the sense that the accused had committed the offence of murder while he was out on bail on the charges of indecent assault

These factors were of particular significance and relevance in the Court's consideration as to whether to order an inquiry in terms of section 286A of the Criminal Procedure Act. No evidence was placed before the Court to contradict that of Professor Labuschagne's, in particular the issue of the prospect of rehabilitation. This, despite the Court's indication to the accused that he remained at liberty, during the course of mitigation, to place any such expert evidence before the Court. Professor Labuschagne explained that because of the limited prospect of rehabilitation which was also impacted upon by a prison environment, the most feasible intervention would be that of monitoring and management of the risk that such persons as the accused posed. This intervention is largely dependent on the accused himself and his insight into his condition and his concomitant acceptance of dealing with such a condition.

With regard to the interest of society, the community of Merweville and other towns such as Prince Albert, have expressed their horror in public protest at the circumstances of the death of the deceased and the assault on the two complainants. Captain Speed remarked that the protest was not only focused on the offences itself, but also related to the lack of what the public perceived as being the inaction on the part of the police in the investigation and in the failure of the police to initially recognise the role of the community. Captain Speed remarked that the impact of these matters, and in particular the disappearance of the minor child. Elizabeth, together with other concerns, has usefully brought about positive changes with regard to how the police now deal with, and manage reports of missing children.

The resources of the community and other community based organisations are now mobilised in dealing with such dreadful situations. This, if nothing else, has been a positive outcome of these incidents. However, though the Court must be particularly mindful of the interests of the community in sentencing, the sentence will not always reflect the wishes of the community. Captain Speed also testified with regard to the statistics of crime at national level and in the Western Cape involving women and children. In particular he highlighted the provincial statistics in respect of children under 18 years of age for the period 2009 to 2010 as 108, which roughly indicates that one child is murdered every three days in the province. These statistics are, needless to say. alarming and have justifiably received the attention of both the legislature and the wrath of communities. Members of the community are.

therefore, fully entitled to expect that the courts would deal decisively with offenders of such heinous crimes. During the course of the proceedings relating to the section 286A inquiry, I indicated to both the State and the defence that one of the sentence options that the Court would consider, would be that of life imprisonment. Vivier, JA in S v Bull & Another and S v Chavula & Others 2001(2) SACR 681 (SCA), points out that life imprisonment is the most severe of punishments that a court can impose. Such sentences should, however, not lightly be resorted to unless the circumstances of the offences justify it.

Ms Allie addressed the Court extensively on the question as to why the imposition of life imprisonment would be the only suitable sentence for the accused. She submitted that the prognosis of the risk that the accused posed as a paedophile who had escalated his actions to that of murder, as observed by Professor Labuschagne, indicated that life imprisonment was the only appropriate sentence. She very usefully referred to various decisions, in particular S v Olivier 2007(2) SACR 596 (C), wherein the accused had been convicted of indecent assault of a six year old boy and that of murder and in which the accused had also displayed paedophilic tendencies, and where the accused had claimed that he had a multi personality disorder. In that matter the Court sentenced the accused, who had a previous conviction to a term of life imprisonment.

In the matter of S v Tikini 2008(1) SACR 42 (EC), Plasket, J had convicted the accused of indecent assault of a six year old victim and of murder in gruesome circumstances. In that matter Plasket. J referred to the decision of Davis. J in S v Jansen 1999(2) SACR 368 (C), in which the interest of the community was articulately and perceptively set out:

"This matter concerned the rape of a nine year old girl. At 378g-i, Davis. J stated that the rape of a child is "an appalling and perverse abuse of male power". That "strikes a blow at the very core of our claim to be a civilised society" and that the community is entitled to demand that those who perform such perverse acts of terror be adequately punished and that the punishment reflect a societal censure."

In my view, precisely the same may be said of the indecent assault of the deceased in this case. Davis. J went on to say the following at page 46:

"It is utterly terrifying that we live in a society where children cannot play in the streets at any safety; where children are unable to grow up in the

kind of climate which they should be able to demand in any decent society, namely in freedom and without fear. In short, our children must be able to develop their lives in an atmosphere which behoves any society which aspires to be an open and democratic one based on freedom, dignity, equality, the very touchstone of our constitution. The community is entitled to demand of the police that they bring those who subvert these minimum aspirations before the courts and that the courts, in punishing such person, should ensure that the sentence adequately reflects the censure, which society should and does demand, as well as the retribution to which it is entitled to extract."

Plasket J found himself in agreement also with the dicta of Van Heerden, J in the matter of S v Blaauw 2001(2) SACR 255 (C), 2001(3) ALL SA 588 at 260d:

"Dit is klaarblyklik van die allergrootste belang om vonnisse op te IS wat kinders en vrouens teen die wreedheid en afskuwelikheid van verkragting en ander seksuele misdade beskerm. Uit die aangehaalde statistiek. is dit duidelik dat die tipe misdaad V» kanker in ons samelewing is; 'n kanker waarteen die Wetgewer hom ten strengste verset."

Plasket, J also refered to the decision of S v Tsonga 1997(2) SACR 497 (O), which are, to an extent, similar to the facts before me, the appellant had been convicted of raping and murdering an eight year old girl by strangling her and then dumping her body, head first, in a toilet. He was 25 years old and a first offender and who had co-operated with the police throughout. He had been sentenced to 12 years imprisonment for the rape and life imprisonment for the murder. It was argued in an appeal against the sentences of life imprisonment that the trial court had overemphasised the interest of society at the expense of the personal circumstances of the appellant.

Van Coppehaqe, J held that the remorse that the appellant had shown when viewed against the callousness of his conduct, paled in its significance as a mitigating factor In dealing with the argument that the interest of society had been disproportionately elevated above that of the personal circumstances of the appellant, he stated at 501b-e:

"Geweldsmisdade en veral moorde het. wat omvang daarvan betref, reeds daarnatoe toegeneem dat die algemene publiek tereg om beskerming betoog. Wat die moord in die onderhawige geval nog meer grusaam maak, is dat die slagoffer Vi agjarige weerlose kind was. Anders om toevallig ook in ons huis te wees waar die appellant was, het sy niks gedoen om die aanval op haar te provokeer of uit te lok nie. Natuurlik is Vi skoon rekord Vi faktor wat as strafversagtend aangemerk word en normaalweg hoog aangeslaan word, maar as faktor moet dit in perspektief gestel word. Wanneer die dader as persoon geevalueer word, speel sy gesindheid of motivenng vir, en by die pleging van die misdaad, dikwels 'n deurslaggewende rol. By beoordeling van die dader se gesindheid of motivering, spreek sy dade dikwets luider as sy woorde. Die appellant se gesindheid teenoor sy medemens, veral teenoor weerloses. word weerspieel deur die grusaamheid en die gevoelloosheid van sy optrede en wel der mate dat hy permanent uit die samelewing verwyder moet word. Om daardie doel te bereik, moet hy as persoon ondergeskik aan die belange van die gemeenskap gestel word Dit was ook presies die verhoorhof se benadering." With regard to sentences imposed in indecent assault matters, the Court was referred to the decision of S v Macmillan 2003(1) SACR 27 (SCA), a decision by Brand. AJ in which a sentence imposed of ten years had, for various reasons, been reduced to five years.

The gravamen of the case law, inasmuch as it sets out broad guidelines to a court when considering sentence, to a large extent leaves it to the court to determine an appropriate sentence on the facts and circumstances of each particular matter So too is this Court charged with that responsibility of having to consider the facts and circumstances of these particular matters for the purposes of sentence. With regard to the provisions of the minimum sentence legislation, I am of the view that there exists no substantial and compelling circumstances that warrants a deviation from the minimum sentence prescribed In fact there appears, and the defence concedes, that this Court, on the facts before it, would be entitled to impose a sentence higher than the minimum sentence.

I have considered the imposition of a life sentence and in particular on the basis that the accused has been diagnosed as a serial offender with paedophilic tendencies and has resorted to murder. Professor Labuschagne, while indicating that the accused cannot be rehabilitated (cured of his condition), that condition can be managed and monitored with the appropriate programmes and systems in place. That may mean that this type of rehabilitation and the prevention of such offences places an undue burden on the resources and capacity of the State, if ever they should consider to release the accused. They would also have to assess the risk referred to by Professor Labuschagne in his report. The Court has also been mindful that the accused has spent almost three years in custody pending the finalisation of this trial.

In my view a long term of imprisonment, coupled with the recommendations as set out by Professor Labuschagne in his report with regard to appropriate sentence measures, is an appropriate sentence. In particular, I refer to his report, in which he states;

"It is furthermore respectfully recommended to the Court that as part of the Court's sentencing recommendations, the accused be instructed to participate in sex offender rehabilitation programmes and also a programme specifically aimed in dealing with those that molest children."

In the circumstances, the following sentence is imposed:

1. On count 3, the indecent assault of Annelien Briesies, a TERM OF IMPRISONMENT OF EIGHT (8) YEARS.

2. On count 4, the indecent assault of Juliana Stevens, a TERM OF IMPRISONMENT OF EIGHT (8) YEARS.

3. On count 6, the murder of Elizabeth Martiens, a TERM OF IMPRISONMENT OF THIRTY (30) YEARS.

4. I order that three years of the eight year sentences imposed on counts 3 and 4 are to run concurrent with that of count 6 I further order that the five years imprisonment on each of the counts 3 and 4 are to run concurrently with one another

5. The EFFECTIVE TERM OF IMPRISONMENT IS ONE OF THIRTY FIVE (35) YEARS.

6. I further order that the correctional facility at which the accused is to be held, is to implement the recommendations of Professor Labuschagne as set out in his report, which report should be placed on the file of the accused at the correctional facility.

7. I further order that as and when the correctional facility considers the accused for parole, that a copy of the judgment of this Court, together with the copy of the sentence and the report of Professor Labuschagne be placed before such parole committee.

SALDANHA, J