About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 224
|
|
S D P v The State (940/2013) [2014] ZASCA 224 (28 November 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No 940/2013
In
the matter between:
S
D
P
.....................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
D P v The State
(940/13)
[2014] ZASCA 200
(28 November 2014).
Coram:
Brand, Willis JJA
et
Meyer AJA
Heard:
26 November 2014
Delivered:
28 November 2014
Summary:
Sentence – two charges of murder
and one of theft – mitigating factors – relied upon in
the main – youthfulness
and influence of ‘drugs’ –
sentence of 12 years imposed by high court – interference on
appeal unwarranted.
ORDER
On
appeal from:
Circuit Local Division of
the High Court for the Delmas Circuit District (Carelse J sitting as
court of first instance):
The
appeal against sentence is dismissed.
JUDGMENT
Brand
JA
(Willis JA and Meyer AJA
concurring):
[1]
This is an appeal against sentence. The appellant is S d P. He was
born on 10 April 1993. During the evening of 6 December 2010,
when he
was seventeen years and eight months old, he brutally assaulted and
killed his adoptive parents, Mr S W and Mrs T d P in
the family home
at [...] Street, Dunnottar in the district of Nigel. Thereafter his
friend, Mr M L, who was 23 years old at the
time, assisted him
literally to dump the bodies of his parents in a veld near Brakpan.
The two of them then sold some of the deceaseds’
belongings in
order to buy drugs.
[2]
Arising from these events, the appellant and L appeared before
Carelse J and two assessors in the Circuit Local Division of
the High
Court for the Delmas District on two charges of murder and one of
theft. The appellant pleaded guilty as charged while
L pleaded guilty
on the charge of theft and as an accessory after the fact to the
murder charges. In the event, they were convicted
in accordance with
their pleas and sentenced as follows: the appellant to twelve years’
imprisonment on each of the two murder
charges and two years’
imprisonment on the charge of theft. It was, however, ordered in
terms of
s 280(2)
of the
Criminal Procedure Act 51 of 1977
, that
all three sentences should run concurrently. The effective sentence
imposed on L on the three charges was six years’
imprisonment.
L did not appeal his sentence. The appellant, on the other hand,
exercised his automatic right of appeal to this
court in terms of
s 84
of the
Child Justice Act 75 of 2008
.
[3]
Neither the appellant nor L gave evidence at the trial. As to what
happened during the fateful night of 6 December 2010, we
are
therefore largely dependent, firstly, on what the two of them said in
their respective statements following upon their guilty
pleas, as
envisaged by
s 112
of the
Criminal Procedure Act and
, secondly,
on the accounts given by the appellant to the experts who interviewed
him in preparation for their evidence during the
sentencing
proceedings. Further obfuscation is added by the substantial
conflicts in the appellant’s disparate accounts.
The same
uncertainty essentially arises with regard to the appellant’s
childhood background and his relationship with his
late parents. Save
that in case of the latter some more objective assistance can be
derived from the testimony of his parental
grandmother – who
was called to testify on his behalf – and of his father’s
brother – Dr J d P –
who was called on behalf of the
State.
[4]
The narrative that follows must thus be read subject to the inherent
unreliability of the appellants’ varying accounts
as the
untested main source in certain crucial areas. The d Ps, who were
both qualified pharmacists, were unable to have children
of their
own. They therefore adopted the appellant when he was five days old.
As appears from the introduction, he was named after
his father. Mrs
d P stopped working to spend time with the appellant. The appellant
only learnt that he was an adopted child when
he was eleven years
old. By all accounts, the news had a seriously detrimental effect on
him because he felt that he had been abandoned
by his biological
parents. He also blamed his adoptive parents for not telling him
earlier. Another occurrence which, according
to the appellant’s
version, had a severely negative influence on him was when, at the
age of fifteen, his cricket coach,
for whom he had high regard,
molested him by touching him inappropriately on two occasions.
[5]
At the age of about twelve the appellant started using alcohol. By
the age of fourteen he had added cannabis, crack and heroin
to his
list of abuse. To feed his habit, he started stealing from his
parents. On occasion, he broke into his father’s pharmacy.
When
his parents found out about his drug abuse, they first enrolled him
in a private school and then had him admitted to rehabilitation
centres on two occasions. The last of these was during 2010 when he
spent ten months in the Nieuwenfontein Centre near De Aar.
It is
there that he met L and the two of them entered into a very close
association.
[6]
The appellant’s relationship with his mother was not good.
Although she was the one who stayed at home and, for example,
regularly took him to cricket practice there were constant arguments
between them. It appears that Mrs d P had drinking problems
of her
own which exacerbated the intensity of these arguments. By contrast,
the appellant’s relationship with his father
was a good one. By
all accounts Mr d P was a soft-hearted person who often played the
role of peacemaker between the appellant
and his mother. After the
death of Mr d P, a letter, which he wrote to the appellant, was
discovered in his safe. This letter,
which was handed in at the
trial, was a moving one. Every paragraph starts with ‘I am
sorry’ which Mr d P underlined.
He then proceeded to apologise
for the things he thought he had done wrong – such as not
spending enough time with his son
– which he obviously believed
contributed to his son’s life going so wrong.
[7]
This brings me to the tragic events of 6 December 2010. According to
the appellant, he spent the day drinking and smoking crack
or ‘rock’
with a friend. When they ran out of drugs he went home to obtain more
money. He arrived there at about 5pm.
His parents were not at home so
he proceeded to drink six beers from the fridge. When his parents
eventually arrived some two or
three hours later, he asked them for
money. They were both intoxicated and an argument ensued. He was
followed to his room by his
mother who continued to argue with him
about his drug abuse which made him very angry. His father also said
that it would perhaps
be better if he left the house. When his father
turned around, he hit him with a cricket bat behind the head. His
mother then tried
to attend to his injured father whereupon he hit
her with the bat behind the head as well. He must have hit them very
hard because
the post mortem reports reveal that they both sustained
fractures to the skull.
[8]
While both his parents were lying motionless in the hallway, so the
appellant said, he took R400 from his father’s cupboard
for
drugs. He then telephoned L to come and help him. L indicated that he
was only willing to help if the deceased were both dead.
As a result,
the appellant took a knife from the kitchen; he turned his mother on
her back and stabbed her in the chest several
times. Although the
appellant could not remember how many times he stabbed her, the post
mortem report reflects more than twenty
stab wounds. He then turned
his father over and stabbed him about twenty times as well.
[9]
Thereafter the appellant took his mother’s car and drove to
Brakpan where he met L. They bought and used crack and heroin
whereafter they returned to his parents’ home. His mother was
still in the hallway, but his father was no longer there. He
was
lying on his bed in the main bedroom. He was still alive. The
appellant wanted L to put his father to death, but the latter
would
not do so. The appellant thereupon finally executed his father –
according to the post mortem reports and the photographs
handed in at
the trial – by slitting his throat from ear to ear. The
appellant and L then wrapped the two bodies in blankets
and placed
them in Mr d P's Landrover. L drove off in the Landrover while the
appellant followed in his mother’s car. They
dumped the bodies
in a veld near Brakpan and abandoned the Landrover in Daveyton to
suggest a hijacking. Thereafter the appellant
went to his
grandmother’s house from where he telephoned the police to
report that his parents had disappeared.
[10]
One of the experts called on behalf of the appellant during the
sentencing proceedings was Dr Johanna Meeding, a general practitioner
specialising in the treatment of drug abuse. According to her
evidence, crack – also known by the colloquial term ‘rock’
– is cocaine in solid form. Unlike cocaine, which is usually
inhaled in powder form, crack is heated and inhaled as a vapour.
It
produces a state of intense euphoria which only lasts for about five
to ten minutes. After this follows a state of agitation,
paranoia and
confused thinking which often leads to violence and homicide. Because
of these unpleasant after-effects which follows
the state of
euphoria, the user often compulsively smokes again which creates an
irresistible craving for the drug. Although Dr
Meeding never spoke to
the appellant and did not know how much crack he had used, she was
quite confident in her view that the
appellant’s conduct on the
fatal night of 6 December 2010 should be ascribed to his imbibing
drugs and alcohol.
[11]
Although somewhat more nuanced, the views of the other experts on
behalf of the appellant demonstrated the same recurring theme:
that
the appellant’s conduct should be blamed on his drug abuse and
that he should therefore be treated in a rehabilitation
centre rather
than punished for his deeds. Sensitive to this approach, Carelse J
called a witness who is employed as a social worker
by the Department
of Correctional Services. She pertinently asked him about the
rehabilitation programmes provided by the department,
particularly
with regard to drug dependence. According to his evidence, the most
sophisticated programme for rehabilitation of
these prisoners is
offered by the Zonderwater Prison, which has a good success rate in
the rehabilitation of drug addicts, partly
by reason of the fact that
it is a high security prison. In this light, the court a quo
recommended that the appellant be detained
in the Zonderwater Prison
during the period of his imprisonment. In addition, the court
directed the Department of Correctional
Services to render a full
report to the Registrar of the Court rgarding the rehabilitation
programme followed by the appellant,
within a period of three years.
[12]
The contention on behalf of the appellant was that the sentence of
twelve years’ imprisonment was shockingly inappropriate.
In
support of this contention the appellant sought to rely on four
mitigating factors, namely: (a) youthfulness; (b) influence
of drugs;
(c) provocation; and (d) influence of an older person. The latter two
considerations are, in my view, unsustainable on
the facts. Hence I
propose to deal with them first.
[13]
As to the contention that the appellant was provoked by his parents
before he killed them, it needs to be borne in mind that
what we are
looking for in this context is provocation that reduced the moral
blameworthiness of the appellant’s conduct.
That being so, I
cannot see how an argument which arose from the parents’
refusal to give the appellant more money for drugs
qualifies as such.
The proposition that the appellant was acting under the influence of
L, was equally unsupported by evidence.
The mere fact that L was five
years older than he does not justify that inference. In addition, it
will be remembered that the
appellant contacted L only after he had
already viciously attacked his parents.
[14]
The appellant’s youthfulness, on the other hand, is clearly
mitigatory. As Cameron J said in
Centre for Child Law v Minister
of Justice and Constitutional Development & others
2009 (2)
SACR 477
(CC) paras 26 and 28:
‘
The
Constitution draws this sharp distinction between children and adults
not out of sentimental considerations, but for practical
reasons
relating to children's greater physical and psychological
vulnerability . . . They are less able to protect themselves,
more
needful of protection, and less resourceful in self-maintenance than
adults . . . These are the premises on which the Constitution
requires the courts and Parliament to differentiate child offenders
from adults. We distinguish them because we recognise that
children's
crimes may stem from immature judgment, from as yet unformed
character, from youthful vulnerability to error, to impulse,
and to
influence. We recognise that exacting full moral accountability for a
misdeed might be too harsh because they are not yet
adults. Hence we
afford children some leeway of hope and possibility.’
[15]
But that is not the whole picture. The other side is portrayed with
the same clarity by Cameron J when he continued (para 29):
‘
This
is not to say that children do not commit heinous crimes. They do.
The courts, which deal with child offenders every day, recognise
this
no less than Parliament . . . The Constitution does not prohibit
Parliament from dealing effectively with these offenders.
The
children's rights provision itself envisages that child offenders may
have to be detained. The constitutional injunction that
“(a)
child's best interests are of paramount importance in every matter
concerning the child” does not preclude sending
child offenders
to jail. It means that the child's interests are “more
important than anything else”, but not that
everything else is
unimportant: the entire spectrum of considerations relating to the
child offender, the offence and the interests
of society may require
incarceration as the last resort of punishment.’
(See
also
Director of Public Prosecutions,
KwaZulu-Natal v P
2006 (1) SACR 243
(SCA) para 19.)
[16]
When one looks at the offences under present consideration and the
interests of society, I can come to one conclusion only:
the offences
for which the appellant had been convicted were so severe that
incarceration cannot be avoided. In that sense it is
‘the last
resort of punishment’. The cruel and savage way in which the
appellant killed two people who were kind to
him; who sustained him
from the early age of five days; who tried to deal with his drug
addiction; who treated him as their own
child, fills one with
revulsion. It boggles the mind. The fact that they may not have been
perfect parents does not detract from
this. Very few parents are. The
mistakes they might have made in his upbringing do not begin to
justify the brutal attack on them.
Any attempt by the appellant and
his experts to suggest otherwise, are completely devoid of merit. Any
sentence which fails to
recognise the severity of these crimes may
lead to society losing its confidence in the criminal justice system.
Especially in
a society where violence has become prevalent and
endemic, one simply cannot afford that risk.
[17]
Another factor which is clearly mitigatory is that the appellant had
a substance dependence problem and that, at the crucial
time, he was
under the influence of narcotic drugs. In fact, it must be accepted
that the abhorrent nature of the crimes must,
at least to some
extent, be ascribed to that influence. Precisely by reason of the
fact that the appellant had failed to take the
court into his
confidence, the exact degree of that influence will, however, remain
obscure. It is true that some of the appellant’s
experts tend
to blame it all on the influence of drugs. That diagnosis is
accompanied by the proposition that the appellant should
be committed
for treatment under the Prevention and Treatment of Drug Dependency
Act 20 of 1992 – now the Prevention of and
Treatment for
Substance Abuse Act 70 of 2008, which came into operation on 30 March
2013.
[18]
It must be remembered, however, that medical experts, by the nature
of their profession, have a different perspective. Their
purpose is
to diagnose, to heal and to rehabilitate their patients. As a rule
they do not have to consider the perspectives which
the courts ar
obliged to keep in view. Our sentencing function is quite different.
Apart from rehabilitation we also need to have
regard to other
interests such as prevention and rehabilitation. To focus exclusively
on the well-being of the accused person is
likely to result in a
distorted and warped sentence (see eg
S
v Lister
1993 (2) SACR 228
(A) at
232e-i).
[19]
The sentencing judge committed no misdirections. Once direct
imprisonment is recognised as the only appropriate sentence in
this
case, our authority to interfere on appeal is rather limited. I say
that because it is difficult to think of a period of imprisonment
which is appropriate in the circumstances, and at the same time so
much less than twelve years that this sentence can be labelled
shockingly harsh. This is especially the case where the court a quo’s
judgment reflects a well-considered balancing of all
the disparate
interests involved. In consequence I do not believe that we are
entitled to interfere with the imposed sentence.
[20]
For these reasons the appeal against sentence is dismissed.
___________________
F
D J BRAND
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: F van As
Instructed by:
Legal Aid SA,
Pretoria
c/o
Justice Centre, Bloemfontein
For
the Respondent: J J Jacobs
Instructed by:
Director of Public
Prosecutions, Pretoria
c/o Director of
Public Prosecutions, Bloemfontein