State v Romer

On 17 October 2007, Stephen Romer shot three people in Port Elizabeth at different locations. Mr G du Mordt was killed, and Ms K Heuer and Mr E G Janse were seriously injured. The shootings were witnessed by various persons including police officers who pursued Romer. Romer was arrested the same day. He pleaded not guilty and raised a defence of sane automatism, attributing his conduct to anti-depressant medication and sleeping pills he had taken. His depression had begun in December 2001 following the breakdown of his marriage due to his wife's infidelity. He had been treated at St Mark's Clinic multiple times and prescribed various medications. Expert witnesses Meyer and Daya testified that the combined effects of depression, anti-depressants, and sleeping pills resulted in automatism. However, Professor Visser, testifying for the State, disagreed. The Eastern Cape High Court (Jansen J) convicted Romer of one count of murder and two counts of attempted murder, finding he acted with diminished responsibility but not as an automaton. He was sentenced to ten years' imprisonment wholly suspended for five years, plus three years' correctional supervision under s 276(1)(h) of the Criminal Procedure Act 51 of 1977.

• Whether the sentence of ten years' imprisonment wholly suspended coupled with correctional supervision was disturbingly inappropriate for murder and attempted murder committed under diminished responsibility
• Whether the trial court misdirected itself in imposing sentence by overemphasising personal circumstances at the expense of gravity of crimes, societal interests, and victims' interests
• Whether the Supreme Court of Appeal should admit further evidence under s 22 of the Supreme Court Act 59 of 1959
• The proper approach to interference with sentencing discretion on appeal

Both the application for leave to lead further evidence by the respondent and the appeal against sentence by the State were dismissed.

The binding legal principles established are: (1) An appellate court will only interfere with a sentence if it is disturbingly inappropriate, vitiated by misdirection showing unreasonable exercise of discretion, or otherwise such that no reasonable court would have imposed it. (2) In cases of diminished criminal responsibility, the conduct of the offender cannot be measured by the same yardstick as those with undiminished responsibility, as such persons have reduced capacity to appreciate wrongfulness or act according to such appreciation. (3) Deterrence (both specific and general) is not a major sentencing consideration where: (a) the offender acted with diminished responsibility under highly unusual circumstances unlikely to recur; (b) the offender is unlikely to reoffend; and (c) the offender poses no ongoing danger to society. (4) A wholly suspended sentence of imprisonment constitutes punishment and is not merely nominal. (5) Correctional supervision under s 276(1)(h) of the Criminal Procedure Act is an appropriate sentence for offenders who deserve punishment but should not be removed from society, and courts should utilize this sentencing option in appropriate cases.

The court made several non-binding observations: (1) Petse AJA noted that if sitting as the court of first instance, he would "in all probability have imposed a direct custodial sentence with a portion suspended on suitable conditions" - acknowledging personal preference while emphasizing this did not justify interference on appeal. (2) The court provided guidance on applications to adduce further evidence under s 22 of the Supreme Court Act, reiterating factors from Shein v Excess Insurance Company Ltd 1912 AD 418, including that: special grounds must be shown; the evidence must be material and relevant; parties must not be unfairly advantaged; and there must be reasonable explanation why evidence was not led at trial. (3) The court observed that evidence sought to be placed before an appellate court must be "common cause or otherwise incontrovertible" or "of an official, scientific, technical or statistical nature, capable of easy verification" and cannot be disputed facts requiring testing. (4) The judgment emphasized the "profound and fundamental" distinction between custodial and non-custodial sentences in the qualitative assessment of disparity on sentence appeals.

This case is significant in South African criminal law for affirming the principles governing sentencing of offenders who act with diminished responsibility. It emphasizes that: (1) deterrence (both individual and general) plays a limited role where offences are committed under highly unusual circumstances of diminished responsibility unlikely to recur; (2) suspended sentences constitute real punishment and should not be dismissed as lenient; (3) correctional supervision under s 276(1)(h) is a valuable sentencing option for offenders who merit punishment but need not be removed from society; (4) courts must not apply the same yardstick to those with diminished responsibility as to those with full criminal responsibility; and (5) appellate courts should exercise restraint in interfering with trial courts' sentencing discretion. The judgment provides important guidance on the interplay between the traditional purposes of punishment (retribution, deterrence, rehabilitation, prevention) and the special circumstances of offenders with diminished capacity.