South Africa - Martin, 55, Theresa, 54, Rudi Van Breda, 22, Murdered, 26 Jan 2015 #5

[Interested Bystander]

But was Pistorius allowed out pending sentencing? Botha tried to argue that Henri was no danger, his face was too well known etc but Desai wouldn't have it because of the seriousness of the crimes. If he wouldn't allow Henri out pre-sentencing, hopefully he won't allow him out pending the appeal.

OP was not imprisoned for some long time because he appealed. He was not sent to prison whilst waiting for sentencing (as was HvB) but was allowed out until the appeal unless my memory is failing me. Appeals take some long time to reach court in SA. I am unsure how long he avoided prison but I will see if I can work it out. JJ probably knows off the top of her brilliant head.

You could be right with respect to Desai disallowing it but I somehow think he will allow it but I would be delighted to be wrong. He seems to have been searching quite hard to find a way to allow mitigating circumstances to play a part in the sentence. It is not unheard of in SA to allow murderers (especially monied whites) to be allowed out until their appeal. Very wrong IMO.

 

[L2L]

Only 25 years for five crimes and he can appeal after 25 years and stay in the hospital wing.

What grounds do you think Botha can appeal on?

Do we know he will stay in the hospital wing? I thought it was only until some medical certificate was produced.

 

[Tortoise]

Only 25 years for five crimes and he can appeal after 25 years and stay in the hospital wing.

What grounds do you think Botha can appeal on?

I'm not sure about him being in the hospital wing. I didn't hear Desai say anything about that.

 

[Estelle]

When Desai described HvB's medical condition I assumed that it has been accepted by the court and a medical certificate has been produced.

 

[Tortoise]

Let's hope someone like William Booth will do an interview and go through it.

 

[L2L]

I'm not sure about him being in the hospital wing. I didn't hear Desai say anything about that.

Well, he should have! I want to see HvB where he belongs, with the general population. If he gets out pending the appeal...!!!

 

[Estelle]

Section 51 of South Africa's Criminal Law Amendment Act of 1997 prescribes the minimum sentences for other types of murders, rapes and robberies to 25, 15 and 10 years respectively, so parole is almost always granted to prisoners serving life sentences after the minimum sentence for the lesser crime has been served. However, a prisoner must be given a parole hearing after having served 25 years.

In special cases, life imprisonment without any possibility of parole or pardon for an extensively long period of time (such as 1,000 years) can be imposed, such as in the case of serial killer Moses Sithole.

Life imprisonment in South Africa - Wikipedia

 

[Tortoise]

Well, he should have! I want to see HvB where he belongs, with the general population. If he gets out pending the appeal...!!!

He won't get out pending the appeal, I'm sure of that. There is a massive difference between pre and post-conviction.

 

[Interested Bystander]

Yes, Tortoise, I have just been looking up dates and Pistorius did serve 5 months after sentencing. He was then allowed out for the rest of his sentence as long as he lived with his uncle and abided by the restrictions imposed. The state appealed the sentence and he was eventually reincarcerated in November 2017.

 

[JudgeJudi]

But was Pistorius allowed out pending sentencing? Botha tried to argue that Henri was no danger, his face was too well known etc but Desai wouldn't have it because of the seriousness of the crimes. If he wouldn't allow Henri out pre-sentencing, hopefully he won't allow him out pending the appeal.

The difference is Masipa found OP guilty of manslaughter, not 3 premeditated murders and nearly a fourth.

 

[Estelle]

First-time offense is subject to at least fifteen years’ imprisonment, second conviction results in at least twenty years’ imprisonment, and third or subsequent conviction entails at least twenty-five years’ imprisonment.[81]

Sentencing Guidelines: South Africa | Law Library of Congress

 

[Interested Bystander]

Guide to being tried for murder in South Africa

Guide to being tried for murder in South Africa


"If someone is sentenced to prison but appeals, does he or she still go to prison while the appeal is being heard?

It depends. Much like when the accused is first arrested and charged, the state may imprison her pending the outcome of proceedings, but she is entitled to apply for bail.

The basic rule is that the conviction and sentence are not suspended pending the appeal, so the appellant must go to prison in the meantime. But the court that convicted the appellant may, upon application and if it deems it appropriate, release the accused on bail."


I somehow think bail will not be considered appropriate. These murders were horrific and I think Desai has covered all possibilities to exclude an appeal. The only point in HvB's favour is that he has been on bail for a long time and also, although not on bail, there were two years before he handed himself in where he had no charges made against him other than a drugs charge that was dropped. These murders were committed in January 2015. He had been free for over 3 years without committing another offence.

 

[JudgeJudi]

First-time offense is subject to at least fifteen years’ imprisonment, second conviction results in at least twenty years’ imprisonment, and third or subsequent conviction entails at least twenty-five years’ imprisonment.[81]

Sentencing Guidelines: South Africa | Law Library of Congress

Premeditated murder carries a prescribed minimum sentence of 25 years.

It's the same as aggravated murder.



Sentencing Guidelines: South Africa | Law Library of Congress

 

[Estelle]

Premeditated murder carries a prescribed minimum sentence of 25 years.

It's the same as aggravated murder.

View attachment 135733

Sentencing Guidelines: South Africa | Law Library of Congress

Thanks JJ.

 

[Estelle]

Do you think that the Appeal could be about reducing the length of the sentence due to the mitigating factors of age and being a first offence? I cannot find any guidelines about age nor first offences so I think it must be left to the Judge's discretion.

 

[JudgeJudi]

Do you think that the Appeal could be about reducing the length of the sentence due to the mitigating factors of age and being a first offence? I cannot find any guidelines about age nor first offences so I think it must be left to the Judge's discretion.

No, I don't believe his age or it being a first offence will come into an appeal at all, but maybe Botha will try. He'll try anything. Desai found there were no substantial or compelling circumstances. If you have any of those, you have a better chance. The fact that he gave no reason for his acts makes it so much worse IMO. How can you rehabilitate someone if you don't know what the motive was.

Just because the minimum sentence is 25 years, that doesn't mean he will be successful if he applies for parole at that time. These murders were so brutal that I don't think Correctional Services or any judge would be happy to let him loose into the general population.

 

[JudgeJudi]

"An offender sentenced to life imprisonment must serve 25 years’ before parole can be considered and referred back to the court a quo for approval or disapproval. However, an offender may be considered for parole when he or she has reached the age of 65 and he or she has served at least 15 years’ of his or her sentence (only new admissions after implementation of the 1998 Act)."

Understanding parole – an in-depth discussion continued - De Rebus

This was published in July 2016

 

[JudgeJudi]

 

[JudgeJudi]

Watch the moment Henri van Breda is sentenced

'It was a cold blooded murder': Watch the moment Henri van Breda is sentenced

 

[Estelle]

View attachment 135735