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
>>
2010
>>
[2010] ZAWCHC 232
|
|
Davids v S (A 181/2010) [2010] ZAWCHC 232 (22 October 2010)
IN
DIE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A.181/2010
DATUM
:
22 OCTOBER 2010
In the appeal of:
FREDERICKS
DAVIDS
…..........................................................................
Appellant
and
THE
STATE
…............................................................................................
Respondent
JUDGMENT
MIA.
AJ
[1] On the 4
May 2009 the appellant, a farm worker was convicted of murder and
attempted murder. On the 15 May 2009 the appellant
was sentenced to
twenty years imprisonment on the first count and 10 years'
imprisonment on the second count. The Court a
quo
ordered
that five years of the sentence on the second count should run
concurrently with the sentence on the first count. The
appellant was
18 years and 9 months old
and
was employed by the deceased on his farm when the offences were
committed. The appellant pleaded guilty to the charges of
murder and
attempted murder.
[2] The
appellant was legally represented before the Court
a
quo
and
elected not to give evidence in mitigation. A Probation Officer's
report was compiled to assist the Court in gaining insight
into the
appellant's personal circumstances. The report also referred to a
consultation with the wife of the deceased who is
also the
complainant in the second count. The State, in order to place
aggravating circumstances before the Court, led her evidence.
The
Probation Officer's recommendation was that a period of imprisonment
was the only option available.
[3] With the
leave of the Court a
quo
the
appellant now appeals against sentence alone. In his notice of
appeal the appellant contends that the Court a
quo
erred
in overemphasising the seriousness of the crime and underemphasising
the personal circumstances of the appellant. Furthermore,
it was
argued that the trial Court underemphasised that the appellant was
very young when the offence was committed.
[4]
In
sentencing the appellant.
Zondi,
J
approached
the sentence on the basis that life imprisonment is the prescribed
sentence for murder which falls within the ambit
of section 51 of
Act 105 of 1997 and specifically Part I of Schedule 2, unless there
are substantial and compelling circumstances
which indicate that
there ought to be a departure from the prescribed sentence.
[5] The sole issue which must
be considered in this appeal is thus whether the sentence imposed on
the appellant is shocking or
disproportionate to the offence.
Background
[6] At the time of the
commission of the offence the appellant was employed by the deceased
and had recently been told to leave.
The appellant's parents had
also worked for the deceased but had left after there was a
difference of views regarding work to
be done. After the appellant's
father left his employment, the appellant continued working on the
farm. Three months prior to
the commission of the current offences,
the appellant was in prison for another crime.
[7] The evidence of the
complainant on count two was that she was requested by the deceased
to bake bread and cook meat for the
appellant in view of the fact
that he was residing on the farm without his family. There had been
a disagreement between the
appellant and the deceased resulting from
a disagreement over damaged farming implements. The appellant
alleged he was blamed
for this unfairly. As a result of this
disagreement, he was paid only part of the full month's salary. The
appellant was aggrieved
and even threatened the deceased. The
appellant indicates in his statement in terms of section 112(2) of
the Criminal Procedure
Act, Act 51 of 1977. at paragraph 4.2 as
follows:
"4.7 Ek het die oorledene
gedreig en aan horn gese dat hy sal sien wat ek met horn gaan maak."
[8] The appellant then
described how he persuaded the deceased to accompany him to his
place of residence on the pretext that
he wished to repair a pipe.
He then hit the deceased with a hammer and stabbed him with a knife
several times in the direction
of his neck area, upper body and
chest. After stabbing the deceased the appellant returned to the
stable where he found the deceased's
wife. He requested money from
her and when she would not acquiesce he stabbed her several times.
The deceased's daughter witnessed
this incident and ran to her room
wherein she locked herself. The appellant then went to a neighbour's
house, called the police
and. handed himself over to them on their
arrival. He was in custody since his arrest for approximately eleven
months.
[9] In the present matter the
appellant is a repeat offender, having committed at least four
housebreaking and theft offences
in his early teens. The appellant
was convicted of housebreaking with intent to steal and theft in
2003 but the passing of sentence
was postponed and he was placed
under supervision of a Probation Officer. He was convicted of
similar offences in January. March
and April 2004 and suspended
sentences were imposed. In 2005 he was found guilty of possession of
drugs and once more a suspended
sentence was imposed. Later in 2005
he was again convicted of housebreaking with intent to steal and
theft and was sentenced
to 18 months' direct imprisonment. In March
2008 he was found guilty of assault with intent to do grievous
bodily harm after
he had threatened a traffic officer with a knife
He was sentenced to 12 months' imprisonment in terms of S 276(1) (i)
of Act
51 of 1977.
[10] Notwithstanding his
punishment having been postponed in 2003 and having been referred to
a social worker to participate in
rehabilitation programmes, the
appellant went on to commit at least six more offences.
[11] The
Probation Officer's report indicates that his parents experienced
him as a "naughty" teenager who was involved
in crime
along with his peers From the record and the Probation Officer's
report there does not seem to have been an attempt
to rehabilitate
himself. The appellant has also not utilized the numerous
opportunities he had when his sentence was suspended
to change his
behaviour. Having regard to the previous offences, the offences
in
casu,
have
increased in gravity and the consequences for the community have
become dire with the passage of time.
[12] It was
submitted on behalf of the appellant that there is a degree of
disparity between the sentence imposed and that which
ought to have
been imposed such as to justify interference by this Court. The
submission that the Court a
quo
underemphasised
the appellant's young age is unfounded. The Court a
quo
in
fact mentions the tender age of the appellant and in fact found that
substantial and compelling circumstances exist to justify
a
deviation from the prescribed sentence.
[13] The Probation Officer
mentions in the report that the parents of the appellant have a
history of alcohol abuse and family
violence. It is evident from the
report that the appellant had to leave school to start working and
thus was deprived of a schooling
opportunity. This factor on its own
does not suffice to reduce the sentence imposed. The appellant was
exposed to life skills
programmes when his first sentence was
postponed. It appears that the opportunity to learn life skills was
presented at an early
age and before he progressed to further crimes
[14) The submission on behalf
of the appellant that the appellant was left without religious
foundation or a proper value system
is incorrect. The Probation
Officer's report is that the parents of the appellant attend church
every second week. This would
have exposed the appellant to some
religious foundation and a value system. The appellant's father also
experienced problems
with the deceased. This did not result in the
appellant's father retaliating negatively against the deceased.
[15] Having regard to the
circumstances surrounding his dismissal, it may well have been that
he was disenchanted by the reduced
wage/salary that he received,
however, the response in relation to the problem it posed was
inappropriate and disproportionate
to the dispute that existed
between the appellant and the deceased.
Finding
[16] The
autopsy report as well as the J88 have reflected a gruesome picture.
Having regard to the purpose of punishment and the
seriousness of
the offences, the only appropriate sentence is a long term of
imprisonment.
Zondi,
J
had
regard to the youthfulness of the appellant as well as his
upbringing as indicated in the record at paragraph 22. Further,
at
paragraph 25, the Court a
quo
notes
that the appellant's youth as well as his plea of guilty are both
indications of remorse. In the light of the aforementioned,
the
Court a
quo
had
regard to the provisions of section 51(3)(b) and found that the
appellant's youthfulness constituted a substantial and compelling
reason to justify imposing a lesser sentence. There is no disparity
between the sentence and the gravity of the offences. In
the result
the sentence is not shocking or inappropriate and I can find no
reason to interfere with the sentence handed down
by
Zondi.
J
.
Order
[17] For the reasons given, I
propose that the appeal against the sentence should be dismissed.
MIA, AJ
I agree.
NDITA,
J
I agree and it is so ordered
HLOPHE,
JP