Sevenster v S (A628/2001) [2002] ZAWCHC 7 (28 January 2002)

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[2002] ZAWCHC 7
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Sevenster v S (A628/2001) [2002] ZAWCHC 7; 2002 (2) SACR 400 (C) (28 January 2002)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: A628/2001
In
the matter between:
RUSSEL
PAUL SEVENSTER
Appellant
and
THE STATE Respondent
JUDGMENT
VAN
REENEN, J:
The appellant
stood trial before Hlophe DJP (as he then was) and two assessors on
the following charges:
that he
on 3 January 1998 and at No 1E Port Du Gard, Beach Road, Sea Point
unlawfully and intentionally killed Alison Gregg (Gregg)
by
hitting her with a blunt object and slitting her throat with a knife
(Count 1);
that he
on the said date and place unlawfully and intentionally killed Mark
Von Gerhardt-Weber (Von Gerhardt-Weber) by hitting
him with a blunt
object and stabbing/cutting him with a knife (Count 2);
that he
on the same date and place assaulted Gregg and Von Gerhardt-Weber
and by force removed from their possession a Honda Ballade
motor
vehicle CA 774256, a sewing machine, a washing machine, a music
system, a television set, a video casette recorder, a tool
box
containing power- and other tools, a mini stove, a carpet, a
billiard cue, a pair of binoculars, a car radio face-plate, an
electric kettle, an urn, jewellery, carpet saddle bags and two bar
stools, the property of or in the lawful possession of Gregg
and/or
Von Gerardt-Weber (Count 3);
that he
on 5 January 1998 and at 7 Ferni Flats, Pinelands unlawfully and
intentionally stole R150 in cash from Wendy Sprules (Sprules),
and
R760 in cash and an identity book, the property of Darren Waugh
(Waugh) (Count 4); and
that he
on 20 December 1997 and at Cape Town unlawfully and intentionally
stole a Ford Bantam bakkie CA 271819, R300 in cash and
a number of
power- and other tools, the property of or in the lawful possession
of Richard Smith (Smith) (Count 5).
The appellant
was found guilty on counts 1 and 2 as charged; on count 3 of theft
of the Honda motor vehicle, tool boxes, a carpet,
a gold chain, bar
stools, a coffee table and a silver jug; on count 4 of the theft of
R150 in cash from Sprules, and an identity
document as well as an
undetermined amount of money from Waugh; and on count 5 of the theft
of R300 in cash from Smith.
The trial
court on 5 April 2000, sentenced the appellant to 18 years’
imprisonment on count 1, 18 years imprisonment on count 2,
5 years
imprisonment on count 3, 2 years imprisonment on count 4 and 12
months imprisonment on count 5 and ordered the sentences
imposed in
respect of counts 3, 4 and 5 to run concurrently with the sentences
imposed in respect of counts 1 and 2.
The
appellant, with the leave of the court
a
quo,
appeals against
the sentences imposed on him to a full bench of this division.
A court of
appeal does not have an overriding benevolent discretion to
ameliorate a sentence imposed by a trial court (See:
R
v Lindley
1957(2)
SA 253 (N) at 235 F). The approach that should be followed by a
court exercising appellate jurisdiction in respect of a
sentence
imposed by a trial court was aptly summarised as follows by Marais JA
in
S v Malgas
2001(1) SACR 469 (SCA) at 478 d – h:
“
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.”
Advocate
Nortier, who represented the appellant, in his heads of argument
assailed the sentences imposed by the trial court on the
grounds
that the learned trial judge -
found
that the appellant acted with reduced criminal responsibility, but
failed to have sufficient regard to the measure and scope
thereof;
repeatedly
referred to the presence of aggravating features but, save for three
less than apposite instances, failed to identify
such features;
committed
a misdirection by having found, contrary to the evidence adduced,
that the appellant failed to exhibit any contrition;
erred,
by having taken account of the occurrences that form the
subject-matter of count 3 in assessing the appellant’s moral

blameworthiness in respect of counts 1 and 2 and, as a result,
over-accentuated the seriousness of the latter two counts;
failed
to have regard to the cumulative effect of the sentences imposed,
and accordingly, the sentences that were imposed are strikingly
or
disturbingly inappropriate;
having
articulated the view that, had it not been for the fact that he had
found that the appellant acted with diminished criminal
responsibility, he would have sentenced him to at least 25 years
imprisonment in respect of each of counts 1 and 2, or probably
life
imprisonment, nevertheless imposed sentences which, if regard is had
to the appellant’s age and life expectancy, equate
to imprisonment
for the rest of the appellant’s natural life-span; and
erred in
having found that the appellant constituted a danger to society.
In view of
the conclusion at which I have arrived in this appeal it is not
necessary to consider whether the learned trial judge committed
any
of the misdirections attributed to him by the appellant’s counsel.
Whether there
is such a disparity between the duration and/or nature of the
sentence imposed by a trial court and that which a court
exercising
appellate jurisdiction would have imposed as a court of first
instance, that it attracts the epithets “shocking”;
“startling”
or “disturbingly inappropriate”, is determined with reference to
the record of the proceedings in the court
a
quo
and the latter’s
factual findings, mindful that there are no universally applicable
and exact criteria according to which the appropriateness
of a
sentence can be assessed, so that views of what in a particular case
constitutes an appropriate sentence may legitimately differ
(See:
S
v Pieters
1987(3)
SA 717 (A) at
734 F; 734
G – H).
The learned
trial judge, on the basis of the evidence of a state witness, Dr Sean
Kaliski, a specialist psychiatrist who made a favourable
impression,
found that the accused acted with reduced criminal responsibility.
That finding has not been assailed.
It is clear
from the evidence adduced at the trial that the accused on or about
28 December 1997 and after a relatively lengthy period
of abstention
embarked upon an uncontrolled spree of substance abuse, predominantly
in the form of crack cocaine. It is common cause
that the spree
continued until 5 January 1998, the date on which the last of the
offences that form the subject-matter of the charges
against the
accused, was committed. The accused’s substance abuse was so
intense that, according to the investigating officer
Johannes de
Vries Vermeulen, he was extremely unkempt, emaciated and covered with
sores when he was arrested.
Although the
versions of the events preceeding and during the killing of Gregg and
Von Gerhardt-Weber provided by the accused to Vermeulen,
magistrate
P.P. Kriel, Dr Kaliski and the court, contain certain discrepancies,
they have the following common features: that the
accused and his
two victims had used crack cocaine in the latters’ flat; that
there had been a violent argument during which the
accused was
accused of having been the cause of his father’s and brother’s
deaths; and that this accusation triggered the attack
with a stone
(used by them in the preparation of drugs) which culminated in the
death of Gregg and Von Gerhard-Weber.
Dr Kaliski
accentuated the addictive properties of crack cocaine and testified
that, whilst under its short-lived influence, the control
and
judgment of the user thereof is impaired and his or her inhibitions
profoundly reduced, making him or her more susceptible to
any
taunting or provocation. He also testified that, in the case of
long-term abuse of crack cocaine, the short-lived plateau of
enjoyment is followed by a craving manifesting itself in depression,
extreme irritability, hostility and aggressiveness. Dr Kaliski
conceded that the accused could have been more easily provoked as a
result thereof and expressed the views that he did not find it
strange that the accused “exploded”. He also testified that the
degree to which the accused had lost his self-control should
be
determined with reference to the facts found to have been proved.
During
cross-examination, Dr Kaliski conceded that the number of horrendous
injuries suffered by the deceased were consistent with
a frenzied
attack and were indicative of a diminution on the part of the accused
of the ability to care about the consequences of
such an attack.
Having regard to the fact that the accused hit the two deceased with
a stone with such force that their skulls and
facial bones were
cracked, as well as the number, the nature and the situation of the
wounds inflicted with one or more of the four
blood-stained knives
found at the scene, that concession, in my view, was fairly made.
That conduct on the part of the accused must
be contrasted with the
evidence that he, normally, was of a non-violent disposition.
In my view,
the facts of the instant case warrant the conclusion that the accused
acted under substantially reduced criminal responsibility.
It is
axiomatic that substantially reduced criminal responsibility has an
extensive mitigating effect on sentencing as it reduces
an accused’s
moral blameworthiness (See:
S.S.
Terblanche: A Guide to Sentencing in South Africa
222).
It cannot be
gainsaid that Gregg and Von Gerhard-Weber were murdered in a gruesome
manner which, even if the extent of the accused’s
reduced criminal
responsibility is taken into account, would justify imprisonment of
18 years per count if unrelated. However, if
an accused is sentenced
in respect of two or more related offences, the accepted practice is
that the sentencing court should have
regard to the cumulative effect
of the sentences imposed in order to ensure that the total sentence
is not disproportionate to the
accused’s blameworthiness in
relation to the offences in respect of which he or she has to be
sentenced (See:
S v
Coales
1995(1) SACR
33 (A) at 36 e – f;
S
v Mhlakaza
1997(1)
SACR 575 (SCA) at 523 g – h). That approach appears to be
particularly apposite where the offences are as closely interrelated
in time and place as counts 1 and 2 are.
The learned
trial judge did not specifically state that he had given
consideration to the cumulative effect of the sentences imposed
in
respect of the said two counts.
It is
impermissible for a court, when determining what an appropriate
sentence is, to have regard to the possibility that the person
sentenced to a period of imprisonment, may be released on parole
(See:
S v S
1987(2) SA 707 (A) at 313 J). It accordingly has to be assumed that
the effective period of 36 years imprisonment imposed by the
learned
trial judge on the accused, may potentially be served in full (See:
S v Mhlakaza and
Another
1997(1) SACR
515 (SCA) at 192 c – e).
Having regard
to the triad consisting of the offender, the offences and the
interests of society and, in particular, to the accused’s
substantial reduced criminal responsibility, an appropriate sentence
in respect of counts 1 and 2, viewed cumulatively, would in
my view
be 25 years imprisonment. Accordingly, there is, in my view, a
striking disparity between the sentence that the learned
trial judge
imposed and the sentence which I would have imposed had I sat as a
court of first instance. In the circumstances this
court is at large
to interfere with the sentences imposed by the learned trial judge in
respect of counts 1 and 2.
In the
premises the appeal against the sentences imposed in respect of
counts 1 and 2 succeeds and the sentences imposed in respect
of
counts 1 and 2 are deleted and substituted with the following:
“
Counts
1 and 2 are taken together for sentencing purposes. The accused is
sentenced to 25 years imprisonment.”
Advocate
Nortier has not attributed any misdirections to the learned trial
judge as regards the sentences imposed in respect of counts
3, 4 and
5. What remains to be considered is whether any of those
sentences are shocking, startling or disturbingly inappropriate.

When that assessment is made sight must not be lost of the fact that
the factors that warranted the finding that the accused was
acting
under reduced criminal responsibility when he murdered Gregg and Von
Gerhard-Weber would appear to have been absent when the
acts that
form the subject-matter of counts 3, 4 and 5 were committed.
Although the sentences imposed in respect of those counts
are severe,
they do not deviate from the sentences which I would have imposed,
had I sat as a court of first instance, to such a
degree that they
could be discribed as shocking, startling or disturbingly
inappropriate. In any event their severity has, to a
degree, been
mitigated by the fact that the learned trial judge ordered them to
run concurrently with the periods of imprisonment
imposed in respect
of counts 1 and 2.
Accordingly
the appeal in respect of the sentences imposed on counts 3, 4 and 5
fails but the order directing that such sentences
are to run
concurrently with those imposed in respect of counts 1 and 2 is
amended to read as follows:
“
It
is directed that the periods of imprisonment imposed in respect of
counts 3, 4 and 5 are to run concurrently with the 25 year period
of
imprisonment imposed in respect of counts 1 and 2.”
The sentence
now imposed in respect of counts 1 and 2 is to be deemed to have been
imposed on 5 April 2000 i.e. the date on which
the accused was
originally sentenced (See: Section 282 of the Criminal Procedure
Act, No 51 of 1977).
______________
D. VAN
REENEN
VAN
HEERDEN J:
I agree.
_________________
B.J. VAN
HEERDEN
ERASMUS
J:
I agree.
_____________
N.C.
ERASMUS
VAN REENEN, J: [VAN HEERDEN J
et ERASMUS J concur] - 22/02/2002
In the premises the appeal against
the sentences imposed in respect of counts 1 and 2 succeeds and the
sentences imposed in respect
of counts 1 and 2 are deleted and
substituted with the following:
“
Counts
1 and 2 are taken together for sentencing purposes. The accused is
sentenced to 25 years imprisonment.”
Accordingly the appeal in respect of
the sentences imposed on counts 3, 4 and 5 fails but the order
directing that such sentences
are to run concurrently with those
imposed in respect of counts 1 and 2 is amended
to read as follows:
“
It
is directed that the periods of imprisonment imposed in respect of
counts 3, 4 and 5 are to run concurrently with the 25 year period
of
imprisonment imposed in respect of counts 1 and 2
.”
The sentence now imposed in respect
of counts 1 and 2 is to be deemed to have been imposed on 5 April
2000 i.e. the date on which
the accused was originally sentenced
(See:
Section 282
of the
Criminal Procedure Act, No 51 of
1977
).