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[2000] ZAWCHC 6
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S v Birch (SS118/1999) [2000] ZAWCHC 6 (30 November 2000)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER
:
SS118/1999
DATE
:
30
NOVEMBER 2000
In
the matter between:
THE
STATE
versus
CLAUDE
BIRCH
S
E
N T E N
C
E
DAVIS.
J
:
[1]
On the 20
th
April 1999 Claude Birch was convicted on ten counts of which he had
been charged which included two counts of raping one N C, a
12 year
old girl, a count of assault with intent to do grievous bodily harm
to one P B, two counts of robbery with aggravating
circumstances, one
count of arson and three counts of attempted murder. All of these
charges and convictions stemmed from what
can only be termed a four
hour spree which exhibited madness unquestionably induced by the
alcohol and drugs on the 25
th
July 1998.
[2]
Given that a number of these convictions fall within the scope of
section 51
of the
Criminal Law Amendment Act 105 of 1997
, the
question of sentence was referred to this Court. In short, in terms
of
section 51(1)
the fact that Mr Birch has been convicted of an
offence which falls within
Part I
of Schedule 2, namely rape of a
girl under the age of 16, means that this Court is obliged to
sentence him to imprisonment for
life save if in terms of subsection
(3)(a) of the Act the Court is satisfied that substantial and
compelling circumstances exist
which justify the imposition of a
lesser sentence than the sentence prescribed in subsection (1).
[3]
In addition, Mr Birch has been convicted of two counts of robbery
with aggravating circumstances which means that in terms of
subsection (2) of Act 51 the Court is obliged, given that for the
purposes of these sentences Mr Birch would be a first offender,
to
impose imprisonment for a period of not less than 15 years, save if
the Court can justify exercising its discretion in terms
of
subsection (3)(a).
[4]
Before dealing with the questions of sentence,
section 52
of the Act
enjoins the Court to consider whether it is satisfied that the
process of conviction for the Regional Court is justified
and that
the Court must be satisfied that the accused is guilty for which he
or she has been convicted. The Court is so satisfied
and therefore
confirms the finding of guilt in respect of all the charges which
have been set out above. On this basis the Court
can proceed to deal
with the questions of sentence.
[5]
Mr
Theron
.
who appeared on behalf of the State, suggested a range of approaches
which could be adopted by the Court insofar as these offences
were
concerned. He submitted that the Court could all of the counts
together for the purposes of sentence in that, as has already
been
mentioned, all of these charges flowed from events which took place
over a mere four hours on the same day. Or, alternatively
Mr
Theron
submitted, that the Court could classify the convictions into three
groups, namely the two charges of rape and convictions thereof,
the
two counts of robbery with aggravating circumstances and finally the
attempted arson together with the three counts of attempted
murder in
that insofar as the latter was concerned it all stemmed from the use
of a petrol bomb by the accused.
[6]
The Court proposes to adopt the latter course and to deal with the
various convictions by means of a threefold classification.It
is
trite law that in dealing with the questions of sentence the Court
must consider the crime, the offender and the interests of
the
community, although as I have stated previously it appears to me that
the more appropriate approach is to adopt a fourfold
classification
being the crime, the offender, the broader interests of our
constitutional community and the particular interests
of the victim
and her family.
[7]
There can be no doubt that insofar as the two crimes of rape are
concerned these were dastardly deeds. The complainant, a
twelve year
old girl, the manner in which the accused raped her was, as is the
case with all rapes, a violent, brutal and inhuman
action. In this
case it is even compounded by the manner in which the rape was
conducted by the accused's utter and complete
disregard for the
humanity and dignity of a twelve year old child and by the fact that
the sequence of events insofar as the
two rapes were concerned took
over a sufficiently sustained period as to create an even more
appalling climate of fear for the
complainant. The fact that to some
extent the complainant would have not only known the accused but
would have some basis to
believe that she could trust him only
compounds the nature of the crime.
[7]
Mr Birch, who appeared on his own behalf for reasons which I shall
mention shortly, submitted that he was heavily under the
influence
of drugs and indeed, he went so far as to contest his ability to
have formed the requisite criminal intent. That issue
is not before
me although I should say that the magistrate's judgment is
particularly careful in this regard and, in my view,
provides
adequate and reasoned justification for rejecting this particular
line of defence.
[8]
That being so, Mr Birch submits that his moral inhibitions were
clearly sufficiently loosened by the intake of drugs and that
accordingly his moral culpability should be regarded as having been
reduced accordingly. Mr
Theron
of
course raised the difficult as to whether in fact a court should
take account of drugs and intoxication as mitigating factors,
or to
put it within the framework of
section 51(3)
, whether they
constituted substantial and compelling circumstances sufficient to
justify the imposition of a lesser sentence.
[9]
As he correctly submitted, the Minnesota Guidelines which the
minimum sentence legislation to which I have already made reference
was clearly influenced, expressly excludes a consideration of these
factors. Were they to be the only facts to be taken into
account I
would be extremely hesitant to conclude that they amounted to any
substantial or compelling circumstances. If it were
to be so, courts
would be giving licence to people to commit crimes on the basis of
intoxication and drugs and then to attempt
to take the horror off
the nature of their crimes by recourse to such arguments.
[10]
But there are other aspects of which the Court must take account. Mr
Birch has clearly had a tragic childhood, in the pre-sentence
report
which has been made available to the Court, there is clear evidence
that Mr Birch lost his mother when he was four years
old and
suffered at the hands of a father who himself was heavily involved
in drugs. He is a person who has never had the benefit
of a stable
and decent childhood and, as he movingly said to the Court in his
argument in mitigation, he is a man who has developed
antisocial
tendencies to such an extent that he finds it extremely difficult to
reciprocate care and concern for other human
beings.
[11]
It is also so that Mr Birch submitted documents which I am prepared
to take into account regarding his conduct in the more
than
two years in which he has been incarcerated pursuant to
having been arrested and in which it appears that
he has made a
sincere attempt to find religion to examine the innermost recesses
of his soul and to try as best as he can to
come to terms with the
sheer horror of the life which he had led and which led to these
tragic events.
[12]
Mr Birch of course submitted that given the evidence that he is on
the road to some form of rehabilitation the Court should
take
serious cognisance thereof in order to reduce the sentence way below
that prescribed by the Act.
[13]
The legislation appears to me to work with two fundamental
penological concepts, namely culpability and harm. In other words,
a
court must take account in substantial and compelling circumstances
of the culpability of the accused in a moral sense, to
which I have
already made reference. But it also needs to take account of the
harm which has followed from the acts on which
the accused has been
convicted. Even were I to be generous to Mr Birch and to submit that
the culpability which he exhibited
should be considered to have been
reduced morally as a result of the intake of drugs and that his
subsequent remorse and attempt
to come to social terms with that
which he committed would reduce his culpability, the harm which was
created by raping a 12
year old child on two occasions, albeit
within a similar time sequence, is of such a dastardly nature that a
court must be extremely
careful before finding substantial and
compelling circumstances.
[14]
Mr
Theron
submitted that when one looked at the overall nature of the
culpability and the harm and the interests of society an appropriate
sentence would be that of 20 years, in that the substantial and
compelling circumstances were at least such that a minimum sentence
of life would be inappropriate in such a case.
[15]
This is a very difficult case and I find myself in a difficult
jurisprudential situation as to know precisely whether in
fact
substantial and compelling circumstances do exist in this case. We
have to do here with an antisocial human being who has
brutalised a
young girl of 12 years old in circumstances where he himself admits
no one quite knows what the psychological effects
of this ghastly
set of circumstances will be on her for the rest of her life Perhaps
it is because of the nature of the life
which he led, the sincere
attempt to redress the evil which he committed, the clear evidence
from independent sources, including
those within the Department of
Correctional Services, support his own contentions with regard to
his changed approach that in
circumstances where there is some doubt
in the mind of the Court, that doubt should to this very limited
extent, dictate that
a careful and anxious conclusion should find
that substantial and compelling circumstances do so exist.
[16]
An appropriate sentence would therefore be approximately 22 and a
half years. It is a shade short of the 25 years prescribed
in terms
of
section 51
, it is sufficient to leave the door open to
consideration by the authorities at a later stage. I would, and I do
impose a sentence
of 22 and a half years upon Mr Birch insofar as
each of these convictions are concerned but I am prepared to take
account of
the fact that he has spent two and a half years in prison
already.
[17]
The public is unaware of the fact that courts should take account of
the time that a person has been incarcerated as an awaiting
trial
prisoner. Those of us who, as judges of this court have a duty to
visit prisons, know well what the conditions of awaiting
trial
prisoners actually are and in many circumstances they are actually
worse than those of sentenced prisoners. It is a legitimate
and
justifiable exercise to take account of the time spent by an
awaiting trial prisoner in prison in the final assessment of
the
sentence. Therefore, insofar as the public is concerned this Court
has sentenced Mr Birch to 22 and a half years for each
conviction on
rape but this amounts to an effective 20 years because I have taken
account of the two and a half years which he
has spent in prison
already.
The
robbery with aggravating circumstances
[18]
The fact that I have already spent a considerable amount analysing
the existence of substantial and compelling circumstances
there is
no need to repeat that which I have already said. All of these
crimes flowed from one set of circumstances beginning
with the two
rapes and culminating with the three counts of attempted murder. It
would be appropriate therefore to sentence Mr
Birch to a term of
imprisonment of 15 years for the crimes of robbery with aggravating
circumstances and accordingly I sentence
him to seven years on each
count of attempted arson and the three counts of attempted murder.
[19]
These were the final acts Mr Birch in his spree of madness which
began with the rape of Nicola Clayton and ended with throwing
a
petrol bomb through a house occupied by three people. In my view,
these are serious offences, on their own they would necessitate
a
serious sentence of imprisonment, even though I should emphasise
that notwithstanding Mr Birch's long list of convictions,
none of
them are for acts of violence and all of them are for the use of
drugs. In the circumstances, taking all of these convictions
into
account would be a term of imprisonment of six years.
[20]
To summarise thus, the Court has sentenced Mr Birch on each count of
rape to a term of imprisonment of 20 years; to a term
of
imprisonment of seven and a half years for the two counts of robbery
with aggravating circumstances and a term of imprisonment
for six
years for the attempted arson taken together with three counts of
attempted murder, all of these sentences to run concurrently.
[21]
There is of course the final count of assault with aggravating
circumstances, again which played out in the same events,
and which
a term of imprisonment of four years will be imposed.
All
of these sentences will run concurrently which effectively means
that Mr Birch has been sentenced to an effective term of
imprisonment of 20 years, although were, as he indeed he should, to
spend the entire duration in prison he would have been in
prison for
22 and a half years effectively given the amount of time that he has
already spent in prison.
I
want to make one final point before concluding and that is I am
aware that Mr Birch represented himself in the difficult issue
of
dealing with sentence. That is not, however, a matter which was done
lightly. When this matter initially came before this
Court for
sentence Mr Birch was represented by Mr
du
Toit
in whom it appeared Mr Birch had lost confidence and accordingly
time was given to Mr Birch to procure another legal representative,
although he was warned at the time that it would be preferable to
employ Mr
du
Toit
who appeared to be extremely concerned with the welfare of Mr Birch
in the event that no other legal representative was available.
When
the Court recommenced to hear this matter on Monday, Mr Birch
persisted with his view that he did not wish Mr
du
Toit
to represent him and after careful questioning by the Court he
accepted that he finally had to go ahead representing himself.
I do
not consider that any injustice was done in this case in that during
the hearing before the trial Court, Mr Birch was represented
by
experienced counsel Mr
Eia
and in the proceedings before me he presented his case extremely
eloquently with a great degree of insight and revealed a
considerable
measure of legal preparation in the presentation of
argument before me. He objected to a number of aspects in the
probation officer's
report and which I have not taken account of any
aspect of that report to which Mr Birch objected.
[21]
Accordingly, I am satisfied that issues were ventilated before this
Court in a free, fair, reasonable and just manner.
DAVIS,
J