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Abrahams v S (CA&R 167/2011) [2013] ZAECGHC 63 (24 May 2013)

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NOT REPORTABLE/ REPORTABLE


IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case No: CA&R167/2011

Date Heard: 08 May 2013

Date Delivered: 24 May 2013


In the matter between:




ACHMAT ABRAHAMS ....................................................................................Appellant


and


THE STATE .................................................................................................Respondent


Nature of matter: Criminal law - culpable homicide – sentence - appeal - The appellant was convicted in the Regional Court, Port Elizabeth, of culpable homicide, and sentenced to six years’ imprisonment. The appeal was against sentence with the leave of the trial court. The death of the deceased was caused by an unlawful assault on the deceased by the appellant.


Order: Appeal dismissed, Court held that direct imprisonment for a period of six years was a fitting sentence and there were no grounds for interference.

________________________________________________________________

JUDGMENT

________________________________________________________________

ROBERSON J: -


[1] The appellant was convicted in the Regional Court, Port Elizabeth, of culpable homicide, and sentenced to six years’ imprisonment. This appeal is against sentence with the leave of the trial court.


[2] The death of the deceased, Shane Alexander, was caused by an unlawful assault on the deceased by the appellant.


[3] The events took place in the early hours of 8 August 2008, outside Toby Joe’s Nightclub in Port Elizabeth. The deceased, his brother Brett Alexander, and some friends, were at the nightclub when Brett was removed from the nightclub by security staff, following an altercation. Brett had to be restrained by the deceased and his friends from trying to re-enter the nightclub. While this was happening the appellant, his former co-accused Philton Phillips (who was acquitted of the charge), and other companions, came out of the nightclub and on seeing the commotion involving the restraint of Brett, thought that a fight was taking place. The appellant and Phillips intervened and in the course of the ensuing scuffle, the appellant was hit on the chin by the deceased. The blow to his chin did not injure the appellant. The appellant retaliated by punching the deceased in the face and pulled him down on the ground. While the deceased lay there, the appellant kicked him, as he put it “once or twice”, with the aim of incapacitating the deceased so that he could not assault the appellant further. Brett’s girlfriend, Tania Swanepoel, remonstrated with the appellant, at which he swore at her and said that he did not care if the deceased died. The appellant and his companions then left the scene and later that day returned to Cape Town where the appellant worked and lived.


[4] According to the post mortem report, the cause of the deceased’s death was “blunt force to the chest causing rupture of right ventricle of heart.” The doctor who performed the post mortem examination was of the opinion that considerable force must have been applied in order to cause such an injury.

[5] At the time of the incident the appellant was almost twenty five years old, and a first offender. According to a correctional supervision report, he was single but was planning to marry in the near future. He comes from a supportive family, is a devout Muslim, and does not use alcohol or drugs. He obtained a tertiary qualification in office management and is in stable employment at Da Vinci Call Centre. Favourable character references were submitted by his former spiritual leader, the CEO of his employer, and his rugby club. His spiritual leader regards him as a peaceful person of integrity. The CEO of Da Vinci Call Centre spoke of his achievements within the company, and his integrity, responsibility and maturity. He mentioned an incident when the appellant mediated in a volatile situation involving angry employees. He regarded the conduct of the appellant in committing the offence as uncharacteristic, saying that the appellant has spoken many times about the incident and sincerely regrets what happened. The letter from the appellant’s rugby club recorded the appellant’s prowess as a rugby player, the significant contribution the appellant has made to the development of youth rugby, and the positive effect he has had on the lives of disadvantaged youths. The authors of the letter also expressed their shock at the commission of the offence, being of the view that it was completely uncharacteristic of the appellant.


[6] The appellant met with the deceased’s mother Pollette Chetty some time after he first appeared in court, and apologised for what he had done. Mrs. Chetty said that she was not angry at the appellant and just wanted justice.

[7] The author of the correctional supervision report was of the view that the appellant was a suitable candidate for a sentence of correctional supervision in terms of s 276 (1) (h) of the Criminal Procedure Act 51 of 1977.


[8] The deceased was 23 years old when he died and was the youngest of three brothers. He was a university student and had achieved good results. Mrs. Chetty testified that he had promised that he would take care of her in the future. She said that she could not find closure and that his death had left the family devastated.


[9] In his sensitive and careful judgment on sentence, the magistrate considered the so-called triad of the personal circumstances of the appellant, the offence, and the interests of society. He acknowledged the favourable personal circumstances of the appellant and accepted what was said on his behalf.


[10] With regard to the offence itself, the magistrate was of the view that it was a cowardly attack, and evidence of the fact that violent behaviour is commonplace, as opposed to the peaceful resolution of disputes. He took into account that the appellant kicked the deceased when he was already defenceless on the ground. At the time of the assault on the deceased, the appellant weighed ninety kilograms and was about 1,8 metres tall. The deceased weighed fifty five kilograms and was 1,6 metres tall. The magistrate also took into account the fact that the appellant had no reason to get involved in the commotion involving Brett, although he accepted that the appellant acted on the spur of the moment. I should mention here that during his testimony the appellant said that he reacted on impulse and retaliated because he was hit and because of the “momentum and adrenalin”.


[11] With regard to the interests of society, the magistrate referred to the right of people to live their lives peacefully and unharmed. Society required that this right be recognised and that persons who violently cause the death of another should be punished.


[12] In considering the sentence options, the magistrate agreed that the appellant was a suitable candidate for correctional supervision and that correctional supervision would have been a suitable sentence if the only consideration was the appellant’s personal circumstances. He considered a sentence of correctional supervision, both in terms of s 276 (1) (h) and 276 (1) (i) of Act 51 of 1977. He was of the view that the former sentence would emphasise the appellant’s personal circumstances at the expense of other considerations. He was further of the view that because the latter sentence would only require the appellant to serve ten months of the maximum of five years imprisonment, such a sentence would not adequately reflect the seriousness of the offence. He was therefore of the view that direct imprisonment was the only appropriate sentence.


[13] It is trite that the imposition of sentence is primarily a matter for the discretion of the trial court, and that a court of appeal will only interfere with the sentence imposed by the trial court if the sentence was vitiated by irregularity or misdirection, or is disturbingly inappropriate. (See S v Sadler 2000 (1) SACR 331 (SCA) at 334e-g.)


[14] It was submitted on behalf of the appellant that the magistrate over-emphasised the seriousness of the offence and the interests of society, that he attached insufficient weight to the appellant’s personal circumstances, and that he erred in not imposing a sentence which afforded the appellant the opportunity to be rehabilitated.


[15] In my view, the magistrate struck a fair and scrupulous balance between the various elements of punishment. He accepted all that was favourable to the appellant and acknowledged that he was a suitable candidate for correctional supervision. He acknowledged that the death of the deceased was a tragedy not only for the deceased’s family, but for the appellant and his family as well. I do not think he overemphasised the seriousness of the offence. As he said, a human life was violently taken. One must remember that the death of the deceased was caused by a severe and intentional assault. The appellant kicked the deceased in a vital part of his body with great force when the deceased had already been punched and lay on the ground. The degree of culpability was therefore high. The magistrate was also correct to refer to society’s interest in punishment for violent crime, which is so prevalent in this country and affects the lives of so many people, victims and family alike.

[16] I am unable to find any misdirection on the part of the magistrate. I am also of the view that the sentence is not disturbingly inappropriate. While each case must be considered on its own facts, direct imprisonment for culpable homicide involving an assault is not in itself an inappropriate sentence and has been imposed in a number of instances. In S v Naidoo and Others 2003 (1) SACR 347 (SCA), at paragraphs [45] and [46] the following was said with regard to sentences for culpable homicide:

[45] The circumstances in which the crime of culpable homicide may be

committed range across a wide spectrum. At one end is the case where a

momentary lapse in concentration on the task at hand has a tragic result. Neither the lapse nor the failure to foresee the consequences of it is deliberate. Yet they have resulted in a loss of life. They could just as easily not have had that result. Sentencing fairly and appropriately in such a case is one of the law’s most difficult tasks. The culpa may have been slight but the result stirs an understandable call from society at large (and a fortiori from those close to the deceased) for the sentence to visit tangible retribution upon the culprit. Balancing the need for a sentence that, on the one hand, will not appear to rate the loss of a life with all the attendant trauma to those to whom the deceased was near and dear as not too serious against, on the other, the need to calibrate the degree to which the accused’s conduct deviated from the standard of care expected of a reasonable person and, if it is found to be slight, to also reflect that adequately in the sentence to be imposed, is inherently difficult. The outcome will often satisfy neither those close to the deceased nor those close to the accused, being too lenient in the eyes of the former and too severe in the eyes of the latter. But that does not absolve a court from its duty to strive as best it can to achieve a proper balance between those objectives.


[46] At the other end of the culpable homicide spectrum is the type of case

where the accused has deliberately assaulted the deceased but has not been convicted of murder because the State has failed to prove beyond reasonable doubt that death was actually foreseen as a reasonably possible consequence of the assault. Because it should have been foreseen a verdict of culpable homicide is returned. Here there is more involved than culpa. An assault has been committed. Dolus is present. A deliberate attack upon a person’s bodily integrity which was intended to harm has resulted in the most irremediable harm of all: death. Few would quibble at the justness of substantial custodial sentences for that type of culpable homicide. But even within that class of case there are distinctions to be drawn. Was a weapon used? How obviously potentially lethal was it? Was there provocation? How great was the negligence in failing to foresee that death might result?”


[17] As already mentioned, the present matter involved an intentional assault, and I have expressed my view that the degree of culpability was high. The degree of provocation was negligible. A substantial custodial sentence was therefore not unjust.


[18] In Lorimer v S [2010] ZAWCHC 47 (at www.saflii.org.za) a sentence of ten years’ imprisonment for culpable homicide, four years of which was conditionally suspended, was confirmed on appeal. The appellant had killed his wife by choking her, in an attempt to ward off her attack. One of the factors which Bozalek J took into account with regard to sentence was the degree of culpability on the part of the appellant. At paragraph [34] he said the following:


Furthermore, the degree of culpability exhibited by the deceased in committing the negligent act was by no means slight. The deceased’s death was not the consequence of a momentary oversight or act of carelessness upon the part of the appellant. Sight cannot be lost of the fact that the deceased’s death took place in the course of an unlawful assault by the appellant upon his wife. It was the result of prolonged and powerful pressure applied by the appellant through a choke-hold around his wife’s neck. The appellant could at any time have relaxed the potentially deadly hold but chose instead to accept the risk of not doing so.”


[19] In S v Nesane [2009] (1) All SA 464 (SCA) the appellant’s conviction for murder was altered to one for culpable homicide and his sentence of forty five years’ imprisonment altered to eight years’ imprisonment. The appellant had shot his wife. There were “numerous, weighty mitigating factors” present. The deceased was the aggressor and had deserted the appellant and neglected their children. She boasted to the appellant about her affairs with other men and her plans for a future without him. Her conduct deeply humiliated and hurt the appellant. He expressed deep remorse, and tried to commit suicide. He was a first offender and a valuable member of society, in that he was a responsible father, a well qualified school principal and a community leader. Maya JA said the following at paragraph [21]:


However, regardless of these circumstances which count strongly in the appellant’s favour, the fact remains that he took a human life. The deceased was a mother and actively partook in the rearing of her child. She was a highly skilled and educated lecturer rendering a valuable contribution to her community as a key figure in sports development. She was in the prime of her life and was working hard to improve her life and that of her child. …………………….. Any sentence that this court imposes must reflect the sanctity of life. Taking into account the interests of society and its concerns about fatalities resulting from the use of firearms, the interests of justice clearly dictate a custodial sentence.”


[20] Similarly in the present case, a young promising life was lost. The sanctity of that life must be reflected in the sentence.


[21] Having regard to the authorities to which I have referred and in all the circumstances of the case, I am of the view that direct imprisonment for a period of six years was a fitting sentence and there are no grounds for interference.


[22] The appeal is dismissed.


______________

J M ROBERSON

JUDGE OF THE HIGH COURT



MEY AJ:-



I agree



_______

C K MEY

JUDGE OF THE HIGH COURT (ACTING)




Appearances:


For the Appellant: Mr T Ahmed, instructed by Ahmed & Associates, Cape Town


For the Respondent: Adv D Els, instructed by Director of Public Prosecutions, Grahamstown