S V Pistorius - Sentence Appeal 21 July
S V Pistorius - Sentence Appeal 21 July
CC 113/2013
Applicant
and
Respondent
TO
0001
AND TO
Brian Webber
Ramsay Webber Inc.
269 Oxford Road
ILLOVO
2
1.
2.
PLEASE TAKE FURTHER NOTICE that the grounds of appeal are as follows:
2.1
The Court misdirected itself in finding that the aggravating factors in casu
are outweighed by the mitigating factors.
2.2
i.
The accused used a lethal weapon, ie. a high calibre firearm, and
ammunition.
ii. The accused fired not one but four shots into the toilet door.
iii. The accused fired the four shots knowing full well that there was
someone behind the door.
iv. The toilet was a small cubicle and there was no room for escape.
v. The accused was trained in the use and handling of firearms.
vi. The accused never fired a warning shot.
3
2.2.2 Mitigating factors:
i.
ii. The accused was without his prosthesis and felt vulnerable.
iii. The accused immediately took steps to save the deceased's life.
iv. The accused was distraught and kept on asking God to save the
deceased's life.
v. At the commencement of the trial the accused apologised to the family
of the deceased.
vi. The accused is genuinely remorseful.
2.3
The court, with respect, failed to take into account three major aggravating
factors, namely:
i.
It was in the bedroom that the accused had formed the intention to
shoot and when he realised that there was someone behind the toilet
door he fired four shots.
ii. The Supreme Court of Appeal as well as this Court rejected the
defence that the accused acted in private defence or even putative
private defence. Thus, there existed no justification for the accused's
actions.
iii. And perhaps the most important factor that the court failed to take into
account is that the accused "fired four shots through the door. And he
2.4
Whereas the Court found that murder is "always a very serious crime" and
that "[t]he fact that the accused thought that [the deceased] was [an]
intruder does not make [the crime] less serious", the Court nevertheless,
with respect, misdirected itself in holding that the accused's belief that an
Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at para [49].
intruder had entered the house was a mitigating factor, especially when
regard is had to the objective gravity of the crime and the fact that this
Court and the Supreme Court of Appeal rejected the accused's version
that he acted in putative private defence. 2
2.5
This Court, with reference to the accused's version during the trial,
remarked that when the accused "discovered his mistake" he put on his
prosthetic legs and used the cricket bat to bash open the door.
We
respectfully submit that the Court misdirected itself in not focusing on the
fact that the accused's actions in firing four shots at a human being behind
a closed toilet door was no mistake.
2.6
2.7
Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at paras
[53]-[54].
3
2001 (1) SACR 469 (SCA) at paras [7]-[8].
4
See, for example, S v Roslee 2006 (1) SACR 537 (SCA) at para [32]; S v Matyityi 2011 (1)
SACR 40 (SCA) at para [23]; S v Nkunkuma and Others 2014 (2) SACR 168 (SCA) at para [9];
S v Brown 2015 (1) SACR 211 (SCA) at para [119].
5
See, for example, S v Radebe and Another 2013 (2) SACR 165 (SCA) at para [14].
5
2.8
2.9
2.10
that
"[i]f the
sentencing court on
consideration
of the
crime of that particular kind has been singled out for severe punishment
and that the sentence to be imposed in lieu of the prescribed sentence
should be assessed paying due regard to the bench mark which the
Legislature has provided. "9
See, for example, S v Malgas 2001 (1) SACR 469 (SCA) at para [8]; 5 v Matyityi 2011 (1)
SACR 40 (SCA) at para [18]; S v Nkunkuma and Others 2014 (2) SACR 168 (SCA) at para [1 0];
S v Brown 2015 (1) SACR 211 (SCA) at para [119].
7
Compare, for example, S v Vilakazi 2009 (1) SACR 552 (SCA) at para [15].
8
5 v Malgas 2001 (1) SACR 469 (SCA) at para [8].
9
5 v Malgas 2001 (1) SACR 469 (SCA) at para [251-J].
6
2.11
2.12
2.13
The Court thus, with respect, misdirected itself in finding that long-term
imprisonment would not serve justice in this case, also having regard to
the following factors:
i.
10
11
12
S v Abrahams 2002 (1) SACR 116 (SCA) at para [25], per Cameron JA (as he then was).
Compare, S v Mvamvu 2005 (1) SACR 54 (SCA) at para [17].
Compare, for example, S v Martin 1996 (1) SACR 172 (W) at 176j-177c.
7
iv. The accused exhibited some regret when it turned out to be the
deceased, but has as yet not given a credible explanation of why
he fired the four shots.
2.14
The
a~
when the sentencing discretion is exercised ... The provisions of the Act
inform courts of the attitude of society to crimes of a particular nature,
specified in a schedule to the Acf'. 13
The State neither before this court nor before the SCA argued that any
"misperceptions" should be taken into account. We, respectfully agree with
the court that our courts will deal only with facts placed before them and
not with assumptions and not with suspicions. The court then, with
respect, proceeded and took the 'misperception' into account as a factor
that cannot be ignored and that to do so, may not serve the ends of
justice. We reiterate, respectfully that the court overemphasised this
"misperception" as a factor to take into account for purposes of sentence.
2.15
13
8
erroneously as mitigating factors, when regard is had to all the
circumstances of the case.
2.16
We respectfully submit that the high-water mark for the accused is that he
felt vulnerable - if that is the only reason why he fired the shots it should
rather be aggravating than mitigating.
2.17
The Court, as to the question of the "vulnerability'' of the accused and how
such affected the accused's conduct when murdering the deceased, with
respect,
Thanks to his
For some
In my
14
9
affirmed the Court a quo's "unease" as to the overemphasis of the
accused's "vulnerability''.
2.19
disabilities, the fact that he had not been wearing his prostheses at the
time and that he had thus been particularly vulnerable to any aggression
directed at him by an intruder', as well as on account of his general
anxiety disorder, by reason that: 16
"On his own version, when he thought there was an intruder in the
toilet, the accused armed himself with a heavy calibre firearm
loaded with ammunition specifically designed for self-defence,
screamed at the intruder to get out of his house, and proceeded
forward to the bathroom in order to confront whoever might be
there. He is a person well-trained in the use of firearms and was
holding his weapon at the ready in order to shoot. He paused at
the entrance to the bathroom and when he became aware that
there was a person in the toilet cubicle, he fired four shots
through the door.
2.20
The Court, with respect, underemphasised the trite principle that "in
10
factors.
factors."
2.21
2.22
The factors
2.23
2.24
17
11
2.24.1 The Court, with respect, misdirected itself in underemphasising the
interests of the victim and the victim's relatives. We respectfully submit
that the court failed to take into account the horrific experience that
preceded the deceased's death. The court with respect underemphasised
the pain and desperation that the deceased had to endure, albeit
fleetingly, especially when it is taken into account that the first shot was
the one to the hip of the deceased.
2.25.1 Moreover, the court with respect overlooked the fact that the accused
intentionally loaded his firearm with Black Talon ammunition, knowing full
well what it was capable of doing.
2.25.2 The Court, with respect, materially misdirected itself in finding that "healing
has already started as both Mr Steenkamp and Mrs Steenkamp have
stated that they have forgiven the accused."
2.26 The Court materially misdirected itself in not grading the degree of dolus
eventualis in determining the seriousness of the murder perpetrated, for
purposes of sentence. 22
Court
22
Compare, S v Dladla en Andere 1980 (1) SA 1 (A) at 3E-G; S v Mienies 1978 (4) SA 560 (A)
at 562A-G.
12
dolus eventualis of the accused bordered on dolus directus, whereas the
Supreme Court of Appeal held thus on the aspect: 23
"As a matter of common sense, at the time the fatal shots were
fired, the possibility of the death of the person behind the door was
clearly an obvious result. And in firing not one, but four shots,
such a result became even more likely. But that is exactly what
the accused did ... A person is far more likely to foresee the
possibility of death occurring where the weapon used is a lethal
firearm (as in 'tiie present case) than, say, a pellet gun unlikely to
do serious harm.
while not conceding that the trial court had erred when it concluded
that the accused had not subjectively foreseen the possibility of the
death of the person in the toilet, was unable to actively support that
finding. In the light of the nature of the firearm and the ammunition
used and the extremely limited space into which the shots were
fired, his diffidence is understandable."
2.27 We submit with respect that the Court's material misdirection in not grading
the accused's dolus eventualis as bordering on dolus directus, is also
borne out by the following facts accepted by the Supreme Court of Appeal:
"[T]he deceased must have been standing behind the door when
she was first shot and then collapsed down towards the toilet bowl.
Although the precise dimensions of the toilet cubicle do not appear
from the record, it is clear from the photographs that it is extremely
small ... And it is also apparent ... that all the shots fired through the
door would almost inevitably have struck a person behind it. There
had effectively been nowhere for the deceased to hide." 24
23
Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at para [50]
(emphasis added).
24
Ibid at para [38].
13
"Capt Mangena testified that the Black Talon ammunition the
accused had used was specifically designed for the purpose of selfdefence. It would penetrate a wooden door without disintegrating
but would mushroom on striking a soft, moist target such as human
flesh, causing devastating wounds to any person who might be hit.
The veracity of this is borne out by the photographs depicting the
injuries the deceased sustained, correctly described by the trial
court as being 'horrendous'." 25
"On his own version, when he thought there was an intruder in the
toilet, the accused armed himself with a heavy calibre firearm
loaded with ammunition specifically designed for self-defence,
screamed at the intruder to get out of his house, and proceeded
forward to the bathroom in order to confront whoever might be
there. He is a person well-trained in the use of firearms and was
holding his weapon at the ready in order to shoot. He paused at
the entrance to the bathroom and when he became aware that
there was a person in the toilet cubicle, he fired four shots through
the door.
2.29 The Court, with respect, misdirected itself in not having a material
appreciation for the evidence of Captain Mangena as to the reconstruction
of the crime scene, particularly in relation to the size of the toilet cubicle,
the fact that the deceased was standing and facing the toilet door when the
25
26
14
accused fired the first shot, and the use by the accused of very lethal
ammunition and the severe effect it had when striking the flesh of the
deceased.
2.30 The Court, with respect, misdirected itself in finding that the accused has
genuine remorse, whereas the Supreme Court of Appeal made it patently
and repeatedly clear that "one really does not know what his explanation is
for having fired the fatal shots", 27 which the accused again in sentencing
afresh proceedings failed to explain to the Court, thereby failing to take the
Court into his confidence.
2.31 Although the Court took into account and indicated that it weighed heavily
with the Court that the accused tried to approach the Steenkamp family
after his release, the Court, with respect, failed to take into consideration
that such happened only two months before re-sentencing. The accused
did not approach the Steenkamp family prior to that.
2.32 The Court, with respect, misdirected itself in finding that the accused has
genuine remorse, whereas Prof. Scholtz mentioned in his report that the
accused took the life of the deceased "without intending to do so". 28 The
fact remains, with respect, that the accused had intention to kill a human
being.
2.33 We respectfully repeat our argument that the accused has failed to show
remorse for his actions and that he intended (dolus eventualis) to kill a
human being. It remains our respectful submission that this is the type of
remorse that courts would recognise - not, with respect, the regret of
having killed one's girlfriend by "mistake".
27
Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at paras
[17], [49], [53].
28
See the Report by Dr. Scholtz at p. 28 I. 761 (Exhibit "Sa").
15
2.34 The Court, with respect, misdirected itself in finding that the accused has
genuine remorse, whereas the report of Ms. T L Bayi, a counselling
psychologist of the Department of Correctional Services, dated 15 June
2015 (which report formed part of the evidence of Prof. Scholtz), indicates
that the accused "explains that he fails to identify himself as having
2.37 The Court, with respect, misdirected itself in underemphasising the trite
principles that "before a court can find that an accused person is genuinely
regret their conduct, but that does not without more translate to genuine
remorse." 29
29
16
2.38 Our ineluctable submission, with respect, is that the Court materially
misdirected itself in underemphasising the trite principle that with no known
answer to the question why the accused committed the crime, "the
accused is at risk of appearing to have acted without reason and to
deserve the harshness which accompanies wanton criminality which is
executed without anything which reduces moral reprehensibility.
An
accused assumes some risk by failing to testify in that there is then often a
preclusion of opportunity to give an answer to that crucial question." 30
2.39 The Court, with respect, misdirected itself and/or overemphasised the
possibility of rehabilitation of the accused in finding that "the accused is a
good candidate for rehabilitation", whereas "seeds of rehabilitation can, in
first
and foremost,
expressed
contrition
2.40 We
respectfully
submit
that
the
Court
misdirected
itself
in
trite
personal
30
17
victim or the victim's family in particular "would not serve the wellestablished aims of sentencing, including deterrence and retribution. 1133
2.42 The Court, with respect, misdirected itself in underemphasising the trite
principle enunciated by the Supreme Court of Appeal in S v Vilakazi,
namely: "In cases of serious crime the personal circumstances of the
offender, by themselves, will necessarily recede into the background.
1134
2.43 We respectfully submit that the Court misdirected itself in overstating the
personal circumstances of the accused whilst underemphasising the
personal circumstances of the deceased and the seriousness of the
offence of murder, as well as in underemphasising the fact that life was the
most valuable asset of the deceased, which was taken away from her, and
the fact that the resort by the accused to the use of his firearm and the
killing of the deceased was gratuitous and too readily done. 35
2.44 The Court misdirected itself in giving too little or no weight to the fact that
the deceased was an innocent victim of a needless serious crime, and
indeed, that the deceased's right to life was needlessly taken from her. We
reiterate the Court's view that murder is always a very serious crime and
the fact that the accused thought that it was an intruder does not make the
crime less serious. We submit, with respect, that insufficient weight was
given to the fact that the accused's immediate and unnecessary resort to
gun violence to kill the person behind the toilet door, was, without more,
indicative thereof that the accused flagrantly disregarded the sanctity of the
life of a human being, and indeed, that the accused regarded such life as
cheap or of little or no value; a fortiori where the accused "gambled' with
the life of such person, reckless to the consequences.
33
34
35
18
2.45 We respectfully submit that the sentence imposed demonstrates that the
Court gave too little or no weight to the fact that the deceased had
nowhere to hide in the small toilet cubicle when the shots fired by the
accused ripped through her flesh.
2.46 The Court, with respect, underemphasised the trite principle, as reaffirmed
by the Supreme Court of Appeal in Hewitt v The State, that "[s]crupulous
serious
nature
of
the
crimes
committed;
the
aggravating
circumstances and the consequences for the victims and the interests of
society. "36
2.48 The Court, with respect, misdirected itself in finding that "the accused is a
36
37
38
19
2.49 The Court misdirected itself in underemphasising the trite principle that "[i]t
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." 39
necessarily be on the killing of a human being who was behind a toilet door
and who presented no danger to the accused, as well as on the fact that
the accused formed an intention to shoot in the bedroom and when he
reached the bathroom he immediately did so.
2.51 We respectfully submit that the court underemphasised the trite principle
that "[t]aking the life of a fellow human being is always a serious offence
which leads to outrage and demands heavy punishment."41
3.
The sentence of six years' imprisonment on the murder charge, with respect,
attracts the epithets "shocking", "startling" and "disturbingly inappropriate", having
39
40
41
20
regard to the objective gravity of the crime and the interests of society and those
of the victim and the victim's family, which outweigh the personal circumstances
of the accused in a case of this nature where the elements of retribution and
deterrence predominate, and when the benchmark which the legislature has
ordained in Act 105 of 1997 is taken into account.
4.
We respectfully submit that the sentence of six years' imprisonment does not
adequately reflect the seriousness of the crime of murder and the natural
indignation and outrage of the public.
5.
In
conclusion,
of six years'
6.
PLEASE TAKE NOTE that this application was drafted without having had the
benefit of a signed judgment by this Honourable Court.
SIGNED and DATED at PRETORIA on this the 21st day of JULY 2016.