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[2000] ZASCA 189
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Director of Public Prosecutions Transvaal v Roberts (305/99) [2000] ZASCA 189 (29 September 2000)
REPORTABLE
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 305/99
In
the matter between
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
TRANSVAAL
and
DEXTER
ALLAN ROBERTS
Respondent
CORAM
:
GROSSKOPF,
MARAIS, PLEWMAN JJA
DATE
HEARD
:
18
September 2000
DATE
DELIVERED
:
29 September 2000
Sentence -
murder of ex-wife by strangulation - appeal by Director of Public
Prosecutions against leniency of wholly suspended sentence
of 15
years imprisonment - mitigating circumstances present - sentence
altered to 7 years imprisonment
.
JUDGMENT
MARAIS JA
MARAIS JA:
[1] A wholly suspended sentence of
imprisonment of 15 years for murdering an ex-wife by strangling her
is, to say the least, a
highly unusual sentence. Disturbingly
inappropriate, the product of misdirection by the trial judge, and
therefore warranting
interference upon appeal says the State.
Whether that is so, is the question before us. It arises in this way.
[2] On
23 April 1998 respondent was convicted by Grobbelaar J in the Delmas
Circuit Division of the murder of his ex wife. On
14 May 1998 he was
sentenced to imprisonment for 15 years the whole of which was
suspended for 5 years on condition, first, that
he was not again
convicted of any offence involving violence committed during the
period of suspension and, secondly, that he commenced
with therapy on
a regular basis as directed by a particular psychiatrist, the cost
thereof to be met by respondent himself. The
Director of Public
Prosecutions of the Transvaal considered the sentence to be unduly
lenient but the relevant member of the staff
failed to make
application for leave to appeal against the sentence within the
period prescribed by s 316 B of Act 51 of 1977.
On 3 August 1998 an
application in which condonation of the failure to timeously apply
for leave to appeal against the sentence
was sought was signed by the
Director of Public Prosecutions. For reasons which are not apparent
from the record the application
was heard on 9 November 1998 and
refused by the trial judge.
[3] An
application was made to the Chief Justice for leave to appeal against
that order and the sentence. On 18 May 1999 it was
ordered by this
Court that if the appeal against the refusal of condonation of the
late filing of the application for leave to
appeal against the
sentence should succeed, leave was granted to appeal against the
sentence and both appeals were ordered to be
heard conjointly. An
explanatory note accompanied the order. It was pointed out that no
leave to appeal was required in order
to appeal against the refusal
by the trial judge of condonation and that an appeal lay to this
Court as of right.
[4] The
appeal against the refusal of condonation was opposed by counsel for
respondent on the ground that the appeal against the
sentence had no
or little prospect of success. It was not argued that the remissness
of the relevant member of the staff of the
Director of Public
Prosecutions in failing to check what the applicable period was
within which an application for leave to appeal
had to be made was of
itself fatal to the success of the appeal against the refusal of
condonation. So it was that the hearing
was devoted principally to
the question of the propriety of the sentence.
[5] Viewed
objectively and in isolation the crime is an horrific one. The
medical evidence led at the trial and respondent’s
own
extra-curial statements show quite clearly that respondent seized the
deceased by the throat with both hands and then exerted
very
considerable sustained pressure until her eyes and tongue protruded,
blood welled from her nose, and she dropped dead from
his grasp.
Attempts made by respondent at the trial to minimise the period for
which he applied pressure to her throat and to
suggest that cardiac
arrest caused by pressure unwittingly applied to the vagus nerve came
to naught. Respondent, when faced with
the consequences of what he
had done, placed the deceased’s body temporarily in a bath to
enable blood which was still emanating
from her mouth to drain away
and to avoid staining the carpet. He then hid the body for a few
days in a manhole on the premises.
In the end, he dug a shallow
grave within the borders of the property and buried her there. For
nearly six months he feigned
ignorance of her whereabouts
notwithstanding the distress which her unexplained absence was
causing members of her family and their
own twelve year old daughter.
[6] When
it became apparent, quite coincidentally, that some excavation would
take place which would inevitably result in the discovery
of the
body, he wrote a note to his brother in which he revealed where the
deceased’s body was buried and left it to his
brother to decide
whether to disclose what he had told him or whether to pave the area
over so that the body would not be discovered.
Indeed, he offered to
contribute R1 000 towards the paving of the area. His brother’s
decision to disclose what he had
been told led to respondent making a
confession to a magistrate.
[7] So
seen, the crime is an abhorrent one which calls for severe
punishment. It is yet another manifestation of the scourge of
domestic violence which has become endemic in South Africa. Yet that
is not the full picture. The crime and the subsequent reprehensible
conduct of respondent must be seen in the context of his personal
history and the tempestuous emotional relationship which existed
between him and the deceased. To relate the history of that
relationship in all its distressing detail will serve no useful
purpose.
It will suffice to paint the picture in the broadest of
brush strokes. Respondent was 36 years of age at the time of his
trial.
He was unusually short of stature and suffered slights and
humiliation throughout his life as a consequence. His emotional
entanglement
with the deceased was intense. She was 18 years of age
when he met her. An intimate relationship ensued and she became
pregnant.
A daughter was born to them. They married in 1986 after
she had attained the age of 21, her parents having been unwilling to
give their consent to their marriage before then. During 1987 the
deceased became involved with one Fourie. It culminated in
respondent divorcing her. The deceased and their daughter commenced
living with Fourie.
[8] Respondent
established a new relationship with another woman but it ended when
the deceased left Fourie and returned to respondent.
The
reconciliation was short lived. The deceased left respondent after
only a week. Respondent commenced yet another relationship
with a
woman but the deceased returned to him yet again and put an end to
the relationship. Respondent and the deceased married
one another
for the second time.
[9] In
September 1991 the deceased left the respondent again and went to
live with one Payne in Cape Town. She took the child
with her. In
December 1991 the child spent some time with respondent. He simply
refused to return her to the deceased and in
due course divorced her
for the second time, obtaining custody of their daughter at the same
time. On 15 October 1992 respondent
married another woman. The
deceased in her turn married Payne.
[10] In
December 1992 the deceased arrived unexpectedly at respondent’s
office. Sexual intercourse took place between them.
The resumption
of a relationship with her bedevilled his relationship with his wife
and culminated in him leaving her in February
1995. He moved to Cape
Town. The deceased succeeded in tracking him down and again their
relationship was re-established. In
April 1995 respondent returned
to Gauteng and rejoined the deceased in Benoni. In January 1996 his
wife divorced him.
[11] Not
long thereafter the deceased commenced another affair. On Friday 16
February 1996 he told her to leave. On Saturday
17 February the
deceased telephoned respondent’s mother to say that she would
not be returning. On Wednesday 21 February
1996 respondent arranged
to meet the deceased in order for her to hand over the keys of the
cottage in which they had been living
and to make arrangements for
her to collect her clothes and other belongings. They met at the
hotel at which she was accommodated
that evening. Respondent
consumed two “rum and cokes” while at the hotel. The
deceased suggested that they dine at
a Chinese restaurant in
Bedfordview. Respondent needed to change his clothes and to borrow a
car from his parents so they repaired
to the cottage where he then
lived.
[12] I
take up the narrative in his own words as conveyed to the forensic
criminologist who testified in mitigation of sentence
on his behalf
at the trial. “While I was getting dressed at the cottage I
wanted to know from Marion (the deceased) what
was going on and why
she was doing this to her family. We started to argue. She said
that I was oversexed and I retaliated by
calling her a whore due to
the extra-marital relationships that she had had over the years. I
asked her why she destroyed my relationship
with Joyce after she had
promised me that she loved me and that she really wanted me back.
She told me that she couldn’t
live with me but that she didn’t
want anybody else to have me either.”
[13] In
another passage which appears in the report of the forensic
criminologist he is reported as having said:
“
I strangled, out of rage, my
ex-wife Marion and buried her body and tried to get away with it. I
left my wife for Marion. Marion
wanted me to come back and I came
back and moved in with her so my wife divorced me. In early 1996
Marion found a job. We were
having strainful (
sic
)
times and her boss became her lover. She was a whore to her boss who
gave her clothes and money and on the 16
th
February I kicked Marion out of our common home. She moved into a
hotel and on the 21
st
February I killed her. I loved her. With every bit of me I loved
her. I enjoyed making love to her but she would rather have
sex
outside the marriage than with me. Marion and I started our
relationship built on good sex but as the years wore on she used
sex
as a prize, a reward and at an even later stage I had to agree to
have sex every four days because she did not want it all
the time.”
[14] When
he testified at the trial he described what happened after
the
deceased told him that she could not live with him, but could not
allow
anybody
else to live with him.
“
Yes? — As an instinctive response I called
her a whore, she slapped me in the face, I slapped her back, she
slapped me again
and then I grabbed her, I started shaking her. She
was beating me with her arms on my shoulders. I was shaking her and
shouting
at her. I accused her of not having any, she didn’t
care about her daughter, that I did love her. I asked her why she
was
doing this and the next thing I recall is a popping noise
......(intervenes)
Is a ‘popping noise’? — Like somebody
clearing their nose and she just (makes sound).
A popping noise? — Yes, and blood gushed out of
her nose. She went limp and very, very heavy and I dropped her, I
realized
that I was actually strangling her, I could not hold her up,
and that (inaudible).
MR SMIT
:
Just before she went limp, was she still reaching you. —
It was all simultaneously, she stopped, she just went limp.
She
stopped hitting, and I could not hold her up. It all happened
together, (inaudible).
Okay she fell? — She fell on the ground. There
was a lot of blood coming out of her nose and her mouth. Her
extremities
shook a bit, her legs and her arms for a couple of
seconds maybe.
COURT
:
For a couple of minutes or second? — A couple of seconds.
I knew I had done something terrible here, because she looked
dead to
me. I felt her pulse, there was no pulse. There was still a lot of
blood coming from her nose and mouth. I fetched a
plastic bag from
the kitchen and I put it over her head to stop the blood. It was
pouring out onto the carpet. When that did
not stop the blood I put
her into the bath.
Yes? — I didn’t know what else to do. I
closed the bathroom door and I went and I, I went and I lay on my bed
and
I fell asleep.”
[15] Yet
another description of what occurred was given by respondent to a
magistrate on 30 September 1996. (It was common cause
that the dates
which appear in brackets in the description are the correct dates.)
“
On the 13
th
of March 1996 (21 February 1996) it was a Wednesday. I phoned my
ex-wife during the day to arrange to collect my keys from the
cottage.
I met her at 08:00 in the evening at the Van Riebeeck
Hotel. We had a drink and went up to a room and she gave me the
keys. She
then asked me if we could go and have supper and I agreed
to do so.
We left at about 8:15 and went to my brother’s
cottage where we are staying. We started arguing about our
relationship.
We said nasty things to each other and started hitting
each other. I strangled her. I just grabbed her by the neck, I
stopped
strangling her when the blood came from her nose.
It lasted about 3 to 4 minutes. She stopped hitting and
kicking. She was dead. I killed her.
I put her body into the bath.
The following day at lunch time I
moved her into a manhole outside the house. On Saturday the 16
th
March (24 February 1996) I buried her in a flower bed in the garden.
That’s it.”
[16] The
view of the forensic criminologist who testified in mitigation of
sentence, Dr Labuschagne, was that long-term imprisonment
of
respondent would be counter-productive in his case and that
non-custodial options coupled with psychological therapy would best
serve the interests of respondent and the community. In her written
report her conclusion was expressed thus:
“
It
is, with respect, my opinion that this crime was caused by human
weakness. Although there are always choices, there are, however,
both conscious and subconscious influences on those choices. There
are many factors present that made Dexter vulnerable at the
specific
time of the offences. His motive - his reason for offending - is,
when taking all his specific circumstances into account,
understandable.
He
has no deep-seated desire to intentionally injure others.
Constructive punishment - such as a medium term of imprisonment
coupled
with therapeutic assistance, will enable him to, upon
release, live a conventional and law-abiding life. A harsh sentence
now
will finally crush Dexter. It will lead to a total personality
breakdown and disintegration of an already fragile human being.
While his act cannot be excused or condoned, his personal context,
psychological circumstances and the context in which the crime
was
committed need to be seriously considered. These problems explain
and, with respect, mitigate his conduct.
Whilst
offenders should be punished, there should also be mercy for those in
our society who do need help and who committed their
offence because
of human frailty. Dexter’s acts, in my opinion, stemmed from
deep-seated emotional factors which have been
unresolved over time.
It is vital that he undergoes therapy to gain more understanding into
ways of dealing and coping with his
emotional life and gains skills
in order to deal effectively with life’s demands. He requires
more insight and understanding
in order to gain confidence in who he
is as a person. Society will, in the long run, not gain by a long
imprisonment in this case.
It is my opinion, with the deepest
respect, that constructive intervention now will prevent Dexter from
becoming a very troubled
person - a liability to his community.”
Her
report, as is to be expected, centred predominantly upon the
interests of respondent which are suggested to be co-extensive
with
those of society in this particular instance. With much of what Dr
Labuschagne said in her report there can be no quarrel.
Where it
falls short, in my opinion, is in its failure to accord sufficient
weight to the gravity of the crime and the need for
the sentence
imposed to serve as a deterrent to other members of society who may
be minded to give vent to their frustrations by
resorting to domestic
violence.
[17] Respondent was convicted of
murder on the basis of
dolus
eventualis.
It is
implicit in that finding that he did not desire the death of the
deceased but that he appreciated at the time that his throttling
of
her could result in her death and that he persisted in doing so, not
caring whether or not that consequence ensued.
[18] The
desirability of therapeutic psychological treatment for respondent
and the unlikelihood that it will be available in prison
was allowed
to play a significant role in the consideration of sentence.
Assigning a high priority to that factor in the circumstances
of this
case was, in my opinion, uncalled for. That the trial judge was
beset by doubts as to whether or not the sentence he intended
imposing was appropriate, is evidenced by his concluding statements.
He said: “After careful consideration of all the facts
in this
case and I am coming to this conclusion with extreme reluctance, I
have decided to give you one final chance in life.
I just hope that
I am correct in coming to this conclusion.” Later, after
imposing the suspended sentence, he said: “Now
you have a few
tasks ahead of you. You will have to show to the community that the
trust which I possibly wrongly placed in you
is warranted. Secondly
you have a daughter to which you have got to make up and thirdly I
accept that the deceased also has relatives.
You will have to prove
through your actions and behaviour in future, that I was not wrong in
giving you this chance.” The
trial judge’s subsequent
refusal to condone the late application for leave to appeal against
the sentence cannot alter the
fact that he entertained those
misgivings at the time when sentence was imposed.
[19] The circumstances in which an
appellate court will interfere with a sentence imposed by a court of
first instance are so well-known
that they do not merit repetition.
I had occasion to restate them earlier this year in
S
v Sadler
2000 (1)
SACR 331
(SCA) at 334d - 335g. In my view, the sentence imposed by
the trial court was entirely inappropriate and disturbingly so.
Quite
apart from the fact that it is plainly undesirable to impose a
sentence of so great a length and then to wholly suspend it, the
breadth of the condition of suspension is equally unacceptable. A
conviction of common assault involving no more than a slap with
a
flat hand could potentially trigger the coming into operation of a 15
year prison term. However, there is a more fundamental
reason than
those why that sentence cannot be allowed to stand.
[20] It
fails utterly to reflect the gravity of the crime and to take account
of the prevalence of domestic violence in South Africa.
It ignores
the need for the courts to be seen to be ready to impose direct
imprisonment for crimes of this kind, lest others be
misled into
believing that they run no real risk of imprisonment if they inflict
physical violence upon those with whom they may
have intimate
personal relationships.
[21] On
his own admission, this was not the first occasion upon which
respondent had assaulted the deceased. He had struck her
with his
fist on the side of the head on a previous occasion. His physical
stature had obviously proved to be no handicap in cementing
intimate
relationships with a number of women and, hurtful and wounding though
the deceased’s conduct towards him may have
been, his brutal
response to it, and his self-centred and cruel withholding of her
fate from her family and their child for nearly
six months calls for
nothing less than direct imprisonment. The only question that
remains is what length of imprisonment is appropriate.
[22] In
answering that question it would be callous to leave out of account
the mental anguish which respondent must have endured
pending the
hearing of this appeal. For some three months after the sentence had
been imposed by the trial court he was lulled
into the belief that
the law had taken its course and, fortunate though he may have
considered himself to be, he was free to pick
up the scattered
threads of his life. That belief was shattered when the Director of
Public Prosecutions set in motion an appeal
against the sentence. He
has had to live in suspense since then. I consider that a
significant reduction of the notional period
of imprisonment that
would have been appropriate at the date when he was sentenced in May
1998 is warranted. In my view, a sentence
of imprisonment for
seven years should now be imposed.
[23] That
conclusion necessitates the granting of the appeal against the
refusal to condone the late application for leave to appeal
against
the sentence and of course the upholding of the appeal against the
sentence. The sentence imposed by the trial court is
set aside and
there is substituted for it a sentence of seven years imprisonment.
[24] This
case has highlighted the need for appeals of this kind to be disposed
of as quickly as circumstances will permit. The
need is particularly
pressing where non-custodial sentences have been imposed and a
Director of Public Prosecutions seeks to have
a custodial sentence
imposed on appeal. Applications for such leave should be brought
with the minimum of delay and priority should
be given on the
relevant appeal court’s roll to such cases.
R
M MARAIS
JUDGE OF APPEAL
GROSSKOPF
)
CONCUR
PLEWMAN
)