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[2018] ZANCHC 53
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S.R.D v S (CA&R86/17) [2018] ZANCHC 53 (11 May 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case number: JA 78/10
Case No: CA& R 86/17
Heard on: 12/03/2018
Delivered
on: 11/05/2018
In
the matter between:
S. R. D.
APPELLANT
And
THE STATE
RESPONDENT
Coram: Tlaletsi JP et
Mamosebo J
Summary: Appeal against
sentence – appellant convicted of murder read with s 51 (2) of
the Criminal Law Amendment Act 105
of 1997committed on a newly born
baby - sentenced to 10 years direct imprisonment.
On appeal-
sentence set aside and substituted.
JUDGMENT: APPEAL ON SENTENCE
MAMOSEBO J
[1] The
appellant was convicted by the regional magistrate, sitting at the
Springbok Regional Court, on 20 October 2016 following
her plea of guilty to murder read
with s 51(2) of the Criminal Law Amendment Act
[1]
.
She was acquitted on count 2 of concealment of birth. She
was on 26 April 2017 sentenced to direct imprisonment of
10 years
having been found that there were substantial and compelling
circumstances warranting a deviation from the prescribed
minimum
sentence of 15 years. The
appeal
is with leave of the court a quo. For reasons not clear from the
record the court a quo ordered the appellant to continue
to serve the
sentence until the outcome of the appeal.
[2]
The main grounds of appeal by the appellant are that: (a) the
regional magistrate over-emphasized deterrence as a form of
punishment
despite the extra-ordinary circumstances of the appellant;
(b) the uncontroverted medical evidence of Dr Petrovsky confirmed
that
she was suffering from depression at the time of the commission
of the offence which the regional magistrate either failed to
consider
or did not attach adequate weight to.
[3]
It is apposite to provide a brief background to this case. The
appellant is an unmarried and unemployed 23 year old parent of
two
boys aged 6 and 4 years. On 05 October 2014 she single-handedly
gave birth to a baby boy in the toilet of her parents’
home at
P. N.. The baby was alive when it dropped into the toilet bowl
wherefrom she pulled him
and
inflicted a bruise and several incisions on his neck with a knife.
The bruise was caused by blunt force. Dr Adin Surtie conducted
a post
mortem on the body on 09 October 2014 and concluded that the cause of
death was multiple incisions on the neck. The post
mortem report was
admitted by consent.
[4]
The paternal grandmother of the appellant’s children, Ms B. C.,
and Mr D. C., the father of the two surviving children
and the
deceased baby, also testified. They both urged the Court to consider
a non-custodial sentence to enable the appellant to
raise her young
children. She will also be able to continue with her family
responsibilities of assisting her mother who had recently
suffered a
stroke, and taking care of her two siblings. They both testified that
although they were hurt by the incident they have
forgiven the
appellant. They need her to maintain a healthy relationship with her
minor children.
[5]
During sentencing proceedings the regional magistrate called Dr
Zygnunt Petrovsky, the psychiatrist, to testify. He evaluated
the mental state of the appellant for the 30 days of her observation
in July 2015 in terms of sections 77, 78 and 79 of the Criminal
Procedure Act
[2]
(CPA). In his evidence and relevant to sentencing, he indicated
that the accused at the time of the commission of the offence
suffered from depression although she was later found fit to stand
trial. The doctor clarified that she was not posing any further
risks
to anyone because the condition is unlikely to recur. Her depression
is unrelated to any genetic mental disorder but was
as a result of
the impending surrounding circumstances particularly relating to the
pressure over a further unwanted pregnancy
and being told by family
that she must never get pregnant under such dire circumstances at
home.
[6]
The Correctional Officer, Mr Gideon Engelbrecht, whose report was
admitted by consent, recommended the appellant for correctional
supervision in terms of s 276(1) (h) of the CPA stating that: she is
young; a first offender; remorseful; has a strong support
system and
has a confirmed residential address.
[7]
The Probation Officer, Ms Levican Swarbooi, testified and explained
that she interviewed the appellant and her parents, Mr and
Mrs D.,
the appellant’s 6 year old child, Mr D. C. the deceased’s
father, Ms B C., the deceased’s paternal grandmother,
the
appellant’s high school principal as well as the South African
Police Service members. She also had sight of the report
of the
clinical social worker and court documents to prepare her
pre-sentence report. She recommended correctional supervision
in
terms of s 276(1)(h) of the CPA.
[8]
The regional magistrate took into consideration the triad consisting
of the crime, the offender and the interests of society.
In addition
to the personal circumstances appearing in para 3 (above), the
regional magistrate considered that the appellant passed
her matric
in 2011 and N2 level in the electrical field. At the time of
sentencing she was employed as a cleaner on a temporary
basis earning
about R400.00 per week. The appellant pleaded guilty to the charge
which is a sign of remorse. The regional magistrate
took into account
the evidence of Dr Petrovsky that the incident was triggered by the
appellant being overburdened and financially
constrained within her
family. She considered the impact of this offence on the C.
family. She took into consideration that
the children’s
paternal grandmother will be able to look after them during her
incarceration. Ms Swartbooi and the local
social workers were ordered
to arrange foster care of the two minor children when the appellant
is serving her custodial sentence.
[9]
The regional magistrate justified the deterrent aspect before
imposing the 10 years direct imprisonment as follows:
“
All
in all the facts call for punishment of the [appellant] for the
gruesome murder of the helpless newly born baby.
The
facts are even calling for deterrence for it would be quite useful
that even the would be offenders would refrain from embarking
on a
similar offence. They further call for deterrence so that the
concerned, that is the [appellant], who is an adult, has to
own up in
bringing up the child to life…”
(Own
emphasis)
[10]
The powers of this Court in an appeal against sentence were aptly
stated as follows by the Supreme Court of Appeal in
S
v Malgas
[3]
:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial
court vitiates its
exercise of that discretion, an appellate court is of course entitled
to consider the question of sentence afresh.
In doing so, it
assesses sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance.
As it is said,
an appellate court is at large. However, even in the absence of
material misdirection, an appellate court
may yet be justified in
interfering with the sentence imposed by the trial court. It
may do so when the disparity between
the sentence of the trial court
and the sentence which the appellate court would have imposed
had it been the trial court
is so marked that it can properly be
described as ‘shocking’, ‘startling’ or
‘disturbingly
inappropriate’. It must be
emphasised in the latter situation the appellate court
is not at large in the
sense in which it is at large in the former.
In the latter situation it may not substitute the sentence which it
thinks appropriate
merely because it does not accord with the
sentence by the trial court or because it prefers it to that
sentence. It may
do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned.
No such
limitation exists in the former situation.”
See also
S
v Kgosimore
1999
(2) SACR 238
(SCA) at 241a-h (para 10).
[11]
Counsel for the respondent, Mr Kgatwe, submitted that the
magistrate’s sentence was appropriate. He was, however,
constrained
to concede that the appellant was suffering from
depression at the time of the commission of the offence which may
have contributed
to her action. Appellant’s counsel, Mr
Schreuder, submitted that the regional magistrate misdirected herself
in that: she
over-emphasized the deterrent aspect of sentencing at
the expense of the appellant’s personal circumstances;
secondly, she
failed to attach adequate weight to the appellant’s
state of depression at the time of the commission of the offence.
Counsel
urged us to consider correctional supervision as a suitable
sentence which is in line with the recommendations of both the
probation
and the correctional officers.
[12]
At stake in this appeal are also interests and welfare of the
appellant’s two minor children. Section 28(2) of the
Constitution
[4]
stipulates that a child’s best interests are of paramount
importance in every matter concerning the child. In
S
v M (Centre for Child Law and Amicus Curiae)
[5]
the Court, faced with the need to consider the interests of children
during the sentencing proceedings of an accused who
is a
mother of minor children, made the following authoritative
pronouncements:
“
Focused
and informed attention needs to be given to the interests of children
at appropriate moments in the sentencing process.
The objective
is to ensure that the sentencing court is in a position adequately to
balance all the varied interests involved,
including those of
the children placed at risk. This should become a standard
preoccupation of all sentencing courts.
To the extent that the
current practice of sentencing courts may fall short in this respect,
proper regard for constitutional requirements
necessitates a degree
of change in judicial mind-set. Specific and well-informed
attention will always have to be given to
ensuring that the form of
punishment imposed is the one that is least damaging to the
interests of the children, given the
legitimate range of choices in
the circumstances available to the sentencing court.”
The
court continued at para 35 to state:
“
[35]
Thus, it is not the sentencing of the primary caregiver in and of
itself that threatens to violate the interests
of the children.
It is the imposition of the sentence without paying appropriate
attention to the need to have special
regard for the
children’s interests that threatens to do so. The purpose
of emphasising the duty of the
sentencing court to
acknowledge the interests of the children, then, is not to permit
errant parents unreasonably to avoid appropriate
punishment.
Rather, it is to protect the innocent children as much as is
reasonably possible in the circumstances from avoidable
harm.”
[13]
There is evidence that the children have been cared for by their
paternal grandmother when the appellant was detained for mental
observation. The regional magistrate has also considered this aspect
during the sentencing phase. It appears that this aspect weighed
unduly heavily in influencing the regional magistrate in imposing a
sentence of direct imprisonment.
[14]
The only reference to the probation officer’s report by the
regional magistrate in the judgment is when reference is
made to the
foster parenting plans to identify the immediate needs of the
children after their mother’s incarceration. Nothing
is said
about the recommendation on correctional supervision as a sentencing
option and why the regional magistrate does not agree
with it. There
is also no mention of the correctional officer’s report. For
the judicial officer to ignore or brush aside
the pre-sentence
reports is a misdirection. See
S
v Grobler
[6]
where the Supreme Court of Appeal commended the regional magistrate
for having carefully and correctly considered correctional
supervision as an appropriate sentence and further distinguished
between offenders who ought to be removed from society by
incarceration
and those who should not be removed.
[15]
In the case before us the appellant’s circumstances provide a
compelling case for a consideration of a non-custodial
sentence. The
regional magistrate referred to premeditation by the appellant in her
judgment which may have influenced her to over-emphasize
the
seriousness of the offence without considering other sentencing
options properly. The period of 10 years direct imprisonment
is, in
my view, unwarranted under these circumstances and shockingly
inappropriate thereby calling for interference by this Court.
[16]
Having found that the court a quo committed a material misdirection
warranting interference with the sentence imposed,
the question is
whether the case should be referred back to the court a quo for
sentencing
de novo
. Both counsel submitted that there is
sufficient material on record for this Court to consider an
appropriate sentence. The submission
is well founded. This Court is
in as good a position as the trial court to consider sentence afresh.
[17]
In my view, and for reasons that will be advanced in due course, the
appellant is a suitable candidate for a non-custodial
sentence. Sachs
J in
S v M
[7]
said the following:
“
[59]
Correctional supervision is a multifaceted approach to sentencing
comprising elements of rehabilitation, reparation and restorative
justice. The South African Law Commission (SALC) has underlined the
importance of correctional supervision, observing:
‘
There
is increasing recognition that community sentences, of which
reparation and service to others are prominent components, form
part
of an African Tradition and can be invoked in a unique modern form to
deal with many crimes that are currently sanctioned
by expensive and
unproductive terms of imprisonment.’”
[18]
In
S v Ningi
[8]
Scott JA
held:
“
The
question is, therefore, whether in all the circumstances a sentence
of correctional supervision would be appropriate. It is
unnecessary
to repeat what has been said before of the advantages of correctional
supervision. They are well known. What I think
must be acknowledged,
however, is that in so far as a first offender in particular is
concerned and leaving aside for the moment
the practicalities of
administering a non-custodial sentence, whether correctional
supervision as opposed to direct imprisonment
is to be imposed must
depend ultimately on the seriousness of the offence and the
particular circumstances in which it was
committed. This is so
because, whatever its advantages, correctional supervision remains a
lighter sentence than direct imprisonment.
Any contention to the
contrary I think would be unrealistic.”
[19]
The following are substantial and compelling circumstances which
warrant deviation from the prescribed minimum sentence of
15 years
imprisonment:
The
appellant is a primary care-giver
[9]
.
Regard being had to the impact a term of direct imprisonment is
likely to have on the interests of the minor children, such
punishment
is not only focusing on the appellant and society but
also on the best interests of her young children. At the time of the
commission
of the offence she was suffering from a depression which
made her conduct morally less reprehensible. She is not a candidate
to
be removed from society. Imposing a lengthy term of imprisonment
will not only punish the appellant but also her younger children.
In
the circumstances of this case it will also punish her mother who
suffered from a stroke and a mental disorder and, to whom
she
provides home-based care. She is not only the breadwinner to her
children she also cares for her two minor siblings. Both the
probation officer and the correctional supervision have recommended
that the appellant be considered for correctional supervision.
She has further pleaded guilty and has shown remorse. She is 23 years
old and a first offender. She is not a danger to the society
and is
unlikely to commit a similar offence again. All the aforementioned
factors makes her a good candidate for rehabilitation.
[20]
As much as punishment should fit the criminal as well as the crime,
there is a need under these circumstances for this Court
not only to
blend the punishment with an element of mercy but also not to allow
the appellant to be sacrificed at the altar of
deterrence when her
circumstances dictate otherwise. Sending her to prison to serve a
lengthy direct imprisonment will be a serious
travesty of justice.
[21]
The record shows that the appellant was ordered on 28 April 2017 to
start serving her 10 year sentence pending the outcome
of the
appeal. She has been in custody since then. In the
circumstances a sentence of three years’ imprisonment in
terms
of s 276(1)(i), two (2) years of which is suspended for a period of
five years on condition that she completes the correctional
supervision and all the rehabilitative programmes and community
services recommended by the Commissioner of Correctional Services,
would be appropriate.
[22] In the result, the
following order is made:
1.
The appeal against sentence is upheld.
2.
The sentence imposed by the regional court on 26 April 2017 is set
aside and replaced with
the following:
“
The
appellant is sentenced to three years’ imprisonment in terms of
s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (the
CPA) of
which two (2) years is suspended for a period of five years on
condition that she is placed under correctional supervision
in the
discretion of the Commissioner of Correctional Services.”
3.
In terms of s 282 of the CPA the sentence is antedated to 26 April
2017.
_______________
MAMOSEBO MC
JUDGE
NORTHERN CAPE DIVISION
I concur
_______________________
TLALETSI LP
JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For
the appellant:
Adv JJ Schreuder
Instructed
by:
Tobie Kotze Attorneys
For the respondents:
Adv KM Kgatwe
Instructed by:
Office of the
DPP Kimberley
[1]
Act 105 of 1997
[2]
Act 51 of 1977 as amended
[3]
2001 (1) SACR 469
(SCA) at 478d – h (para
12)
[4]
The Constitution of the Republic of South Africa, 108 of 1996
[5]
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) at 559a-c
[6]
2015 (2) SACR 210
(SCA) at 214 para 12
[7]
At 568 para 59
[8]
2000 (2) SACR 511
(A) at para 8
[9]
A primary caregiver is described in
S
v M
para [28] as the person with
whom the child lives and who performs everyday tasks like ensuring
that the child is fed and
looked after and that the child attends
school regularly.