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[2016] ZASCA 132
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Lichtenstein v S (1094/2015) [2016] ZASCA 132 (29 August 2016)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1094/2015
In
the appeal between:
DAVID
LICHTENSTEIN
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Lichtenstein
v S
(1094/2015)
[2016] ZASCA (132) (29 September 2016)
Coram:
Maya,
Tshiqi, Theron, Seriti JJA and Dlodlo AJ
Heard:
18
August 2016
Delivered:
29
August 2016
Summary:
Sentence:
Minimum sentence regime: principles to be applied: absence of
substantial and compelling circumstances: imposition
of minimum
sentences justified.
ORDER
On
appeal from:
North
West Division, Mahikeng (Hendricks and Kgoele JJ and Chwaro AJ,
sitting as a court of appeal):
The
appeal is dismissed.
JUDGMENT
Seriti
JA (Maya DP, Tshiqi, Theron JJA and Dlodlo AJA concurring):
[1]
The appellant, Mr David Lichtenstein, together with his co-accused
appeared in the North West Division of the High Court sitting
at
Mogwase on 2 June 2014 (Gutta J). They faced one charge of murder and
another of robbery with aggravating circumstances as defined
in s
(1)
(b)
of
the
Criminal Procedure Act 51 of 1977
. Before pleading to the
charges, the appellant and his co-accused were advised that in the
event of a conviction, the State intended
to invoke the provisions of
s 51
of the
Criminal Law Amendment Act 105 of 1997
which prescribes
minimum sentences for certain specified offences.
[2]
On the same day, the appellant and his co-accused pleaded guilty to
the two charges and they were convicted. On 4 November 2014
the
appellant was sentenced to life imprisonment for the murder charge
and 15 years’ imprisonment for robbery. The sentences
were
ordered to run concurrently.
[3]
The appellant applied for leave to appeal against the sentences. He
was granted leave to appeal to the full court. On 27 August
2015 the
full court of the North West Division, Mahikeng (Hendricks and Kgoele
JJ and Chwaro AJ) dismissed the appellant’s
appeal. The
appellant, with leave of this Court, now appeals against his
sentences only.
[4]
The issue in this appeal is whether the trial court erred in
concluding that there are no substantial and compelling circumstances
that justify the imposition of lesser sentences than the prescribed
minimum sentences of life imprisonment on the murder charge
and 15
years’ imprisonment on the robbery charge.
[5]
The facts of this case appear on the appellant and his co-accused’s
written pleas made in terms of
s 112(2)
of the
Criminal Procedure
Act. The
relevant parts of the appellant’s plea read as
follows:
‘
Count
1 (Murder)
:
(a)
On the 11 September 2012, I was present at 25 Geelhout Street, Protea
Park, Rustenburg, in the district of Rustenburg.
(b)
I admit to behaving wrongfully, unlawfully and intentionally by
grabbing the deceased, pushing him on the ground and strangling
him
to death with an electrical cable. My action had caused the death of
the deceased.
(c)
The complainant was known to me, and there was no tension between us.
(d)
As such my conduct was not justifiable.
(e)
I had taken my co-accused who was my girlfriend for the past three
months to the house of the deceased to spent the night there.
(f)
I had known the deceased since I was a very young boy. My mother,
W[...] B[…] was employed by the deceased for a period
of
approximately 10 years. The deceased was like a father to me.
(d)
The deceased, my co-accused, Petro, and myself were consuming alcohol
together. After a while my co-accused told me that the
deceased was
attempting to fondle with her private parts. This angered me and I
attacked the deceased. I assaulted him with the
intent to kill him
and I then strangled him with the electrical cord until he died. I
then removed the deceased’s belongings
from [his] . . . house
and placed it in the [his] . . . motor-vehicle. My intention was to
steal the belongings of the deceased.
I drove off in the deceased’s
motor vehicle with my co-accused, Petro Bezuidenhout.
.
. .
(f)
I am sorry and deeply regret my wrongful action.’
[6]
The
s 112(2)
statement of the appellant’s co-accused is almost
similar to that of the appellant, but the relevant
part I
want to
refer to reads as follows:
‘
.
. . I then covered the deceased’s body with a blanket and
together with my co-accused took the deceased’s belongings
and
placed them in [his] . . . motor-vehicle. My intention was to steal
the deceased’s personal belongings. My co-accused
and I drove
off in the deceased motor-vehicle with the intention of stealing the
vehicle and the belongings of the deceased.
We
intended to sell the items and leave the city with the money that we
would have received for those items.’
[7]
The deceased’s belongings that the appellant and his co-accused
took are a VW City Gold, electric plug, Okapi knife, cosmetics,
a
door key and various clothing items.
[8]
The post-mortem report indicates that the chief findings were the
following:
‘
White
adult male with a history of strangulation found in the bathroom.
Deep friction abrasion around the neck. Subaponeurotic haemorrhages.
Haematoma over the cervical spine with fracture C6 and dislocated.
Spinal cord transacted at C6 level. Blood in the trachea. Multiple
petechial haemorrhages.’
The
cause of death is described as ‘[m]ultiple injuries, anoxia,
cervical spine fracture.’
[9]
The appellant’s SAP69 was read into the record. It indicates
that:
(a)
On 11 October 2000, appellant was found
guilty of malicious damage to property and was fined R600 or
60 days’
imprisonment;
(b)
On 14 September 2001, he was found guilty of abuse
of dependence-producing substance and sentenced to pay
a fine of R1
000 or three months’ imprisonment wholly suspended for five
years on certain conditions;
(c)
On 14 August 2004, he was found guilty of assault
with intent to do grievous bodily harm and two counts of
malicious
damage to property. All counts were taken as one for purpose of
sentence. A fine of R1 000 or six months’ imprisonment
was
imposed;
(d)
On 16 February 2006, he was found guilty of theft
and a fine of R1 800 or six months’ imprisonment
was imposed,
of which R1 000 or four months’ imprisonment were suspended on
certain conditions;
(e)
On 18 April 2006, he was found guilty of
assault and sentenced to pay a fine of R1 000 or two months’
imprisonment wholly suspended for five years on certain conditions;
(f)
On 13 August 2007 he through an admission of
guilt was found guilty of assault and was fined R300;
(g)
On 2 July 2009, he was found guilty of theft and
sentenced to pay a fine of R2 000 or two months’ imprisonment
wholly suspended on certain conditions;
(h)
And on 6 January 2009, he was found guilty on two
counts of theft. The two counts were taken together for
purpose of
sentence. Four years’ imprisonment was imposed.
[10]
The appellant did not testify in mitigation of sentence. He was
content to have his personal circumstances stated by his legal
representative from the bar.
[11]
In mitigation of sentence, the appellant’s counsel advised the
trial court that the appellant was born on 12 December
1981 and that
at time of the commission of the offences he was 30 years old. He was
employed and earning R8 000 to R9 000 per month.
He is single but has
two minor children and he is paying maintenance for one of the minor
children. The appellant was an awaiting
trial prisoner for two years.
The appellant’s counsel further advised the trial court that
the appellant had an alcohol and
drug abuse problem since an early
age and that at the time of the commission of the offences he was
highly intoxicated and had
been under the influence of drugs. Counsel
further submitted that the appellant pleaded guilty and that that
showed remorse.
[12]
In his heads of argument, the counsel for the appellant submitted
that it is common cause that the minimum sentences are applicable
in
respect of both offences. The relevant parts of
s 51
of the
Criminal
Law Amendment Act read
as follows:
‘
Discretionary
minimum sentences for certain serious offences
(1) Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in
Part I
of Schedule 2 to imprisonment for life.
(2) Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in-
(a)
Part
II
of Schedule 2, in the case of-
(i) a
first offender, to imprisonment for a period not less than 15 years;
. . .
(3)
(a)
If
any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence’.
The
offence of murder committed by the appellant and his co-accused falls
under
Part I
of Schedule 2, whilst that of robbery with aggravating
circumstances falls under
Part 2
of Schedule 2.
[13]
In
S v
Malgas
[2001] ZASCA 30
;
2001 (2) SA 1222
(SCA),
the correct approach to establishing whether or not substantial and
compelling circumstances exist was set out in para 25
as follows:
‘
What
stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed
in some
of the previously decided cases and that it is they who are to judge
whether or not the circumstances of any particular
case are such as
to justify a departure. However, in doing so, they are to respect,
and not merely pay lip service to the Legislature’s
view that
the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate when crimes of the specified kind
are
committed.
In
Summary:
A.
Section 51
has limited but not eliminated the court’s
discretion in imposing sentence in respect of offences referred to in
Part 1
of Schedule 2 (or imprisonment for other specified periods for
offences listed in other parts of Schedule 2).
B.
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.
C.
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe standardised and consistent response from the
courts.’
[14]
The appellant’s counsel before this Court contended that the
appellant pleaded guilty which is a sign of remorse. In
S v
Mashinini
[2012] ZASCA 1
;
2012 (1) SACR 604
(SCA) para 24,
Mhlantla JA held:
‘
The
appellants did not verbalise any remorse. It was submitted on their
behalf that their plea of guilt may be an indication of
remorse. This
submission cannot prevail. It must be borne in mind that the
complainant knew the first appellant therefore the issue
of
identification of him as one of the rapists was not in dispute . . .
It is therefore clear that there was overwhelming evidence
against
the appellants. They had no choice, but to plead guilty. Their plea
under such circumstances can never be interpreted as
remorse’.
[15]
The appellant was arrested the day after the murder of the deceased.
He was found driving the deceased’s motor-vehicle
and items
stolen from the deceased’s home were recovered in it. In my
view, the appellant pleaded guilty because of the overwhelming
evidence against him. His plea of guilty can therefore never be
interpreted as remorse.
[16]
In his
s 112(2)
statement, the appellant stated that he is sorry and
deeply regrets his wrongful actions. He chose not to testify and his
bold
statement that he is sorry and regrets his actions could not be
tested. In
S v
Matyityi
[2010] ZASCA 127
;
2011 (1) SACR
40
(SCA) para 13, Ponnan JA remarked:
‘
Whether
the offender is sincerely remorseful and not simply feeling sorry for
himself or herself at having been caught is a 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
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.’
[17]
The statement made by the appellant in his
s 112(2)
statement to the
effect that he is sorry and deeply regrets his wrongful actions
cannot be tested and therefore cannot be of any
assistance to the
appellant.
[18]
The appellant’s counsel further submitted before this court
that at the time of the commission of these offences, the
appellant
was highly intoxicated and under the influence of drugs. This
submission is misplaced. The statement of the appellant
in terms of
s
112
only states that the appellant, his co-accused and the deceased
were consuming alcohol. There is no evidence which indicates that
the
appellant was intoxicated, nor how long they had consumed the alcohol
nor to what extent the appellant was affected by the
alcohol. There
is also no evidence that the appellant was under the influence of
drugs. In my view, in the circumstances of this
case, the fact that
the deceased consumed alcohol cannot be regarded as a mitigating
factor.
[19]
The appellant’s counsel submitted that in imposing the
prescribed minimum sentences the trial court erred in not finding
that the factors advanced in mitigation of sentence constituted
substantial and compelling circumstances which justify a deviation
from the prescribed minimum sentences. This submission is without
merits.
[20]
In
S
v
Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR
552
(SCA) para 58, Nugent JA observed that:
‘
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.’
The
appellant was convicted of serious crimes and his personal
circumstances must recede into the background. The personal
circumstances
of the appellant pale into insignificance when the
offences committed by him are considered. That being the position,
there are
no other factors which can justify the imposition of
sentences lesser than the prescribed minimum sentences.
[21]
In its judgment, the trial court took into account all the factors
relevant for sentencing, inter alia: the seriousness of
the offences;
the interest of the society; and the accused’s personal
circumstances as well as the mitigating and aggravating
factors. It
then came to the conclusion that when viewed cumulatively, the
mitigating facts and the personal circumstances of the
accused do not
justify a departure from the prescribed minimum sentences. In my
view, the approach adopted by the trial court is
correct and its
conclusion cannot be faulted. The sentences imposed by the trial
court are appropriate and fit the offender and
the crimes committed
and they are in the best interest of the society.
[22]
Therefore the following order is made:
The
appeal is dismissed.
_____________________
W
L SERITI
JUDGE
OF APPEAL
APPEARANCES
:
For
the Appellant:
N L Skibi
Instructed
by:
Legal Aid South
Africa Mahikeng Justice Centre, Mahikeng
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent: N G Munyai
Instructed
by:
The Director
of Public Prosecutions North West, Mahikeng
The Director of
Public Prosecutions Free State, Bloemfontein