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[2012] ZAGPPHC 31
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Lizamore v S (A203/10) [2012] ZAGPPHC 31 (16 February 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NUMBER: A203/10
DATE:16/02/2012
DAVID
JOHANNES
LIZAMORE
.............................................................................
APPELLANT
V
THE
STATE
...........................................................................................................
RESPONDENT
JUDGMENT
MABUSE
J:
This
is an appeal against both conviction and sentence, leave to appeal
against conviction and sentence in respect of armed robbery
with
aggravating circumstances ("count 2"), having been granted
by the court a quo on 16 November 2009. Leave to appeal
against both
conviction and sentence in respect of the count of murder ("count
1") was granted automatically by the provisions
of s. 309(l)(ii)
of the Criminal Procedure Act No. 51 of 1977 ("the CPA").
2.
The appellant Mr David Johannes Lizamore, appeared before a regional
court magistrate in Vereeniging where he was charged with
five
counts, namely murder, robbery with aggravating circumstances,
defeating the ends of justice ("count 3"), contravention
of
section 3 of the Firearms Control Act 60 of 2000 ("count 4")
and contravention of section 90 of the Firearms Control
Act 60 of
2000 ("count 5").
3.
He pleaded guilty to counts 3, 4 and 5 in terms of the provisions of
s. 112 of the CPA but not guilty in terms of s. 115 of the
CPA, in
respect of counts 1 and 2. After the state had led its evidence, the
court a quo convicted the appellant as charged and
sentenced him as
follows; in count 1 he was sentenced to life imprisonment; in count 2
he was sentenced to fifteen (15) years imprisonment;
in count 3 he
was sentenced to three (3) years imprisonment, in count 4 he was
sentenced to three (3) years imprisonment and in
count 5 he was
sentenced to one (1) year imprisonment. In terms of the provision of
s. 280(2) of the CPA, the court a quo ordered
that the sentences it
had imposed on the appellant in respect of counts 2, 3, 4 and 5
should run concurrently with the sentence
of life imprisonment in
respect of count 1.
4.
Although the appellant enjoyed legal representation when his
application for leave to appeal was made, it is quite clear that
the
notice of appeal was not original in that the person who compiled it
simply regurgitated the standard grounds of appeal normally
prepared
by appellants in prison. We have seen many of such notices before and
were also able to identify them as soon as we read
them. Be that as
it may, having perused the appellant's notice of appeal, it is clear
that he has noted his appeal against his
conviction in respect of
both counts 1 and 2 on the basis that the State did not prove its
case in respect of both counts beyond
reasonable doubt.
5.
With regard to his grounds of appeal against sentence, he complains
about the severity of the sentence so imposed on him. He
opined that
the sentences are strikingly inappropriate in as much as they are
disproportionate with the totality of the facts placed
before the
trial court in mitigation and that the court should have considered
imposing a shorter sentence of imprisonment.
6.
The appellant was represented throughout the whole matter in the
court a quo by Mrs. Esterhuizen. After the appellant had pleaded
not
guilty to both counts 1 and 2, Mrs. Esterhuizen proceeded and made
the following admissions in terms of s. 115 of the CPA on
behalf of
the appellant; the appellant accepted the correctness of the
medico-legal autopsy report on the cause of the accused's
death; that
the deceased's body was conveyed from the scene to the Government
Mortuary in Sebokeng on 3 August 2009 at llh25 and
that during such
conveyance the said body sustained no further injuries; that the said
body was received properly at the said Government
Mortuary and that
it sustained no further injuries after it had been received at the
Government Mortuary; and that it was later
properly identified as the
deceased's body. In addition, the appellant accepted the rectitude of
the photo album and consented
to it being handed in as an exhibit;
the expert statement of the witness who had visited the scene and the
statement of the policeman
who visited the scene after the incident
and found blood on the scene.
7.
The appellant, having made the admissions in terms of s. 220 of the
CPA, explained in his s. 115 plea that during a struggle
he had with
the deceased and while he was angry and fearful, he picked up a
hammer, lost his head and noticed the deceased on the
floor. He was
dead. The appellant admitted in his plea explanation that he killed
the deceased though it was not intentional. Accordingly
the only
issue between the State and the appellant in the trial court was
whether or not he had intentionally killed the deceased.
8.
In respect of count 2, the appellant, having admitted in terms of s.
220 of the CPA that he had removed the deceased's property,
namely,
the motorbike, the firearm, the wallet and the jacket he did not
explain what his defence was. He failed to tell the court
why he
removed them. Accordingly the battlefield between the State and the
defence in the court a quo in respect of count 2 was
whether or not
the appellant removed the aforementioned deceased's property with the
necessary intention to permanently deprive
the deceased of his
ownership thereof.
9.
There was no eyewitness available for the State. Consequently, apart
from the admissions that the appellant made during the plea
stage,
the State had to rely on further oral evidence by Dr. Phillipus
Johannes Schutte ("Schutte"), who had also performed
an
autopsy on the body of the deceased. In his testimony, Schutte
regurgitated what was contained in the medico-legal postmortem
report
and proceeded further to explain his findings.
10.
The appellant testified in his defence but called no witness to
testify on his behalf about, not only the incident but also
his
conduct after the incident. It is understandable that much as the
State had no eyewitness to call in support of its case due
to the
fact that where the incident took place only the appellant and the
deceased were present, the appellant too would also have
no
eyewitnesses to call.
11.
Be that as it may, the appellant told the court that after he and the
deceased had knocked off that evening, they both drove
on the
deceased's motorbike to the deceased's apartment where they used
drugs. While they were sitting in the deceased's bedroom,
and while
they were still in his bedroom, the deceased suggested that they
should go and have drinks somewhere. He was reluctant
to accept the
suggestion. An argument then ensued between him and the deceased over
his refusal to go and have drinks with him.
12.
The said argument ended in a fight between the two of them. The
fight took place in the deceased's bedroom initially. At this
stage
they hit each other with fists. As a consequence of the fight, he
sustained certain bodily injuries which were captured in
photographs
taken of him after the incident.
13.
The deceased walked down the flight of stairs and he followed. As
they were walking down the deceased pushed him and he rolled
down the
steps and hit his head against the wall. According to his testimony
he fell because the deceased bumped him while they
were walking down
the stairs.
14.
When he landed at the foot of the staircase, they continued
fighting. The fight continued in the same way with fists, first
towards the kitchen and later in the lounge through the kitchen and
back on the steps and back in the deceased's bedroom.
15.
Whilst he was standing on the side of the steps he asked the
deceased, who had hardly worked for a month with him, why they
were
fighting. The deceased moved aside and whipped out a revolver. He
threatened to shoot him with it whilst he used abusive language
against him. He grabbed the hand in which the deceased had the
firearm and while the deceased was struggling to free the hand,
looked around for something that he could use to defend himself. He
approached some boxes containing tools next to the steps and
fished,
from one of such boxes, a hammer and with it he hit the deceased.
16.
Both of them fell down the stairs, he was full of blood, confused as
a result of the fact that he had worked the whole night
and had
smoked drugs. After he hit the deceased with the hammer, both of them
rolled down the stairs and in the process he bumped
his head against
the wall. He did not thereafter know until he noticed the deceased's
body in front of him. He saw blood all over.
17.
The first thing that came to his mind after he had come to, was to
flee from the scene. Before doing that, he picked the hammer
and the
revolver and tucked them in his trousers. He put on the deceased's
jacket, helmet, took the motorbike and the deceased's
purse and drove
away. He did not know why he took away those items.
18.
He rode the motorbike up to a certain bridge when he threw the hammer
and the deceased's wallet away and where he left the motorbike.
He
got into a taxi and went home. Having arrived at his house, he washed
himself. He did not tell his wife what had happened until
he was
arrested.
19.
It is now clear that with regard to count 1 the issue between the
State and the appellant was whether or not the appellant
intentionally killed the deceased. With regard to the second count
the parties' battlefield was whether the appellant attacked the
deceased with the intention to rob him of his property.
20.
Mr. Pitso, who appeared for the appellant, argued that the State had
not proved its case in respect of both counts against the
appellant
beyond reasonable doubt.
21.
The court accepted the findings of Schutte that some of the injuries
sustained by the deceased were consistent with injuries
caused by a
blunt object. It found this testimony consistent with the appellant's
plea explanation that he had used a hammer in
self defence.
22.
The court a quo was satisfied that Schutte was a qualified witness
better as such to testify in the matter. It was satisfied
about his
credibility as a witness and made no adverse comments about him.
23.
Schutte was not cross-examined on his observations and findings.
Therefore under those circumstances it was inevitable that
the court
would accept his evidence in total. Moreover the appellant, during
the plea stage, admitted the deceased's injuries.
In his testimony
the appellant himself testified that the deceased sustained all the
injuries that resulted in his death during
the scuffle he had with
him.
24.
The appellant's defence to the court was not very clear. However it
was not his defence in terms of s. 115 of the CPA that at
the time he
hit the deceased with a hammer, he was acting in self defence nor was
it his defence that he had been rendered truculent
by the drugs he
had taken. Although he admitted that he had used the hammer on the
deceased and that the deceased's death resulted
from the blows that
he inflicted on him with the hammer, he seemed to suggest that he was
not aware of his actions of the time
of the incident.
25.
The court a quo analysed the whole evidence before it. Although the
court did not explicitly state it, it is as clear as crystal
that by
analysing the seriousness of the injuries, and finding shortcomings
in the evidence of the appellant, it was satisfied
however that, even
in the absence of evidence of an eyewitness, even despite the
appellant's evidence, he killed the deceased with
the necessary
intention. In my view, the magistrate was correct in looking at the
nature of the injuries, and the explanation or
evidence of the
appellant,the failure of the appellant to explain how the deceased
sustained some of the injuries, the magistrate
was correct in coming
to a conclusion that the appellant killed the deceased intentionally.
26.
In order to make a finding that the appellant acted intentionally
when he inflicted the injuries on the deceased, the magistrate
took
into account firstly, the seriousness of the injuries; the nature of
the weapon that the appellant claimed he used; the nature
of the
injuries that such a blunt object as a hammer could inflict on the
victim; the type of the injuries that the deceased sustained
at the
hands of the appellant and the failure of the appellant, having
pleaded and testified that in hitting the deceased he only
used a
hammer in self defence, to explain the circumstances under which,
during their alleged struggle, the deceased sustained
stab and cut
wounds. According to the medico-legal postmortem report, the deceased
sustained a "steekwond oor die voorkant
van die nek" and
"twee steekwonde aan die linkerkant van die dybeen." The
magistrate, quite correctly in my view,
found that these sorts of
injuries could not have been caused by a hammer. I am satisfied
therefore that the magistrate correctly
made a finding of intention.
27.
The next question is, was the appellant aware of his actions at the
time? It will be recalled that in his plea explanation the
appellant
told the court that:
"Ek
kan nie onthou presles of hoe ofwanneer nie maar op 'n stadium het ek
'n hamer opgetel, ek was bang en kwaad en ek het
kop verloor toe ek
besefhet wat gebeur het was die oorledene voor my op die vloer dood.
Op daardie stadium kon ek nie glo wat gebeur
het nie en ek het van
die toneel gevlug."
Three
things are clear in this plea explanation. Firstly, the appellant did
not raise a defence that he was acting under the influence
of drugs;
he never explicitly and straight forward told the court that he was
acting in selr-defence; and lastly, it is clear that
the impression
he created was that he was not aware of what he was doing at the
time.
:8.
In his testimony, he never told the court that at the time of the
incident or in particular at the time he hit the deceased
with a
hammer he was not aware of what he was doing nor did he tell the
court that when he did he was under the influence of drugs.
He had
the following to say in his testimony:
"a
dit was 'n gevloekery en 'n deurmekaar spul. Ek het gegryp en het sy
hand met die wapen in sy hand gekry en hy het geforseer
en die eerste
ding wat ek aan gedink het is waarmee kan ek myself verdedig en hier
by die trappe was daar klomp bokse met gereedskap
en klomp ander
goeters en wat ook al. Ek het gekyk na iets om meet te slaan en hy
het gesien hierso by die bokse en goed wat hierso
staan daar in 'n
steel ek het horn gegryp en dit was 'n hamer gewees."
The
conclusion is inevitable that he had emasculated the deceased by not
only grabbing the hand in which he had allegedly possessed
the
firearm but had also dragged him while he foraged for an object he
could use to hit the deceased in self-defence. It is clear
from this
testimony that he was aware of his actions at all material times.
29.
The magistrate did not accept the appellant's version that he was not
aware of his actions when he hit the deceased. He made
the following
finding:
"Die
hofis oortuig dat die beskuldigde verkieslik en gerieflikheidshalwe
geheueverlies of amnesia het omdat hy nie in staat
is om te
verduidelik hoe hy die oorledene verskeie kere moes aanrand en steek
met die skerp voorwerp en slaan met die hamer nie."
This
finding by the magistrate was in my view correct.
30.
The appellant's loss of memory or amnesia was not a genuine one. This
can be illustrated by highlighting a few points in the
evidence. The
appellant's cognitive capacity before the incident appeared to have
been intact up until after he had picked up the
hammer. When one
looked at the manner in which he described the event up to that
stage, the appellant had the ability to orientate
himself with regard
to their respective positions after the deceased had grabbed the
firearm, the manner in which they struggled
and fell down on the
stairs, the way in which he grabbed the deceased's hand that had the
firearm, the manner in which he dragged
the deceased while he was
holding him and searched for an object he could use and the manner in
which he identified the hammer.
31.
In other words, he knew where he was, why he was there, what he was
doing, why he was looking for an object and how he wanted
to use it.
During this period, he had the ability to direct his attentions to
his intention. Besides, he never told the court that
he had been
rendered truculent by any liquor or drugs and no evidence was
tendered on his behalf that he acted under the influence
of either
drugs or liquor. He could thereafter vividly remember what had
happened. It is highly unlikely, in my view, that the
appellant could
suddenly have lost memory and could not remember what happened.
32.
In deciding whether a person had genuinely lost memory a court is
entitled to have regard to the manner in which he relates
the events
up to the stage where he claims that he had lost memory; the manner
in which he continued with his narration after the
stage where he had
lost memory; the circumstances that prevailed before he lost memory;
the length of such loss of memory and evidence
by other witnesses.
For these reasons, the court a quo correctly found that the
appellant's claim of loss of memory or amnesia
had its genesis in the
appellant's failure to explain the presence on the body of the
deceased of injuries which were not consistent
with the hammer and
the magnitude of the injuries that were inflicted on the deceased.
33.
The court a quo therefore found, in my view, that the appellant was
at all material times perfectly aware of his actions; what
he was
doing and that his attempt to set store on the loss of memory or
amnesia fell between two stools. He was correctly convicted
of
murder.
34.
With regard to count 2, robbery with aggravating circumstances, the
appellant was, frankly speaking, disclosed no defence. Having
killed
the deceased in the manner accepted by the court a quo, he set upon
to remove, unlawfully and intentionally, and for no
apparent reason
whatsoever, the deceased property. He had incapacitated the deceased
by killing him by using a variety of tools
on him and proceeded
thereafter to plunder his property. Mr. Pitso argued that the State
did not call witnesses to prove that the
appellant attacked the
deceased with the sole intention to rob him of his property. I cannot
accept this argument, as, in my view,
it seems to ignore the fact
that intention can be proved by circumstances. It was not necessary
that the State should, in the circumstances
of this case, lead any
evidence of the intention of the appellant to commit armed robbery
when there was other evidence upon which
the State could rely. The
conviction of the accused by the court on armed robbery is therefore
correct. In my view, the appeal
against conviction cannot succeed.
35.
I now turn to dealing with the appeal against sentence. The
appellant, as pointed out earlier, set out his grounds of appeal
against sentence in his notice of appeal which was deposited with the
clerk of the court on 16 November 2009. In the said notice
of appeal,
it was not his case that the court a quo erred in sentencing him in
terms of the provisions of s. 51(1) of the Criminal
Law Amendment Act
105 of 1997 ("The Minimum Sentence Act") when he was
charged under s. 51(2) of the said Act. This court
is however
prepared to accept this ground as it is patently clear that the
appellant was sentenced to life imprisonment in respect
of count 1
while he had been charged under the provisions of s. 51(2) of the
same Act, which, as we all know, does not provide
for a life
imprisonment sentence. This being an obvious oversight by the
magistrate, the appeal against the sentence imposed on
count 1
should, in my view, succeed.
36.
The approach this court should adopt in dealing with an appeal
against sentence was set out in R v Mapumulo and others
1920 AD 56
at
p. 57 and followed in R v S 1958(3) S.A. 102 A.D. at 104. In this
authority Fagan CJ, as he then was, set out the grounds upon
which an
appeal court may interfere with the sentence imposed by either a
trial judge or magistrate as follows:
a)
where the trial judge or magistrate has misdirected himself on the
law or facts;
b)
or has exercised his discretion capriciously or upon a wrong
principle; and
c)
or where the sentence imposed is so unreasonable as to induce a sense
of shock.
The
duty is on the appellant to satisfy the appeal court that at least
one of the grounds set out above exists before he can succeed.
37.
I am satisfied that there exist good grounds to interfere with the
sentence which the court a quo imposed on the appellant
in respect of
count 1. I have already indicated the reasons somewhere above why the
sentence imposed in respect of count 1 should
be altered.
38.
With regard to the sentence imposed on the appellant in respect of
count 2, I am satisfied that the court a quo took all the
aggravating
factors into account and that he committed no misdirection. There is
therefore no reason, in my view, to interfere
with the sentence of
the trial court and the appeal against this sentence cannot succeed.
Accordingly
I propose the following order:
(1)
The appeal against conviction in count 1 is dismissed and the
conviction of the accused on the said count is hereby confirmed.
(2)
The appeal against conviction on count 2, that is the count of
robbery with aggravating circumstances, is dismissed and the
said
conviction is hereby confirmed.
(3)
The appeal against sentence in respect of count 1, that is the count
of murder, is hereby upheld.
(4)
The sentence of life imprisonment imposed by the trial court on the
appellant in respect of count 1 is hereby set aside and
replaced with
the following:
"The
accused is sentenced to 15 (fifteen) years imprisonment, which is
antedated to 5 November 2009."
(5)
The appeal against sentence imposed on the appellant in respect of
count 2 is dismissed and is hereby confirmed.
(6)
The sentences imposed in respect of counts 2, 3, 4 and 5 shall run
concurrently with the sentence imposed in respect of count
1.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered
-----------------------------
G.
WEBSTER
JUDGE
OF THE HIGH COURT
Appearances:
Appellant's
Counsel: Adv. S Moeng
Respondent's
Counsel: Adv. C Kersten-Smit
Date
Heard:10 August 2010
Date
of Judgment:16 February 2012