About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2020
>>
[2020] ZAWCHC 12
|
|
Henry and Another v S (A211/2019) [2020] ZAWCHC 12 (21 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: A211/2019
In
the matter between:
BRENT
HENRY
First
Appellant
JUANE
JACOBS
Second
Appellant
and
THE
STATE
Respondent
Date:
21 February 2020
JUDGMENT
MABINDLA-BOQWANA,
J (NDITA and MANTAME JJ concurring)
Introduction
[1]
The appellants
appeal, with the leave of the trial court (per Henney J), against
their sentences, having been convicted as follows:
In respect of both
appellants
:
1.1
count 1 - murder of one
Carl Schoombie (“the deceased”);
1.2
count 3 - assault with
intent to cause grievous bodily harm of one John Cannon (“J
Cannon”);
In respect of the first
appellant
:
1.3
count
5 - assault on one Sarah Cannon (“S Cannon);
1.4
count
6 - assault on one Victoria Parker (“Parker”);
In respect of the second
appellant
:
1.5
count 4 - assault
on J Cannon.
[2]
The sentences
imposed by the trial court were as follows:
2.1 Life imprisonment in respect
of count 1 on both appellants;
2.2 The first appellant was
further sentenced to 6 months’ imprisonment in respect of count
3; 60 days’ imprisonment
in respect of count 5; and 60 days’
imprisonment in respect of counts 6 and 7, taken together for the
purpose of sentence.
It appears that the trial court may have erred
by taking into account count 7 when sentencing, as it had acquitted
the first appellant
in respect of this count. Nothing turns on this,
however, as this count was said to have been taken together with
count 6 upon
sentencing;
2.3
The second appellant’s
further sentence on the other hand was 3 years’ imprisonment in
respect of counts 3 and 4 (regarded
as two separate assaults);
2.4 Sentences in respect of both
appellants were ordered to run concurrently.
Background
[3]
The facts
underpinning the conviction of the appellants, arose from an incident
which occurred in the early hours of the morning
of 21 November 2015,
at 4.00 am, in Claremont. The state witnesses testified that
the deceased and his friends, J Cannon,
S Cannon and Parker, had
visited a night club known as “Tiger-Tiger” in Claremont,
where they had spent an hour. Upon
leaving the club they hired
an Uber taxi (“the taxi”) to take them home. As
they were driving along, an Audi
motor vehicle suddenly cut the taxi
off, forcing it to stop. Two men (the appellants), jumped out
of this Audi vehicle, shouting
and swearing at the occupants of the
taxi. They tried opening the doors of the taxi, which were
locked, while kicking and
punching its windows. The taxi driver, Jean
Pierre Muroncwa (“Muroncwa”) tried to manoeuvre the taxi
out of the situation,
but was confronted with a
cul
de sac
. That
was when the Audi managed to block the taxi from moving. The
appellants approached the occupants of the taxi,
accusing them of
having caused trouble at the club. They shouted at them aggressively,
while insulting and threatening them. The
occupants of the
taxi, some of who were witnesses at the trial, testified that they
had no idea what the appellants were talking
about.
[4]
The deceased got
out of the taxi, followed by J Cannon. The second appellant,
who was described as the larger of the two men,
attacked the
deceased, while the first appellant, who is a shorter man, attacked J
Cannon, punching him on the side of the head.
The second
appellant punched the deceased with his fist and the deceased landed
on the ground. He attacked the deceased’s
head by kicking
it a number of times, pressing it with his knee and punching it with
his fists. He was joined by the first
appellant, who also
punched and kicked the deceased’s head. They repeated the
attack on the deceased a number of times,
also kicking him in his
face, and using elbows onto his head with brutal force. J
Cannon, who was also knocked to the ground
by the first appellant
during the scuffle, was pleading with them to stop. The second
appellant threatened to shoot him,
mimicking a gun with his finger.
He was also thrown against a garage door. J Cannon could
hear the appellants screaming
hysterically at the deceased while
attacking him. As this was happening, the women occupants, S
Cannon and Parker were not
spared. The appellants also
threatened and swore at them.
[5]
As the deceased
lay there on the ground, helpless, he was bruised, bleeding profusely
through his ears, nose and mouth, and snorting.
The appellants
left him there in a helpless state. The deceased was taken to
hospital where he lay in a coma for four
days, after which he died of
his injuries. The deceased’s cause of death was noted in
the post-mortem report as a blunt
force head injury and the
consequence thereof. The pathologist, Dr Gavin Kirk, noted
extensive deep scalp bruising on the
head, crack fractures on the
parietal bone and skull, as well as a burr hole on the frontal bone.
The type of injuries the
deceased suffered were described by
the pathologist as those occurring when the brain moves at a high
velocity. They were
deep in the brain. To get these
injuries, the deceased’s head would have had to be struck hard
with a swinging object
moving from side to side, to cause shearing.
This, according to the pathologist, was a type of injury that
occurred from
motor vehicle accidents or where the victim fell from a
considerable height.
[6]
The trial court
found the appellants to have formed a direct intention to murder the
deceased, evidenced by the manner of the assault
on him, which was
continuously targeted at his head. According to the trial court, the
appellants “
directed
their will toward bringing about the death of the deceased
.”
They further formed a common purpose to murder him.
Grounds
of appeal
[7]
In respect of the
first appellant, the complaint against the trial court is that it
overlooked the appellant’s personal circumstances,
in
particular that he was a productive member of society and a first
offender. It further disregarded the appellant’s alcohol
intake
and the role he played in the commission of the offences; the fact
that a fight broke out at the club; the fact that what
transpired
later was based on mistaken identity; and that the first appellant is
not a violent person. He acted out of character
that particular
evening. The court, accordingly, should have found that there
were substantial and compelling circumstances
to deviate from the
prescribed minimum sentence of life imprisonment.
[8]
Submissions on
behalf of the second appellant centred on the trial court’s
evaluation of the evidence of the Probation Officer,
Ms Cawood. The
second appellant’s counsel contended that the trial court
failed to give due regard to his mental health
diagnosis, bipolar
disorder and attention deficit hyperactive disorder (“ADHD”),
and consequently his “
moral
blameworthiness
”,
as well as his alcohol and drug abuse problem. It was also
contended that he was assessed by Ms Cawood to have shown
remorse and
that he was a candidate for rehabilitation. It was further
submitted that the trial court should have further
allowed a report
by a psychiatrist, Dr Zabow, which substantively talked to this
aspect.
[9]
The quarrel for
both appellants was essentially that the imposed sentence of life
imprisonment in respect of murder was disproportionate.
Analysis
[10]
It is well
established that the determination of sentence is pre-eminently a
matter for the trial court’s discretion. Grounds
upon
which a court of appeal may interfere are circumscribed. I do
not wish to traverse those, save to mention that “[
t
]
he
test for interference by an appeal Court is whether the sentence
imposed by the trial court is vitiated by irregularity or
misdirection
or is disturbingly inappropriate
.”
(See
Director
of Public Prosecutions, KwaZulu-Natal v P
2006
(1) SACR 243
(SCA)
at para 10).
[11]
In exercising its
discretion the trial court must weigh both mitigating and aggravating
factors, focused on the nature of the crime,
the personal
circumstances of the offender and the interests of society. The
contention in this case, is that the trial court
accorded
insufficient weight to the personal circumstances, as well as the
moral blameworthiness, of the two appellants.
[12]
As to the first
appellant, he testified in mitigation of sentence that he was 40
years old, unmarried, with three children, 16,
14 and 10, two
residing with their mothers and one with the appellants’
mother. The first appellant completed grade
9 and went on to
further his studies in industrial electronics, and fitting and
turning. Before the incident he worked as
a system matters
expert for two years. He maintained his children financially.
His mother is still alive, while his
father passed away in
2014. He had no previous convictions. His counsel placed
much emphasis on the role alcohol may
have played in the commission
of the crime, the fact that this was a case of mistaken identity, and
the role played by the first
appellant, which, according to him, was
lesser than that of the second appellant, as factors that the trial
court overlooked.
[13]
With regard to the
second appellant, Ms Cawood, who is a social worker in private
practice, presented hers and various other collateral
reports in
mitigation of sentence. The second appellant also called
Loriane Van Zyl (“Van Zyl”), who testified
about his
character. Testimonials from various individuals were also handed up
in court. Among the reports was that of Dr
Zabow, a
psychiatrist, relating to the appellant’s diagnosis as
suffering from ADHD, which the trial court ruled was not
properly
introduced as expert evidence before the court, and that Ms Cawood,
not being an expert in that field, could neither present
the report
nor base expert opinion on it. I find it unnecessary to deal
with Dr Zabow’s report because the trial court
had rightfully
rejected it, as it did not conform to the rules applicable to
admission of expert evidence.
[14]
In a nutshell, the
personal circumstances presented on behalf of the second appellant
were that he was born in 1980 in Cape Town.
His parents
divorced in 1987. His mother and siblings relocated to
Johannesburg, while he opted to remain with his
father. He grew
up a compassionate child. He was reportedly sexually abused by
a closely related uncle, which left
him scarred for life. His
school history was erratic and this, according to Ms Cawood, was
possibly linked to the development
of “supposed” bipolar
symptoms in childhood and adolescence. He achieved up to grade
9 at school and later an
NT1 qualification, which equipped him to
work as a safety officer. He started his own businesses at some
point. He
was seemingly diagnosed with bipolar disorder at the
age of 18, by one Dr Weinkove. He is also HIV positive. He
has
three daughters, two of whom are minors and residing with their
mothers. He contributed financially to the upkeep of his
daughters. He is married. He had been convicted of
housebreaking in 2002, and malicious damage to property and common
assault in 2009, but was treated as a first offender for the purposes
of sentence in that case, seeing that a period of more than
10 years
between 2009 and the date on which the offences were committed had
lapsed.
[15]
In the decision of
DPP, Gauteng v
Pistorius
2018 (1) SACR 115
(SCA), where the physical vulnerabilities of the
accused were acutely pronounced, the SCA at para 22, referring to
S
v Vilakazi
2009 (1) SACR 552
(SCA), reiterated the point that “[
i
]
n
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background
.”
Of course this is not to say that personal factors are not important,
they are essential in assessing the person
of the accused. In
that assessment though, the nature and circumstances of the crime and
the interests of society may not
be relegated to the background.
It is a question of weighing both mitigating and aggravating factors.
[16]
Returning to the
issues in contention, the appellants’ counsel criticised the
trial court for not paying particular attention
to the state of mind
of the appellants while the attack on the victims, and in particular
the deceased, was being carried out.
The appellants both
elected not to testify in the trial. The court therefore did
not have the benefit of their version
as to what went through their
minds. They were the only ones who could tell the court about
their level of intoxication,
how it impaired their judgment and what
role it may have played in their actions on the day of the incident.
It cannot be
expected of the court to assume that alcohol
played a part in the brutal attack that led to the death of an
innocent individual.
[17]
The second
appellant’s counsel strenuously argued that the appellant’s
alleged mental disorder may have played a role
in the commission of
the crime, and that he may have skipped his medication on that day.
His unstable state of mind may have
also been aggravated by
alcohol. No evidence was led on this issue. Other than an
attempted reference to Dr Zabow’s
report by Ms Cawood, there
was no evidence as to the second appellant’s diagnosis and, in
particular, how it affected his
actions and his mental state on the
day in question. While the appellant had a right to remain
silent, there are consequences
to that. An attempt is now made
to gain the sympathy of the court, after the fact, on an issue as
crucial as the appellant’s
mental state.
[18]
Even assuming that
Ms Cawood was an expert in psychiatry, which she is not, she could
not be in a position to tell the court why
the second appellant acted
in the manner he did on the day of the incident. I must add the
court owed no duty to call Dr
Zabow, as the second appellant’s
counsel sought to suggest. The second appellant was represented
by a very experienced
lawyer who chose not to call Dr Zabow – a
choice for which he may have had his reasons.
[19]
As to the issue of
mistaken identity, the appellants did not take the court into their
confidence as to what motivated them to continue
attacking the
deceased, even though they were told numerous times that they were
attacking the wrong people. Not much can
be attached to the
excuse of mistaken identity. As the trial court observed, the
appellants were clearly advised, prior to
attacking the occupants of
the taxi, that they were making a mistake, the taxi occupants had not
been involved in an incident at
that club. They however forged
ahead at accosting them. They brutally attacked the deceased,
in the face of pleas that
they were attacking the wrong person. The
excuse of mistaken identity can only assist the appellants up to a
point. The
court cannot assume the motivation behind the
repeated attack on the deceased, despite desperate pleas from himself
and his comrades
for the appellants to stop. In any event, even
if they were mistaken, they had no right to assault, let alone kill,
the deceased.
The tragedy is made worse by the fact that there
was no confrontation by the deceased.
[20]
The appellants
showed no remorse for their actions, which is usually a pointer as to
whether an accused person takes responsibility
for his or her actions
and is therefore a candidate for rehabilitation. The first appellant
was given several opportunities to
explain what he was sorry about,
when he testified in mitigation of sentence. He refused to
acknowledge that he had done
wrong, but simply stated that he felt
sorry for the deceased’s family for the loss of their son.
That is not being
remorseful.
[21]
Ms Cawood also
tried on behalf of the second appellant to suggest that he took
responsibility for his actions. She could not,
however,
articulate what he actually said to her. The court sought
clarity from her, but her testimony became less direct
on an issue
which ought to have been simple to answer. It was equivocal and
confusing. At some point she pointed out
“
I
wasn’t interviewing about the actual crime itself, I was
wanting to see his capacity to be able to show insight and a
realistic
conscience, that’s what I was looking for
.”
[22]
Later an
impression was created that the second appellant was made to
understand that he had to take responsibility and that he
agreed to
do so. Ms Cawood testified “
Mr
Jacobs agreed that he has to take full responsibility for his choices
and actions that night. He did share that he had
looked up to
Henry, who is a few years older than he is…
”.
This is not the kind of contrition for the plight of another
that Ponnan JA referred to in
S
v Matyityi
2011 (1) SACR 40
(SCA), at para 13. There, Ponnan JA poignantly
found, inter alia, that “
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
.”
(Own emphasis.) None of that has happened in this case, as I
have already indicated. There was no genuine
remorse, or
unequivocal acceptance of wrongdoing and penitence by any of the two
appellants.
[23]
This is one of
those cases, in my view, where personal circumstances pale into
inconsequentiality when compared to the aggravating
factors. The
second appellant was a Muay Thai fighting expert. It was stated
by a witness that the shins of these fighters
are particularly
hardened and can cause more damage than feet can. The deceased
clearly suffered a severe brain injury. The
first appellant
also fully participated in the assault, kicking and placing his knees
and elbows on the head of the deceased. He
further threatened
one of the witnesses, and prevented the witness from seeking help by
calling the police. His conduct was
far from being half-hearted
and minor.
[24]
In the
circumstances I find no misdirection on the part of the trial court,
and therefore no reason to interfere with its discretion
in imposing
life imprisonment on the murder charge.
[25]
In the result, I
would propose the following order:
1.
The appeal in respect of
both appellants is dismissed.
__________________________
N P MABINDLA-BOQWANA
Judge of the High Court
I
agree and it is so ordered.
_____________________
T C NDITA
Judge of the High Court
I
agree.
_____________________
BP MANTAME
Judge of the High Court
APPEARANCES
For
the first appellant: Mr Solomons, Legal Aid South Africa
For
the second appellant: Mr du Plessis, David H Botha, Du Plessis &
Kruger (BDK), Pretoria C/O Mathewson Gess Incorporated,
Cape Town
For
the respondent: Adv. CL Burke, State Advocate