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[2011] ZASCA 46
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S v Romer (412/10) [2011] ZASCA 46; 2011 (2) SACR 153 (SCA) (30 March 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 412/10
In the matter between:
THE STATE
.......................................................................................
Appellant
and
STEPHEN ROMER
.......................................................................
Respondent
Neutral citation:
State
v Romer
(412/10)
[2011] ZASCA 46
(30 March 2011)
Coram:
LEWIS, BOSIELO JJA
and PETSE AJA
Heard:
25 February 2011
Delivered: 30 March 2011
Summary:
Sentence ─
Murder and attempted murder committed when respondent in a state of
diminished responsibility ─ Sentence
of ten years’
imprisonment wholly suspended, coupled with a sentence of
correctional supervision ─ appeal by state.
___________________________________________________________
ORDER
On appeal from:
Eastern
Cape High Court (Port Elizabeth) (Jansen J as court of first
instance):
Both the application for leave to
lead further evidence by the respondent and the appeal against
sentence by the State are dismissed.
__________________________________________________________
JUDGMENT
PETSE AJA (LEWIS and BOSIELO JJA
concurring)
[1] The respondent, Mr S Romer,
was convicted by Jansen J in the Eastern Cape High Court, Port
Elizabeth on one count of murder
and two counts of attempted murder.
The high court found, however, that Romer was in a state of
diminished responsibility (though
not acting as an automaton) at the
time of the shootings. Romer was sentenced to ten years’
imprisonment wholly suspended
for five years on the usual conditions.
In addition he was sentenced to three years’ correctional
supervision in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51
of 1977
. An application for leave to appeal by the State in terms of
s 316B
of the Act was refused by the court a quo but was subsequently
granted by this court.
[2] The murder and attempted
murder charges against Romer arose when Romer shot three people in
Port Elizabeth on 17 October 2007.
Mr G du Mordt was fatally wounded
and Ms K Heuer and Mr E G Janse were seriously injured. The shooting
incidents took place at
three different locations and were witnessed
by various witnesses, amongst whom were police officers who pursued
Romer as he drove
from one crime scene to the other. Romer was
arrested and detained on the same day after having been cornered by
the police.
[3] The appeal before us is
brought by the State which contends that the sentence imposed on
Romer is disturbingly lenient given
the serious consequences of his
conduct, and thus warrants interference by this court.
However, before I turn to
consider this question there is a preliminary issue that requires to
be addressed and it is this. Romer
brought an application (opposed by
the State) in terms of s 22(a) of the Supreme Court Act 59 of 1959 to
adduce further evidence
on appeal in relation to the sentence
imposed. We refused the application, for the reasons that follow.
[4] The further evidence is
contained in two affidavits. The first one is that of Ms A Ferreira
who is the social worker responsible
for monitoring the correctional
supervision and community service of Romer. The second is that of Dr
Y Lucire who describes herself
as a medical practitioner,
specialising in forensic and medico-legal psychiatry, who formerly
practised in the State of New South
Wales, Australia.
[5] Ferreira’s evidence
pertains to facts which occurred after the imposition of sentence on
Romer. The purpose of the affidavit
is to demonstrate to this court
that the conditions imposed by the court a quo have been complied
with by Romer who has been fully
integrated as a useful member of
society. This is of no relevance to the appropriateness of the
sentence at the time of its imposition.
[6] The evidence of Lucire seeks
to bolster Romer’s case that when he committed the crimes he
was suffering from sane automatism.
The same evidence was adduced
when he sought leave from this court to appeal against his
conviction. Leave was refused and the
application to place Lucire’s
evidence before the court was accordingly also refused. Its relevance
to the question of sentence,
as I understood Ms Crouse, counsel for
Romer, was that the evidence was the basis of his opposition to the
appeal: that at all
material times he was acting under circumstances
of severe diminished responsibility.
[7] Section 22 of the Supreme
Court Act provides:
‘
The
appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power ─
(a) on the hearing
of an appeal to receive further evidence, either orally or by
deposition before a person appointed by such division,
or to remit
the case to the court of first instance, or the court whose judgment
is the subject of the appeal, for further hearing,
with such
instructions as regards the taking of further evidence or otherwise
as to the division concerned seems necessary; and
(b) . . . .’
[8] It is
trite that s 22 vests in the appeal court a wide discretion to
receive further evidence in order to do justice between
the parties.
However the circumstances under which the appeal court will exercise
such discretion are circumscribed and the factors
to be borne in mind
in the exercise of such discretion have crystallised over the years.
This court almost a century ago (dealing
with a similar provision
contained in s 4 of the Appellate Division Further Jurisdiction Act 1
of 1911) held in
Shein
v Excess Insurance Company Ltd
1
that the
following are some of the factors to be borne in mind: (a) neither
party should be placed at an unfair advantage by the
reception of
further evidence; (b) special grounds should be fully set out
substantiating the application; (c) the nature of the
further
evidence sought to be adduced must be set out, including its material
relevance to the issue on appeal; (d) the appeal
court should not
lightly exercise its power in favour of granting the application more
especially on points which have been contested
and decided at the
trial; and (e) there should be some reasonably sufficient
explanation, based on allegations which may be true,
why the evidence
which is sought to be adduced was not led at the trial.
[9] It is thus
apparent that, ordinarily, the appeal court will receive further
evidence on appeal only if special grounds underlying
such request
exist, such as that the evidence was either not available during the
trial or could not have been obtained despite
due diligence to
procure it.
2
[10] There are
two fundamental objections to allowing Lucire’s evidence.
First, it is not capable of being properly tested
in this court. In
In
Re Certain Amicus Curiae Applications: Minister of Health &
others v Treatment Action Campaign & others
3
the
Constitutional Court, in the context of an application to place
further evidence before that court, said:
‘
[H]owever,
this is subject to the condition that such facts “are common
cause or otherwise incontrovertible” or “are
an official,
scientific, technical or statistical nature, capable of easy
verification”. This Rule has no application where
the facts
sought to be canvassed are disputed.’
Lucire’s evidence, on her
own account, is controversial. Secondly, it is relevant only to
Romer’s conviction, and that
is not the subject of the appeal.
There is no basis for its admissibility. And as indicated, Ferreira’s
evidence is irrelevant
to the imposition of sentence.
[11] I turn then to the question
of the appropriateness of the sentences imposed on Romer. As
indicated earlier, Romer was charged
with one count of murder and two
counts of attempted murder. He pleaded not guilty and raised a
defence of sane automatism substantiated
by a comprehensive written
plea explanation under
s 115
of the
Criminal Procedure Act. The
State
called several witnesses, one of whom was Professor Visser, a member
of the panel that examined the accused at Fort England
Hospital in
Grahamstown, pursuant to an order made under
s 79
of the
Criminal
Procedure Act. Romer
testified in his defence and called three other
witnesses: his son, Mr Derick Romer, Mr Ian Meyer who is a clinical
psychologist
practising in Port Elizabeth and Professor Daya who was
the Head of the Pharmacology Department at Rhodes University,
Grahamstown.
[12] The evidence relating to the
three shooting incidents in various streets of Port Elizabeth and the
fact that the accused fired
shots through the driver’s window,
windscreen and front passenger window of his motor vehicle whilst
occupying the driver’s
seat was largely common cause and need
not be traversed here. It was also not disputed that shortly before
the shootings, Romer
had visited a friend, drunk a beer and had
agreed to return to the friend’s home later in the evening for
a braai. The evidence
of his friend that he had appeared normal at
the time was also not contested.
[13] The evidence of the three
experts who testified at the trial was directed at establishing
whether Romer, in firing such shots,
was acting in a state of sane
automatism at the time. Visser for the State was of the view that he
was not, whereas both Meyer
and Daya held the opposite view.
[14] Romer’s bizarre
conduct on the day when he shot three strangers, randomly and at
different places, was attributed by
his expert witnesses to an intake
of anti-depressant medication that had been prescribed for him by
various doctors including psychiatrists
as well as over-the-counter
medication. He had consulted doctors about his emotional upheaval
triggered by the disintegration of
his marriage. Romer’s
depression had begun in December 2001 when he had caught his wife
with her lover, and subsequently
divorced her.
[15] In December 2001 he was
admitted to St Mark’s Clinic in East London where he was
diagnosed by a psychiatrist as having
an adjustment disorder. He was
treated as an in-patient for two weeks and medication was given to
him. He was thereafter on several
occasions re-admitted to St Mark’s
Clinic for treatment. His successful career as a car salesman in East
London came to an
abrupt end.
[16] During 2007 Romer moved to
Port Elizabeth where he stayed with his son, Derick, who testified
that there had been a steady
deterioration of Romer’s mental
state from the end of 2000 which rendered him a shell of his former
self. On occasions Romer
would remain in bed for up to a week at a
time, getting up only for short periods. Derick observed Romer
experiencing frequent
nightmares, accompanied by violent tremors.
There came a point when Derick could no longer cope with living
together with his father
in his house and requested him to leave.
Romer then went to live with a relative, Gary Romer, in Sardinia Bay
in the Port Elizabeth
district.
[17] Meyer’s view was that
when Romer fired shots at his victims he was not acting rationally:
his acts were a consequence
of the combined effects of depression
aggravated by the intake of anti-depressants, and the taking of four
sleeping pills the night
before the shootings. This, testified Meyer
and Daya, resulted in Romer’s automatism.
[18] However, the high court
found that although Romer had suffered from diminished responsibility
he had not acted in a state of
sane automatism when shooting. The
court accepted the evidence of Visser that Romer had been able to
direct his actions: he had
driven some distance, in peak traffic, in
unfamiliar areas and through traffic circles and lights. He had, for
the most part, obeyed
traffic rules. He had deliberately tried to
evade police vehicles, driving at speed to escape them. Accordingly,
he was not acting
as an automaton when he shot his three victims.
[19] But the
court, in imposing sentence, did place great emphasis on Romer’s
condition, induced by drugs. Of course Romer’s
conduct and its
consequences are horrific. They could be aptly described in the words
of Marais JA in
S
v Roberts
4
where he said
that
‘
[v]iewed
objectively and in isolation’ the crimes were ‘horrific’.
[20] In considering what a
suitable sentence should be that would satisfy the objectives of
punishment the court a quo took cognisance
of the following factors:
‘
(a)
that Romer had committed the crimes under circumstances of severe
diminished responsibility; (b) that he expressed genuine contrition;
(c) that he took full responsibility for the hardship, misery and
agony that he caused to his victims and members of their families;
(d) that when symptoms of his emotional disintegration precipitated
by the irretrievable breakdown of his marriage caused by his
wife’s
infidelity manifested themselves he sought professional help; (e)
that he was prescribed drugs by doctors which far
from alleviating
the state of his emotional upheavals aggravated it; (f) that the
accused had over an extended period of time in
his adult life lived a
model and exemplary life; (g) that the accused was no longer taking
drugs, abstained from alcohol, undergoing
counselling and
psychological therapy which all evinced a determination on his part
to rehabilitate himself; (h) that the chances
of him ever repeating
what he did were extremely remote; and (i) that imposing direct
imprisonment in order to deter others would
serve no useful purpose
but rather amount to sacrificing Romer on the altar of deterrence.’
This approach is, in my respectful
view, unassailable.
[21] By way of prelude I want to
say that had I sat as the court of first instance I would in all
probability have imposed a direct
custodial sentence with a portion
suspended on suitable conditions, given that Romer acted with
diminished responsibility. But
we are a court of appeal.
[22] It has
been held in a long line of cases that the imposition of sentence is
pre-eminently within the discretion of the trial
court. The appellate
court will be entitled to interfere with the sentence imposed by the
trial court only if one or more of the
recognised grounds justifying
interference on appeal has been shown to exist.
5
Only then will
the appellate court be justified in interfering. These grounds are
that the sentence is ‘(a) disturbingly inappropriate;
(b) so
totally out of proportion to the magnitude of the offence; (c)
sufficiently disparate; (d) vitiated by misdirections showing
that
the trial court exercised its discretion unreasonably; and (e) is
otherwise such that no reasonable court would have imposed
it.’
See
S
v Giannoulis
;
6
S v
Kibido
;
7
S v
Salzwedel & others
.
8
[23] In
S
v Matlala
9
it was held
that in an appeal against sentence the fact that the sentence imposed
by the trial court is wrong is not the test. The
test is whether the
trial court in imposing it exercised its discretion properly or not.
Consequently, the circumstances in which
an appellate court will
interfere with the exercise of such discretion are circumscribed. In
S
v Sadler
10
Marais JA,
writing for a unanimous court, had occasion to re-state them when he
said the following:
‘
The
approach to be adopted in an appeal such as this is reflected in the
following passage in the judgment of Nicholas AJA in
S
v Shapiro
1994
(1) SACR 112
(A) at 119j-120c:
“
It
may well be that this Court would have imposed on the accused a
heavier sentence than that imposed by the trial Judge. But even
if
that be assumed to be the fact, that would not in itself justify
interference with the sentence. The principle is clear: it
is
encapsulated in the statement by Holmes JA in
S
v Rabie
1975
(4) SA 855
(A) at 857D-F:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal ─
should be guided by
the principle that punishment is ‘pre-eminently a matter for
the discretion of the trial Court’,
and
should be careful
not to erode such discretion: hence the further principle that the
sentence should only be altered if the discretion
has not been
‘judicially and properly exercised’.
The test under (b)
is whether the sentence is vitiated by irregularity or misdirection
or is disturbingly inappropriate”.’
Counsel for the
State submitted that the trial court had misdirected itself in
various material respects when imposing sentence.
I do not find it
necessary to reach any firm conclusion in that regard. I shall assume
in favour of respondent that no such misdirections
exist.
The traditional
formulation of the approach to appeals against sentence on the ground
of excessive severity or excessive lenience
where there has been no
misdirection on the part of the court which imposed the sentence is
easy enough to state. It is less easy
to apply. Account must be taken
of the admonition that the imposition of sentence is the prerogative
of the trial court and that
the exercise of its discretion in that
regard is not to be interfered with merely because a appellate Court
would have imposed
a heavier or lighter sentence. At the same time it
has to be recognised that the admonition cannot be taken too
literally and requires
substantial qualification. If it were taken
too literally, it would deprive an appeal against sentence of much of
the social utility
it is intended to have. So it is said that where
there exists a ‘striking’ or ‘startling’ or
‘disturbing’
disparity between the trial court’s
sentence and that which the appellate Court would have imposed,
interference is justified.
In such situations the trial court’s
discretion is regarded (fictionally, some might cynically say) as
having been unreasonably
exercised.
The problem is to
give practical content to these notions. The comparison involved in
the exercise may sometimes be purely quantitative,
say three years’
versus six years’ imprisonment or a fine of R50 000 versus a
fine of R100 000, or it may be qualitative,
say a custodial versus a
non-custodial sentence. Where quantitative comparisons are involved
there is the problem of deciding how
great the disparity must be
before it attracts the epithet ‘striking’ or ‘startling’
or ‘disturbing’.
Where qualitative comparisons are
involved one faces a similar problem. When compared with a sentence
of wholly suspended imprisonment
which an appellate Court considers
would have been appropriate, a trial court’s decision to impose
a substantial fine with
an alternative of imprisonment may not be
regarded as giving rise to a disparity of that character. As against
that, the distinction
which exists between a non-custodial and a
custodial sentence, as those terms are commonly understood, is so
generally recognised
to be profound and fundamental that, save
possibly in rare instances, the conclusion that a custodial sentence
was called for where
a non-custodial sentence has been imposed (or
vice versa) will justify interference with the sentence imposed.’
[24] In imposing sentence the
high court had regard, inter alia, to a probation officer’s
report that had been prepared at
its behest and took into account the
recommendations of the probation officer. It is not necessary, for
present purposes, to traverse
the various grounds of appeal against
sentence relied upon by the State. It suffices merely to record that
the common thread running
through all of them is that the trial court
overemphasised the personal circumstances of Romer at the expense of
the gravity of
the crimes committed, the interests of society and the
interests of the victims.
[25] Mr Nel SC, who appeared for
the State, sought to persuade us that it was manifest from the
sentence imposed by the court a
quo that the learned judge
misdirected himself in several respects. He stressed that, given the
gravity of the offences of which
Romer was convicted, a long term of
imprisonment was called for and that the court erred in suspending
the sentence when in the
nature of things a sentence of 15 years’
imprisonment would have been appropriate.
[26] In my
view there are at least two fundamental fallacies inherent in Mr
Nel’s submission. First, this argument entirely
ignores the
fact that the term of ten years’ imprisonment, albeit wholly
suspended, is in itself punishment. Second, in
S
v Shapiro
11
this court had
occasion to observe (remarks that I find apposite in this context)
that:
‘
[Counsel
for the State’s] main argument was that although he did not
dispute [the opinion of the psychologist called by the
defence], this
Court should not lose sight of the unchallenged evidence of
independent by-standers, that Shapiro’s actions
appeared to be
cool, calm and calculated. Outwardly he gave no sign of emotional
confusion. Moreover, the provocation he experienced
was limited. He
brutally executed a man who was helpless and dying. He acted without
compunction, and thereafter showed a callous
indifference to what he
had done.
The
assumption underlying this argument is that the conduct of a person
who has been found to have diminished criminal responsibility
is to
be measured by the same yardstick as the conduct of a person with
undiminished criminal responsibility. Such an assumption
is
fallacious, for a person who has diminished criminal responsibility
is by definition a person with a diminished capacity to
appreciate
the wrongfulness of his act, or to act an accordance with an
appreciation of its wrongfulness.
’
(
My
emphasis
.)
The learned
acting judge of appeal went on to say this:
12
‘
I
do not think that in the light of the finding of diminished
responsibility this case is one which is clamant for retribution.
It
does not appear from the evidence that Shapiro is likely to again
commit a violent crime. He has no previous convictions relevant
to
show propensity for violence. It does not seem that he is a danger to
society which would call for his separation from the community
for a
long time. In regard to the deterrence of others, it does not seem to
me that in the present case a long prison sentence
is called for. The
concatenation of circumstances was highly unusual and is unlikely to
occur again.’
[27] I also
understood Mr Nel to contend that the sentence of correctional
supervision was not only a slap on the wrist but also
had the effect
of trivialising the gravity of the crimes committed by Romer with no
deterrent effect on both Romer himself and
other would-be offenders.
To underscore his contention Mr Nel asked, somewhat indignantly,
whether ‘picking up cigarette
ends’ (what he termed
stompies) at a police station was an appropriate punishment when,
given the gravity of the crimes committed
by Romer, the retribution
element of punishment should have been brought to the fore. I do not
agree. More than a decade ago this
court recognised the utility of a
sentence of correctional supervision. In
S
v R
13
Kriegler AJA
was at pains to point out that the statutory dispensation introduced
by
s 276(1)(h)
of the
Criminal Procedure Act (viz
correctional
supervision) was intended to distinguish between two types of
offenders, namely those who ought to be removed from
society and
imprisoned and those who, although deserving of punishment, should
not be removed from society. He exhorted judicial
officers to take
advantage of this statutory provision in appropriate cases.
[28] There are
two other pertinent decisions of this court that followed
S
v R
.
The first is
S
v Ingram
14
where the
accused was sentenced to eight years’ imprisonment for shooting
and killing his wife. Smalberger JA had the following
to say in
relation to s 276(1)(h) of the Act at 8j-9c:
‘
Murder,
in any form, remains a serious crime which usually calls for severe
punishment. Circumstances, however, vary and the punishment
must
ultimately fit the true nature and seriousness of the crime. The
interests of society are not best served by too harsh a sentence;
but
equally so they are not properly served by one that is too lenient.
One must always strive for a proper balance. In doing so
due regard
must be had to the objects of punishment. In this respect the trial
Judge held, in my view correctly, that the deterrent
aspect of
punishment does not play a major role in the present instance. The
appellant is not ever likely to repeat what he did.
Deterrence is
therefore only relevant in the context of the effect any sentence may
have on prospective offenders. A suspended
period of imprisonment is
accordingly rendered largely superfluous.’
[29] The
second is
S
v D
15
in which
Nicolas AJA expressed himself in these terms:
‘
In
its nature a sentence of correctional supervision is not
denunciatory. It does not follow, however, that such a sentence is
necessarily inappropriate because the case is one which excites the
moral indignation of the community. The question to be answered
is a
wider one: whether the particular offender should, having regard to
his personal circumstances, the nature of his crime and
the interests
of society, be removed from the community.’
[30] Finally
on this point there is also the minority judgment of Cloete JA in
Director
of Public Prosecutions, Transvaal v Venter
16
where he said:
‘
So
far as the deterrence is concerned, the respondent is a first
offender; there is no suggestion that he is a violent person ─
indeed the panel of psychiatrists found that his amnesia was in
keeping with a suppression of events which were “out of
character with his personality”; and it does not seem that the
respondent is a danger to society at large, so his removal
from the
community for a long time is not necessary for that reason. In such
circumstances, this court has repeatedly held that
deterrence of a
person who commits murder acting with diminished responsibility, is
not an important factor when it comes to punishment:
see, for
example,
S
v Campher
[1987
(1) SA 940
(A) at 964C-H and 967D-E];
S
v Smith
[1990
(1) SACR 130
(A) at 136b);
S
v Ingram
[1995
(1) SACR 1
(A) at 96]; and
S
v Shapiro
[1994
(1) SACR 112
(A) at 124c-d]. Deterrence of others is also not
important in a case such as the present. This court held in
S
v Shapiro
:
“
In
regard to the deterrence of others, it does not seem to me that in
the present case a long prison sentence is called for. The
concatenation of circumstances was highly unusual and is unlikely to
occur again.”
The same applies
here. I would merely add that to my mind there would seem to be
little purpose in attempting to deter a person
not in full control of
his or her faculties.’
[31] I am thus not persuaded that
the court a quo committed any misdirection in imposing the sentence
it did or that such sentence
is disturbingly inappropriate. I am
satisfied after much anxious consideration that deterrence of Romer
or others is not an overriding
consideration, regard being had to
‘the concatenation of circumstances’ which were of a
highly unusual, if not bizarre,
nature and which are unlikely to
recur.
[32] In the result the following
order is made:
Both the application for leave to
lead further evidence by the respondent and the appeal against
sentence by the State are dismissed.
___________________
XM Petse
Acting
Judge of Appeal
APPEARANCES
APPELLANT:
CDHO Nel SC
Instructed by the Director of
Public Prosecutions, Port Elizabeth;
The Director of Public
Prosecutions, Bloemfontein.
RESPONDENT: (Ms) L Crouse
Instructed by Legal Aid Board,
Port Elizabeth;
Legal Aid Board, Bloemfontein.
1
Shein
v Excess Insurance Company Ltd
1912 AD
418
at 428-429.
2
Deintje
v Gratus & Gratus
1929 AD 1
at
6-7.
3
In
Re Certain Amicus Curiae Applications: Minister of Health &
others v Treatment Action Campaign & others
2002
(5) SA 713
(CC) para 8.
4
S
v Roberts
2000 (2) SACR 522
(SCA) para 5.
5
See
S v Mtungwa en ‘n ander
1990 (2) SACR 1
(A).
6
S
v Giannoulis
1975 (4) SA 867
(A) at
873G-H.
7
S
v Kibido
1998 (2) SACR 213
(SCA at 216
g-j.
8
S
v Salzwedel & others
1999 (2) SACR 586
(SCA) para 10.
9
S
v Matlala
2003 (1) SACR 80
(SCA) at 83d-e.
10
S
v Sadler
2000 (1) SACR 331
(SCA) paras 6-9.
11
S
v Shapiro
1994 (1) SACR 112
(A) at 123c-f.
12
At
124b-d.
13
S
v R
1993 (1) SACR 209
(A) at 221g-i.
14
S
v Ingram
1995 (1) SACR 1
(A).
15
S
v D
1995 (1) SACR 259
(A) at 266c-d.
16
Director
of Public Prosecutions, Transvaal v Venter
[2008] ZASCA 76
;
2009
(1) SACR 165
(SCA) para 61.