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[2015] ZAWCHC 47
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S v Chimboza (SS61/2014) [2015] ZAWCHC 47 (29 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: SS61/2014
DATE:
29 APRIL 2015
In
the matter between:
THE
STATE
And
ANDREW
MASTER CHIMBOZA
SENTENCE
JUDGMENT
Delivered
29 April 2015
Before:
The Hon. Mr Justice Binns-Ward
BINNS-WARD
J:
[1]
In this matter, the accused was convicted
of the murder of Mbuyiselo Michael Manona. The conviction
followed on the acceptance
by the state of his plea of guilty to the
charge. The crime was committed at the Gugulethu residence of
one Nomonde Tshabalala.
It may be inferred from the proprietary
behaviour of the deceased when the accused arrived at the house that
day, as described
in the plea statement, that he was in some sort of
relationship with Ms Tshabalala. That was also the impression
gained by
Major Knibbs, the forensic psychologist who testified at
the trial, whose evidence I shall discuss later in this judgment.
[2]
The indictment was framed with reference to
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
, which
implied an intention by the state to prove that the commission of the
offence had been premeditated, which would attract
a prescribed
sentence of life imprisonment in the absence of substantial and
compelling reasons justifying the imposition of a
lesser sentence.
The state, however, accepted a written plea statement tendered by the
accused in terms of s 112(2)
of the Criminal Procedure Act 51 of
1977 (‘the CPA’), the content of which was inconsistent
with there having been
premeditation on his part. In her
address on sentence at the conclusion of the trial, the prosecutor
conceded as much.
The offence is thus one in respect of which a
minimum sentence of 15 years’ imprisonment is prescribed in
terms of s 51(2)(a)
of Act 105 of 1977.
[3]
The indictment alleged that the accused had
killed the deceased ‘
by stabbing
him with a knife and removing his heart
’.
The plea explanation accepted by the state made no mention of the
accused having removed the deceased’s heart.
It stated
that the accused had stabbed the deceased in the neck with a fork
that was part of the cutlery that had fallen from a
wardrobe or
walk-in closet in the
en suite
dressing room area off the main bedroom in which a struggle between
the accused and the deceased took place in the lead-up to the
stabbing. The plea statement proceeded that, after stabbing the
deceased in the neck with a fork, the accused disarmed him
of the
knife that he had picked up and been wielding as if to use to stab
the accused, and used it to slit his throat and stab
him repeatedly
in his face, chest and abdomen.
[4]
Judged from the photographs of the scene,
which were introduced by agreement in terms of the plea statement, it
would appear that
the knife used was an ordinary table knife -
although how such a knife could have been effective in causing
the quite horrendous
injuries occasioned to the body of the deceased,
which will be described presently, especially by cutting through bone
and sinew,
is difficult to credit. There was, however, no
evidence, other than the pictures of the various table knives
depicted in
the photograph album, exh. D, which, by their appearance,
all appear to come from the same cutlery set, to indicate that any
other
kind of knife was used. Amongst the 69 photographs in the
album there were pictures of what appear to be bloodied shoeprint
impressions in the passage leading to the kitchen outside the main
bedroom and on the floor of the kitchen itself. There
were also
pictures of the kitchen, showing, amongst other things, an open
drawer. But these were given no contextual significance
in the
plea statement, or the evidence adduced by the state in aggravation
of sentence, and at the end of the case the court was
left puzzled as
to why they were put in.
[5]
When I queried the absence of any mention
in the plea statement of the excision of the deceased’s heart,
the prosecutor informed
the court that the excision of the heart was
not the cause of death according to the post-mortem report, and that
as the accused
had admitted facts making out the essential elements
of the offence the absence of any admission concerning the removal of
the
deceased’s heart did not have ‘
too
much bearing
’.
[6]
On the basis of the content of the plea
statement accepted by the state the offence must be accepted as
having been committed in
the following circumstances:
On 4
June 2014 the accused went to the house of Ms Tshabalala at
Thembisa Street, Gugulethu. She had invited him there
in order
to repair a tint-job that he had done previously on her windows.
Ms Tshabalala was a friend of the accused.
She worked
opposite his place of business in Langa and had helped him with
personal matters previously. He had also visited
her on a
number of occasions at her home. When he arrived at Ms
Tshabalala’s residence the deceased opened the door
for him on
the house-owner’s instruction. The deceased was
plainly unhappy about the accused’s presence.
He kept on
saying: ‘
What do you want here? You must leave
this house
’. He called the accused names and insulted
him repeatedly. The accused gave Ms Tshabalala R50 and she
decided
to go out to purchase some liquor with it. Ms
Tshabalala asked the accused to stay at the house and assess the work
that
needed to be done on the windows whilst she was gone. The
deceased who had been wearing a dressing gown changed into trousers
and
a shirt at this stage and the accused formed the impression that
he would accompany Ms Tshabalala. The deceased, however,
also
remained in the house. At some stage the accused needed to use
the
en-suite
bathroom facility. As he finished doing so
he was confronted in the bathroom by the deceased who ‘
knocked
[him]
in the face’
and accused him of sleeping with Ms
Tshabalala, who was described as ‘
his
[i.e. the
deceased’s]
woman
’. The blow caused the accused to
fall between the toilet and the walk-in closet and as he fell he
heard cutlery falling from
a wardrobe. The deceased continued
to hit the accused, who then noticed that the deceased had taken a
knife from one of those
that fallen from the wardrobe and was
standing over him. It dawned on him that the deceased wanted to
stab him. He
was able to lift a leg and kick the deceased in
his private parts. As the deceased doubled over with pain, the
accused took
up a fork which was lying near to his hand and stabbed
the deceased in the neck. He then disarmed the deceased of the knife
and
used it to stab him. He slit the deceased’s throat
and continued to stab him. He stated that he was so angry that
he was unable to say how many times he stabbed him, or where.
He could ‘
just remember it was in the face, chest and
abdomen
’. He appreciated that he could kill the
deceased, but persisted with the assault on him regardless. He
stated
that the deceased’s body then fell to the floor and he
noticed that the deceased was dead.
[7]
Thus, on the facts accepted by the state,
the physical encounter between the accused and the deceased occurred
entirely in the en-suite
dressing room-bathroom area off the main
bedroom. Photographs in the album handed in by agreement
together with the plea
statement as exh.D showed the living area of
the house in a chaotic state, including broken crockery on the floor
and what appears
to be a shattered glass dining room table.
Sizable shards of broken glass are also depicted on the bloodied
dressing room
floor. However, like the shoeprints mentioned
earlier, these were given no contextual significance by the accepted
plea statement,
or the evidence adduced in regard to sentence.
[8]
The accused admitted that the police
entered the house while he was still there after the fatal assault of
the deceased and that
the body suffered no further injuries during
the period from its removal from the house and the subsequent
post-mortem examination.
He also admitted the content of the
post-mortem report.
[9]
The post-mortem report on the deceased
noted the following injuries:
On
the head and face:
1)
A 15mm x 55mm laceration of the
supraorbital area.
2)
10mm x 3mm boat-shaped penetrating incised
wounds of the left occipital area behind the tragus (which is the
small pointed eminence
of the external ear above the lobe).
3)
15mm x 3mm incised wound of the right
eyebrow and 55mm x 10mm penetrating incised wound of the right mid
cheek and 10mm x 3mm and
8mm x 3mm in the right paranasal area.
4)
90mm x 10mm longitudinal penetrating
incised wound of the left paranasal area and cortical artefact of the
mouth.
5)
A longitudinal incised wound of the right
half neck from 1420mm to 1620mm above the heel. The temporal
area and jaw was exposed
by the incision. The right earlobe was
also incised.
6)
A 50mm x 5mm superficial incised wound of
the left half anterior face in the paranasal area with a 10mm x 5 mm
incised wound next
to it.
7)
A 55 mm x 10mm boat-shaped incised wound on
the right lateral aspect of the lip.
8)
A 15mm x 3mm incised wound of the midline
anterior chin.
9)
Incised gaping wound of the right half
anterior neck from 1420mm to 1500mm and with a width of 80mm.
This exposed the neck
structures.
10)
A triangular shaped 45mm x 25mm penetrating
incised wound of the left half anterior neck 1500mm above the heel
and 30mm x 15mm at
1460mm above the heel with incised major neck
vessels.
On
the chest and abdomen:
1)
An oblique 55mm x 10mm boat shaped penetrating incised wound of the
right lateral clavicular area which went from front to back,
downwards into the chest.
2)
Three boat-shaped penetrating incised wounds of the left subclavian
area from 55mm x 15mm to 30mm x 10mm, which went into the
chest
cavity.
3)
A 24mm x 5mm superficial incised wound of the mid abdominal area
1300mm above the heel
4)
An irregular shaped incised wound on the left half anterior chest
area from 1210mm to 1300mm above the heel with a width of 70mm.
The
right edge was irregular and a 50mm x 10mm flap was over the wound.
This went into the chest cavity with incised 3
rd
and 4
th
ribs.
5)
Two penetrating incised wounds of the mid abdominal area at 80mm
above the heel of 12mm x 5mm and 20mm x 5mm. These perforated
the bowel and incised major abdominal vessels. There was
another area adjacent which had 1x1mm and 2x1 penetrating incised
wounds in an area of 40 x 10mm.
6)
Multiple - approximately six - incised wounds of the back of
the left hand ranging from 25mm x 5mm to 10mm x 3mm.
The
post-mortem report also noted deep scalp bruising of the right and
left frontal supraorbital ridge and occipital area of the
deceased’s
skull. There was a subarachnoid haemorrhage seen on the left cortex
and cerebellum of the deceased’s brain.
In respect of the
deceased’s ‘
neck structures’
it was recorded
that ‘[t]
here were incised defects of the neck transversely
at anterior neck of the various levels of the cervical spine.
The cervical
spine was exposed at the level of the 1
st
and 2
nd
cervical vertebra. The 3
rd
and 5
th
cervical vertebrae was also
exposed. The edges of the incised wound had vital reaction
.’
The reference to ‘vital reaction’ was explained as
indicating that the edges of the wound showed signs
of blood
infusion, which would most likely occur if the incision were made
when the victim was still alive. All of the deceased’s
ribs were fractured ‘bilaterally and laterally’, which
was explained to indicate on both sides of the chest and crosswise
-
something that would be caused by the application of heavy pressure
to the chest anteriorly. The heart had been removed.
Pieces of the heart accompanied the body to the post-mortem
examination in a plastic bag.
[10]
Dr Alli, the forensic pathologist who
conducted the post-mortem, was called by the state to give oral
evidence in aggravation of
sentence. He testified that a number
of the injuries sustained by the deceased could have caused his
death, either on their
own or in combination with the others.
These were the incised wound of the neck, the penetrating wounds to
the left chest
and the multiple rib fractures that would have made it
difficult for the deceased to be able to breathe. Dr Alli
testified
that considerable blunt force would have been required to
cause the fractures to the deceased’s ribs. How this was
applied in the context of the admitted facts accepted by the state
for the purpose of obtaining a conviction remained, like much
else
about this case, unexplained. The same can be said of the
injury to the deceased’s skull and the haemorrhaging
on his
brain.
[11]
Another peculiarity to emerge during the
evidence led by the state in aggravation of sentence was that the
incident happened late
at night. What the accused would have
been doing attending at the house of Nomonde Tshabalala late at night
in order to repair
a ‘tint-job’ on her windows remains a
mystery. Other evidence led by the state in aggravation of
sentence suggests
that the accused may have been infatuated with the
owner of the house. The evidence of Lelethu Femele, a witness
called by
the state in terms of s 112(3) of the CPA, was that to
the effect that alerted by Ms Tshabalala to the fact that there was
something amiss at her house, he went there and peered through a
bathroom window. He saw the accused removing the heart from
the
deceased’s dead body and cutting it up with a knife and fork
and eating it. According to Femele the accused was
speaking to
himself while he was eating pieces of the deceased’s heart.
The accused apparently spoke in a mixture of
his own language which
the witness does not understand and English. The witness was
able to make out that the accused uttered
words to the effect of
‘
Nomonde, I love you. You
are the love of my heart. I do everything for you.
’
[12]
The evidence of the first policeman to
arrive at the scene, Cst. Landule, who was also called by the
prosecutor in terms of s 112(3)
of the CPA, was to similar
effect. When he came across the accused, he was in the main
bedroom holding a piece of flesh in
his hands and gnawing on it. He
said that the deceased was speaking to himself, saying that he loved
Nomonde (Tshabalala), and
that Nomonde was his wife.
[13]
It was put to Landule and Fumele by the
accused’s legal representative that the accused denied having
done what they described.
In other words it was put to the
witnesses that the accused denied excising the deceased’s
heart, cutting it up and eating
it. The accused chose, however,
not to give evidence in rebuttal of the evidence adduced by the
state. His legal representative,
Ms
Rajab
,
was constrained during argument on sentence to concede that there was
no reason in the circumstances for the court not to accept
the
evidence of the two witnesses. The evidence of the two
witnesses is consistent with the content of the post-mortem report
and the other admissions about the injuries to the deceased’s
body made in the plea statement. It is also borne out
by the
evidence of Dr Alli concerning how the remnants of the heart that
accompanied the deceased’s body in a plastic bag
to the
post-mortem examination had been cleanly cut up into small blocks.
[14]
The
accused was not charged, as he could have been, with violating or
desecrating a corpse (Afr.
lykskending
).
[1]
It would not be appropriate in the circumstances to apply the facts
related to an offence of which the accused
has
not
been convicted to justify a heavier sentence in respect of the
offence of which he
has
been convicted. The only relevance of the accused’s
conduct in regard to the body of the deceased after he had killed
him
by slitting his throat is the light it might shed on his
over-reaction to the provocation given by the deceased. It was,
to say the least, surprising therefore that the state did not see fit
to call expert evidence to try to shed light on the accused’s
conduct and left it to the court to require such evidence to be
adduced.
[15]
The evidence of Major Hayden Knibbs, the
Chief Psychologist in the Investigative Psychology Section of the
South African Police
Service, was obtained by the state only at the
court’s instance. The witness was provided with a copy of
the transcript
of the evidence at the trial and conducted an
interview with the accused in the presence of Ms
Rajab
.
He was also provided with a copy of a report by the psychiatrist,
Professor Tuviah Zabow, who examined the accused at the
instance of
the defence.
[16]
Major Knibbs testified that the offence in
issue was properly characterised as a ‘psychologically
motivated crime’,
that is one with no external motivation, such
as financial gain. Jealousy would not qualify as ‘external
motivation’.
He gave as examples of psychologically
motivated crimes: serial murder, serial rape, domestic violence,
sexual murders, and intimate
partner murder. With regard to
murder, the witness testified that evidence of a psychological
motivation can be found in
various forms on the crime scene itself.
Excessive violence to the body, removal of body parts and mutilation
of the body
are instances of such evidence.
[17]
Major Knibbs described various typologies
of criminal human mutilation. He opined that the current matter
typified what is
known as ‘aggressive mutilation’, which
can be seen as the manifestation of a state of complete rage, during
which
the victim is killed and the body is mutilated. He said
this is sometimes called ‘
overkill
’
because the wounds in these instances may appear random and without
purpose. Major Knibbs said that this type of mutilation
can
also be described as an extreme form of expressive aggression, which
is motivated by the desire to actually harm or injure,
or make the
victim suffer. It is usually an emotional response to
frustration, ego threats, insults, physical attacks or
personal
failures and can be seen as impulsive and uncontrolled, characterised
by strong emotional arousal.
[18]
The witness opined that the mutilation of
the deceased’s body by the accused was indicative of a
heightened state of rage.
The brutality of the assault and the
removal and ingestion of the heart were consistent with an extreme
form of aggressive mutilation
behaviour, indicative of an attempt to
completely obliterate the person that the rage is directed towards.
Cannibalism is
apparently known to sometimes occur in the context of
aggressive mutilation.
[19]
Major Knibbs also reported on his clinical
impressions of the accused obtained in the course of his interview.
He described
that the accused placed the responsibility of the
situation on the deceased and Ms Tshabalala. He said that the
accused showed
no acknowledgement of the consequences of the murder
on them, which he considered indicated a lack of remorse
.
He noted that the accused however, did show regret, as he showed
disappointment for the position in which he currently finds
himself
as a result of having committed the murder. He reported that
the accused presented a clear and detailed picture of
the events up
until the death of the victim (content that the witness described as
placing him in a relatively positive light),
but presented a vague
picture with regards to the criminal mutilation (being content that
might place him in a negative light).
He said that the accused
avoided the topic of criminal mutilation with silence and a lack of
eye contact, and when pressured, he
maintained his silence, rather
than addressing the discomfort. Major Knibbs said that this
resulted in the accused coming
across as unpredictable and
threatening.
[20]
In the witness’s opinion the
accused’s behaviour indicated that he may avoid uncomfortable
situations by ignoring the
other party involved in a threatening
manner. He stated that this kind of behaviour has the potential
to escalate into conflict
with others in the accused’s
environment. He said that the accused rigidly persisted with this
behaviour and indeed displayed
it ‘
across
contexts
’, as it was also evident
in his descriptions of his interactions with the deceased – and
indeed, I might add, manifested
in his approach to the evidence at
the trial.
[21]
Major Knibbs stressed that in his view the
accused must be regarded as a danger in the community. He
stated that the reason
why individuals who engage in aggressive
mutilation behave in that manner is unknown, making the behaviour all
the more unpredictable.
He added that the unpredictability of
such behaviour coupled with the lack of scientific understanding of
its causative factors
increases the level of future risk presented by
it and decreases the chance of effective rehabilitation.
[22]
During the adjournment necessitated to
enable Major Knibbs to qualify himself to give opinion evidence in
the case after the court
had insisted on evidence to assist in
providing psychological insight into the accused’s
extraordinary behaviour, the defence
arranged for the accused to be
seen by Professor Zabow, a psychiatrist of long and wide experience
who has testified in this court
in many cases over the years.
Professor Zabow also gave evidence during the sentence proceedings.
[23]
Professor Zabow agreed with Major Knibbs’s
conclusion that the accused was not suffering from any psychiatric
illness and
confirmed that in his opinion there was no evidence of
psychiatric disorder at time of the commission of the offence.
He
opined that the accused’s behaviour was indicative ‘
of
an emotional reaction of anger with goal-directed assaultive
behaviours towards the object (person) of his anger
’
.
He continued ‘
The
lack of specific details and the avoidance of direct questioning in
relation to the evidence led of the excision of the heart
of the
victim .. may be
[a]
psychogenic
mechanism of denial to
[a]
degree,
with dissociative features
’.
Professor Zabow testified that the prospects of a recurrence of the
accused’s behaviour were ‘extremely
difficult to
assess’. He also considered that the prospects of
remediating the characteristics in the accused’s
psyche that
led to his having behaved as he did were also impossible to predict.
As I understood the witness, a rehabilitative
process could only be
undertaken when the accused was able to be more forthcoming about
what had happened. He said that the prospects
of this happening would
probably be improved once the criminal proceedings had been
completed.
[24]
Professor Zabow essentially agreed with
Major Knibbs’s assessment that while the accused was
appropriately depressed about
the adverse personal consequences to
himself brought about by his commission of the offence, he did not
show remorse. (As
remarked in
S v
Matyityi
2011 (1) SACR 47
(SCA), at
para 13:
There
is… a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine
contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely
remorseful, and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the
surrounding actions
of the accused, rather than what he says in court, that one should
rather look. In order for the remorse
to be a valid
consideration, the penitence must be sincere and the accused must
take the court fully into his or her confidence.
Until and
unless that happens, the genuineness of the contrition alleged to
exist cannot be determined. After all, before
a court can find
that an accused person is genuinely remorseful, it needs to have a
proper appreciation of,
inter alia
: what motivated the accused
to commit the deed; what has since provoked his or her change of
heart; and whether he or she does
indeed have a true appreciation of
the consequences of those actions.)
The
manner in which the accused has conducted himself at the trial and in
his interviews with the two expert witnesses gives this
court no
basis to find that he is remorseful, rather than just regretful, for
his actions.
[25]
There did not appear to me to be any
material conflict between the opinions offered to the court by Major
Knibbs and Professor Zabow,
respectively; although, for the reasons
described, Knibbs considered that the accused’s future
behaviour was unpredictable
and that he therefore represented a
danger in the community.
[26]
It
is trite that the determination of an appropriate sentence entails
weighing up and balancing the various interests in the context
of all
of the evidence before the court. The relevant considerations
are usually categorised under the headings of (a) the
nature of the
offence, (b) the personal circumstances of the accused and
(c) the interests of the community – the
so-called
Zinn
triad.
[2]
How the balance is struck depends on the facts of the case in hand.
Thus, in a particular case it may be appropriate
that one or other of
the considerations gets treated as subordinate to what fall,
appropriately, to be regarded as more pressing
factors.
[27]
It
is convenient to treat first of the accused’s personal
circumstances. These were placed before the court by Ms
Rajab
in
an oral statement made from the bar, as the accused did not give
evidence in mitigation of sentence. He is a Zimbabwean
national
who has been living in this country since 2009 as a refugee. He
is 35 years of age, single, with an eight year old
child
[3]
who lives in England with one of the accused’s sisters.
He has a brother and sister who live in England and two sisters
who
reside in Johannesburg. He is reported to be in a long-term
relationship with a woman described in the report of Dr Zabow
as his
fiancée. Dr Zabow’s report also identified that
the accused suffers from certain chronic medical conditions
for which
he is receiving appropriate treatment. The accused attained a
grade 10 level of education and obtained a diploma
in marketing from
a college in Harare in Zimbabwe. He had established a
successful window tinting business in Langa in Cape
Town. He
has a single previous conviction for common assault committed in
March 2011, in respect of which he paid an admission
of guilt fine of
R150. He has been in custody in connection with the current
matter since the date of the commission of the
offence.
[28]
There was rightly no debate about the
seriousness of the offence. Murder, even without premeditation,
is one of the most serious
offences that there is. On the facts
accepted by the state for the purpose of the trial an element of
provocation was entailed.
To some degree this diminishes the
accused’s moral culpability. The provocation was
confessedly insufficient to justify
the accused’s conduct,
however, and the exceptional brutality of the assault on the deceased
is an aggravating factor.
[29]
The evidence adduced in relation to the
psychological motivation of the manner in which the assault on the
deceased was perpetrated
gives rise to serious concern. It is
evident that the accused is capable of unpredictable and
uncontrollable rage and that
it is difficult to predict how this
might be triggered. The manner in which he literally butchered
the deceased testifies
as to the potentially catastrophic
consequences which might follow if the accused finds himself in a
similar situation of conflict
with another person. The
accused’s current refusal to admit to this side of his make-up
gives rise to concern about
his potential for rehabilitation.
[30]
It was surprising in the circumstances that
the court was not enjoined in argument on sentence to give
consideration to the provisions
of ss 286A and B of the CPA,
which provide for the declaration of a person as a dangerous criminal
if the court is satisfied
that the person represents a danger to the
physical or mental well-being of other persons and that the community
should be protected
against him or her, and for the imposition upon
such person of an indeterminate sentence – something which in
effect means
that the person is incarcerated indefinitely until the
court is satisfied that the person no longer represents a danger.
It occurred to me quite independently in the course of preparing the
sentence judgment, in particular with regard to the opinion
expressed
by Major Knibbs, that the accused should be examined in the manner
contemplated in terms of s 286A(2) and (3).
Thus, after
compliance with the requirements of s 286A(2)(b), the accused
was remanded for examination by Prof Kaliski and
Prof Zabow during a
period of in-patient observation at Valkenberg Hospital.
[31]
A unanimous report by the examining
psychiatrists was produced in terms of s 286A(3)(c) and (d) of
the CPA. A third specialist
psychiatrist, Dr Roffey, also
subscribed to the report. They reported that the accused did
not have a history of ‘habitual
violence and scored low on
rating scales for risk assessment [for dangerous behaviour] and
psychopathy’. They concluded
that it was ‘not
possible to determine whether he is danger to the mental and physical
well being of others’.
At the instance of the court
Professor Zabow gave oral evidence in elaboration of the written
report. In the light of that
evidence it was the view of the
legal representatives for both the state and the accused that no
point would be served in oral
testimony also being required from
Professor Kaliski, who was not readily available. I took the
same view.
[32]
In
S v Bull; S
v Chavulla
2001 (2) SACR 681
(SCA),
2002 (1) SA 535
;
2002 (6) BCLR 551
, the appeal court gave detailed
consideration to the approach that a court must adopt in determining
whether to declare a person
a dangerous criminal with the consequent
imposition of the indeterminate sentence. It did so in the
context of deciding a
challenge to the constitutionality of the
relevant statutory provisions. It was contended by the
appellants in that matter
that the indeterminate sentence was a cruel
and inhumane punishment and that the criteria for determining whether
a convicted person
was a dangerous criminal were so vague as to
infringe the principle of legality. These contentions were
rejected. The court
stressed the procedural protections inherent in
the statutory provisions and made the point that a declaration that a
convicted
person is a dangerous criminal is a discretionary decision
that is not to be lightly made. Paragraphs 17 to 19 of the
judgment
of Vivier ADCJ, which discuss the concept of a ‘dangerous
person’ in the relevant context bear quotation in relation
to
the issue that arises in the current case:
[18]
….
Floud and Young (op cit
[
Dangerousness and
Criminal Justice
(1981), Heinemann, London] at 20 - 5) discuss
the difficulty in identifying and defining dangerous offenders
satisfactorily
for legal purposes and point out that, as the term is
ordinarily used in reference to people, 'dangerousness' refers to a
pathological
attribute of character: a propensity to inflict harm on
others in disregard or defiance of the usual social or legal
restraints.
Yet, as the writers also point out, a 'dangerous person'
is not a psychological entity, nor is 'dangerousness' a scientific or
medical concept. It is also not necessarily associated with mental
illness. These aspects were highlighted by the psychiatrists
who
testified in the present cases.
D
A Thomas
Principles of Sentencing
2nd ed (1979) 37 defines a
dangerous offender as someone 'who appears, on the basis of his
immediate offence, his previous history
and such psychiatric evidence
as may be available, to be highly likely to commit grave offences of
violence in the future'.
Floud and Young
refer to a widely
accepted common-sense definition of the dangerous offender as 'the
repetitively violent criminal who has more
than once committed or
attempted to commit homicide, forcible rape, robbery or assault' and
point out that this definition still
leaves room for much
disagreement. In the end it is for the court to make a predictive
judgment of dangerousness and in this regard
the writers conclude as
follows (at 25):
'Judicial
determinations of dangerousness must take the form of predictive
judgments. Evaluations of character alone will not do:
predicted harm
of some specified kind must be the criterion. But making a predictive
judgment is not simply a question of predicting
a future event in the
same sense as making a retrospective judgment is a question of
establishing a past event. Assessing the ''dangerousness''
of a
legally sane offender does not call simply for an actuarial statement
- the answer to the question ''how probable is it that
a man like
this will cause further harm?'' It calls for an evaluation of his
individual character and circumstances - an answer
to the more
complex question: ''In what circumstances would this person now be
going to cause harm and what is the strength or
persistence of his
inclination to do so in such circumstances?'' To which must be added
the further question: ''How likely is it
that he will find himself in
those circumstances in the foreseeable future?''
'
With
the writers' views as summarised and cited above, I agree.
[18]
In making a predictive judgment of dangerousness the court must
consider, as the psychiatrists did in both appeals, the personal
characteristics of the accused, as revealed by psychiatric
assessment, the facts and circumstances of the case and the accused's
history of violent behaviour, particularly the accused's previous
convictions. The Court must draw its own conclusions. Under the
Canadian dangerous offender legislation it must be established to the
satisfaction of the court that the offence for which the
accused has
been convicted is not an isolated occurrence, but part of a pattern
of behaviour which has involved violence, aggressive
or brutal
conduct and which is substantially or pathologically intractable. The
Court must furthermore be satisfied that such conduct
is likely to
continue and to result in the kind of suffering the provision seeks
to protect, namely, conduct endangering the life,
safety or physical
or mental well-being of other persons (see the
Lyons
case
supra
at 211 and 221). In
Neve v The Queen
1999 ABCA
206
the Alberta Court of Appeal said the following about the Canadian
dangerous offender legislation (at 211)
'The
dangerous offender legislation requires a court to focus on the
person (and all relevant circumstances relating to what that
person
has done) and not simply on numbers of convictions. Parliament has
not chosen to adopt a formulaic ''three strikes and you
are out''
approach to dangerous offender designations in Canada. Instead,
before imposing one of the most serious sanctions under
Canadian
criminal law, a court is required to conduct a contextual analysis,
concentrating on the offender and on the qualitative,
quantitative
and relative dimensions of the crimes the offender has committed.'
In
my view the approach of the Canadian courts affords useful guidelines
to our courts when considering the concept of dangerousness
in terms
of s 286A of the Act. These guidelines will no doubt be refined and
particularised on a case by case basis, as the need
arises (cf
Dodo's
case
supra
at para 11).
[19]
The requirement in s 286A that the accused must represent 'a danger
to the physical or mental well-being of other persons'
is no
different in essence from the requirement in the Canadian legislation
that the offender must constitute ‘a threat to
the life, safety
or physical or mental well-being of other persons’. A finding
that an accused is a danger or threat is,
in effect, a present
determination that he or she will continue to be dangerous in future,
and cannot be regarded as too vague
to satisfy the legality
principle.
The
openness of the standard triggering the enquiry in s 286A, as opposed
to the requirement in the Canadian legislation that the
offence for
which the offender has been convicted must be a serious personal
offence as defined, was criticised for being insufficiently
precise
to meet the standard of legality. I do not think that the criticism
is justified. Although the offence of which the accused
has been
found guilty is not specified in s 286A, it must clearly be of such a
nature as to justify a present determination of
continued
dangerousness in future which, as I have shown, requires a pattern of
persistent or repetitively aggressive and violent
behaviour. The
detailed procedures, including psychiatric evidence, provided for by
s 286A, ensure that a declaration of dangerousness
will not be
lightly made. The purpose of the psychiatric evidence is to provide
the court with an expert opinion on the interpretation
of the
accused's past conduct and personalcharacteristics and the accused's
likely future conduct based on that analysis.
[33]
The statutory provisions require the court
to be ‘satisfied’ as to the existence of the two
qualifying criteria stipulated
in s286A(1) before it makes a
declaration that a convicted person is a ‘dangerous criminal’.
The requirement posits
a degree of conviction, rather than a mere
apprehension or suspicion. In other words it is necessary that there
be some cogent
basis for the court to be satisfied. That
understanding of the contextual meaning of the word ‘satisfied’
seems to
me to be consistent with the approval by the appeal court of
the passage from the Canadian judgment in
Neve
quoted in paragraph18 of
Bull
supra.
[34]
I consider that Major Knibb’s opinion
that the accused may present a danger in the sense contemplated in
s 286A(1) of
the CPA amounted to no more than the expression of
a sense of apprehension that he might be. The witness gave a
cogent explanation
for his apprehension, but I did not understand him
to resist the notion that a conclusive view would require to be
supported by
a considerably more in-depth investigation than that
permitted in the context of a single consultation. Indeed, it
was because
I was sufficiently persuaded by Knibbs’s evidence
that a proper investigation was merited that I issued the direction
in
terms of s286A(2)(a). The resultant report by the examining
psychiatrists does not support the existence of a basis for the
court
to be satisfied (in the sense required by the Act) that the accused
represents a danger to the physical or mental well-being
of other
persons and that the community should be protected against him.
The accused’s apparently almost blemish free
past and ability
to successfully run his own business, together with the fact that the
offence of which he has been convicted appears
to have been committed
in a unique set of circumstances of uncontrolled jealousy in the
context of a particular passionate obsession,
support the
plausibility of the expert findings that he scored low on rating
scales for risk assessment and psychopathy.
[35]
Turning then to the determination of an
appropriate determinate sentence. No substantial and compelling
circumstances exist to warrant
a departure from the prescribed
minimum sentence. Indeed, the extreme brutality of the assault and
the absence of remorse by the
accused for what he has done outweigh
the mitigating factors in his personal circumstances and his
relatively clean record. The
extent of his reaction to the
provocation described in the accepted plea statement was grossly
disproportionate. Having regard
to the conspectus of the case I
consider that a custodial sentence exceeding the prescribed minimum
of 15 years is indicated. Taking
into account that the accused has
been in custody for the better part of a year, I am of the view that
a sentence of 18 years’
imprisonment would be appropriate.
[36]
The accused is sentenced to 18 years’
imprisonment.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
As
to the existence of this category of offence in the common law, see
S
v Coetzee en ’n Ander
1993 (2) SACR 191
(T), at 193i-194c. The prosecutor suggested that
charging the accused with the commission of the offence would amount
to an improper
splitting of charges, but there is no substance in
that point.
[2]
After
the judgment in
S
v Zinn
1969 (2) SA 537
(A), at
[3]
In
Professor Zabow’s written report (exh. H), the child is
described as being nine years of age.