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1992
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[1992] ZASCA 32
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S v Simons (278/91) [1992] ZASCA 32 (20 March 1992)
CASE NO 278/91
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
LESLIE BASIL SIMONS
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: NESTADT JA, NICHOLAS et HARMS AJJA
DATE HEARD
: 17 MARCH 1992
DATE DELIVERED
: 20 MARCH 1992
JUDGMENT NESTADT, JA
:
This appeal against the death sentence for
murder is before us consequent upon the panel having in terms of sec 19(12)(a)
of the Criminal
2
Law Amendment Act, 107 of 1990 decided that the sentence of death would
probably have been imposed by the trial court.
The facts appear from the
judgment of WILSON J sitting in the Durban and Coast Local Division as also from
a judgment of this Court
(given before Act 107 of 1990 came into operation)
dismissing an appeal against the conviction and sentence. It appears that on the
morning of 29 July 1987 the appellant killed the deceased, who was his wife, by
striking her many times with a pick handle. The trial
judge found that having
previously threatened to kill the deceased, he attacked her in their matrimonial
home because she had layed
a charge against him alleging that he had raped her
six-year-old daughter. His trial on this charge was due to be heard in a
regional
magistrate's court on 13 August 1987, ie
3
within about two weeks of the murder. He was
subsequently convicted on this count by the trial
court and sentenced to ten years' imprisonment. In
his judgment WILSON J said the following:
"In our view he must have and he did realise the extreme gravity of the charge
against him...(W)e are satisfied that he in fact made
the threats that he did,
that is that he would kill the deceased if the case proceeded against him, and
that the cause for the final
fatal assault was the insistence of the deceased
that the case was going on, or perhaps rather, her refusal to co-operate with
him."
We have now to reconsider the matter and
decide whether the death sentence is the only
proper sentence. In support
of a negative answer
Mr
Jansen
on behalf of the appellant, whilst
conceding that the appellant's version, namely,
that on the morning in question he had found the
deceased in bed with another man, had been rightly
4
rejected, argued that no clear motive for the crime had been established; all
that was known was that the appellant experienced an
emotional outburst of some
kind; that his threats to kill the deceased had not been seriously made; that he
was a drug addict and
that this factor taken together with his alleged deprived
background operated in mitigation; it was also possible that he was under
the
influence of liquor at the time; his previous convictions (for
inter alia
robbery) did not exclude the possibility of reformation; in any event this was
not a case where the death sentence was imperatively
called for. It was
suggested that a sentence of life imprisonment would be an appropriate
punishment.
I accept that appellant's previous convictions are not of moment.
Nevertheless I am unable to agree with the argument. In my opinion
5
there is no warrant for disturbing any of the trial judge's factual findings.
They were endorsed by this Court which held that appellant's
conduct was
rational throughout the assault of the deceased. To find there was some other
motive for the crime or some other reason
for what may be accepted to be an
emotional outburst requires us to indulge in impermissible speculation. It is
clear that neither
drugs nor liquor played any meaningful role in causing the
appellant to act as he did. Some reliance was placed on a Nicro report
which was
placed before the pahel when the appellant's case was considered by it. But
being based on appellant's false version of
what took place, there is nothing in
it which can assist him. So in the result this is a case where there are really
no mitigating
factors.
That
per se
does not mean that the death
6
sentence is the only proper sentence. There are however a number of
aggravating factors. To begin with, and as indicated, the motive
for the crime
was a base one, viz to prevent the deceased from continuing with the rape
prosecution against him. Appellant, aged
33, is a mature person. His attack on
the deceased was a particularly brutal and ferocious ohe. It was a sustained
attack committed
with
dolus directus
. The deceased was a defenceless
victim. His actions were not only cruel but callous; he ignored her cries for
help; afterwards when
he left the house, he locked the door. The cumulative
effect of these factors are in my opinion such that the interests of society
demand the death sentence as the only proper sentence.
It was however
submitted that we should
mero motu
consider remitting the matter to
enable
7
the appellant to be psychiatrically examined and to obtain a social welfare
report on his background. Whilst we have the power to
remit there is no basis
for exercising it in
casu
. There is no explanation as to why this
evidence was not led at the trial. And there is no reason to think that the
proposed evidence
will reveal anything of relevance.
The result is that the
appeal is dismissed. The death sentence is confirmed.
NESTADT,
JA
NICHOLAS, AJA )
) CONCUR HARMS AJJA )