S v V
Jurisdiction | South Africa |
Judge | Ogilvie Thompson CJ, Holmes JA and Jansen JA |
Judgment Date | 01 June 1972 |
Citation | 1972 (3) SA 611 (A) |
Hearing Date | 25 May 1972 |
Court | Appellate Division |
H Ogilvie Thompson, C.J.:
The main facts are set out in the judgment of my Brother JANSEN, which I have had the advantage of reading. I agree, for the reasons stated by him, that leave to appeal should be granted and that the application to lead further evidence should be refused. As regards the latter, I would merely add that, quite apart from the suggestion of brain surgery having - albeit through no fault of appellant's advisers - been somewhat belatedly advanced, and independently of the grave practical difficulties concerning any possible
Ogilvie Thompson CJ
surgery inherent in the situation that ex hypothesi the applicant must, on any view of his blameworthiness, remain incarcerated and thus subject to the control of the prison authorities, the papers presently before the Court do not, in my opinion, establish that the suggested surgical A procedure would, in the particular circumstances of applicant's case, be likely to achieve results materially relevant to the reassessment of an appropriate sentence.
I concur in the view that, in the somewhat exceptional circumstances of this case, the provisions of sec. 363 (8) (c) and (d) of the Code should not be regarded as constituting an insuperable bar preventing the Court B from disposing of the appeal (which is against sentence only) on the record as it stands. For, inasmuch as we have studied the complete record as supplemented by the petition and all its annexures, and have heard comprehensive argument thereon, all the relevant ground has been exhaustively covered. I am accordingly of opinion that we should accede C to the request of both defence and State counsel that a final decision should now be given by the Court as presently constituted.
While appreciating that certain of the learned trial Judge's remarks, both in his judgment convicting the accused and in his judgment on sentence, are open to criticism, it is not entirely clear to me that he misdirected himself in such a degree as to cause this Court to be - in D the conventional phrase - 'at large' itself to assess an appropriate sentence. In view, however, of the conclusion which I have reached on the merits of the appeal against sentence, I do not find it necessary to pursue that aspect of the matter. For, even assuming the degree of E misdirection indicated in my Brother JANSEN'S judgment, I do not share the view of my Brethren that this Court should now interfere with the admittedly competent sentence imposed by the trial Judge in the exercise of his discretion. I proceed briefly to indicate my main reasons for that conclusion. It is of course well established that punishment is primarily a matter for the exercise of the trial Judge's discretion: more particularly in relation to the imposition by a trial Judge of the F death penalty for rape, see R. v S., 1958 (3) SA 102 (AD) at p. 104. Appellant's youth, his dyslexia and unhappy upbringing - especially his youth - are undoubtedly material factors to be taken into consideration. Nevertheless, and without identifying myself with all the views expressed by the learned trial Judge with regard to the gravity of G the individual rapes, it is, in my opinion, an important feature that appellant is no first offender. Prior to the present proceedings, he had been sentenced on five different occasions. The second occasion (on 22nd December, 1967) related to 13 counts of housebreaking and theft involving goods in excess of R4 000. For this crime he was sent to a H reformatory. On the fifth occasion (namely 14th May, 1971) he received a suspended sentence for two counts of indecent assault upon females and one of attempted rape.
There was no element of sudden temptation in any of the crimes in respect of which appellant was convicted in the Court a quo. Despite the fact that, thanks to the sustained solicitude of his sister, appellant was in regular employment and in receipt of a good salary, he deliberately embarked upon a series of premeditated crimes which followed
Holmes JA
a set pattern of attacking apparently carefully pre-selected females while they were alone in their homes, to which he obtained access on the pretext that he required to test electrical power plugs. Not only did appellant, under threat of physical injury, rape or attempt to rape all A but one of the complainants in the privacy of their own homes (the complainant on the first count - then a virgin - was raped and otherwise humiliated in an underground passage), but he frequently also used the occasion to steal as well.
In all the circumstances, the prospects of rehabilitation and reform can - so it would seem to me - be but slight. The sentence of 20 years' B imprisonment which my Brethren propose to substitute is most certainly a very heavy sentence indeed. Nevertheless, having regard to the number and premeditated nature of these crimes, and to the degree of criminality consistently exhibited by appellant over a considerable period, I remain unpersuaded that the sentence imposed by the trial C Court is inappropriate in a degree warranting interference by this Court with the discretion exercised by the trial Judge. I would, accordingly, dismiss the appeal.
Judgment
Holmes, J.A.:
I agree with the judgment of my Brother JANSEN.
D Punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy; see S. v Sparks and Steytler (A.D., 18 May 1972). [*] The element of mercy, a hallmark of civilised and enlightened administration, should not be overlooked, lest the Court be in danger of reducing itself to the plane E of the criminal; compare the remarks in S. v De Bruyn en 'n Ander, 1968 (4) SA 498 (AD) at p. 513D. True mercy has nothing in common with soft weakness, or maudlin sympathy for the criminal, or permissive tolerance. It is an element of justice itself. As was said by this Court in S. v Harrison, 1970 (3) SA 684 (AD) at p. 686A:
'Justice must be done; but mercy, not a sledge-hammer, is its concomitant.'
F Sentence to the gallows is the incomparably utter extreme of punishment. In cases where it is not statutorily mandatory, it should rarely, if ever, be resorted to in the case of a youngster, if a long period of imprisonment, involving properly directed discipline and training, might well result in reformation. In the meantime, society would be adequately protected. See the judgment of this Court in S. v Letsolo, 1970 (3) SA 476 (AD) G at p. 478. That applies in the present case. What this youth needs imperatively is a good long spell of discipline and training. Society does not require his extermination.
The law operates to protect women against outrage. As to that, if there be any who doubt whether a massive sentence of imprisonment for 20 years H will not be a sufficient expiation for the gravely evil misdeeds of this youth, let them cast their minds back in their own lives over that period, and consider how much has happened to them in those two decades, and how long ago it has seemed, although enlivened by domestic happiness and the free pursuit of their avocations. No such ameliorations attend the slow tread of years when you are locked up.
JANSEN, J.A., concurred in the judgment of HOLMES, J.A.
Judgment
Jansen, J.A.:
the Applicant Was Indicted in the Witwatersrand Local Division on Five Counts of Rape, Four Counts of Attempted Rape, One Count of Crimen Injuria, One Count of Robbery and One Count of Theft. at a Summary Trial before Irving Steyn, J., He Pleaded Guilty to All the A Charges (With the Exception of the Robbery Charge), Was Duly Convicted on All the Charges (But in Respect of a Lesser Amount on the Robbery Charge), and Sentenced to Death. an Application for Leave to Appeal Against the Sentence Was Refused.
The applicant now applies to this Court (consequent upon the matter being referred to it in terms of sec. 363 (8) (d) of Act 56 of 1955) B for leave to appeal against the sentence and for leave to lead further evidence relevant to the question of sentence. As no application for leave to lead further evidence was made to the Court a quo prior to it refusing leave to appeal, the specific provisions in sec. 363 dealing with such an application do not apply, and the applicant's application for such leave is therefore dependent upon leave to appeal being C granted. (Cf. sec. 22 (a) of Act 59 of 1959; R. v Siwesa, 1957 (2) SA 223 (AD) at p. 225C - E).
The application for leave to appeal is, however, not based solely on the prospective effect of the new evidence sought to be led, but is D primarily founded on the record as it stands. It will, therefore, be convenient to deal, at least initially, with the applicant's prospects of success on appeal, without reference to such evidence.
The applicant was barely 20 years old when he was sentenced to death. In mitigation evidence had been led in respect of his background, and as this is of importance in the consideration of the present application, E it is necessary to give a summary of his short span of life...
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