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[2001] ZASCA 71
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S v Kok (324/2000) [2001] ZASCA 71; [2001] 4 All SA 291 (A); 2001 (2) SACR 106 (SCA) (30 May 2001)
REPORTABLE
IN THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Case No: 324/2000
In the matter between:
CHRISTOFFEL JOHANNES
KOK
APPELLANT
and
THE
STATE
RESPONDENT
_____________________________________________________________
Coram: SCOTT, STREICHER et NAVSA
JJA
Heard: 18 MAY 2001
Delivered: 30 MAY 2001
_____________________________________________________________
Alleged automatism said to arise from post traumatic stress disorder
– such would not be “sane” but a mental illness
in terms of s
78 (6) of Act 51 of 1977 – defence rejected on the facts.
J U D G M E N T
_____________________________________________________________
SCOTT
JA/...
SCOTT
JA:
[1] The appellant was charged in the Natal Provincial Division
sitting on circuit at Port Shepstone with two counts of murder and
one count of
attempted murder. At the time of the alleged offences the appellant was a
superintendent in the South African Police
Service and head of the public order
policing unit at Port Shepstone. He pleaded not guilty but was convicted on all
three counts
by Combrinck J sitting with assessors and sentenced to 10 years
imprisonment on each of the murder counts and to five years imprisonment
on the
attempted murder charge. The sentences were ordered to run concurrently so that
the effective period of imprisonment imposed
was 10 years. The present appeal
is against both the conviction and sentence and is with the leave of the Court
a quo
.
[2] It was common cause that shortly after 6 pm on Monday 13 January 1997
the appellant drove to the home of Mr and Mrs Botha where
he shot and killed
them both. Each was shot a number of times. The ballistic evidence established
that the shots were fired from
a shotgun and a 9mm pistol which had been issued
to the appellant. While the shooting was in progress the Bothas’ son
(“Marius”)
emerged from the bathroom where he had been drawing a
bath. The appellant pointed the shotgun at him but the latter ran into his
bedroom and escaped through a window after breaking the window pain. Shots were
fired through the bedroom door but apart from a
few cuts and abrasions Marius
escaped unscathed. The Bothas’ Labrador dog was also killed. It was
found to have been shot
twice with a 9mm pistol.
[3] The sole defence raised
by the appellant was that at the relevant time he lacked the necessary criminal
capacity. In this regard
he denied in a statement made in terms of s 115 of the
Criminal Procedure Act 51 of 1977 (“the Act”) that he had
“acted
consciously and voluntarily” or “was capable of forming
an intention to kill.” In support of this defence reliance
was placed
largely on the evidence of Dr Futter, a practising psychiatrist, who first saw
the appellant on 21 February 1997, a little
over a month after the event. He
diagnosed the appellant as suffering from major depression and a condition known
as post-traumatic
stress disorder. The latter was described as a disorder which
has its origin in the person concerned experiencing, witnessing or
being
confronted by an event or events involving actual or threatened death or serious
injury or a threat to his or her physical
integrity with a response of
“intense fear, helplessness or horror”. The symptoms were said to
include recurrent and
intrusive distressing recollections of the event,
“dissociative flashback episodes”, intense psychological distress
upon
exposure to internal and external cues that symbolize or resemble an aspect
of the traumatic event or events, persistent avoidance
of such stimuli and
persistent symptoms of increased arousal indicated by irritability, outbursts of
anger, hyper-vigilence and the
like. According to Dr Futter a further feature
of the disorder were “dissociative re-enactments” of the traumatic
event
or events during which the person in question in effect
“acted” in a state of automatism. Based largely on what the
appellant had told him in the course of a number of consultations, Dr Futter
concluded that the only explanation for the appellant’s
bizarre conduct
was that it had to be seen as a “dissociative behavioural
re-enactment” of what the police called “house
penetrations”,
viz
a procedure adopted when forcibly entering a house or building with
the object of apprehending possibly dangerous occupants.
[4] This defence
was rejected by the Court
a quo
. Nonetheless in view of the stress to
which the appellant had been subjected, particularly in carrying out his duties
as a policeman,
it was found that the offences were stress-related and at the
relevant time the appellant had acted in a state of “diminished
responsibility”. The consequences of upholding the defence of lack of
criminal capacity were accordingly not considered by
the Court
a quo
.
It appears, however, that the trial was conducted on the basis that in the event
of the State failing to disprove the defence
the appellant would be entitled to
an acquittal. In evidence Dr Futter described a “dissociative
re-enactment” arising
from a post-traumatic stress disorder as correlating
“with the legal concept of sane automatism.” He pointed out that
the cause of the suggested dissociative behaviour was not a psychotic
disorder. He contended that as all mental disorders were
not psychotic
illnesses it was therefore not correct to presume that because an automatism
flows from a mental disorder the automatism
had to be categorized as
“insane” or “psychotic”. In short, what the witness
appears to have put forward
is that provided the automatism is not caused by a
psychotic illness or disorder it must be regarded as “sane
automatism”.
I am not persuaded that this is correct.
[5] Section 78
(6) of the Act reads as follows:
“If the court finds that the accused committed the act in question and
that he at the time of such commission was by reason
of mental illness or mental
defect not criminally responsible for such act –
The court shall find the accused not guilty; or
if the court so finds after the accused has been convicted of the offence
charged but before sentence is passed, the court shall
set the conviction aside
and find the accused not guilty,
by reason of mental illness or mental defect, as the case may be, and direct
that the accused be detained in a psychiatric hospital
or a prison pending the
signification of the decision of a judge in chambers.”
The section contains no reference to “sane automatism”. It is not a
psychiatric term; it is no more than a useful tag
to describe automatism arising
from some cause other than a “mental illness” or “mental
defect” within the
meaning of the section. There is furthermore nothing
in the section that requires the mental illness which results in an absence
of
criminal responsibility to be an illness of a kind which is categorized as
psychotic, such as schizophrenia, before the Court
is required to direct the
accused to be detained in a psychiatric hospital or prison. All that is
required is a “mental illness”
or “mental defect” which
results in the absence of criminal responsibility. A similar approach is
adopted in England.
(See
R v Burgess
[1991] 2 All ER 769
CA at 774 c
– f.)
[6] Dr Futter described post-traumatic stress disorder as a mental illness with
a pathology that can be demonstrated. The treatment
includes the use of
medications called serotonin re-uptake inhibitors which happen to be
antidepressants. He recommended that the
appellant continue with his
psychiatric treatment which includes both medication and psychotherapy. In
these circumstances, it is
quite clear, I think, that if the correct finding of
the Court
a quo
would have been that the appellant was not criminally
responsible for the shooting by reason of the condition suggested by Dr Futter,
the appropriate order would not have been an acquittal but one in terms of s 78
(6) of the Act.
[7] At common law a distinction has been drawn in the past between lack of
criminal capacity arising from a pathological disturbance
of the mental
faculties, whether temporary or permanent, on the one hand and lack of criminal
capacity arising from some non-pathological
cause which is of a temporary nature
on the other. In accordance with the presumption of sanity the onus in the case
of the former
was upon the accused and was to be discharged on a balance of
probabilities. In the case of the latter, the onus remained on the
State to
prove criminal capacity beyond reasonable doubt (see for eg
S v
Cunningham
1996 (1) SA SACR 631 (A) at 635 g – j and the authorities
there cited). Whether this anomaly can be upheld in our modern law
with the
enactment of the new Constitution is doubtful. However, in view of the
conclusion to which I have come it is unnecessary
to decide the point and I
shall proceed on the assumption, as did the trial Court, that the State bore the
onus of establishing criminal
capacity on the part of the appellant beyond
reasonable doubt.
[8] I return to the facts. Much is common cause. The appellant, a son of a
policeman, joined the police force shortly after leaving
school and apart from a
venture into the private sector between 1976 and 1987 has been a policeman all
his working life. In the
course of his career he has undergone a number of
specialized training courses. One of these was a special weapons and tactics
course which included activities such as house penetrations. He did service in
Ovamboland in the early seventies and generally
over the years has repeatedly
had to participate in dangerous operations involving personal danger to himself
and his colleagues.
Particularly since his transfer to Port Shepstone in 1993
he has witnessed much violence and the gruesome consequences of such
violence.
One of the examples he gave was the “massacre” at Shoboshobane on
Christmas day 1995 when some 19 people were
hacked to death with pangas and the
like. As head of the public order policing unit at Port Shepstone he has been
constantly blamed
by politicians for not providing better policing services to
prevent violence between warring ANC and IFP factions, while at the
same time
losing staff as a result of resignations and transfers. He complained of
experiencing feelings of helplessness and frustration
at constantly finding
himself in a “no-win” situation. On 9 and 10 January 1997 he took
part in what he described as
a “stake-out” at a bank in Harding.
This involved policemen being concealed in and around the bank in anticipation
of
an attempted armed robbery. In the event the attempt was not made On
Sunday 12 January 1997, the day preceding the shooting, he
was called out to do
an aerial reconnaissance at Shoboshobane to monitor the massing of people in an
area where it was feared there
may be an outbreak of violence. On top of all
this he complained that he found it increasingly difficult to keep his head
above
water with all his administrative work.
[9] Somewhile previously the appellant’s wife, who was employed in the
appellant’s unit, borrowed a tea set and two
table cloths from Mrs Botha,
a fellow employee in the police service. Mrs Botha subsequently complained
that only the tea set had
been returned and not the table cloths. This was
denied and in due course Mrs Botha proceeded against the appellant’s wife
in the Small Claims Court for the recovery of the table cloths or their monetary
equivalent. The presiding officer was an attorney,
Mr Larry Seethal, who
awarded Mrs Botha R600 in damages. According to the appellant, Seethal directed
the parties to make arrangements
between themselves for the payment of the
amount in question.
[10] On Monday, 13 January 1997, at about 3.15 pm Captain Basson and Captain
Gordon came to visit the appellant in order to discuss
certain matters of
concern to the committee of the police deep sea angling club. All three were
committee members. The appellant
suggested they continue their discussion in
the more relaxed atmosphere of the “Pepper Pots”, a nearby bar. On
the way
there they called at the appellant’s house where he changed out of
his uniform. He also locked away his 9mm service pistol.
They were
accompanied by sergeant Burger who appeared to be on friendly terms with the
appellant. There is some uncertainty as
to how much the appellant consumed at
the Pepper Pots but it would seem to be of the order of two beers and a double
brandy. While
they were there the appellant’s wife telephoned to say that
the messenger of the court was at their house, apparently making
an inventory of
attachable items. She was in tears and extremely upset; she asked the
appellant to come home immediately. According
to those present, the appellant,
too, became extremely upset. Basson offered to lend him the money but the
appellant insisted that
it was not the money but the principle of the thing
that annoyed him. He said there had to be an arrangement for payment and Mrs
Botha had no right to send the messenger of the court to his house. He tried
to phone Larry Seethal but by that time it was past
5 pm and Seethal had gone
home
[11] The four policemen drove back to the appellant’s house. On their
arrival they found Mrs Kok still in a very distressed
state. The Koks have a
grown-up son who has cerebral palsy and is confined to a wheel chair. He and
the appellant are very close
and although the former is unable to speak he is
able to communicate “with his eyes”. According to the appellant he
could see that his son was also upset by the whole affair. This in turn upset
the appellant even more. Basson testified that at
one stage the appellant,
after comforting his wife, said that he would have to go and “sort
out” a few people. Burger
thought he had said he would have to sort out
“the story”.
[12] Basson and Gordon left and shortly thereafter the appellant offered to
drive Burger back home. Before leaving, however, he
retrieved his pistol from
the cupboard where he had left it. Burger lives close to the police station.
Instead of going to Burger’s
house the appellant drove straight to the
police station. There, he opened the safe in which the weapons and ammunition
were kept
and removed an R1 rifle, a number of rounds of ammunition including 9
mm ammunition and shotgun cartridges as well as such items
as a hand-grenade and
a combat jacket. All of this he loaded into the boot of his motor car. At
that stage there already was a
shotgun, which had a pistol grip, in the vehicle.
It was kept on the floor in the front of the vehicle where it was available for
use in emergencies. The appellant also kept his cheque book in the safe.
Although he did not recall removing it he probably did
as it was later
discovered by Burger in the appellant’s motor car.
[13] Burger suggested to the appellant that they have a drink together in the
police canteen. The appellant agreed. He drove his
motor car to a parking bay
outside the canteen but then suddenly reversed out of the bay and drove off.
Burger thought of phoning
Mrs Botha to warn her that the appellant was possibly
on his way to see her, but then decided against it.
[14] The appellant had not been to the Bothas’ house before, but he knew
where it was. He appears to have driven straight
there. He parked in the
driveway. It was then about 6:30 pm.
[15] The appellant’s recollection of the earlier events of 13 January
coincided in broad terms with the evidence of others,
as set out above.
However, he said he had no recollection of certain events or his reason for
doing certain things. He said, for
example, that he could not remember why he
had driven back to his office. He recalled going to the safe but not why he did
so or
what he took out of it. He said he recalled being invited for a drink at
the canteen but not why he suddenly drove off or why he
had decided to go to the
Bothas’ house. His version of what he could remember having taken place
at the house, which he gave
in evidence and earlier to Dr Futter, was in short
the following. He recalled arriving at the house and standing on the left side
of the motor car in the driveway with the front door open. Mrs Botha was there
with a smirk on her face. He asked her what she
was doing to his wife. She
responded by asking him what he was doing there and telling him that he had no
business to be there.
She then pushed him away with her hand on his chest. He
said he recalled going through the door into the house and hearing running
water. He saw a person in front of him but in silhouette form. He recalled
firing shots and while doing so seeing someone on his
left, also in silhouette
form, moving first towards him and then away from him. He then heard a very
loud bang which he did not
think was a shot being fired. Next he remembered
being back at his vehicle where he saw sergeant Beetge whom he greeted.
Thereafter
he found himself in an area near Gamalakhe which is a township to the
south-west of Port Shepstone. (This account of what the appellant
remembered
differed in material respects from the account he gave Dr Dunn, the State
psychiatrist, who saw him a few days after
the event.)
[16] Sergeant Beetge and his wife lived next door to the Bothas. At about 6.30
pm on the night in question they heard what sounded
like shots. They went
outside to investigate and saw the appellant emerging from the Bothas’
house with his shotgun at the
ready. Sergeant Beetge greeted the appellant who
responded by pointing the shotgun in his direction and asking him what the
problem
was. Beetge replied, perhaps wisely, that there was no problem and
retreated into his house with his hands above his head. Once
the appellant had
gone, Beetge went next door to investigate. On seeing the bodies he immediately
notified the police at Port Shepstone.
[17] What then followed was something of a cat and mouse game between the
appellant and the police seeking to take him into custody.
It lasted most of
the night. Shortly after the shooting police officers in the radio control room
at Port Shepstone made contact
with the appellant over the police radio. By
this time the appellant had, he said, heard of the shooting on the police radio.
Several
attempts were made to persuade the appellant to give himself up but
without success. Eventually the appellant’s superior,
Director Hunter who
had come down from Durban, arranged to meet him at Umtentweni beach. There were
various delays and Hunter was
late. The appellant did not wait for Hunter but
drove to the house of a friend whose telephone he used to speak to Hunter.
Another
appointment was made for Hunter to meet the appellant alone at
Umtentweni beach. Eventually they met. The two spoke for a while.
The
appellant used Hunter’s mobile phone to speak to his wife. He
acknowledged to Hunter that he was in trouble and asked
after the
“laaitie”. It was common cause that this was a reference to Marius
who had escaped through the window. Significantly
he made no attempt to find
out from Hunter what had happened at the Bothas’ house. Nor did he make
any such inquiry from the
friend he had seen earlier. Eventually the appellant
agreed to go with Hunter to the Newport police station. However, he insisted
on
a last drink at the Pepper Pots. The appellant was still armed with his shotgun
and Hunter agreed. By this time it was well
after midnight and the proprietor
had to be woken up. He agreed to serve them and they were joined by Burger who
had been waiting
in Hunter’s vehicle. After about half an hour they drove
to the Newport police station. On arrival there the appellant suddenly
threatened the others with his shotgun and disappeared into the night. At about
4 am he arrived at the house of a colleague and
friend, Captain Hills. The
latter, who knew what had happened, invited him in and spent somewhile talking
to him. Eventually the
appellant fell asleep and Hills removed his shotgun and
pistol and locked them away. When he woke up he agreed to go to the police
station with Hills.
[18] In his evidence the appellant sought to explain that he had heard on the
police radio that the Special Task Force had become
involved and because he
feared they may shoot him he wished to hand himself over in such a manner as to
prevent this from happening.
He conceded however that he had never heard of
the Special Task Force shooting people voluntarily giving themselves up. The
more
likely explanation is the one he gave to Hills, i e that he did not wish to
spend that night in the police cells. It is also likely
that he wished to see
his family again before being taken into custody.
[19] On 14 January 1997 the appellant was sent for observation in terms of s 77
of the Act. He was seen by Dr Dunn, who is the
principal psychiatrist at the
Midlands Hospital, Pietermaritzburg, and his team during the period 14 January
to 27 January 1997.
[20] As previously indicated Dr Futter diagnosed the appellant as suffering
from both major depression and post-traumatic stress
disorder. His hypothesis
was that from the time Mrs Botha pushed the appellant on the chest until the
time he subsequently found
himself in his vehicle near Gamalakhe he was in a
“dissociative state” and that his behaviour in the Bothas’
house
was explicable in terms of what Dr Futter described as a
“dissociative behavioural re-enactment episode” during which
there
would have been an absence of appropriate cognitive control. The
appellant’s conduct, he said, would have been modelled
on a previous
behavioural memory which Dr Futter in turn identified as a house penetration.
In support of this hypothesis Dr Futter
pointed in particular to certain obvious
inaccuracies in the appellant’s recollection of what had occurred such as
the nature
and colour of the door and the length of the grass outside. These,
he said, were typical features of a re-enactment episode.
He also thought it
significant that the appellant should describe the figures he saw in such a way
as to suggest they took the form
of silhouettes. This was because silhouette
figures were used in simulated house penetrations in the course of training.
[21] Dr Dunn rejected this hypothesis in its entirety. When he examined the
appellant shortly after the event he observed obvious
symptoms of stress which
he categorized as “situational, occupational and social”. However,
he found no indication
of major depression or post-traumatic stress disorder.
As far as the latter is concerned, he rejected the notion that it could arise
from what he described as a “loose and diffuse series of unhappy
experiences”. What gave rise to the disorder, he said,
was some specific
core incident particularly traumatic for the person concerned and beyond that
person’s day to day experience.
He agreed that the incident could
comprise a series of sub events but stressed that they had to be closely
related. As far as
the behaviour of the appellant at the relevant time was
concerned, Dr Dunn emphasized its goal-oriented nature and pointed to the
account of the incident which the appellant had given him shortly after the
event and which not only differed from that given to
Dr Futter but was
inconsistent with the latter’s hypothesis. The account given to Dr Dunn
was shortly the following. The
appellant said he had gone to the Bothas’
house to resolve matters relating to payment of the outstanding amount; he
considered
that his wife had been unfairly treated at the hearing and that what
triggered his visit to the Bothas’ house was the emotional
state of his
wife and son. He said he went to the front door with his shotgun; he knocked
and was let in by Mrs Botha. An altercation
ensued during which she pulled a
face or made some sarcastic comment. He said that he lost his temper and fired
at Mrs Botha. Her
husband intervened and he also fired at him. He then left
the house. Outside he saw the next door neighbour to whom he spoke briefly.
He
drove off and thereafter spoke to various members of the police service who
attempted to persuade him to give himself up. After
several hours he agreed to
do so. In Dr Dunn’s opinion the appellant was not re-enacting (he
preferred the word “reliving”)
some previous event at the time of
the shooting. He accepted that the appellant was under a great deal of stress
and was suffering
from what is colloquially called “burn-out”,
viz
emotional and physical tiredness. Furthermore, the appellant had
consumed alcohol shortly before the fatal event which would have
caused a degree
of disinhibition. All this, said Dr Dunn, would have resulted in the
appellant having less control over his emotional
reactions. Dr Dunn accordingly
rejected the hypothesis that the appellant lacked cognitive control at the
relevant time or that
he was unable to distinguish right from wrong and act
accordingly.
[22] As correctly observed by the Court
a quo
the ultimate inquiry was
whether the appellant was criminally responsible for his actions. This is an
issue that had to be determined,
not by the psychiatrists, but by the Court in
the light of all the evidence. (See
S v Harris
1965 (2) SA 340
(A) at
365 B – C.) What immediately strikes one is the contrast between the
version given to Dr Dunn and the version given
more than a month later to Dr
Futter and thereafter repeated by the appellant in evidence. The former, which
was the appellant’s
recollection shortly after the incident, makes it
clear that his mood upon arrival at the Bothas’ house was both belligerent
and confrontational. Indeed, he recalled going to the front door armed with
his shotgun. There can be no doubt he was upset by
the emotional state of his
wife and his son. He said he lost his temper as a result of something Mrs Botha
did or said and then
fired first at Mrs Botha and then at her husband. Loss of
temper, that is to say a failure to control one’s emotional reactions,
is
not to be confused with a loss of cognitive control (see
S v Henry
1999
(1) SACR 13
(A) at 20 d – f). The fact that he could recall these events
some days later indicates that he knew what he was doing and
is inconsistent
with the hypothesis that he was re-enacting some memory in a dissociative
state.
[23] It may be that the appellant, whether consciously or subconsciously,
subsequently repressed his memory of the events he described
to Dr Dunn. It is
unnecessary to decide whether this is the reason for the two versions. Quite
apart from the evidence of what
the appellant told Dr Dunn the former’s
subsequent conduct that night strongly suggests that he knew not only what he
had done
but also that it was wrong. It is admittedly so that he said that by
the time he met and spoke to his friend whose telephone he
used he had already
heard over the police radio that the Bothas had been shot and their son taken to
hospital. But if in truth he
had no recollection of what had happened it is
highly improbable that he would not have asked his friend, or Hunter whom he saw
later,
for details of what had happened or at least told them that he could not
remember what had happened. Instead, he volunteered to
Hunter that he was in
trouble and asked after Marius who had escaped through the window. This is not
the conduct of someone who
has no recollection of what had happened.
[24] There are furthermore aspects of the hypothesis advanced by Dr Futter
which are far from satisfactory. House penetrations
were not one of the events
which constituted so-called “stressors” giving rise to the disorder
diagnosed by Dr Futter.
That being so, it seems strange that the appellant
should suddenly “re-enact” a house penetration in a dissociative
state. Moreover, he had never killed anyone in the course of a house
penetration nor was the procedure aimed at killing unarmed
people on sight.
Neither Mr nor Mrs Botha was armed and the gunshot wounds sustained by the
latter indicate that she was shot from
behind and presumably while attempting to
flee. It was common cause that the appellant must have known what he was doing
when he
drove to the Bothas’ house. He was then, as I have said, in a
belligerent and confrontational mood. This much is apparent
even from the
version he gave in evidence. He volunteered that his first words to Mrs Botha
were something like, “what have
you done to my wife?” The
suggestion is that for a reason that can only be described as trivial, he then
suddenly experienced
for the first time in his life a dissociative episode
during which he re-enacted some past memory but in reality just happened to
shoot, and do so accurately and repeatedly, the very person who had upset his
wife and caused him to become angry. Such a coincidence
strikes me as wholly
improbable. Furthermore, when the appellant emerged from the house he observed
and spoke to sergeant Beetge.
Dr Futter suggested that because Beetge was a
colleague of the appellant, he might somehow have been accommodated in the
appellant’s
re-enactment of a house penetration. But the appellant
threatened Beetge by pointing his shotgun at him and asking him if there
was a
problem. Such conduct was consistent with what in reality had just occurred
rather than the reliving of some past experience.
[25] In all the circumstances I can see no reason for interfering with the
finding of the Court
a quo
that at the relevant time the appellant had
the necessary criminal capacity and that the defence of so-called “sane
automatism”
had to be rejected.
[26] In this Court counsel for the appellant submitted that the appellant in
any event ought to have been acquitted on the count
of attempted murder. He
argued that had the appellant intended to kill Marius he could easily have done
so when the former first
emerged from the bathroom and before running into the
bedroom. Instead, the appellant fired through the bedroom door only after
Marius had already succeeded in escaping through the window. It is true that
the appellant hesitated before firing, but Marius shut
the bedroom door after
him and when the appellant fired at the door he would not have known that by
then Marius had already escaped
through the window. His use of the shotgun,
rather than the pistol, would have made it all the more likely that anyone in
the bedroom
would have been hit. It follows that in my view the appellant was
correctly convicted on the count of attempted murder.
[27] I turn to the appeal against sentence. In the course of his judgment on
the merits Combrinck J accepted the evidence of Dr
Dunn that the
appellant’s criminal conduct was “stress-related”. The Court
made no finding as to whether the appellant
was suffering from post-traumatic
stress disorder. For the purpose of sentence, however, the judge accepted that
at the time of
the commission of the offences the appellant’s capacity to
appreciate the wrongfulness of his conduct and to act accordingly
“was
diminished by reason of mental illness or mental defect” within the
meaning of s 78 (7) of the Act. There was of
course no suggestion that a person
suffering from what is commonly referred to as “burn-out” or stress
can be said to
have a mental illness. Counsel were agreed, however, that
whatever the correct diagnosis may have been, it was clear that the stress
and
frustrations experienced by the appellant at work had materially contributed to
his lack of self control resulting in the commission
of the offence. Counsel
for the appellant pointed to the obvious mitigating features in the case and
contended that the sentence
was plainly excessive. Counsel for the State, on
the other hand, referred to the aggravating features and sought to persuade us
to increase the sentence. Neither could point to a misdirection. I can see no
reason for interfering with the sentence. It follows
that the appeal against
sentence must likewise fail.
[28] The appeal is dismissed.
D G SCOTT
JUDGE OF APPEAL
CONCUR:
STREICHER JA
NAVSA JA