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[1993] ZASCA 202
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S v Shapiro (553/92) [1993] ZASCA 202 (1 December 1993)
Case No 553/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
THE STATE
Appellant
and
G SHAPIRO
Respondent
CORAM
: VAN HEERDEN, SMALBERGER, JJA, et NICHOLAS, AJA
HEARD
: 1 November 1993
DELIVERED
: 1 Desember 1993
2
JUDGMENT NICHOLAS, AJA
At about half past five on the afternoon of Saturday 24 August 1991, the late
Rodney Byron Williams was standing near the reception
counter in the foyer of
the Sunningdale Hotel in Corlett Drive, Birnham, Johannesburg. He was using the
telephone. A man named Gideon
Shapiro entered from the street and fired six
shots from a revolver at Williams who fell to the floor. Shapiro went outside,
reloaded
the revolver, and returned to the foyer and at point blank range fired
another shot at the recumbent Williams who died shortly afterwards.
Shapiro left
the scene.
On post mortem examination a number of gunshot wounds were found on
Williams's body: (a) a wound which penetrated the right upper
arm and
exited through the inner aspect of the right upper
arm;
3
(b) an entrance wound, in horizontal line with the exit wound in (a), of the
lower right chest wall, which passed through the right
hemi-diaphragm, the right
lobe of the liver and the aorta; and
(c) a wound which entered the left cheek and passed into the brain. There was
widespread powder tattooing around the entrance
wound.
In the opinion of the state pathologist who
carried out the examination either of wounds (a) and (b) independently could
have caused
the death of the deceased. However death from haemorrhage must have
ensued within minutes of the infliction of wound (b).
Arising out of this incident Shapiro was arraigned in June 1992 in the
Witwatersrand Local Division on a charge of murder before a
court consisting of
Schabort J and two assessors. He pleaded not guilty. He did not make a statement
in terms of
s. 115
of the
Criminal Procedure Act 51 of 1977
but made certain
formal admissions. After a trial
4
lasting several days he was found guilty of murder and sentenced to
imprisonment for seven years, four years of which were conditionally
suspended.
In terms of
s. 316
B of the
Criminal Procedure Act 51 of 1977
and with the
leave of the trial judge the Attorney General of the Witwatersrand Local
Division now appeals to this court against
the sentence. At the hearing of the
appeal Mr R J Chinner, who was prosecuting counsel at the trial, appeared for
the Attorney General
and Mr A F Marais appeared
pro deo
on behalf of
Shapiro.
A main actor in the events which led up to Williams's death was Miss Carol
Elana Bloch ("Carol"), who gave evidence for the state.
At the time of the trial
in June 1992 she was 30 years old. She is a qualified public relations officer
registered with the Public
Relations Institute of South Africa, and has studied
film production and fashion design. She has been friendly with Shapiro since
they were children. They became lovers and started living
5
together about seven years before the trial. Their relationship was
interrupted in October 1989 when Shapiro moved to Durban to open
a compact disc
shop. Carol had a good job in Johannesburg and continued to live there. She
stayed in the house of Noëlene and
Jonathan Kingsley-Hall. There she met
Williams, a man of 37 years, who was a frequent visitor to the house.
Williams, she learned, was a dealer in cocaine, who operated a network of
drug distributors which extended to Durban, Cape Town and
Botswana. He was
reputed to be the biggest drug dealer in Johannesburg. He introduced her to
cocaine. She found him to be a very
likable person - "when sober" - and they
became friendly. As will appear, however, when Williams was going through
episodes of cocaine-abuse,
he became a monster.
In March 1990 Carol and Shapiro became engaged, and she joined him in Durban
where they again lived together. In April Williams visited
Durban and he
telephoned Carol and
6
arranged to meet her. He told her,
"I want you to deal cocaine for me in the area. I have got a lot of clients
here, and I need someone here to do that."
She
refused. When she reported this incident to Shapiro, he
was angry and
insisted that she have nothing to do with
cocaine dealing. A few days later Carol and Shapiro met
Williams for
drinks at the Malibu Hotel. The question of
drug-dealing was again raised but Shapiro and Carol said that
they were not interested. Williams warned them -
"I know where to find you both and if you mention any of this to anybody I
will kill you both."
Shapiro's business did not prosper. It went
insolvent, and he and Carol returned to Johannesburg, where
they were given a temporary refuge in a house in Eksteen
Street, Observatory, occupied by Nerina Harmse and two
others. Williams was a frequent visitor - he would come and
go at all hours of the day and night. He supplied Nerina
with cocaine for sale by her. From time to time Carol and
Shapiro used cocaine provided gratis by Williams, but Shapiro
7
was unhappy about the set-up - "He did not like to be around these people who
were coming and delivering and fetching and taking -
he did not want to be
involved with that." Nevertheless a friendly relationship developed between
Williams and Shapiro. During this
period incidents occurred, of which it is
unnecessary to give details, but which showed that Williams did not shrink from
violence
to enforce his will. He was ruthless towards those who crossed him, or
failed to pay him what he thought his due. Carol formed the
opinion that he "was
not the type of man to stop [at] anything ... when he was violent and in a bad
mood he was not worth interfering
with, because he was not really easy to
control."
In February 1991 Carol visited Israel. She returned to South Africa in March.
Shapiro had by then acquired an interest in a restaurant
called Arlecchino's in
Rosebank which was open until late at night.
In May 1991 Carol and Shapiro moved into a flat in
8
Olympia Place which is adjacent to the Sunningdale Hotel in Corlett Drive. At
this stage, Carol said, Shapiro and Williams were friends.
Williams visited the
restaurant with increasing frequency and he used also to visit the flat whenever
he felt like it at any hour
of the day or night. It was however "a casual
friendship". Due to the nature of his business Williams did not like to get too
close
to anybody -he did not really trust many people - but came to trust
Shapiro more and more, and he spent most of his time with the
couple. "He would
come at all hours of the night to sleep after like a two-day binge or whatever
and he felt safe to sleep there
without being disturbed by anybody".
In the time that Carol knew Williams he went through two periods when he
seriously abused drugs. One was during the few months preceding
his death.
During this time he got worse and worse, she said. He was aggressive and making
threats against all and sundry. He threatened
to burn Nerina's house down if she
did not pay money she owed him.
9
He went round saying that he was the boss of Johannesburg. He accused a
number of people, whom Carol named, and also Carol herself,
of stealing his
drugs. She said variously: drugs made him almost schizophrenic; he had mood
swings -his moods were totally unpredictable;
there was no way of telling what
he was going to do next; he was totally erratic; he was in a real megalomania
trip at that point;
he had become totally paranoic.
Carol described a number of illustrative incidents.
One occurred at the end of June. Williams arrived at the restaurant in an
intoxicated condition and caused trouble. This was not good
for business, and
Carol offered to take him home. After they had travelled a short distance
Williams suddenly sobered up. He took
over the steering wheel and drove to
Halfwayhouse. At a house there he dug up a container with a large quantity of
cocaine, which
he showed to Carol. They used cocaine together. Williams wanted
to have sex with her, but she refused, and locked herself in
10
another room. On the following morning she telephoned Shapiro while Williams
was still asleep and asked him to come and fetch her.
But Williams woke up and
took her home, acting as if nothing had happened. She told Shapiro what had
occurred, but he decided to
do nothing about it.
On several occasions during the ten days preceding 24 August 1991 Williams
accused Carol of stealing his cocaine. The first was on
a Thursday when he
threatened to kill her if he did not get his cocaine back. On the following
Tuesday, notwithstanding requests
by Shapiro not to do so, she had gone to the
restaurant. Williams was there and threatened to kill her. She dared him to do
it. He
caught hold of her shoulder and slapped her face twice with the flat of
his hand. Shapiro and his partner separated them.
Shapiro and Carol then decided that she should go to Israel until the dust
settled, because they feared for her life. She was due
to leave on Saturday 24
August 1991.
11
On the next Thursday, 22 August, Williams came to the flat by arrangement
with Shapiro in order to search for the cocaine which was
said to be missing.
Although it had been agreed that she would keep away, Carol arrived and asked if
Williams had found the cocaine.
When he said no, Carol, who was tired of the
whole situation, lost her temper. She told Williams she found it strange that on
one
day he wanted to sleep with her and on the next he accused her of being a
thief. Williams attacked her, slapping her in the face.
He threatened to kill
her, but Shapiro held his arms and spoke to him, and he left. Carol told Shapiro
that she was terrified of
Williams. He consoled her with the fact that she was
leaving in a few days for Israel where she would be safe.
On Saturday 24 August 1991 matters reached a climax. At about 5 p m Williams
arrived at Olympia Place and spoke to Carol over the
intercom. He told her to
release the security gate. She told him that she would come down to the
12
ground floor and let him in. Meanwhile she telephoned
Shapiro at the
restaurant and told him that Williams was at
the flat building, that she was
frightened and that if
anything happened to her, he would know who was
responsible.
Shapiro told her not to open the gate, that he was on his way
to her. Despite the fact that she was terrified, she went
down and opened the gate with the idea of talking to Williams
in the open. Williams forced his way into the building. He
told her that he had just come from his wife's home where he
had shot her, and his mother-in-law was going to be next; it
was now Carol's turn and then he was going to Nerina. He
attacked her, slapping her in the face and kicking her. He
then began choking her with his hands but stopped when the
building-owner arrived. When Carol asked the latter to call
the police, Williams left the scene.
Shapiro arrived about 10 minutes later. Carol told him what had happened.
Bystanders said in evidence that she appeared to be upset
and shocked. As a
result of the assault
13
there were red marks on her cheek, eye and neck. Shapiro
satisfied himself
that Carol was not in need of immediate
medical assistance and returned to
his car which he had
double-parked on the other side of the road. He made a
U-
turn and stopped in front of Olympia Place. He asked Carol
where Williams
had gone. She replied that she did not know
but begged him to do nothing, saying "Please don't - just
leave it, he has got his gun with him". Shapiro, however,
ignored her plea and, two men sitting nearby in a motor car
having pointed in the direction of the hotel, he entered it.
I interrupt the chronological sequence in order to refer to some of the
evidence given by Shapiro himself.
He said that he was 27 years old. He matriculated in 1981 and did his
national service during which he was trained in the use of firearms.
On
returning to civilian life he got employment and at the same time studied for a
B. Comm. degree for two years. He acquired the
revolver with which Williams was
killed (a Smith and Wesson 357 Magnum) in
14
1984, and for some years he kept it in a "tog-bag" which he carried around
with him.
He described his relationship with Carol, his meeting with Williams
in Durban, and their return to Johannesburg where he and Carol
lived for a time
in Observatory. There he met Williams again and his attitude towards him was a
cautious one. He knew his reputation:
he was a person who had grown up on the
streets, he was a fighter and lived by his wits. As time went on however a
mutual trust and
respect developed.
I pass over most of Shapiro's evidence (which, although there were some
differences, largely confirmed that of Carol) until his account
of the last
critical 10 days.
He said Williams had gone into "this high usage of cocaine" for about two
months before this, and their relationship deteriorated.
His behaviour in the
restaurant changed - he made trouble, made a noise, threatened customers. On
several occasions he threatened
Shapiro,
15
saying he was going to kill him. He said, "... the fears were becoming more
real every day". He took the threats very seriously. In
consequence he started
carrying his revolver on his person. Williams attacked Carol on the occasions
she described. He told her,
"I want my cocaine or I am going to get you".
On the Wednesday, however, Williams telephoned Shapiro. He was apologetic and
they arranged that they would meet on the Thursday so
that Williams could once
more search the flat for cocaine. Shapiro fell in with this in order to placate
him - he knew there was
no way that Carol would have stolen cocaine. He and
Carol agreed that she would keep away from the flat, but unfortunately she
arrived
home while Williams was still there. He went into a rage.
Dealing with the events of the last fateful Saturday, Shapiro said that when
Carol telephoned him, he gave one of the waitresses a
crash course on how to
work the till at the restaurant, and rushed to the flat. He found
16
Carol standing on the pavement. It was plain that she had been assaulted. She
was hysterical and showed him the marks on her neck.
He ran across the road to
where his car was double-parked, did a U-turn, and went back to Carol. He could
see that she was not in
immediate need of medical attention, and asked where her
assailant was. His basic fears that Williams wanted to kill Carol and himself,
were now confirmed. Carol was screaming, "No, leave it, it is not worth it, he
is low life, he is carrying a gun", but he felt that
if he did not make a stand
then Williams would come after them and kill them both. Near the hotel entrance
two men in a white car
pointed towards the inside. He entered the foyer and saw
Williams standing near the reception desk. He drew his firearm and, saying
to
Williams something like, "You cannot just do as you want," he aimed and fired
shots at him. He did not know what his thoughts
were at the time. He turned to
walk out of the hotel and looking back over his shoulder, he saw movement which
made him think Williams
was
17
still alive. He knew that if Williams survived, "I would be shot, Carol would
be shot - it would have been the start of this whole
takeover of Johannesburg".
So he reloaded, walked back into the foyer and fired a seventh shot at
Williams's head. He felt as though
a massive weight had been lifted from his
shoulders. He walked out of the hotel, spoke to Carol and waited for the police
for some
minutes. Then he felt that he had to get back to the restaurant and he
left the scene.
Some additional details of the shooting were recounted by two witnesses
called by the State.
Mr Gregory Shewen said that he was having a drink in the hotel bar when he
heard a series of shots. He went into the foyer where he
saw a man lying on the
floor. A strange gurgling noise was coming from his throat. He saw someone
leaving through the entrance and
went outside where he saw the accused (Shapiro)
standing with a weapon in his hand. The accused turned and re-entered the hotel
and
walked
18
up to the deceased (Williams) and pointed the weapon towards him and fired
one shot. The accused left the hotel again, walking normally.
Shewen said to
him, "Do you realise you have just killed somebody?" The accused said something
like, "I know, so what?" There was
no sign of astonishment or surprise or
confusion. He turned and spoke to a woman standing there (this was presumably
Carol) and told
her that he could not wait for the police; that when they
arrived she should direct them to his place of work, or ask them to telephone
him. He drove off in the direction of Rosebank. To the witness the accused
appeared perfectly normal. He did not seem to be disorientated
in any way. There
was no sign of remorse, he did not cry.
The second of the two witnesses was Mr Anton Hart, who was driving his car in
the vicinity of the Sunningdale Hotel when he heard
shots. He came to a stop,
got out of his car and crossed the road. He saw the accused come out of the
hotel, in his hand a firearm
which he unloaded. The accused
19
turned around and went back into the hotel. Hart,
following him, saw a man
lying on the floor. The accused was
very cool and calm and walked normally.
Outside on the
pavement he began to get restless, walking up and down.
Then
he spoke to his girl friend, telling her she must wait for
the police
and went to his car and pulled off normally.
In delivering the judgment of the trial
court,
Schabort J said that with the possible
exception of one
witness (whose evidence I have not referred to), all the
witnesses testified with "solemn and sincere endeavour to be
as frank and accurate as possible". Their demeanour was
suitable and persuasive. After a survey of the evidence the
learned judge dealt with a submission that the accused acted
in private defence, and rejected it. Referring to "putative
private defence" as a possible basis for acquitting the
accused Schabort J said:
"It is our view that this was not an instance of private defence but an
instance of private execution."
20
The trial court also rejected a defence contention that the
accused "possibly acted in non-pathological criminal
unaccountability by virtue of all the emotional stresses and
strains operating on his mind ..." Schabort J said that the
defence was
not borne out by any evidence before the court,
including the report and testimony of Dr Eriksson, a
psychiatrist called
to give evidence for the accused. The
verdict of the court was that the
accused was guilty of
murder: he shot and killed the deceased with direct intent.
I quote
in extenso
from Schabort J's remarks when
sentencing the accused:
"The circumstances in which a crime has been committed are of the utmost
importance in determining an appropriate sentence. Murders
are committed in
vastly different circumstances and that must be reflected in the sentences. In
this case I have in my previous judgment
dwelt in great detail on the historical
lead-up to the tragic event. I do not propose canvassing those facts again.
Suffice is to
say that they cast a very extraordinary and very significant light
on the incident as a whole. It is certain beyond any doubt that
the deceased by
his obnoxious, villainous and violent conduct in the months and weeks and days
preceding the afternoon in question
and during that afternoon, created the
setting for
21
his own ruination. It is impossible on the evidence before the court, not to
form the impression that by his habits, illicit activities
and conduct, the
deceased was bent on a course of virtual self-destruction and calamity for many
others.
It is known how you got involved in the ultimate incident between the
deceased and Miss Bloch. It is known what your relationship
with her was at the
time. It is known how you responded. Much evidence has been adduced and you
yourself have testified about the
effect on your mind and conduct, of all the
various stimuli to which you were subjected. There was
inter alia
severe
provocation, intimidation and humiliation. The profile of your personality has
been expertly sketched to the court. It was
conceded on behalf of the state and
it is accepted by me that you acted, however brutal and callous your actions may
seem, with substantially
diminished criminal accountability as a result of all
the aforementioned factors.
Your personal circumstances have been set out in the psychiatrists' report
and additional particulars appear in the evidence. You
are 27 years of age, you
are a partner in a restaurant business, you have a fairly stable relationship
with Miss Bloch and there
is a prospect that you may marry her in due course.
You have no previous convictions involving violence. I have been urged on your
behalf not to sentence you to unsuspended imprisonment. I have been told that
you are not an ideal candidate for that kind of punishment.
I have been told
that you have changed you lifestyle. I have been asked to give great weight to
all the
22
relevant facts preceding and pertaining to the
fatal incident. This is
clearly a case demanding
great understanding for your person and
your
position at the time and presently and the greatest
leniency permissible in the circumstances should be
shown. You have expressed regret for what you have
done and there is no
doubt that you are
remorseful.
I have no doubt further that the public interest must be accorded substantial
importance in this case. You have taken the law into
your own hands with grave
consequences. That is something which this court may not condone and which
society cannot tolerate. Persons
who do that must realise that their actions
will be severely censured by the courts. Not with the utmost understanding do I
see my
way open to keep you out of jail. There is good reason, nevertheless, to
suspend a substantial part of your sentence.
You are sentenced to seven years' imprisonment, four years of which are
suspended for five years on condition that you are not convicted
of an offence
committed during the period of suspension, involving violence and for which you
are sentenced to unsuspended imprisonment.
The registrar of this court is directed to submit a copy of this judgment and
of the psychiatrists' report, exhibit G, to the Department
of Corrective
Services for consideration and placement on your personal file."
It may well be that this court would have imposed
23
on the accused a heavier sentence than that imposed by the
trial judge.
But even if that be assumed to be the fact,
that would not in itself justify interference with the
sentence. The principle is clear: it is encapsulated in the
statement by Holmes JA in
S v Rabie
1975(4) SA 855 (A) at 85?
D-F:
"1. In every appeal against sentence, whether
imposed by a magistrate or a Judge, the Court hearing the appeal -
(a)
should be guided by the
principle that punishment is 'pre-eminently a matter for the discretion of the
trial court'; and
(b)
should be careful not to
erode such discretion: hence the further principle that the sentence should only
be altered if the discretion
has not been 'judicially and properly
exercised'.
2. The test under (b) is whether the
sentence is vitiated by irregularity or misdirection or is disturbingly
inappropriate."
Central to the judgment on sentence is the finding
that however brutal and callous Shapiro's actions may seem,
he acted with substantially diminished criminal
responsibility.
S. 78(7)
of the
Criminal Procedure Act 1977
relates to cases where the court finds that the accused at
24
the time of the commission of the act in question was criminally responsible
for the act but that his capacity to appreciate the wrongfulness
of the act or
to act in accordance with an appreciation of the wrongfulness of the act was
diminished by reason of mental illness
or mental defect. In such a case, the
court may take the fact of such diminished responsibility into account when
sentencing the
accused. But apart from "pathological reduced criminal
responsibility", as it has been called, it has been recognised that it is
possible for there to be non-pathological temporary reduced criminal
responsibility, which would likewise be relevant to sentence.
See
S v
Laubscher
1988(1) SA 163 (A) at 167 J - 168 B. It is this form of reduced
criminal responsibility which was found by the trial judge to be present
in this
case.
In making this finding the learned judge relied on the report of the
psychiatrist, Dr Eriksson, and on his oral evidence at the trial.
The state's
psychiatrist, Dr Vorster,
25
concurred in this report. At the conclusion of Dr Eriksson's evidence in
answer to a question by the trial judge, Mr Chinner confirmed
that he did not
dispute either the factual material contained in the report or the opinions
expressed therein.
Dr Eriksson expressed the opinion, based on evidence given by Carol and by
Shapiro, that at the time of the incident Williams was
"actively paranoid
secondary to cocaine abuse". He had a fixed delusional belief that Carol had
stolen his cocaine and it was in
this frame of mind that he made the attack on
Carol on Saturday 24 August 1991.
In regard to Shapiro, Dr Eriksson's unchallenged
opinion was that -
"Numerous and significant factors detailed both in the body of this report
and further evidence as given before the Court, have, in
my opinion, interacted
in such a way that the accused was not fully able to appreciate the wrongfulness
of his act. It is my opinion
that at the time of the alleged incident the
accused experienced a decreased ability to appreciate the moral, ethical, social
and
legal consequences of his act. His ability to appreciate the wrongfulness of
his act was therefore, in my opinion, diminished."
26
While conceding that the decision as to criminal responsibility was the
function of the court, Dr Eriksson
said -
"... it is my opinion, on assessing from a medical perspective, the facts at
hand, as these pertain to biological, psychological and
social factors of this
case, the alleged murder was a summation of a number of complex and interacting
factors leading to a state
of extreme emotional distress, such that the accused
was likely not to be fully responsible for his behaviour."
In his discussions of Shapiro's mental state at the time of
the incident, Dr Eriksson said in his report:
"1. The role of FEAR as a contributing factor to the accused's final course
of action.
(a)
The accused has for a time
prior to the alleged incident been living in a state of heightened tension as a
result of the deceased's
unpredictable behaviour and threatening
attitude.
(b)
On the accused confirming the
attempt made on the life of his fiancee, Carol, and on being told by Carol that
he, the accused, 'must
be careful as he is carrying his gun', fear for his own
and his fiancee's life was brought into sharp focus. His fear was further
heightened by his past experiences with the deceased and his having had
experiences with the unpredictable nature of the deceased's
thinking and
mood.
27
(c) Fear of the consequences which may result from his taking an alternative
course of action to deal with the immediate crisis to
hand further focused his
actions at the time of his going to confront the deceased with his, the
deceased's, unacceptable behaviour
(attempted to murder the accused's fiancee.
Thus the usual socially acceptable ways of dealing with an act of attempted
murder were
effectivly closed to the accused. Fear thus led to his accepting the
ultimate final CHOICE - 'It is either me or him'.
3. The role of ANGER as a contributing factor to
the accused's final course
of action.
(a) As described the accused had experienced considerable stress as a result of
the deceased's behaviour and thinking concerning
the accused and his fiancee
Carol. Scientific texts explaining the mechanisms involved in aggression
describe STRESS as the psychophysiological
trigger initiating aggressive
behaviour. Behaviorally aggression can be internalised or externalised. At the
time of the incident,
... persons who witnessed the behaviour of the accused
both prior to and following the incident confirm that no externalised
expressions
of anger were noted. Only the final alleged aggressive act confirms
the overwhelming internalised anger experienced by the accused.
4. The role of PROVOCATION as a contributing
factor to the accused's final
course of
action.
(a) Evidence as presented to the Court
suggests
that prior to the alleged incident the accused was subjected to extreme
provocation. The
28
accused was able to confirm the reality that the deceased had attempted to
murder his fiancee, Carol, by strangulation. With confirmation
of this fact his
worst fears had been realised - it was no longer a case of 'all talk'. The
confirmed physical act, in my opinion,
acted as a source of severe
provocation.
Mr Chinner told this court that Schabort J was
in
error in saying that the State conceded that
Shapiro acted
with
substantially
diminished criminal responsibility.
If
that was a mistake, I do not think that it was material.
The fact is that the learned judge accepted that Shapiro's
diminished criminal responsibility was substantial and
although Dr Eriksson did not use the word in his report, that
was its general tenor and the finding was in my view
justified on the evidence.
The grounds of appeal set out in the notice of
motion filed in the application for leave to appeal were
these:
"2. Die gronde waarop gesteun word ter
ondersteuning van die aansoek is soos volg:
2.1 Sy Edele die Verhoorregter het homself wanvoorgelig deur
29
2.1.1 die persoonlike omstandighede en meer in
besonder die
verminderde
toerekeningsvatbaarheid van die
Respondent oor te beklemtoon
in die lig
van
(a) die Respondent se meewerking en skuld aan die situasie waarin hy hom op die
dag van die voorval bevind net deur sy 'vriendskap'
met die oorledene en die
afwesigheid van enige vroeëre pogings om horn aktief van die oorledene te
dissosieer.
(b) die feit dat die oorgrote meerderheid van alle moorde en aanrandings gepaard
gaan met verhoogde emosionele spanning, provokasie
en woede.
2.1.2 die onderbeklemtoning van die gemeenskap
se afkeur van die brutale wyse
waarop die
moord uitgevoer is
deur
(a)
'n ander mens koelbloedig af te maai.
(b)
die gewetenlose teregstelling van 'n persoon wat hulpeloos en
sterwend is, nadat die vuurwapen herlaai is.
2.1.3 die onderbeklemtoning of negering van die laakbaarheid van 'n moord op 'n
'vriend' wat na alle waarskynlikheid ( en tot die
kennis van Respondent)
paranoiis was en hulp benodig net eerder as 'n gewelddadige en moordadige
konfrontasie.
2.1.4 die onderbeklemtoning of negering van die toename van sake van hierdie
aard en die gebruik van emosionele onstabiliteit as
regverdiging of
strafvermindering vir onaanvaarbare
gedrag.
2.1.5 die onderbeklemtoning van die
gemeenskap
se afkeur daarvan dat die reg in eie
hande geneem word en op
die wyse die
30
hoogste prys vir gewraakte optrede geëis
word. 2.1.6 die gevestigde oogmerke van
straf
naamlik vergelding en afskrikking te
negeer of 'n onbelangrike rol toe te
ken. 2.2 Die vonnis verwek 'n gevoel van skok en
is
onvanpas in die lig van die Verhoorregter se bevinding dat hier nie sprake is
van noodweer nie maar wel van 'n 'private
regstelling'."
In his
argument in this court, Mr Chinner developed
and expatiated upon these grounds. He stated repeatedly that
the trial
judge misdirected himself by overemphasizing this
or that aspect and
underemphasizing other aspects. He did
not rely on specific statements in the
judgment on sentence,
but said that it was to be inferred that Schabort J did
not
give due and proper weight to the various circumstances
mentioned: if he had done so he could not have imposed the
sentence which he did. While these matters should be taken
into account when considering whether the trial judge, in
imposing the sentence, exercised his discretion properly and
judicially, I do not think it helpful to consider whether
separately they can be regarded as misdirections.
31
Mr Chinner's main argument was that although he did
not dispute Dr
Eriksson's opinion, this court should not lose
sight of the unchallenged
evidence of independent by
standers, that Shapiro's actions appeared to be
cool, calm
and calculated. Outwardly he gave no sign of
emotional
confusion. Moreover, the provocation he experienced was
limited. He brutally executed a man who was helpless and dying. He acted
without compunction, and thereafter showed a callous indifference
to what he had
done.
The assumption underlying this argument is that the conduct of a person who
has been found to have diminished criminal responsibility
is to be measured by
the same yardstick as the conduct of a person with undiminished criminal
responsibility. Such an assumption
is fallacious, for a person who has
diminished criminal responsibility is by definition a person with a diminished
capacity to appreciate
the wrongfulness of his act, or to act in accordance with
an appreciation of its wrongfulness.
32
Shapiro's conduct on that Saturday at the
Sunningdale Hotel was bizarre.
In full public view, with no
attempt at concealment, and indifferent to the
presence of
eyewitnesses, he entered the hotel and gunned down his
victim.
He went outside, reloaded his gun and returned to
fire another shot to make
sure that he was dead. All this time he acted with apparent coolness, calmness
and deliberation. There was
nothing in his behaviour to suggest that he
appreciated that what he was doing was wrong. He does not appear at any time to
have
been aware of his awful predicament. When told he had killed a man he
replied with apparent indifference, "What of it?" And outside
the hotel he
appeared to be quite unconcious of the enormity of his act, or of its probable
consequences for himself. He just drove
away to attend to what were, in relation
to what he had done, the unimportant affairs of his business.
In regard to sub para (a) of para 2.1.1 of the notice of motion it is not
clear to me why what is seen to be
33
Shapiro's contributing fault should affect the weight to be given to the fact
that at the time of the act he had diminished criminal
responsibility. Nor is it
clear why the fact (if it be a fact) set out in sub para (b) is relevant in this
connection.
In regard to paras 2.1.3 and 2.1.5 there can be no doubt that the
community must view this crime with abhorrence. I do not believe,
however, that
right-thinking men would demand condign punishment in a case where the accused
acted with substantially diminished
criminal responsibility. Nor do I think that
there is substance in the point made in para 2.1.4 that the trial judge ignored
or underemphasized
the increase in cases of this nature, or overemphasized
emotional instability as a justification for or in mitigation of unacceptable
conduct. Each case must be judged on its own facts, and it would, I think, be
wrong in principle to impose a heavier sentence in
this case in an attempt to
stem the flow of cases in which emotional
34
instability is relied on by the defence.
In regard to para 2.1.6 I do not
agree that the learned trial judge ignored or minimized the importance of
retribution and deterence
as objects of punishment. I do not think that in the
light of the finding of diminished responsibility this case is one which is
clamant for
retribution. It does not appear from the evidence that
Shapiro is likely
to again commit a violent crime. He has no previous convictions relevant to show
propensity for violence. It does
not seem that he is a danger to society which
would call for his separation from the community for a long time. In regard to
the
deterrence of others, it does not seem to me that in the present case a long
prison sentence is called for. The concatenation of
circumstances was highly
unusual and is unlikely to occur again.
Finally, in regard to para 2.2, I do not agree that the sentence induces a
feeling of shock. Although it may be considered to be lenient,
it was not in my
view "disturbingly
35
inappropriate" (
S v Rabie
(
supra
)); "wholly
inadequate"
(
S v Anderson
1964(3) SA 494 (A) at 496 H); or
"so
inappropriately lenient" (
S v Human
1979(3) SA 331 (E) at
338
A-B) that the inference should be drawn that the trial
judge did not
properly and judicially exercise his discretion.
Mr Marais submitted that in
the event of the appeal being dismissed, an order should be made in terms of
s.
316
B (3) that the State pay the accused's costs. Since Mr Marais appeared
pro deo
, the accused was not put to any expense in regard to counsel's
fees in this court. But there may be other costs and I think that
the accused is
entitled to the order sought.
The appeal is dismissed. It is ordered that the State pay the accused the
whole of the costs to which the accused may have been put
in opposing the appeal
and the
36
application for leave to appeal in the court
a quo
, taxed according to
the scale in civil cases of this court.
H C NICHOLAS, AJA
VAN HEERDEN, JA) SMALBERGER, JA ) concur