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[2011] ZASCA 192
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Director of Public Prosecutions v Phillips (271/2011) [2011] ZASCA 192; 2013 (1) SACR 107 (SCA) (14 November 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 271/2011
In the matter between:
THE DIRECTOR OF PUBLIC
PROSECUTIONS
…...........................................
Appellant
TRANSVAAL
and
LARRY BURT PHILLIPS
…...........................................................................
Respondent
Neutral citation
:
The Director of Public Prosecutions v Larry Burt Phillips
(271/2011)
[2011] ZASCA 192
(14 November 2011)
Coram:
PONNAN,
BOSIELO JJA and PETSE AJA
Heard
16 September
2011
Delivered:
14
November 2011
Summary:
Sentence
– imposition of – factors to be taken into account –
murder of wife – kidnapping – assault
–
contravention of s 17(
a
) of the
Domestic Violence Act 116 of
1998
– globular sentence – undesirability of such
practice – sentence set aside and increased on appeal.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Louw J sitting as court of first
instance):
1 The appeal by the
Director of Public Prosecutions against the sentence imposed on the
respondent by the court below succeeds.
2 The sentence imposed by
the court below is set aside and in its place is substituted the
following:
‘
a
in respect of count 1, common assault, the accused is sentenced to
twelve months’ imprisonment.
b in respect of count 3,
kidnapping, the accused is sentenced to three years’
imprisonment.
c in respect of count 4,
murder, the accused is sentenced to eighteen years’
imprisonment.
d in respect of count 5,
common assault, the accused is sentenced to twelve months’
imprisonment.
e in respect of count 6,
contravention of
s 17(
a
) of the
Domestic Violence Act 116 of
1998
, the accused is sentenced to two years’ imprisonment.’
3 It is ordered, in terms
of
s 280(2)
of the
Criminal Procedure Act 51 of 1977
, that each of
the sentences imposed on counts 1, 3, 5 and 6 shall run concurrently
with the sentence imposed on count 4.
4. The respondent will
therefore undergo imprisonment for an effective term of eighteen
years.
5. The sentence is, in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, antedated to
14 October 2009.
______________________________________________________________________
JUDGMENT
____________________________________________________________________
PETSE AJA (PONNAN and
BOSIELO JJA CONCURRING):
[1] This is an appeal by
the State under s 316B of the Criminal Procedure Act 51 of 1977 (the
Criminal Procedure Act) against
the sentence imposed on the
respondent, Larry Burt Phillips, subsequent to his conviction in
respect of the following charges:
kidnapping; murder; contravening
s
17(
a
) of the Domestic Violence Act 116 of 1998 (the
Domestic
Violence Act) and
two counts of common assault.
[2] Aggrieved by the
leniency of the sentence and the fact that the court below took all
counts as one for the purposes of sentence
the State sought leave to
appeal from the court below which was granted to this court on 4
December 2009.
[3] The prosecution of
the respondent in the court below was a sequel to two incidents which
occurred on 31 October and 24 November
2008. In respect of counts 1
and 2, which were both alleged to have been committed on the former
date, the respondent was charged
with the attempted murder and rape,
respectively, of his then estranged wife, Henriette Elizabeth
Phillips (the deceased). The
deceased had, following the incident
which occurred in the common home of the parties on 31 October 2008,
obtained a protection
order against the respondent in the Pretoria
Magistrates’ Court on 3 November 2008. This order was served on
the respondent
by an officer in the employ of the South African
Police Service on 10 November 2008. Counts 3 to 6 are all alleged to
have been
committed on 24 November 2008. In respect of count 3, the
respondent is alleged to have kidnapped his son Howard James
Phillips.
Count 4 pertains to the murder of his wife and count 5 to
the assault with intent to do grievous bodily harm in respect of his
neighbour Joachim Petrus Korb. In count 6 the respondent was charged
with a contravention of
s 17(a)
of the
Domestic Violence Act.
[4
] The respondent
pleaded not guilty to the attempted murder charge and the assault
with intent to do
grievous bodily harm charge on counts 1 and 5, but guilty on those
counts to the offence of common assault. He
pleaded guilty to count
4, the murder and count 6, the breach of the domestic violence
interdict and not guilty to the remaining
counts of rape (count 2)
and kidnapping (count 3). Dealing first with the charges that arose
out of the incident on 31 October
2008. As the complainant on counts
1 and 2 was deceased by the time the matter came to trial, the rape
charge (count 2) could not
be sustained and the respondent was
accordingly found not guilty. As far as count 1 was concerned, the
respondent was convicted
on his guilty plea of common assault.
Turning to the occurrences of 24 November 2008. The respondent was
duly convicted on his
guilty plea on count 6, the breach of the
domestic violence protection order. The State, however, disputed the
facts upon which
the guilty plea tendered by the respondent in
respect of count 4, the murder, was advanced. Those facts were not
accepted by the
State as the respondent sought to downplay the
gravity of the offences to which he had pleaded guilty in his written
statement
in terms of
s 112(2)
of the
Criminal Procedure Act.
Consequently
a plea of not guilty was entered by the court below in
respect of counts 3 to 5 and evidence was adduced by the State.
[5] The State’s
principal witness was the respondent’s son, Howard. His account
of the events of 28 November 2008 was
as follows: at approximately
16h00 he was telephoned by the respondent who desired to see him. As
arranged the respondent came
to fetch him from his friend’s
home. The respondent drove around with him in his motor vehicle
aimlessly and attempted to
force him to drink brandy. But Howard
refused to succumb to the respondent’s threats. However, the
respondent was unrelenting
and refused to allow Howard to alight from
his motor vehicle. As they were driving around the respondent told
Howard that he would
do so until his vehicle ran out of petrol. The
respondent appears to have suggested to Howard that he (the
respondent) had been
sodomised when much younger and insinuated that
a similar fate could befall Howard. The respondent refused to allow
Howard to answer
his cellphone when it rang. When the deceased
persisted in calling Howard on his cellphone he, on orders from the
respondent, answered
the phone but only to lie to the deceased, on
the suggestion of the respondent, saying that he was
with the respondent and
that all was well.
[6] All of this time the
respondent was telling Howard that he wanted the latter and his
sister Leigh to speak to the deceased and
persuade her to withdraw
the charges that had been preferred against him arising out of the
occurrences of 31 October 2008, for
which he had been arrested and
released on bail, so that he could leave the country and work in
Angola where he had been promised
a well paying job. He told Howard
that he would miss this golden opportunity for as long as there were
charges still hanging over
his head.
[7] Ultimately the
respondent drove to the Silverton Police Station where he wanted
Howard to make a statement to the police. However,
on their arrival
the respondent was told by a police officer that he could not force
Howard to make a statement against his will.
At the request of
Howard, the police telephoned Leigh to come to the police station to
fetch him.
[8] On Leigh’s
arrival at the police station the respondent was still present with
Howard. When Leigh asked them what was
going on, the respondent would
not answer her. Rather, he asked Howard to explain to Leigh what was
happening but Howard refused
to do so. Ultimately the respondent left
in his motor vehicle driving in the opposite direction to that taken
by Leigh and Howard
as they also left the police station. Whilst they
were en-route home Howard recounted to Leigh what the respondent had
done to
him earlier.
[9] When Leigh and Howard
arrived at their home Leigh parked the motor vehicle in which they
were travelling in the garage. Thereafter
they both walked over to
their neighbour’s house where the deceased was. After spending
time together at their neighbour’s
house and telling the
deceased what had happened to Howard, whilst he was with the
respondent, the deceased feared that it would
not be safe for her to
sleep at her house believing that the respondent might harm her
despite the fact that she had changed the
locks to her house.
[10] Later the deceased
went over to her house, accompanied by Leigh and her
neighbour Petrus, to
fetch bedding so that she could sleep over at her neighbour’s
house. On reaching the house she unlocked
and opened the front door,
switched on the lights and walked down the passage to the main
bedroom whilst Leigh and Petrus waited
for her in the passage.
[11] Suddenly Leigh and
Petrus heard the deceased screaming and then saw her running out of
the main bedroom towards the front door
with the respondent in hot
pursuit. Petrus’ attempts to intervene were unsuccessful as he
was overpowered by the respondent
who also stabbed him. Petrus, on
regaining his balance, also ran towards his house following the
respondent who was still pursuing
the deceased. As the deceased
reached the front door at Petrus’ house the respondent stabbed
her in the back.
[12] Howard and Petrus
intervened and subdued the respondent whom they later dispossessed of
the knife with which he had stabbed
the deceased. After the
respondent had calmed down they released him. Just before they let go
of the respondent he remarked that
he was satisfied that the deceased
was dead. At that stage Leigh asked the respondent why he was doing
all of this. The respondent
retorted that he had warned the deceased.
[13] The respondent left
the neighbours’ premises and a short while thereafter called
Howard to come to him. Howard refused
to do so as he realised that
the respondent was carrying a knife in his trouser pocket. Howard
asked the respondent to surrender
the knife first. This prompted the
respondent to take the knife out of his pocket and throw it to the
ground next to Howard. Howard
took the knife, with which the deceased
was stabbed, and put it on the kitchen table of his home. The
ambulance and police subsequently
arrived at the crime scene having
been summoned thereto by Petrus’ wife. The deceased was
certified dead by the paramedics
and her body was removed. The
respondent was then arrested.
[14] The respondent told
the court that it was his intention at all material times to discuss
his marital problems with the deceased
and their children and to
prevail upon the
deceased to withdraw the
charges pending against him so that he could take up employment in
Angola. He denied that he ever threatened
to sodomise Howard and said
that all that he did was to recount to him his past unfortunate
experience of having been sodomised.
He also denied that he had
expressed satisfaction at the death of the deceased or told Leigh
that he had previously warned the
deceased of what might befall her.
He also expressed the view that Leigh and Howard sided with the
deceased against him. Although
he saw that the deceased was at their
neighbour’s premises when he arrived at the home of the
deceased he did not approach
her there or call her to him but rather
decided to break into the deceased’s house – for the
locks had been changed
to keep him away from the house – gained
entry into the premises through the window and lay in wait for the
deceased in her
bedroom. All along the respondent deliberately chose
to leave the whole house in darkness presumably so as not to arouse
suspicion.
[15] The court below
rejected the respondent’s evidence and accepted the State’s
version. It also found that the murder
committed by the respondent
was premeditated. This finding accordingly brought the murder count
within the purview of s 51(1) of
the Criminal Law Amendment Act 105
of 1997 (the Act) which decrees that a sentence of life imprisonment
must be imposed for a premeditated
murder unless substantial and
compelling circumstances were found to be present.
[16] In its reasons for
sentence the court below made reference to the fact that the
respondent had, inter alia, been convicted
of premeditated murder in
that he lay in wait in the deceased’s bedroom armed with a
knife. It thus took cognisance of the
fact that the murder count fell
within the purview of Part I of Schedule 2 of the Act which ordained
life imprisonment unless substantial
and compelling circumstances
were found to exist. It went on to mention that in respect of murder
that is not premeditated the
Act prescribes a minimum sentence of
fifteen years in the absence of a finding that substantial and
compelling circumstances exist.
On the premeditation it found that
the intention to kill was formed a short while earlier when the
respondent lay in wait for the
deceased in the latter’s
bedroom.
[17] The court below also
laid much emphasis on the personal circumstances of the respondent.
It listed, inter alia, the following
factors: that the events of the
fateful night were precipitated by a long and stormy marriage
relationship between the respondent
and the deceased; that the
deceased often humiliated and ridiculed the respondent; that the
incident of 31 October 2008 that led
to the charges of assault and
rape precipitated the granting of the protection order on 3 November
2008; that as a consequence
of the protection order the respondent
was compelled to leave the common home where his children Leigh and
Howard lived and went
to stay with a friend; that he was a first
offender; that over a period of a year he had been without a source
of income as a result
of which he was unable to provide for his wife,
children and household; that his first marriage had ended in divorce;
that he was
abandoned by his parents at the age of six months and
consequently grew up with his paternal grandmother; that as a child
he lacked
emotional security; and, that because of his emotional
upheavals he had low self esteem. The court below also took into
account
the evidence led in mitigation of sentence from a
psychologist and pre-sentence reports which it found were testimony
to the fact
that the respondent’s life at the critical moment
was disintegrating.
[18] As to the evidence
of the psychologist the court below emphasised that the respondent
was not in a position to deal with and
handle the intense emotional
state thrust upon him by the vicissitudes of life not least the lack
of parental love and nurturing
during his early childhood. That he
had also suffered sustained emotional torture and betrayal at the
hands of the deceased and
that he was so traumatised during the eight
hour session with the psychologist that he, at times, burst into
tears thus manifesting
remorse for what he did to the deceased and
his family.
[19] Taking into account
all the foregoing factors the court below came to the conclusion that
there were substantial and compelling
circumstances that justified
the imposition of a lesser sentence than that prescribed in terms of
s 51(1) of the Act.
[20] Having further
considered the cumulative effect of all mitigating factors it went on
to impose a sentence of twelve years’
imprisonment taking all
counts as one for the
purposes of sentence.
[21] It is trite that the
imposition of sentence is a matter pre-eminently within the
discretion of the trial court. This court
can interfere where the
reasoning of the trial court is vitiated by a misdirection or where
the sentence imposed can be said to
be startlingly inappropriate or
induces a sense of shock.
[22] In this court the
State accepted that the court below was correct in its conclusion
that substantial and compelling circumstances
within the
contemplation of that expression were present. The main thrust of the
State’s argument was that the court below
failed to pay due
regard to the benchmark set by the Legislature in arriving at what it
considered to be an appropriate sentence
(
S v Malgas
2001 (1)
SACR 469
(SCA) para 25). Thus it was argued that such a failure
constitutes a material misdirection which leaves this court at large
to
interfere. This argument is, to my mind, sound.
[23] In
S v Abrahams
2002 (1) SACR 116
(SCA) paras 24–26 this court made the
following pertinent point in regard to the legislative benchmark set
in terms of s
51(1) of the Act:
‘
It
is therefore clear that the Judge considered that, having found
substantial and compelling circumstances, he was at liberty to
impose
a sentence consonant with those applied before the Act came into
force – hence the sentence one year lighter than
that in
S
v B
.
This approach was incorrect. The prescribed sentences the Act
contains play a dual role in the sentencing process. Where factors
of
substance do not compel the conclusion that the application of the
prescribed sentence would be unjust, that sentence must be
imposed.
However, even where such factors are present, the sentences the Act
prescribes create a legislative standard that weighs
upon the
exercise of the sentencing court’s discretion. This entails
sentences for the scheduled crimes that are consistently
heavier than
before. This was made clear in
Malgas.
Even
when substantial and compelling circumstances are found to exist, the
fact that the Legislature has set a high prescribed sentence
as
“ordinarily appropriate” is a consideration that the
courts are “to respect, and not merely pay lip service
to”.
When sentence is ultimately imposed, due regard must therefore be
paid to what the Legislature has set as the “bench
mark”.’(Footnotes omitted)
Plainly had the court
below employed the statutorily ordained minimum as its benchmark,
it could hardly have
arrived at a sentence of 12 years’ imprisonment for all of the
counts, which it took as one for the purposes
of sentence. It
obviously approached the matter as if it was starting with a clean
sentencing slate. In doing so, it misdirected
itself.
[24] Moreover the court
below also failed to take proper account of the interests of the
victims of the respondent’s crime.
As to aggravating factors
which did not receive proper consideration from the court below
counsel for the State highlighted the
following: the respondent had
no regard for the emotional and physical well-being of his son, whom
he held captive for several
hours; he deliberately breached the
protection order granted against him at the instance of the deceased
thus treating the court
which issued it with utter contempt; he,
without justification, blamed his woes not only on the deceased but
also on his children
when he knew that they did not want to take
sides with either of their parents; he was utterly insensitive to the
emotional trauma
suffered by his children as a result of the violent
death of their mother, which occurred in their presence and of which
he was
the cause; in advancing a version that the State could not
accept, which was ultimately rejected by the trial judge, he put his
children to the pain of testifying against him in the criminal trial.
[25] On a reading of the
record this case in my view reveals, like others, the disturbing
prevalence of serious offences rooted
in domestic violence. To my
mind the court below over-emphasised the mitigating factors at the
expense of aggravating factors.
With respect to domestic violence it
is necessary to say more. In
S v Baloyi
(
Minister of
Justice & another Intervening
)
[1999] ZACC 19
;
2000 (2) SA 425
(CC) para 11
the Constitutional Court said the following:
‘
All
crime has harsh effects on society. What distinguishes domestic
violence is its hidden, repetitive character and its immeasurable
ripple effects on our society and, in particular, on family life. It
cuts across class, race, culture and geography and is all
the more
pernicious because it is so often concealed and so frequently goes
unpunished.’
The Constitutional Court
continued, para 12:
‘
To
the extent that it is systemic, pervasive and overwhelming
gender-specific, domestic violence both reflects and re-inforces
patriarchal domination, and does so in a particularly brutal form.’
[26] It goes without
saying that a more balanced approach to sentencing was required (See
S v Swart
2004 (2) SACR 370
(SCA) para 13). A clear message
needs to be sent to both the respondent and those who might be minded
to disregard protection orders
granted in terms of the
Domestic
Violence Act that
such conduct will not be countenanced by our
courts. This court’s abhorrence of the respondent’s
conduct in this regard
must therefore be reflected in the imposition
of an appropriate sentence.
[27] The practice of
imposing globular sentences for multiple counts is generally an
undesirable one. In
S v Immelman
1978 (3) SA 726
(A) at
728E–729A the following was said:
‘
The
practice of taking more than one count together for the purpose of
sentence (ie the imposition of what I shall, for convenience,
term a
“globular sentence”) was recently commented upon by this
Court in the case of
S
v Young
1977
(1) SA 602
(A) where TROLLIP JA stated at (610E–H):
“
That
procedure is neither sanctioned nor prohibited by the Criminal
Procedure Act 56 of 1955. Where multiple counts are closely
connected
or similar in point of time, nature, seriousness, or otherwise, it is
sometimes a useful, practical way of ensuring that
the punishment
imposed is not unnecessarily duplicated or its cumulative effect is
not too harsh on the accused. But according
to several decisions by
the Provincial Divisions (see, eg,
S
v Nkosi
1965
(2) SA 414
(C) where the authorities are collected) the practice is
undesirable and should only be adopted by lower courts in exceptional
circumstances. The main reason for frowning upon the practice
mentioned in these cases is the difficulty it might create on appeal
or review especially if the convictions on some but not all of the
offences were set aside. As any sentence imposed by this Court
is
definitive, that objection to the practice is, of course, not
applicable. However, in the present case I think it conduces to
clearer thinking in determining the appropriate sentences to treat
each offence separately. Moreover, no risk of duplication of
punishment thereby arises for each offence is sufficiently distinct,
different and serious; and in the ultimate result the cumulative
effect of all the sentences imposed can be otherwise suitably
controlled to avoid undue harshness to the appellant.”
(See
also
S v Mofokeng
1977 (2) SA 447
(O) at 448–9
where some of the more recent cases are collected.) The present case
was tried under the new
Criminal Procedure Act 51 of 1977
but that
does not affect the appositeness of the above-quoted remarks. In my
view, difficulty can also be
caused
on appeal by the imposition of a globular sentence in respect of
dissimilar offences of disparate gravity. The problem that
may then
confront the Court of appeal is to determine how the trial Court
assessed the seriousness of each offence and what moved
it to impose
the sentence which it did. The globular sentence tends to obscure
this. This difficulty is further compounded in the
present case by
the extreme brevity of the Court’s judgment on sentence which
gives no indication as to why or upon what
basis of fact the learned
Judge arrived at the sentence imposed by him.’
[28] In the result the
following order is made:
1 The appeal by the
Director of Public Prosecutions against the sentence imposed on the
respondent by the court below succeeds.
2 The sentence imposed by
the court below is set aside and in its place is substituted the
following:
‘
a
in respect of count 1, common assault, the accused is sentenced to
twelve months’ imprisonment.
b in respect of count 3,
kidnapping, the accused is sentenced to three years’
imprisonment.
c in respect of count 4,
murder, the accused is sentenced to eighteen years’
imprisonment.
d in respect of count 5,
common assault, the accused is sentenced to twelve months’
imprisonment.
e in respect of count 6,
contravention of
s 17(
a
) of the
Domestic Violence Act 116 of
1998
, the accused is sentenced to two years’ imprisonment.’
3 It is ordered, in terms
of
s 280(2)
of the
Criminal Procedure Act 51 of 1977
, that each of
the sentences imposed on counts 1, 3, 5 and 6 shall run concurrently
with the sentence imposed on count 4.
4 The respondent will
therefore undergo imprisonment for an effective term of eighteen
years.
5 The sentence is, in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, antedated to
14 October 2009.
___________________
X M Petse
Acting Judge of Appeal
APPEARANCES
APPELLANT: C Bouwer (Ms)
Instructed by Director of
Public Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
RESPONDENT: L Augustyn
(Ms)
Instructed by Justice
Centre, Pretoria
Justice Centre,
Bloemfontein