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S v Lotter and Others (CC43/09) [2012] ZAKZDHC 51 (19 March 2012)

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Criminal Law
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Brief Summary

Criminal Law — Sentencing — Life imprisonment — Substantial and compelling circumstances — Accused convicted of premeditated murder — Court considers triad of accused, crime, and societal interests in sentencing — Accused Nos 1 and 3 found to have substantial and compelling circumstances justifying deviation from mandatory life sentence due to manipulation by accused No 2 — Accused No 2, however, displayed no remorse and failed to establish any mitigating factors, warranting imposition of prescribed life sentence.

Comprehensive Summary

Summary of Judgment


1. Introduction


The judgment concerns sentence proceedings following the conviction of three accused persons on two counts of murder. The matter was heard in the KwaZulu-Natal High Court, Durban, under case number CC43/09, with the sentence delivered on 19 March 2012 by Gyanda J.


The parties were the State as prosecutor and three accused persons (referred to in the judgment as accused no 1, accused no 2, and accused no 3) as the convicted offenders. The deceased were the parents of accused nos 1 and 3, who were described as productive members of society.


Procedurally, the judgment represents the sentencing stage after conviction. The court approached sentence on the basis that the murders were pre-planned, triggering the application of the prescribed minimum sentencing regime. A central aspect of the sentencing enquiry was whether any accused had shown “substantial and compelling circumstances” justifying a departure from the prescribed sentence of life imprisonment on the murder counts.


The general subject-matter of the dispute at sentencing concerned the appropriate punishment for premeditated murders, including whether the evidence established diminished responsibility or other mitigating features for any of the accused, and how statutory sentencing provisions (including non-parole and concurrency) should be applied.


2. Material Facts


It was treated as established for purposes of sentencing that two murders had been committed and that the murders were pre-planned. The court accepted that the crimes had permanently removed two members of society who were regarded as useful and productive, and that the killings occurred “for no apparent reason whatsoever” as framed by the court in assessing the gravity of the offences.


In relation to accused no 1 and accused no 3, the court accepted (and noted a concession by the State) that they had been influenced and controlled by accused no 2, and that accused no 2 had inculcated in them a belief that their parents were evil and had to die because it was the will of God. The court also accepted that accused no 1 was a socially isolated young person who wanted to belong, and that accused no 3’s role included reinforcing accused no 2’s influence in a way that affected accused no 1’s ability to resist the plan.


The court further accepted that accused no 1 had displayed reluctance at stages to carry out the plan, including at an earlier stage at the Botanical Gardens and later when the plan was being executed, requiring intervention from accused no 3 (including her taking the Taser from him). The court treated this as consistent with reduced autonomy under the influence of accused no 2.


Regarding accused no 3, the court accepted expert evidence (as summarised in the judgment) that she was an abused woman and suffered from what was referred to as “the abused woman syndrome”. It was treated as undisputed in the sentencing discussion that accused no 2 assaulted accused no 3, including abuse with a sexual character, and that she was forced to perform degrading acts (including being forced to drink accused no 2’s urine). The court reasoned that this supported the conclusion that she complied with accused no 2’s wishes to please him and under coercive dynamics.


In relation to accused no 2, the court found no acceptable basis on the record to treat him as suffering from mental abnormality or diminished responsibility for purposes of sentencing. The court noted that his counsel sought to rely on aspects such as his letters and a remark during cross-examination about mental observation, but the court considered this undermined by the fact that accused no 2 denied authoring the letters, and did not lay a foundation for diminished responsibility as part of his own case.


The court characterised accused no 2, on the evidence before it, as the principal planner who set harmful events in motion and who engaged in conduct aimed at misleading investigators and creating a false narrative. The court referred, among other things, to false robbery reports, theft of money using an ATM card and a stolen PIN, and taunting communications, as well as procurement of items (including gloves, needles, and a Taser) and directions about timing designed to support an alibi.


A further material fact for sentence was that accused nos 1 and 3 had spent approximately four years in custody before sentence, which the court expressly took into account.


3. Legal Issues


The central legal questions were sentencing questions under South African criminal law, primarily whether the court could depart from the prescribed sentence of life imprisonment applicable to pre-planned murder, and if so, what alternative sentences were appropriate for each accused.


The key issue involved the application of law to fact, namely whether the personal circumstances and role of each offender, considered against the nature of the offences, constituted “substantial and compelling circumstances” permitting deviation from the prescribed minimum sentence. The court also had to make evaluative findings about mitigation, including whether accused nos 1 and 3 acted with diminished responsibility due to manipulation, coercive control, and abuse dynamics, and whether accused no 2’s circumstances supported any comparable mitigation.


A further issue concerned the exercise of statutory sentencing discretions relating to concurrent sentences, and the fixing of non-parole periods in terms of the Criminal Procedure Act 51 of 1977.


4. Court’s Reasoning


The court approached sentence by applying the conventional sentencing framework that sentence must reflect the offender, the crime, and the interests of society, and that punishment should include a measure of mercy. Against this, it emphasised the extreme seriousness of the crimes, particularly because two lives were taken and the deceased were viewed as valuable and productive members of the community.


A decisive feature of the court’s reasoning was that the murders were pre-planned, which meant that the minimum sentencing legislation required the imposition of life imprisonment unless substantial and compelling circumstances justified departure. The court therefore assessed each accused individually to determine whether such circumstances were present, rather than treating the accused as a homogeneous group.


For accused no 1 and accused no 3, the court accepted the State’s concession that substantial and compelling circumstances existed. The court reasoned that accused no 2’s sustained influence and control over them, including the inculcation of a religiously framed belief that the parents were evil and had to be killed, materially reduced their autonomy and culpability. The court also relied on contextual indicators supporting that influence, including accused no 1’s isolation, need for belonging, and his internal conflict as reflected in an exhibit the court described as disclosing a “tortured mind”.


The court also treated accused no 1’s reluctance and difficulty in carrying out the plan as consistent with diminished responsibility under manipulation, and it regarded accused no 3’s conduct in persuading and assisting accused no 1 (including taking over use of the Taser) as part of a dynamic in which both were operating under accused no 2’s direction. In addition, the court placed weight on the expert evidence that accused no 3 was an abused woman, and accepted that the abuse and coercion by accused no 2 contributed to her compliance and reduced responsibility.


For accused no 2, the court rejected the submission that substantial and compelling circumstances existed. The court considered that any reliance on mental disturbance required a foundation laid by accused no 2, and it found this absent, particularly because he denied writing the letters that were said to reveal a disturbed mind. The court also highlighted the absence of remorse, reasoning that while accused no 2 was entitled to maintain innocence, he could not simultaneously seek mitigation premised on prospects of rehabilitation when rehabilitation presupposes acknowledgement of wrongdoing and remorse. The court considered this incompatible with treating him as an “ideal candidate for rehabilitation” for purposes of sentence reduction.


The court made a strong evaluative assessment of accused no 2’s character and conduct during trial, describing his courtroom presentation as mature beyond his years, arrogant, and manipulative. It considered the evidence showed planning, procurement of tools for the crime, orchestration of timing to support an alibi, and a broader pattern of deception (including false robberies and misleading communications) designed to facilitate the crime and impede investigation. These features were treated as aggravating and inconsistent with any basis to depart from the prescribed sentence.


In determining appropriate sentences for accused nos 1 and 3 despite the presence of substantial and compelling circumstances, the court weighed punishment and deterrence heavily. It reasoned that although the likelihood of reoffending violently was “almost nil”, society would be outraged by unduly lenient outcomes, and there was a need to deter reliance on occult or similar beliefs as excuses without substantiation. The court stressed that in this case it considered there was sufficient evidence beyond the accused’s own say-so to confirm the influence exerted by accused no 2.


Finally, in shaping the sentencing structure, the court exercised statutory powers to order sentences on the two murder counts to run concurrently, and to set non-parole periods for accused nos 1 and 3. It expressly took into account their time spent in custody and the lifelong burden of their actions.


5. Outcome and Relief


The court sentenced accused no 1 to ten (10) years’ imprisonment on each of the two murder counts, ordered to run concurrently, and fixed a non-parole period of six (6) years in terms of section 276B of the Criminal Procedure Act 51 of 1977.


The court sentenced accused no 3 to twelve (12) years’ imprisonment on each of the two murder counts, ordered to run concurrently in terms of section 280 of the Criminal Procedure Act 51 of 1977, and fixed a non-parole period of eight (8) years in terms of section 276B(2) of the same Act.


The court sentenced accused no 2 to life imprisonment on each of the two murder counts, ordered to run concurrently, on the basis that no substantial and compelling circumstances justified departure from the prescribed minimum sentence.


No costs order is reflected in the provided extract, and none is summarised as having been made.


Cases Cited


No case law was expressly cited in the provided judgment extract.


Legislation Cited


The Criminal Law Amendment Act (prescribed sentence of life imprisonment for pre-planned murder, subject to substantial and compelling circumstances) was referred to, without the Act number being specified in the provided extract.


The Criminal Procedure Act 51 of 1977, including section 276B, section 276B(2), and section 280, was expressly referenced.


Rules of Court Cited


No rules of court were cited in the provided judgment extract.


Held


The court held that, because the murders were pre-planned, the prescribed sentencing regime required life imprisonment unless substantial and compelling circumstances were present.


The court held that substantial and compelling circumstances existed for accused no 1 and accused no 3, principally due to their being controlled and influenced by accused no 2, including manipulation through religiously framed beliefs and, in accused no 3’s case, an abusive relationship dynamic accepted on the evidence. It held that both accused no 1 and accused no 3 acted with diminished responsibility in the sense described in the sentencing reasoning.


The court held that no substantial and compelling circumstances existed for accused no 2, emphasising the absence of a proper basis for diminished responsibility, the denial of authorship of letters relied upon by the defence, the lack of remorse, and the evidence of planning and manipulation.


LEGAL PRINCIPLES


Sentencing was approached on the basis that the court must consider the offender, the offence, and the interests of society, while ensuring that sentence incorporates a measure of mercy.


Where murders are found to be pre-planned and fall under the prescribed minimum sentencing framework, the court must impose life imprisonment unless it finds substantial and compelling circumstances justifying a lesser sentence; this enquiry is offender-specific and fact-dependent.


A mitigation case premised on mental disturbance or diminished responsibility requires an adequate foundation on the evidence placed before the court; the court treated denials inconsistent with the alleged foundation (such as denial of authorship of relevant documents) as undermining such mitigation.


In assessing rehabilitation as a sentencing consideration, the court treated remorse and acknowledgement of wrongdoing as central to rehabilitation in the context of mitigation, and it declined to treat prospects of rehabilitation as a basis for leniency where the accused maintained complete innocence and displayed no remorse.


The court applied statutory powers to order concurrent sentences on multiple counts and to fix non-parole periods under the Criminal Procedure Act, taking into account time already spent in custody as a relevant sentencing consideration.

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[2012] ZAKZDHC 51
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S v Lotter and Others (CC43/09) [2012] ZAKZDHC 51 (19 March 2012)

CC43/09-NB/CD
9
SENTENCE
SENTENCE
19 MARCH 2012
GYANDA J
The most difficult function of a Court is the
imposition of an appropriate sentence upon accused persons that it
has convicted.
Counsel has already outlined the basic principles
involved in the assessment of an appropriate sentence, namely that
the Court
in imposing an appropriate sentence has to take into
account the triad of the accused, the crime and the interests of
society and,
at the same time, impose a sentence that embraces in it
a measure of mercy.
There has been a fair amount of evidence that has been led in
mitigation of sentence and on the aspect of the availability of

education in the Correctional Services system in respect of convicted
persons. I do not intend repeating the evidence of the Reverend

Mr Willem Lotter and Pastor Leon van Assenderp, nor do I intend
repeating the personal particulars of the three accused, save
to say
that they are fairly young especially accused No 1 who turned 21
in custody. They are very young people at the beginning
of their
lives, if one were to regard them as young adults. But this case is
such a terrible case when one considers that it has
permanently
removed, as properly argued by counsel for the State, two very useful
members of society, two very productive members
of society for no
apparent reason whatsoever.
The first question that this Court has to determine is whether or
not there are substantial and compelling circumstances in the
case of
each of the accused which would justify this Court in imposing a
sentence other than the prescribed sentence of life imprisonment
in
respect of the two charges of murder in as much as the evidence
discloses that the murders were pre planned. The Criminal
Law
Amendment Act prescribes the sentence of life imprisonment unless
this Court were to find that there are circumstances in the
case of
each of the accused which amount to substantial and compelling
circumstances and justify the Court in departing from imposing
the
prescribed sentence.
As regards accused Nos 1 and 3, counsel for the State has properly
conceded that there are such circumstances and that the evidence
of
them being controlled by accused No 2 and the belief that was
inculcated in them by accused No 2 that their parents
were evil
and had to die because it was the will of God amounted in their cases
to substantial and compelling circumstances which
justify this Court
in departing from imposing the prescribed sentence of life
imprisonment in respect of accused Nos 1 and 3.
With accused No 2, I had during the evidence of Professor
Schlebusch debated with him the position of accused No 2,
in as
much as it had been argued at some stage that but for the Nazi
Germany and the populace that followed Hitler, Hitler would
not have
been able to maintain power and his beliefs as long as he did, that
is that the control and the reciprocal belief system,
the one in the
other, existed for Hitler to be in control for as long as he was and
for the people to believe in his power for
as long as they did. It
would appear on that basis that accused No 2 may very well have
had the opportunity and the right
to say that but for accused Nos 1
and 3 so gullibly following him, he would not have had two subjects
to manipulate, and if
he did not have the two subjects to manipulate
he would not have got himself in trouble as he did. But for accused
No 2 to
have argued a basis of diminished responsibility on the
basis that accused Nos 1 and 3 by allowing him to manipulate them
thereby
manipulated him in a sense, he would had to have given such
evidence and lay the basis for such findings but he did not.
His counsel argued that there may be substantial and compelling
circumstances in respect of accused No 2 to be found in his

evidence when he was cross-examined and when he responded to a
question: “I suppose it’s too late now to ask for mental

observation”, that that should have alerted the Court that
there must be something wrong with accused No 2 and that
his
letters and the contents of the letters that he had written,
likewise, must raise a red flag that there is something definitely

wrong mentally with accused No 2 which resulted in him behaving
in the fashion that he did. But the starting point in respect
of
accused No 2 is accused No 2 himself. For any of this to
be viewed in his favour he had to lay a basis for it. He
denies that
he wrote those letters, so how can anyone place any value on that on
the same basis as is contended for by accused
Nos 1 and 3 when
accused No 2 himself says he did not write these letters? If he
did not write them how can one say that
what is depicted in those
letters shows or reveals a demented mind or an over-religious person?
None of these things can be said
about accused No 2. He simply
does not accept that he wrote those letters.
As I have drawn to the attention of Mr
Sivakumoor
during
argument, accused No 2 has shown no remorse. He (Sivakumoor)
has argued that accused No 2 is entitled to maintain
his
innocence, and so he is but he cannot then claim to be entitled to
have a lighter sentence than usual imposed upon him on the
basis that
he is an ideal candidate for rehabilitation, that he is a young man
and can be properly rehabilitated when the essence
of rehabilitation
encompasses a person first of all admitting his fault, showing
remorse and then starting on the road to rehabilitation.
You cannot
rehabilitate a person who has not offended. It just does not make
sense. If you have not offended, you have not offended.
Who is
going to rehabilitate you, and how? It is impossible.
I have thought long and hard about the position of accused No 2,
including the fact that he grew up, as he says, alone because
his
mother worked very long hours from the time when he was a very young
person, but even this is incongruous with what appears
to have been
placed before the Court previously from the evidence of accused No 3,
if I recall, that accused No 2 lived
in the home of his extended
family, and that also appears from the statement of his mother, that
there were uncles, aunts and even
his grandmother, so how would he
have been growing up alone?
There is just nothing in the case of accused No 2 that would
amount to substantial and compelling circumstances in his case.
His
alleged youthfulness, as argued by Mr
Sivakumoor
, is far
from being a substantial and compelling circumstance in his case. In
fact, the way in which he portrayed himself in court
when he
testified and his mannerism throughout this trial indicates to me
that he is a person that is mature well beyond his years.
He
portrayed himself clearly as a person who knew it all, believed he
was superior to everybody else and portrayed an arrogance
second to
none seen in this court. He believed that everybody else was stupid
and he knew everything and hence his mocking letters
to the Lotters
and the mocking letters to the police after the deed had been done.
The entire case in respect of accused No 2,
if analysed, clearly
indicates a cunning and conniving man who set in motion the wheels to
do harm to this family from the inception
when he made accused Nos 1
and 3 report false robberies in respect of each one of them. He had
a plan for the Lotters. When he
said to his mother at a very early
stage, before he had even convinced accused No 3 of that fact,
that accused No 3 had
been molested by her father and therefore
needed prayer to help her also indicates that he had a plan for the
Lotters long before
accused Nos 1 and 3 realised it. Then his
thefts of the money using the ATM and their card and stolen PIN
number and, as
I say, the taunting and threatening letters and SMSes,
all these were part of his plan to indicate to the police, if ever
this
case was investigated, that somebody was after the Lotters for
some very long time if one has regard to one of the letters where

reference is made to the fact of Mr and Mrs Lotter abusing the writer
for some eight years already. These were all intended to
mislead and
set in motion this entire plan. It was he who bought or caused to be
bought the gloves that were used, the surgical
gloves. It was he who
bought the needles that were to inject air bubbles into their veins.
It was he who bought the Taser that
was supposed to shock the
deceased before they were incapacitated and injected with the
needles. It was he who instructed accused
Nos 1 and 3 as to what the
time ought to be when the attack on both the deceased started in
order that his alibi of being at the
movies at 8.00 pm-ish, as
accused No 3 says in her statement, would keep him out of harm’s
way, and that is why
he was so confidently arrogant in court in
saying he had nothing to do with it, he was never there, he was at
the movies, when
the evidence discloses otherwise.
I cannot find anything in the case of accused No 2 to amount to
substantial and compelling in his case, and in the circumstances
the
sentence that will have to be imposed upon him is the one prescribed
by law.
With accused Nos 1 and 3, as I say, counsel for the State has
conceded that there are substantial and compelling circumstances
but
has argued for a lengthy term of imprisonment for both of them, in as
much as it appears that the prime reason for the involvement
of at
least accused No 3 was the money. But the same cannot be said
of accused No 1, based on her argument. However,
if regard is
had to the content of her evidence and the statement made by accused
No 3, it appears that the money was not
the prime motivating
force as far as she was concerned because she did say that she told
accused No 2 he could have all of
the money that was due to her.
The plan to kill both of the deceased and inherit the money
obviously came from accused No 2, and accused No 1, in his

words, “would be taken care of by accused Nos 2 and 3”,
so that fits in entirely with their version – that is
the
version of accused Nos 1 and 3 – that it was not for the money
but for the fact that accused No 2 portrayed their
parents as
being evil people who needed to be removed so that they no longer
stood in his way in doing the work of God. That that
fact influenced
accused No 1 cannot be gainsaid, and that is to be found in
Exhibit S in which he discloses a tortured mind
of a person who was
being torn between his parents on the one hand and his new-found
brother, as accused No 2 had portrayed
himself to accused No 1.
We must remember accused No 1 had no friends. He lived the life
of a loner. All he really
lived for was his computer, and his uncle
confirmed that. He lived for watching his TV programmes, had no
friends, did not go
out and so when accused No 2 took interest
in him it made him feel important, and as counsel for the State
conceded accused
No 1 wanted to belong, and that is why they
were able to influence him. What is more, with the case of accused
No 1,
he had his sister, his older sister, whom he looked up to
and respected, who was validating the claims of accused No 2
when
he was putting on these performances and portraying himself as
angels or gods or demons, and one will recall the evidence that
accused No 1 tried to resist going through the plan at Botanical
Gardens, and when he did resist going through with the plans
accused
Nos 2 and 3 shunned him and accused No 2 had to convince him to
go through with it. Once again, when he was at home
accused No 3
had to pray with him to try and convince him, and when the plan was
being put into effect he again found it difficult
to go through with
it and accused No 3 had to take the Taser from him and use it
herself, and that is how the plan backfired
and instead of air
bubbles being injected into their mother’s arm or using the
syringes she had to be stabbed, again on the
instructions of accused
No 2.
With accused No 3, the additional aspect was the fact referred
to in the evidence of Professor Laubscher that she was an
abused
woman. She suffered from what he referred to loosely as “the
abused woman syndrome”. Accused No 2 assaulted
both
accused Nos 1 and 3 and his assaults on accused No 3 also took
on a sexual character and the evidence discloses, which
was never
disputed, that part of his abuse of accused No 3 was forcing her
to drink his urine, and if she could stoop to such
low levels to obey
him it follows that she would do exactly as he had wanted, just to
please him.
In my view, therefore, both accused Nos 1 and 3, for these reasons
which I have just outlined, have acted with diminished
responsibility.
I cannot envisage how otherwise two normal people
from a middle-class home would go about executing their parents in
the fashion
that they did, but for the influence, proof of which is
readily available in the exhibits before us.
That accused Nos 1 and 3 must be punished follows. The fact is
although the likelihood of them ever repeating such violent crimes
is
almost nil, society would be aghast if they were to get away with
what would be slaps on the wrist such as correctional supervision
and
suspended sentences, more especially in the light of the enormous
loss to the family and the community of two hard-working,
intelligent
and productive people in the community.
Like-minded people must also be deterred from committing such acts
in the future, lest it be believed that these defences of belief
in
witchcraft and belief in the occult would allow people to escape from
liability. There has to be, as in this case there was,
evidence
other than evidence from the accused themselves which substantiates
their version that they were in fact influenced as
they claimed they
were. As I say, in this case there is sufficient evidence on record
to confirm that accused Nos 1 and 3 were
in fact influenced to the
extent that they say they were.
The sentence that I propose to impose on the three accused, taking
all that I have said into account, is the following:
In respect of accused No 1, he is sentenced on each of the two
counts to
TEN (10) YEARS’ IMPRISONMENT
. Both of them
are to run concurrently, and the
NON-PAROLE PERIOD
in respect
of his sentence is calculated to be
SIX (6) YEARS
in terms of
the provisions of section 276B of the Criminal Procedure Act.
In respect of accused No 3, she is sentenced to serve a term of
imprisonment of
TWELVE (12) YEARS
each on each of the two
counts. Both are ordered to run concurrently in terms of the
provisions of Section 280 of the Criminal
Procedure Act, and the
NON-PAROLE PERIOD
in respect of her sentence is fixed to be
EIGHT (8) YEARS
in terms of the provisions of section 276B(2)
of the Criminal Procedure Act.
I have taken into account the fact that accused Nos 1 and 3 have
spent approximately four years in custody and I have also taken
into
account the fact that accused Nos 1 and 3 will have to live the life
sentences indicated by counsel for accused No 1
with the thought
of their deed for the rest of their lives.
For accused No 2, as I have said, there are no substantial and
compelling circumstances in your case and I am obliged to
impose upon
you the sentence prescribed by law. You are sentenced on each of the
two counts to
LIFE IMPRISONMENT
. Both are to run
concurrently.
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COURT ADJOURNED

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