Director of Public Prosecutions Transvaal v Swanepoel and Another (261/06) [2006] ZASCA 145; [2006] SCA 173 (RSA) (1 December 2006)

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[2006] ZASCA 145
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Director of Public Prosecutions Transvaal v Swanepoel and Another (261/06) [2006] ZASCA 145; [2006] SCA 173 (RSA) (1 December 2006)

THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
NOT REPORTABLE
CASE NO: 261/2006
In the
matter between
THE DIRECTOR OF PUBLIC PROSECUTIONS:
TRANSVAAL

APPELLANT
and
DAVID SWANEPOEL 1
ST
RESPONDENT
SALMON
IGNATIUS BASSON 2
ND
RESPONDENT
CORAM: FARLAM, MTHIYANE and MLAMBO JJA
HEARD: 3 NOVEMBER 2006
DELIVERED: 1
DECEMBER 2006
Summary:
A
ppeal against sentence
– Imposition of direct imprisonment on first respondent imposed –
Coupled with special order providing
for psychological and
psychiatric therapy in the absence of any power to do so or relevant
expert evidence – Such amounting to
misdirection – Sentence
replaced by sentence of 20 years imprisonment – Sentence of house
arrest for one year subject to conditions
imposed on second
respondent who had been in custody for 17 months awaiting trial –
No basis for interference.
Neutral Citation:
This judgment
may be referred to as Director of Public Prosecutions: Transvaal v SI
Basson [2006] SCA 173 (RSA).
___________________________________________________________
JUDGMENT
MTHIYANE JA:
MTHIYANE
JA:
[1] This is an appeal by the State, with leave of this Court, against
the sentence imposed on the respondents by Van Rooyen AJ sitting
in
the Pretoria High Court. The first respondent, Mr David Swanepoel, a
32 year old man was convicted of murder and robbery with
aggravating
circumstances and was sentenced to 14 years’ imprisonment, the
Court having found substantial and compelling circumstances
to be
present in terms of s 51 of Act 105 of 1997. In addition the
following ‘order’ was made:
‘
The Prison Authority is ordered, in the public
interest, to provide him with weekly personal sessions of at least
one hour with a
psychologist or a trained social worker and ensure
that he has at least one personal monthly session of at least one
hour with a
psychiatrist paid by the State. The Legal Aid Board’s
Ms Augustyn has conveyed to me that the Board will keep regular
contact with
accused 1 so as to monitor the state of his mental
health. I will suggest to the head of Weskoppies Hospital that they
consider taking
accused 1 in for a month as soon as possible so as to
stabilize his personality problems and prepare him for future
treatment. Of
course, such a service will depend on availability of a
room and personnel and the agreement of the head of Weskoppies
Hospital.’
[2] The second respondent was convicted of theft and of being an
accessory after the fact of murder and was sentenced to house arrest
for 12 months in terms of s 276(1)(h) of Act 51 of 1977. It was
ordered further that in the event of a breach of certain conditions
the second respondent was to be brought before the trial judge or
some other judge for the imposition of a further two years’
imprisonment.
[3] The case comprises a peculiar set of facts. I set them out
briefly. On the night of 4 March 2004 the first respondent, a male
prostitute, informed the second respondent that one Allen Sim (the
deceased) owed him money for services rendered. The deceased was
a
client of his and the services included sexual activity. The first
and second respondents duly went to the deceased’s flat who
received them well, made them coffee and all three then sat talking
in the lounge. After a while the deceased complained of back
pain and
the first respondent offered to give him a massage. The first
respondent undressed and left leaving his trousers in the
lounge. He
then went into the deceased’s bedroom, leaving the second
respondent in the lounge. After a while the first respondent
returned
to the lounge looking for his knife, which he always carried with
him. In the meantime, the second respondent had seen the
knife lying
on the floor and had hidden it in his pocket. The first respondent
demanded the knife but the second respondent refused
to give it to
him. A struggle ensued between them for possession of the knife but
ultimately the first respondent managed to dispossess
second
respondent, whereafter he returned to the deceased’s bedroom. The
second respondent then heard heated argument in the bedroom
and when
he went to investigate, he found that the first respondent had
stabbed the deceased. The first respondent then went to take
a bath.
The second respondent thereafter assisted the first respondent to
place the body of the deceased in the bath and filled it
with water.
The respondents thereafter removed several items from the deceased’s
flat, which included a video recorder and a DVD
player, and took away
his motor car.
[4] On appeal the sentences imposed on the respondents were attacked
by the State on the basis that they were too lenient, given
the
seriousness of the offences committed by the respondents. Mr Roberts,
for the State, submitted that the trial judge failed to
exercise his
discretion properly and had misdirected himself, especially in his
finding that the murder was not planned. The State
contends that even
if it were not found that the Judge had not misdirected himself, the
sentences imposed were disturbingly inappropriate
and that this court
is entitled to interfere and impose what it considers to be an
appropriate sentence.
[5] The approach to be adopted by the appellate court in an appeal
against sentence is that the court on appeal should be guided
by the
principle that punishment is ‘pre-eminently a matter for the
discretion of the trial court’ (See
S v Sadler
2000 (1) SA
331
(SCA) at para 6). It has been said that interference with the
trial judge’s discretion is only justified where there has been
failure
to exercise the discretion properly, either because of a
misdirection or where the sentence imposed is disturbingly
inappropriate.
[6] Against the backdrop of the above principle it remains to
consider whether there is a justifiable basis for this Court to
interfere
with the sentences imposed by the trial judge in this case.
Mr Roberts for the State submitted, as I have said, that the trial
judge
misdirected himself in concluding that the murder was not
planned. He referred us to a passage in the record in which the first
respondent
in his plea explanation said:
‘
Me
and accused 2 (meaning the second respondent) and William Daniel Roux
sat together and planned to rob the deceased.’
In respect
of the first respondent the verdict reads:
‘
Accused
No 1 is convicted of murder and robbery with aggravating
circumstances.
The murder was not planned
.’
[Emphasis added]
[7] It is not clear that in an appeal against
sentence
the
State can attack factual findings which are contained in the judgment
on
conviction
(cf
S v Fourie
2001 (2) SACR 118
(SCA) at
para 14). Be that as it may, there is no substance in the submission
because what the first respondent admitted in his plea
explanation
was that the
robbery
was planned. He did not admit that the
murder
was planned.
[8] I am satisfied, however, that there are reasons for interfering
with the sentence imposed on the first respondent. The crimes
of
which he was convicted were serious, calling for a sentence of
imprisonment for at least twenty years. The trial judge gave a
lesser
sentence, coupled with an ‘order’ calling upon the correctional
services authorities to see to it that the first respondent
received
therapy from a psychiatrist and a psychologist or social worker. The
judge appears to have been of the opinion that if the
first
respondent received the therapy he ordered it would be safe to
release him after 14 years. The judge had earlier expressed
his
concern about the first respondent’s ‘obvious potential for loss
of control’, which he said had ‘a psychological or even
possible
psychiatric history’ and stated his view that it is in the public
interest that persons such as the first respondent ‘should
be
subjected to special treatment in a psychiatric or similar
institution’.
[9] The first respondent clearly poses a risk to the community. It
appears essential that he should receive therapy to address his
personality problems. What therapy he should receive and when is a
matter for the correctional service authorities to consider when
exercising their functions in terms of Chapter IV of the
Correctional
Services Act 111 of 1998
. Although the sentencing court had the power
to make comments on the manner in which it thought the sentence it
was imposing on the
first respondent should be served (see
s 38(2)
of
Act 111 of 1998), it had no power to make orders in that regard. The
‘order’ it made must be set aside. Even if the ‘order’
were
to be regarded as comments to be considered under s 38(2), I do not
agree with them. The sentencing court did not have expert
evidence
before it from a psychiatrist or psychologist. The assumption the
court appears to have made about the first respondent’s
probable
response to the therapy he ordered should be given was not supported
by the evidence led. The witness who testified was
a probation
officer who had had a discussion with a psychiatrist on the staff of
Weskoppies Psychiatric Hospital. She told the court
what the
psychiatrist had told her.
[10] In my view the sentence imposed on the first respondent should
be set aside, together with the ‘order’ addressed to the
correctional authorities which accompanied it, and replaced by a
sentence of imprisonment for 20 years.
[11] As to the second respondent I am not persuaded that the trial
judge misdirected himself. The second respondent played a very
minor
role in both the theft and the crime of being an accessory after the
fact. In fact from the outset he was not prepared to be
a party to
the murder. He tried to prevent the first respondent from committing
the murder and struggled with him for possession
of the knife. His
role in the crime of being an accessory was negligible. It is true
that he was involved to a greater extent on
the theft charge. On the
other hand he appears to have acted under the influence of the first
respondent. It must also be borne in
mind that he spent some 17
months in prison awaiting trial and has served the 12 months sentence
imposed upon him in terms of s 276(1)(h)
of Act 51 of 1977. Besides
this there was a further sentence of two years’ imprisonment
hanging over his head in the event of a
breach of any of the
conditions imposed by the judge in respect of house arrest. It is not
suggested that he failed to adhere to
the conditions imposed as part
of that sentence. I am unable to find that an adequate basis exists
for interfering with the judge’s
discretion in regard to the second
respondent. I am accordingly of the view that the appeal against the
sentence imposed on the second
respondent should be dismissed.
[12] The following order is made:
(a) The appeal in respect of the sentence passed on the first
respondent is allowed. The sentence imposed on the first respondent
is set aside and replaced by the following:
‘
20
years imprisonment’.
(b) The appeal in respect of the sentence imposed on the second
respondent is dismissed.
____________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
FARLAM
JA
MLAMBO
JA