Republic of South Africa IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN) Case no: CC9/12 Division: 1 In the matter between THE STATE v THABO BESTER Accused Coram: CLOETE, AJ. Heard: 13 and 14 August 2012 JUDGMENT ON SENTENCE DELIVERED ON 16 AUGUST 2012 CLOETE AJ: [1] Mr Bester, you have been convicted of two serious crimes, the severity of which have been recognised by the legislature in s 51 of the Criminal Law Amendment Act 105 of 1997, that is, the so-called minimum sentence legislation.[2] Under that legislation this Court is bound to impose a sentence of life imprisonment on the count of murder, and since you are an admitted third offender for robbery with aggravating circumstances, a separate sentence of 25 years imprisonment ‘on that count. These sentences must be imposed unless | am satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence. [3] The approach to be adopted by our Courts when considering the imposition of a prescribed minimum sentence has been explained by the Supreme Court of Appeal in Sv Malgas 2001 (1) SACR 469 (SCA) at para 20 as follows: “It would be an impossible task to attempt to catalogue exhaustively either those circumstances or combinations of circumstances which could rank as substantial and compelling or those which could not. The best one can do is to acknowledge that one is obliged to keep in the forefront of one's mind that the specified sentence has been prescribed by law as the sentence which must be regarded as ordinarily appropriate and that personal distaste for such legislative generalisation cannot justify an indulgent approach to the characterisation of circumstances as substantial and compelling. When justifying a departure a court is to guard against lapses, conscious or unconscious, into sophistry or ‘Spurious rationalisations or the drawing of distinctions so subtle that they can hardly be seen to exist.” And further at para 25 of that judgment “While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against i, this does not mean that all other considerations are to be ignored.”[4] Accordingly, in considering whether substantial and compelling circumstances exist, | must not only have regard to the crimes of which you have been convicted, but also to your personal circumstances and the interests of society. All of these factors must be accorded due weight and properly balanced in the particular circumstances of your case so as to arrive at an appropriate sentence. Whether you have shown genuine remorse will also play a role. [5] In your plea explanation submitted to this Court, you have stated that on the evening in question you and the deceased became embroiled in an argument over one of your former girlfriends, whereafter you both fell asleep. She was still sleeping when in the early hours of the following morning and at about 2,00 am you awoke and went to the kitchen of the guesthouse. It was at that point that you decided to take a knife from the kitchen, your intention being to subdue the deceased in order to rob her of her cell phone and laptop. [6] However, when you arrived back in the bedroom the deceased had woken She saw you approaching with the knife and a struggle ensued. It was during that struggle that you stabbed the deceased once, but fatally, in the chest with the knife. [7] Although you state that you were aware immediately after stabbing her that the deceased was lying face down on the bed and bleeding profusely, this did not deter you from proceeding to tie her hands behind her back and to demand from her the password for her laptop, to which she did not respond. It was some hours later, at about 7.00 am, that you left the bedroom with the deceased's laptop and cell phone and asked the4 guesthouse owner for a lift into central Cape Town, whereafter you took a flight back to Durban. You told the guesthouse owner that the deceased was still asleep and should not be woken until after 2.00 pm. [8] The State has accepted your plea explanation that you acted on the spur of the moment. | am obliged to accept that version, since it is the factual paradigm on which | shall have to sentence you. | cannot however ignore the following. First, on your own version, at least a few hours had passed after your argument with the deceased before you decided to rob her. Although you testified in mitigation that you were under financial pressure at the time, you made no mention of this in your plea explanation. ‘Second, if it was indeed your intention throughout to only rob the deceased, one must ask why it was necessary to fetch a knife with which to attack her when on your own version she was sleeping and you could simply have taken her cell phone and laptop and left her unharmed. Third, you have chosen not to account for your movements between stabbing the deceased — which on your version must have been at about 2.30 am at the latest - and 7.00 am when you left the guesthouse. These factors, taken together with your instructions to the guesthouse owner not to disturb the deceased until after 2.00 pm are aggravating factors which militate against leniency. [9] It is indeed so that you have expressed that you are deeply sorry for murdering the deceased. However whether this constitutes genuine remorse on your part must be considered in its proper context. In S v Matyityi 2011 (1) SACR 40 (SCA) at para 13 the Supreme Court of Appeal had the following to say: “There is, moreover, a chasm between regret and remorse. Many accused3 persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. This genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is @ factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.” [10] Returning to the facts of this case, on your own version you and the deceased were close friends who had an intimate relationship. You testified that she trusted and supported you, and that she believed in your innocence when allegations started to surface about your involvement in the crimes for which you were subsequently convicted - after her murder - in the Durban regional court. This Court has heard from the State that the deceased was solely responsible for the maintenance of her mother and two sisters and that their straitened financial circumstances are such that they struggled to pay for the deceased's burial. Your counsel has submitted that this is not one of the worst murders that our Courts have encountered. | make no comment in that regard save to say that it would amount to pure speculation, and would indeed be inappropriate, to attempt to grade the terror and pain which the deceased must have endured on some sort of theoretical scale. The fact of the matter is that, on your own6 version, this was nothing other than a sequence of brutal and callous acts which deprived this young woman of her life. It also deprived her loved ones of her presence in their lives. In these circumstances the community at large will rightly expect this Court's sentence to reflect the seriousness with which crimes of this nature are regarded. [11] As to your personal circumstances | take into account that you are 23 years old and that you are the father of three very young children who have effectively been deprived of their paternal figure and breadwinner. | also take into account that you were previously gainfully employed. However these factors must be considered as neutral for the reason that your children have been separated from you, and you have lost your employment, as a result of the sentence of an effective 50 years imprisonment already imposed upon you for previous crimes. [12] Having carefully weighed and considered all of the relevant factors, it is my view that no substantial and compelling circumstances exist to justify the imposition of sentences less than the minimum prescribed. Indeed, no lesser sentences would be appropriate in the circumstances of this case. It is not necessary for me to consider whether the sentences or any portion thereof should run concurrently, since the law dictates that, in these circumstances, all of the sentences will run concurrently with the sentence of life imprisonment.[13] | accordingly impose the following sentence: 1. On count 1, being the count of robbery with aggravating circumstances, you are sentenced to 25 years imprisonment. 2 On count 2, being the count of murder, you are sentenced to life imprisonment. Cnn CLOETE, A.J.