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S v Di Blasi (429/94) [1995] ZASCA 111 (21 September 1995)

78 Reportability
Criminal Law
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Brief Summary

Criminal Law — Appeal against sentence — Murder conviction — Respondent sentenced to four years' imprisonment for murder of ex-wife and additional fines for illegal possession of a firearm — Appellant sought condonation for late lodging of appeal record — Delay attributed to misunderstanding regarding responsibility for record preparation — Court found delay not inordinate and granted condonation — Respondent's actions premeditated and motivated by emotional turmoil following divorce — Sentence deemed inadequate given the severity of the crime — Appeal upheld and sentence increased.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings were an appeal by the State against sentence in terms of section 316B of the Criminal Procedure Act 51 of 1977, heard in the then Appellate Division (now the Supreme Court of Appeal). The appeal was accompanied by an application for condonation arising from the late lodging of the record.


The parties were the State (appellant), represented by the Attorney-General of the Cape Provincial Division, and Giuseppi Di Blasi (respondent), who had been convicted in the Cape Provincial Division. The respondent had also been granted leave to appeal against the murder sentence, but he gave notice shortly after leave was granted that he would not proceed with his appeal.


In the court of first instance, the respondent pleaded guilty and was convicted of murder (of his ex-wife, Francesca Di Blasi) and of unlawful possession of a firearm and ammunition. He was sentenced to four years’ imprisonment for murder and, on the firearm and ammunition counts taken together, to a fine of R3 000 or six months’ imprisonment. Leave to appeal against sentence on the murder count was granted to both parties; only the State pursued its appeal.


The dispute in the appeal concerned whether the sentence imposed on the murder conviction was inappropriately lenient, particularly in light of the respondent’s conduct and moral blameworthiness, and whether the trial court had placed undue weight on mitigating considerations such as alleged non-pathological diminished criminal responsibility. A preliminary issue was whether condonation should be granted for delay in lodging the appeal record.


Material Facts


The deceased was shot and killed on Sunday morning, 6 September 1992, in a street in Hout Bay near Cape Town. According to the undisputed evidence of an eyewitness, the respondent approached the deceased outside her flat with a firearm in hand. The deceased screamed and attempted to flee across the street; the respondent pursued her and fired a shot from a distance of two to three paces, striking her in the back. After she fell, the respondent approached her, bent forward, and fired two further shots at point-blank range, striking her in the head. The post-mortem attributed death to gunshot wounds of the head, abdomen, and chest.


The background leading to the killing appeared largely from the respondent’s written statement tendered under section 112(2) of the Criminal Procedure Act. The respondent and the deceased married in 1973. The marriage deteriorated in phases, including a lengthy separation in the mid-1970s and eventual reconciliation. In 1991 the deceased informed the respondent that she wanted a divorce; thereafter she obtained an injunction in London after the respondent assaulted her and allegedly attempted to kill her on prior occasions. A divorce order was granted on 10 June 1992 and made final on 23 July 1992. The respondent learned that the deceased had moved to South Africa and was living with another man, which he strongly disapproved of.


On the respondent’s own account, after learning of the divorce proceedings he regarded them as an insult and humiliation, decided to kill the deceased and end his own life, wound up aspects of his affairs in London, and travelled to South Africa to locate her. Over approximately two months in South Africa he traced the deceased, watched and followed her, attempted to obtain a firearm legally but could not secure a licence, and eventually purchased a firearm illegally. When he discovered that the deceased had gone to Cape Town on holiday, he travelled there, traced her to Hout Bay, and for nearly a week observed her movements while waiting for an opportunity to find her alone. On the morning of 6 September 1992 he saw her alone near a supermarket, followed her, and shot her as described.


After the killing, the respondent drove along the West Coast, disposed of the firearm by throwing it into the sea, and attempted suicide by ingesting sleeping pills near Darling. He later sought help at a nearby house. Following his arrest, he was referred to Valkenberg Hospital for observation under sections 77(1) and 78(2) of the Criminal Procedure Act. The unanimous psychiatric report concluded that he did not suffer from a psychotic or psychiatric illness and did not lack criminal capacity due to mental illness or defect, though his conduct was influenced by his emotional state. It was common cause at trial that he had the necessary criminal capacity in the pathological/statutory sense.


The material factual dispute relevant to sentence concerned the defence contention that, although criminally responsible, the respondent acted with non-pathological temporary diminished criminal responsibility, in the form of a partial emotional and psychological breakdown. Two experts testified for the defence: a clinical psychologist (Dr Venter) and a psychiatrist (Dr Zabow). The respondent did not testify, and the court emphasised that his section 112(2) statement was largely untested. The court ultimately treated the objective facts (including the prolonged planning and the manner of execution) as inconsistent with any substantial weakening of the respondent’s ability to appreciate wrongfulness or act accordingly.


A further set of material facts concerned the procedural delay in lodging the record. The registrar of the court appealed from, acting in terms of the relevant statutory provisions and Rule 52(1)(a)(i) of the Uniform Rules, requested preparation of the record. A misunderstanding after the respondent withdrew his appeal delayed commencement by the transcription contractors. Additional delay occurred due to uncertainty over payment responsibilities during restructuring in the Department of Justice. The record was eventually lodged during August 1994.


Legal Issues


The first legal question was whether the State should be granted condonation for the late lodging of the record, given the absence of an express time limit but the assumption that the record must be lodged within a reasonable time, and the further assumption that the State bore an ultimate obligation to ensure compliance.


The central substantive question was whether the trial court committed a misdirection in the exercise of its sentencing discretion, thereby entitling the appellate court to interfere and substitute a different sentence. This required evaluating whether the sentence of four years’ imprisonment for a premeditated and callous murder was so inappropriate that it justified appellate intervention.


A key subsidiary issue was the relevance of alleged non-pathological diminished criminal responsibility to sentence. The dispute concerned primarily the application of legal principles to facts and an evaluative assessment of the respondent’s moral blameworthiness, rather than a pure question of law. It also implicated the court’s value judgment regarding the proper balance between mitigating circumstances (depression and emotional upset) and aggravating features (premeditation, execution-style killing, societal interests in deterrence and retribution).


Court’s Reasoning


On condonation, the court applied the established approach that considers the degree of noncompliance, the explanation for delay, prospects of success, the importance of the case, the respondent’s interest in finality, convenience to the court, and the avoidance of undue delay in the administration of justice. Although no time limit was prescribed for lodging the record, the court proceeded on the basis that lodging must occur within a reasonable time and assumed that more than a reasonable time had elapsed, making condonation necessary.


The court accepted the explanations advanced: the misunderstanding relating to the withdrawal of the respondent’s appeal, the time required to prepare a substantial record (ten volumes, 714 pages), and delays attributable to uncertainty about payment responsibility during departmental restructuring. While the court observed that the appellant might have made enquiries earlier, it did not regard the appellant as negligent in a manner warranting refusal of condonation. The court considered the delay not inordinate and treated the State’s prospects of success on sentence as an important factor supporting condonation.


Turning to diminished criminal responsibility as mitigation, the court reiterated that diminished criminal responsibility (in the non-pathological, temporary sense relevant to sentence) entails a diminished capacity to appreciate wrongfulness or act in accordance with such appreciation, with reference to the concept reflected in section 78(7). The court emphasised that an accused bears the burden of laying a factual foundation for such a contention, and that the issue is for the court, not experts, to decide. In deciding it, the court must consider expert evidence together with all the facts, including the nature of the accused’s actions during the relevant period.


The court held that the respondent’s failure to testify meant that his plea explanation was largely untested, which reduced the weight to be placed on expert opinions that were premised upon accepting the respondent’s account as truthful in all material respects. Against that evidential backdrop, the court relied heavily on objective facts demonstrating sustained planning and rational conduct. The respondent’s conduct over months—winding up affairs, travelling to South Africa to locate the deceased, illegally obtaining a firearm, stalking her in Johannesburg and then in Hout Bay, and methodically tracing her address—was treated as inconsistent with a loss of logical reasoning or meaningful self-control. The court considered that the respondent had ample time for reflection and reconsideration, which undermined the suggestion of an impulsive or uncontrolled act.


The court further characterised the killing itself as cold, deliberate, and merciless, noting the sequence of shooting the deceased in the back as she fled and then firing at close range into her head. The court treated the respondent’s own detailed recounting of the shooting as indicative of clear and rational thought at the time. It rejected the suggestion by the defence experts that the respondent had not decided to kill the deceased until seeing her with Brunini, pointing out that the respondent’s own statement placed the decision earlier and that the objective facts supported early, firm premeditation.


On this analysis, the court concluded that the respondent’s ability to act in accordance with an appreciation of wrongfulness was not weakened. Even on the assumption that it was weakened to some extent, the court held that it was not weakened to any substantial degree and not to an extent that materially reduced moral blameworthiness. The court applied the approach stated in S v Mnyanda 1976 (2) SA 751 (A), namely that diminished responsibility exists only where the disturbance is of such a degree that the capacity for self-control is so weakened that, on a moral assessment, the accused is less blameworthy than would otherwise be the case. The court found that the respondent’s humiliation, anger, bitterness, and desire for revenge arising from divorce could not, on these facts, serve to reduce moral blameworthiness.


In evaluating the trial court’s sentence, the court held that the trial judge had erred by giving insufficient weight to the respondent’s moral blameworthiness, the gravity of the crime, and the interests of society. The court noted that the trial judge’s sentencing remarks reflected pronounced compassion and sympathy focused on the respondent’s heartache and obsessive love, while the crime’s seriousness and societal interests were addressed only briefly and mainly in the context of rejecting correctional supervision under section 276(1)(h). The appellate court held that deterrence and retribution were not given due consideration after correctional supervision was rejected.


The court restated that sentencing must take account of the main purposes of punishment, including deterrent, preventive, reformative, and retributive considerations. While retribution is not dominant in modern sentencing, it remains relevant, including recognition of societal indignation and maintaining public confidence in the administration of justice. The court emphasised that deterrence remained especially important and that premeditated murder should not be punished too leniently, lest the justice system be brought into disrepute and similar conduct not be deterred.


The court rejected the respondent’s reliance on comparisons to other cases as determinative, endorsing the view that matching “colours” between cases is unhelpful and that each matter must be decided on its own facts. It held that the cases invoked by the respondent were distinguishable and did not assist because, in those matters, the accused persons’ moral blameworthiness was materially less than the respondent’s in the present case.


Having found that the sentence imposed was shockingly inappropriate, the court held that appellate interference was warranted. It proceeded to substitute a sentence it considered appropriate, taking into account the mitigating factors it accepted (the respondent’s depressed and emotionally upset state) but emphasising the need for a substantial term of direct imprisonment for a planned, execution-style killing.


Outcome and Relief


The application for condonation for the late lodging of the record was granted, and no order as to costs was made in respect of that application.


The State’s appeal against sentence on the murder charge succeeded. The sentence of four years’ imprisonment for murder was set aside and replaced with a sentence of fifteen years’ imprisonment.


In terms of section 282(b) of the Criminal Procedure Act 51 of 1977, the substituted sentence was antedated to 23 September 1993, being the date on which sentence was imposed by the trial court.


Cases Cited


Federated Employers Fire and General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A)


S v Adonis 1982 (4) SA 901 (A)


Ferreira v Ntshingila 1990 (4) SA 271 (A)


S v Laubscher 1988 (1) SA 163 (A)


S v Smith 1990 (1) SACR 130 (A)


S v Kalogoropoulos 1993 (1) SACR 12 (A)


S v Shapiro 1994 (1) SACR 112 (A)


S v Harris 1965 (2) SA 340 (A)


S v Calitz 1990 (1) SACR 119 (A)


S v Potgieter 1994 (1) SACR 61 (A)


S v Mnyanda 1976 (2) SA 751 (A)


S v Rabie 1975 (4) SA 855 (A)


S v Khumalo and Others [1984] ZASCA 30; 1984 (3) SA 327 (A)


R v Karg 1961 (1) SA 231 (A)


S v Du Toit 1979 (3) SA 846 (A)


S v Campher 1987 (1) SA 940 (A)


S v Wild 1990 (1) SACR 561 (A)


S v Fraser 1987 (2) SA 859 (A)


S v Ingram 1995 (1) SACR 1 (A)


S v Kensley 1995 (1) SACR 646 (A)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 112(2)


Criminal Procedure Act 51 of 1977, sections 77(1) and 78(2)


Criminal Procedure Act 51 of 1977, section 78(7)


Criminal Procedure Act 51 of 1977, section 276(1)(h)


Criminal Procedure Act 51 of 1977, section 282(b)


Criminal Procedure Act 51 of 1977, section 316(5)(a)


Criminal Procedure Act 51 of 1977, section 316B


Rules of Court Cited


Uniform Rules of Court, Rule 52(1)(a)(i)


Held


The court held that the delay in lodging the record was sufficiently explained and not so inordinate as to justify refusal of condonation, particularly given the State’s prospects of success on appeal. Condonation was accordingly granted, without a costs order on the application.


On sentence, the court held that the trial court overemphasised compassionate considerations focused on the respondent’s emotional experience of the marital breakdown and failed to give adequate weight to the respondent’s moral blameworthiness, the premeditated and callous nature of the murder, and the societal interests in deterrence and retribution. The sentence of four years’ imprisonment for murder was held to be shockingly inappropriate.


The court held further that the evidence did not justify a finding of non-pathological diminished criminal responsibility that materially reduced moral blameworthiness. The objective facts demonstrated rational, sustained planning and deliberate execution inconsistent with a substantial weakening of self-control or appreciation of wrongfulness.


The sentence on the murder charge was set aside and replaced with fifteen years’ imprisonment, antedated to the date of sentence in the court below under section 282(b) of the Criminal Procedure Act.


LEGAL PRINCIPLES


The judgment reaffirmed that applications for condonation are decided with reference to multiple factors, including the degree of noncompliance, the explanation for it, prospects of success, the importance of the case, the respondent’s interest in finality, convenience to the court, and the avoidance of unnecessary delay in the administration of justice. Even where no express time limit is prescribed for lodging a record, compliance may be assessed against a standard of reasonableness, and condonation may be required if delay exceeds a reasonable time.


In relation to mitigation based on non-pathological diminished criminal responsibility, the judgment applied the principle that diminished responsibility entails a diminished capacity to appreciate wrongfulness or act in accordance with such appreciation, and that it is for the court to determine whether such diminished responsibility exists. Expert psychiatric or psychological evidence is relevant but not decisive; the court must assess it alongside all the facts, including the accused’s conduct and the objective features of the offence. Where an accused does not testify and the factual account grounding the expert opinion is untested, that may reduce the weight of expert conclusions premised on the accused’s version.


On sentencing, the judgment reaffirmed that a sentencing court must balance the recognised purposes of punishment, including deterrence, prevention, reformation, and retribution. Although retribution has a reduced emphasis in modern approaches, it remains a legitimate sentencing consideration, including the maintenance of public confidence in the administration of justice and recognition of societal indignation in serious crimes. The judgment emphasised the particular importance of deterrence in serious offences and the need for sentences for premeditated murder to reflect both deterrence and retribution.


The judgment further applied the principle that sentencing is primarily a discretionary function of the trial court, but that an appellate court may interfere where there is a misdirection or where the sentence is so inappropriate as to justify intervention. Once interference is justified, the appellate court may set aside the original sentence and substitute an appropriate sentence, including making use of statutory authority to antedate the substituted sentence to the date imposed by the court a quo where applicable.

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[1995] ZASCA 111
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S v Di Blasi (429/94) [1995] ZASCA 111 (21 September 1995)

Case No 429/94 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between
THE STATE APPELLANT
and
GUISEPPI DI BLASI RESPONDENT
CORAM: CORBETT CJ, E M GROSSKOPF et
VIVIER JJA.
HEARD: 8 SEPTEMBER 1995.
DELIVERED: 21 SEPTEMBER 1995.
JUDGMENT
VIVIER JA/
2
VIVIER JA:
This is an appeal against sentence in terms of sec 316 B of the
Criminal Procedure Act 51 of 1977
("the
Act") by
the Attorney-General of the
Cape Provincial Division. In that Court the respondent, upon his plea of guilty,
was convicted by Williamson]
and assessors of the murder of his ex-wife
Francesca Di Blasi ("the deceased") and of the illegal possession of a firearm
and ammunition.
On the murder charge he was sentenced to four years'
imprisonment and on the other two charges, which were taken together for
purposes
of sentence, he was sentenced to a fine of R3 000-00 or six months'
imprisonment. The Court a quo granted both the Attorney-General
and the
respondent leave to appeal to this Court against the sentence imposed on the
murder charge but the respondent has not proceeded
with his appeal. There is
also before us an application by the appellant for condonation of
3
the late lodging of the requisite copies of the appeal record. This
application was opposed by the respondent.
It is convenient to deal first
with the application for condonation. The facts are that leave to appeal was
granted to both parties
on 24 September 1993. A few days later, on 29 September
1993, respondent gave notice that he was not proceeding with his appeal.
In
terms of
sec 316
(5) (a) read with
sec 316
B (2) of the
Act, and
further read
with Rule 52 (1) (a) (i) of the Uniform Rules, the registrar of the Court
appealed from was responsible for lodging
with the registrar of this Court the
requisite copies of the record. No time limit is prescribed for lodging the
record. The registrar
of the Court appealed from accordingly on 14 October 1993
requested Sneller Recordings (Pty) Ltd, the sole contractors for the preparation
of appeal records, to prepare the record. The preparation of the record was
completed on 16 June
4
1994 and it was delivered to the appellant's offices on 22 July 1994 and
lodged with the registrar of this Court during August 1994.
The record consists
of ten volumes and runs to 714 pages. In an affidavit filed in support of the
application for condonation Ms
Windell from Sneller Recordings states that they
did not immediately commence with the preparation of the record in view of a
misunderstanding
which arose when the respondent's appeal was withdrawn. It was
only after enquiries were received from the appellant's office during
February
1994 that the preparation of the record was proceeded with. The delay subsequent
to 16 June 1994 and before the completed
record was delivered to the appellant's
offices is explained in an affidavit by counsel who appeared for the appellant
both at the
trial and on appeal. He states that due to the restructuring of the
Department of Justice there was uncertainty between the registrar
of the court
appealed from
5
and the appellant as to who was responsible for the payment of the record and
this resulted in the delay.
1 have said earlier that in terms of the
Act and
the Rules the responsibility for lodging the appeal record in the present case
rested with the registrar of the Court appealed from.
I have also pointed out
that no time limit is prescribed in this regard. In what follows I shall assume
that the record had to be
lodged within a reasonable time; that more than a
reasonable time had elapsed before the record was lodged; and that there was an
ultimate obligation on the appellant to ensure that the record was lodged so
that the present application for condonation became
necessary.
The general
approach of this Court to applications of this kind is well-established. (See,
eg, Federated Employers Fire and General
Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360
(A) at 362 F-H; S v Adonis
1982 (4) SA 901
(A) at
6
908 H - 909 A and Ferreira v Ntshingila
1990 (4) SA 271
(A) at 281 D-F.)
Relevant considerations include the degree of noncompliance, the explanation
therefor, the prospects of success,
the importance of the case, the respondent's
interest in the finality of the judgment, the convenience of the Court and the
avoidance
of unnecessary delay in the administration of justice.
In the
present case I do not regard the delay as inordinate, particularly as it seems
to be clear that about four months were required
for the record to be prepared.
I find the reasons given for the delay reasonable and I accept them. Perhaps the
appellant should
have made enquiries earlier but I do not think that he was
negligent in not doing so. Nor do I think that the appellant was, under
the
circumstances, unduly slow in bringing this application for condonation. The
prospects of success apart, the other factors mentioned,
either alone or
cumulatively, are not of decisive
7
importance. I accordingly proceed to consider the appellant's prospects of
success on appeal.
The deceased was shot and killed on Sunday morning 6
September 1992 in a street in Hout Bay near Cape Town. She had come to Hout Bay
on holiday from Johannesburg a few weeks earlier. That morning she had just
alighted from her car outside her flat when, according
to the undisputed
evidence of an eyewitness, the respondent, from whom she had been divorced
earlier that year, came up to her with
a fire-arm in his hand. She screamed and
tried to run away across the street but the respondent ran after her and, from a
distance
of two to three paces, fired a shot at her which struck her in the
back. She fell to the ground and he went right up to her, bent
forward and at
point blank range fired two more shots which hit her in the head. The
post-mortem examination established the cause
of death as gunshot wounds of
8
the head, abdomen and chest.
The background facts which led to the fatal
shooting and which appear largely from the respondent's written statement handed
in in
terms of
sec 112
(2) of the
Act, may
be summarised as follows. The
respondent was born on 14 October 1944 in the town of Gela in Sicily and grew up
in a conservative
rural Italian community. By the time he met the deceased in
1971 he had obtained a Doctorate in Economics and was working for a tourist
and
travel company, having previously worked for a shipping agency. The deceased
came from a more liberal background in Northern
Italy. The respondent came to
South Africa in November 1972 to take up employment as the manager of an
international freight forwarding
organisation. The deceased followed him in
March 1973 and they were married in Johannesburg on 20 July 1973. The marriage
appears
to have
9
been a happy one until July 1976 when the deceased wrote to the respondent
while he was overseas saying that she had decided to leave
him. An eighteen
month separation followed during which time she had a brief adulterous
relationship with a family friend, Franco
de Liperi, of which the respondent
subsequently learned. He himself in his plea explanation admitted to having had
"brief affairs
with several women" during this period of separation. They were
reconciled in the beginning of 1978 and thereafter lived first in
Nairobi and
from October 1980 in London. In January 1986 the respondent started a new
shipping business in partnership with one Murri.
The partnership broke up in
March 1988 and the respondent lost all the money he had put in the business. In
order to help him financially
the deceased started working as an interior
decorator and during 1990 she started her own interior decorating business. This
was
a huge success. She achieved
10
international acclaim as an artist and articles on her appeared in The Times
in London, the New York Times and in a well-known Italian
magazine.
During
March 1991 the deceased informed the respondent that she no longer loved him and
that she wanted a divorce. At that time he
was on a six month visit to Kenya in
connection with a new cruise business he had started in Mombasa and which was
incurring heavy
losses. He returned to London during April 1991. The following
month she finally left the common home and moved into her own flat.
The
respondent would not accept that his marriage was over and in the months which
followed he made desperate attempts to win her
back. He states in his plea
explanation that he was plunged into a state of depression and anger. He felt
that it was totally unjust
and inexcusable that the deceased should hurt him in
this way for a second time.
11
On 19 August 1991 the deceased obtained an injunction in London against the
respondent after he had on several occasions assaulted
her and had also
attempted to kill her. In his plea explanation the respondent says that when he
heard about the injunction he was
stunned. This was something he could never
forgive and was a turning point for him. Shortly afterwards the divorce petition
was served
on him. The divorce order was granted on 10 June 1992 and was made
final on 23 July 1992. By this time the deceased had moved to
South Africa and
the respondent heard that she was living in Johannesburg with one Loris Brunini
of whose background and personality
he strongly disapproved.
The respondent
states in his plea explanation that he regarded the news that the deceased had
instituted divorce proceedings against
him as an absolute insult. It was the
last straw. The
12
deceased had no right to divorce him and had brought shame to him and his
family by doing so. She had been completely indifferent
to his suffering and
pain. He could not ignore the insults and humiliation and he decided to kill her
and to end his own life. He
wound up his business interests in London, proceeded
to make all the necessary arrangements for his death and then flew to South
Africa to seek her out and kill her.
In this country the respondent traced
the deceased's whereabouts and then set about watching and following her in
Johannesburg in
order to confirm that she was living with Brunini. Once that had
been established he tried to obtain a firearm but could not buy
one as he was
unable to get a licence. After about two months he went to Durban and with the
help of an old friend of his, Peter
Storm, managed to get his temporary visa
extended to 8 September 1992. Back in Johannesburg he eventually
13
managed to buy a firearm illegally and then learned that the deceased had
gone to Cape Town on holiday. He drove to Cape Town and
traced her to where she
was staying with Brunini in Hout Bay. From Monday 31 August 1992 to Saturday 5
September 1992 he watched
and followed them but they were always together. He
states that he did not want to kill Brunini but that he wanted to get the
deceased
alone. On Sunday morning 6 September 1992 he saw the deceased coming
out of a supermarket alone and decided that his chance to kill
her had finally
come. He followed her and shot her in the street in front of the flat where she
was staying. He states that he was
determined to kill her, and in fact fired
three shots at her head but missed once. He did not feel guilty killing her, but
felt that
the guilt was hers alone and that he was the victim, not she. The rest
of the Sunday and the following day he drove aimlessly up
and down the West
Coast. At
14
one stage he threw the firearm into the sea as he did not want its owner to
be traced. After hearing on the radio that the deceased
was still alive he wrote
her a suicide note saying, inter alia, that had he not been convinced that she
was dead, he would have fired
ten more shots at her. Eventually he walked to a
deserted spot along the beach near Darling where he tried to commit suicide by
swallowing
a large number of sleeping pills. He lay there for a long time and
eventually recovered sufficiently to walk to a nearby house for
help.
After
his arrest the respondent appeared in the Magistrate's Court at Wynberg on 11
September 1992 when he was referred to Valkenberg
Hospital for observation in
terms of
secs 77
(1) and
78
(2) of the
Act. The
unanimous report of the panel of
two psychiatrists, Drs Zabow and George, was that the respondent suffered from
no psychotic or psychiatric
illness and that he did not
15
lack criminal capacity due to mental illness or mental defect, although his
conduct at the relevant time was influenced by his emotional
state. The criminal
capacity with which the report was concerned has been described in judgments of
this Court as pathological or
statutory criminal capacity (see, for example, S v
Laubscher
1988 (1) SA 163
(A) at 167 B-F; S v Smith
1990 (1) SACR 130
(A) at 134
g-h and S v Kalogoropoulos
1993 (1) SACR 12(A)
at 21 h-i).
While it was
common cause at the trial that the respondent had the necessary criminal
capacity to be held responsible for the killing
of the deceased, the case put
forward by the defence in mitigation of sentence was that he acted with
diminished criminal responsibility
as a result of non-pathological causes of a
temporary nature namely a partial emotional and psychological disintegration or
breakdown
at the relevant time. It has been recognised by this
16
Court that it is possible for there to be non-pathological temporary
diminished criminal responsibility which would be relevant to
sentence. See S v
Laubscher, supra, at 168 B-C; S v Smith, supra, at 135 f-g and S v Shapiro
1994
(1) SACR 112(A)
at 120 e-g.
On the issue of diminished criminal
responsibility two experts testified on behalf of the respondent. Dr Venter, a
clinical psychologist,
had consulted with the respondent at Pollsmoor Prison for
approximately 100 hours over a period of about five months prior to the
trial
and had spoken to many people in this country and overseas in order to learn
more about the respondent's background, his personality,
his relationship with
the deceased and how he was affected by the breakdown of his marriage. His
diagnosis was that of a major depressive
disorder with narcissistic and
obsessive, compulsive personality traits. He said that the
17
respondent had suffered a severe traumatic loss with the breakdown of his
marriage which had caused him severe anger and depression
and which, in turn,
were exacerbated by his said personality traits, with the result that he became
obsessed with the deceased and
with thoughts of anger, bitterness, revenge and
death. His judgment was affected by a combination of the emotional factors and
this
probably led to a temporary non-pathological emotional disintegration which
affected his ability to realise the full implications
of his actions and to
resist the forces within him.
Dr Zabow, who saw the respondent during the
statutory thirty days observation period in Valkenberg Hospital and thereafter
on a regular
basis in Pollsmoor Prison prior to the trial, testified that the
respondent had been suffering from depression for more than a year
prior to the
shooting and that he was in a state of emotional upset which affected his
behaviour and impaired his
18
judgment so that he did not act normally. He said that the killing was not a
cold-blooded, callous act by a man whose wife had left
him and who had decided,
because of his cultural background and personality traits, to kill his wife.
What had caused him to kill
the deceased was rather a combination of the
emotional factors and all the other factors relating to his background,
personality
and marital problems.
The respondent himself did not testify, apparently on the advice of Dr
Venter, who considered that it would be harmful to the respondent's
therapeutic
process. Dr Venter said that the respondent had remained depressed, angry and
without remorse. He still felt justified
in doing what he had done and would do
it again.
The Court a quo did not in terms find that the respondent acted with
diminished criminal responsibility, although it was
19
contended that such a finding was implicit in the judgment. Be that as it
may, in my view such a finding would not have been justified.
By definition
diminished criminal responsibility is the diminished capacity to appreciate the
wrongfulness of the particular act
in question, or to act in accordance with an
appreciation of its wrongfulness (cf
sec 78
(7) of the
Act). It
is for an
accused person to lay a factual foundation for his defence that non-pathological
causes resulted in diminished criminal
responsibility, and the issue is one for
the Court to decide. In coming to a decision the Court must have regard not only
to the
expert evidence but to all the facts of the case, including the nature of
the accused person's actions during the relevant period.
In S v Harris
1965 (2)
SA 340
(A) Ogilvie Thompson JA said in this regard at 365 B-C :
"[I]n the ultimate analysis, the crucial issue of appellant's
20
criminal responsibility for his actions at the relevant time is a matter to be
determined, not by the psychiatrists, but by the Court
itself. In determining
that issue the Court -initially, the trial Court; and, on appeal, this Court -
must of necessity have regard
not only to the expert medical evidence but also
to all the other facts of the case, including the reliability of appellant as a
witness and the nature of his proved actions throughout the relevant
period."
See also S v Laubscher, supra, at 172 D; S
v
Kalogoropoulos, supra, at 21 i - 22 a; S v Calitz
1990 (1) SACR 119
(A) at
127 c-d and S v Potgieter
1994 (1) SACR 61
(A) at 72 h - 73 d where this Court
emphasised the need to subject the evidence given by an accused person in
support of a defence
of non-pathological incapacity to careful scrutiny.
In
the present case the respondent, as I have said, did not give evidence. His plea
explanation was largely untested. This, in my
view, reduces the weight to be
attached to the expert
21
evidence which was based on the assumption that the appellant's version was
truthful in all material respects. The objective facts
show no sign of an
inability to appreciate the wrongfulness of killing the deceased, or to act in
accordance with such an appreciation.
Instead they show, firstly, the respondent
as a self-centred, dictatorial man with an exaggerated sense of self-importance
and pride
who considered his wife to have no right to divorce him and, when she
did so, considered it an insult and as sufficient justification
for killing her.
The deceased did nothing to him save to divorce him because she wanted her
freedom. His motivation to kill her was
his hurt pride, humiliation and revenge,
all because she had had the temerity to divorce him.
The objective facts show
further that the murder was premeditated and carefully and systematically
planned over a long period. The
decision to kill the deceased was first taken
when
22
the respondent heard about the divorce proceedings. This was at least three
months before her death. Thereafter he came to South Africa
with the sole
intention to kill the deceased. To this end he stalked her for about two months
in Johannesburg, purchased a fire-arm
illegally, traced her to Hout Bay and
followed and watched her there during the final week while he waited for an
opportunity to
kill her when she was alone. His single-minded, relentless
pursuit of the deceased is well illustrated by the manner in which the
respondent ascertained the deceased's address in Cape Town. He states in his
plea explanation that he obtained her telephone number
in the Cape Peninsula
from Brunini's office in Johannesburg. He then drove to Cape Town and, using the
telephone directory, narrowed
the area of the number to Llandudno and Hout Bay.
He then remembered that he had seen a sticker on her car with the name "Hout
Bay"
on it and he also reasoned
23
that because Brunini liked sailing they were more likely to stay in Hout Bay
than in Llandudno. He drove to Hout Bay and looked for
her car but could not
find it. He then approached a man who was working on the telephone lines and
drove him to the local telephone
exchange where the address was secured. This,
in my view, shows that the respondent was not so obsessed with his feelings that
he
had lost control of his logical and decision-making faculties. The respondent
spent a long time going after the deceased, doing so
unhurriedly and biding his
time. This is not the conduct of a man who lacked self-control. During that
period he had plenty of time
for reflection and reconsideration.
The murder itself was a cold and calculated one. The respondent did not act
in an uncontrolled or irrational manner in the final moments
but in a cool,
deliberate and merciless manner. His thoughts were clear and rational, as
appears from the following
24
precise and detailed account which he was able to give of the shooting:
"[W]hen I got out of the car, gun in hand, she looked straight into my eyes. She
did not say anything. I did not say anything. We
just looked at each other. I
knew she knew that it was the end. She tried to run away across the road. I
chased her and shot her
in the back while she was still running. She fell on the
ground. I walked to her and pointed the gun at her head because I was determined
to kill her. I shot three times at her head."
Drs Zabow and
Venter both suggested that the respondent had not finally made up his mind to
kill the deceased prior to seeing her
in Hout Bay with Brunini. The respondent,
however, does not himself say so. According to him his decision to kill her was
taken before
he came to South Africa, and this is supported by the objective
facts considered above.
In all the circumstances of the case I am satisfied that
the
25
respondent's ability to act in accordance with an appreciation of
wrongfulness was not weakened. But even assuming that it was, it
was clearly not
weakened to any substantial degree and not to the extent that it can be said
that his moral blameworthiness was materially
reduced. It cannot therefore be
said that he acted with diminished criminal responsibility. Rumpff CJ put the
test for diminished
criminal responsibility as follows in S v Mnyanda
1976 (2)
SA 751
(A) at 766 G-H :
"By die vasstelling of 'n persoon toerekenbaar gereken moet word of nie, en of
daar verminderde toerekenbaarheid is of nie, moet
soos reeds gemeld, die
wilsbeheervermoë van so 'n persoon oorweeg word aan die hand van sodanige
getuienis as wat beskikbaar
is, insluitende die psigiatriese of
klinies-sielkundige getuienis. Soos reeds gesê, is die blote feit dat 'n
beskuldigde klinies
as 'n psigopaat beskou word, nie 'n grond waarop 'n
beskuldigde as verminderd toerekenbaar bevind moet word nie. Alleen dan wanneer
ten opsigte van 'n bepaalde misdaad bevind word dat die psigopatiese steuring
van so 'n graad was dat die wilsbeheervermoë tot
so 'n
mate
26
verswak was dat hy volgens 'n morele beoordeling, minder verwytbaar is as
wanneer hy nie so 'n verswakking van wilsbeheervermoë
sou gehad het nie,
bestaan daar 'n verminderde toerekenbaarheid."
The learned Chief
Justice was here dealing with the concept of diminished criminal responsibility
of a psychopath with reference to
sec 78
(7) of a draft Bill which was in
identical terms to the present
sec 78
(7). His remarks apply equally to the
present case. The respondent's feelings of humiliation, anger and bitterness and
his desire
for revenge because of the divorce, cannot, in the circumstances of
the present case, serve to reduce his moral blameworthiness for
the killing of
the deceased.
Where the learned trial Judge erred in the exercise of his
discretion relating to sentence was that he had insufficient regard to
the
respondent's moral blameworthiness as well as the interests of
27
society and the crime. For most of the judgment on sentence he
was
concerned with the effect which the break-up of the marriage
with the deceased had on the respondent. The learned Judge
expressed strong feelings of sympathy and compassion for the
respondent. So, for example, he said at the commencement of the
judgment
:
"Behind the bare facts of a deliberate killing lies a story
of heartache and obsessive love which evokes much
compassion."
and again towards the end of the judgment :
"[M]y human inclination is one of compassion and sympathy for the accused. He
has suffered grievously and the agonies of heart and
longing must have been
terrible indeed."
The learned trial Judge did refer briefly to
the enormity of the crime and the interests of society but, significantly, he
only did
so when he was considering a plea by the defence that a sentence of
28
correctional supervision in terms of
sec 276
(1) (h) of the
Act be
imposed.
It does not appear that, after he had decided against a sentence of correctional
supervision, the nature of the crime and
the interests of society received any
further recognition in the sentence imposed by the learned Judge. Instead he
emphasised that
the respondent was a broken man, that there was no need for a
preventive sentence and that no punishment could achieve the respondent's
reformation and rehabilitation.
In the assessment of an appropriate sentence,
regard must be had inter alia to the main purposes of punishment namely
deterrent, preventive,
reformative and retributive. See S v Rabie
1975 (4) SA
855
(A) at 862 A-B and S v Khumalo and Others
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 330 D.
Although the element of retribution is today considered to be of lesser
importance (Khumalo's case, supra, at 330 E)
it cannot be ignored. In R v
29
Karg
1961 (1) SA 231
(A) Schreiner JA said the following in this regard at
236 A-C :
"While the deterrent effect of punishment has remained as important as ever, it
is, I think, correct to say that the retributive
aspect has tended to yield
ground to the aspects of prevention and correction. That is no doubt a good
thing. But the element of
retribution, historically important, is by no means
absent from the modern approach. It is not wrong that the natural indignation
of
interested persons and of the community at large should receive some recognition
in the sentences that Courts impose, and it is
not irrelevant to bear in mind
that if sentences for serious crimes are too lenient, the administration of
justice may fall into
disrepute and injured persons may incline to take the law
into their own hands. Naturally, righteous anger should not becloud
judgment."
Deterrence has remained the most important object of
punishment (Khumalo's case, supra, at 330 E). The interests of society in the
deterrent aspect of a sentence was stated as follows
30
by Rumpff CJ in S v Du Toit
1979 (3) SA 846
(A) at 857 D-E:
"Die belang van die gemeenskap by 'n straf wat opgelê word, is veelledig.
In sommige gevalle tree die belang na vore wanneer
die gemeenskap beskerm moet
word teen die gedrag van 'n bepaalde individu. In ander gevalle verdien die
belang oorweging wanneer
die orde en vrede in die gemeenskap ter sprake kom. In
ander gevalle weer tree die belang na vore wanneer lede van die gemeenskap
afgeskrik moet word. In die tyd waarin ons leef, is die misdade waaraan
appellant skuldig bevind is van so 'n aard dat die gemeenskap
ter plaatse en ook
te lande nie anders as besonder hewig geskok kon gewees het nie en 'n straf ter
afskrikking moet gevolglik sterk
oorweeg word."
In my view the
learned trial Judge did not give due consideration to the aspects of deterrence
and retribution. The requirements of
society demand that a premeditated, callous
murder such as the present should not be punished too leniently lest the
administration
of justice be brought into disrepute. The
31
punishment should not only reflect the shock and indignation of interested
persons and of the community at large and so serve as a
just retribution for the
crime but should also deter others from similar conduct. In my view the sentence
imposed by the learned
Judge does neither, and I consider it to be shockingly
inappropriate. Counsel for the respondent submitted that the sentence imposed
by
the learned trial Judge was in line with the sentences imposed in a number of
other cases where the facts were similar. He referred
in this regard to S v
Campher
1987 (1) SA 940
(A); S v Laubscher, supra; S v Calitz, supra; S v Smith,
supra; S v Wild
1990 (1) SACR 561
(A); S v Potgieter, supra; S v Ingram
1995 (1)
SACR 1
(A) and S v Kensley
1995 (1) SACR 646
(A). As Nicholas AJA pointed out in
S v Fraser
1987 (2) SA 859
(A) at 863 C-D, it is an idle exercise to match the
colours of the case at hand and the colours of
32
other cases with the object of arriving at an appropriate sentence. "[E]ach
case should be dealt with on its own facts, connected
with the crime and the
criminal" (per Schreiner JA in R v Karg, supra, at 236 G-H). It suffices to say
that the cases referred to
are all clearly distinguishable and are of no
assistance in arriving at a proper sentence in the present case. In each of the
cases
relied upon the accused's moral blameworthiness was much less than that of
the respondent in the present case.
I have already said that the learned
Judge a quo not only failed to give due consideration to the aspects of
deterrence and retribution
but that the sentence which he imposed is
disturbingly inappropriate. It follows that the application for condonation
should be granted.
At the same time the result of the appeal is that the
sentence must be set aside and a new sentence imposed (S v Rabie
33
1975(4) SA 855(A) at 857 D-F). For the reasons stated, and giving due
consideration to the mitigating factors namely the respondent's
depressed state
of mind and the fact that he was emotionally upset, I am of the view that a
substantial period of imprisonment is
called for. In my view justice will be
done if a sentence of fifteen years' imprisonment is imposed on the murder
charge.
The following order is made :
1. The application for condonation of the late lodging of the record is granted.
No order as to costs is made on the application;
2. The appeal succeeds. The sentence imposed by the trial Court on the murder
charge is set aside and a sentence of fifteen years'
imprisonment is
substituted. In terms of
sec 282
(b) of the
Act this
sentence
is
34
antedated to the date on which sentence was imposed by the Court a quo ie 23
September 1993.
W. VIVIER JA.
CORBETT CJ)
E M GROSSKOPF JA) Concurred.

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