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Prins v S (A153/16) [2016] ZAWCHC 121; 2017 (1) SACR 20 (WCC) (19 September 2016)

80 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sexual Offences — Statutory rape — Conviction and sentencing — Appellant convicted of statutory rape of mentally disabled victim — Minimum sentence of life imprisonment applicable unless substantial and compelling circumstances exist — Trial court imposed lesser sentence of 15 years after finding such circumstances — Appellant's appeal against conviction and sentence — Whether victim's mental disability precluded her from consenting to sexual act as per section 57(2) of SORMA — Expert evidence established victim's inability to appreciate consequences of sexual intercourse, justifying conviction.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a criminal appeal to the Western Cape Division of the High Court, Cape Town, against both conviction and sentence, heard by Gamble J (with Desai J concurring). The appeal was pursued with the leave of the regional magistrate who had presided in the Regional Court at Parow.


The appellant was Christopher Joseph Prins, and the respondent was the State. The proceedings arose from charges brought under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”).


The general subject matter concerned allegations of sexual offences committed by the appellant against the complainant, including charges of rape (penile penetration of the vagina) and sexual assault (touching of the complainant’s vagina). Ultimately, the trial court convicted the appellant on one count of statutory rape (in the sense of rape where the complainant was found to be mentally disabled and therefore legally incapable of consenting), acquitted him on the other counts, imposed a sentence of 15 years’ imprisonment, and ordered that his name be entered in the Register of Sexual Offenders. The present appeal challenged both the factual and legal basis for the conviction and the appropriateness of the sentence.


2. Material Facts


It was common cause that the complainant was 19 years old at the time of the incident and that she was the appellant’s stepdaughter. The parties lived in domestic circumstances described by the High Court as typical of cramped conditions associated with poor communities (including the family living as backyard dwellers). The trial court proceedings included expert evidence concerning the complainant’s cognitive functioning.


At the outset of the trial, the regional magistrate heard the evidence of Ms Janine Hundermark, a clinical psychologist employed by Cape Mental Health, who assessed the complainant to determine her intellectual functioning, her capacity to consent to sexual intercourse, and her competence to testify. The assessment included interviews with the complainant and with relatives with whom she lived at the time (an uncle and aunt, and another aunt). The complainant’s mother was not interviewed; the psychologist explained that she was reportedly negative about the case and was unwilling or unable to participate.


The psychologist’s assessment concluded, on the court’s summary of the report and testimony, that the complainant had an IQ range of between 50 and 69, placing her within mild intellectual disability, and that her scholastic functioning was at the level of a young child (with a “test age” of 6 years and functioning at a Grade 1 level). The psychologist also found that, although the complainant had some basic exposure to sex education and could identify sexual organs, she had no understanding of key aspects of sexual activity such as conception, contraception, or sexually transmitted illnesses. The psychologist described the complainant as having an anxious, fearful, and unassertive disposition.


The defence did not, at plea stage, provide a formal explanation under section 115 of the Criminal Procedure Act 51 of 1977. However, during cross-examination of the complainant it became clear that the appellant’s stance on the count of rape for which he was convicted was effectively a consent defence. The appellant admitted one incident of sexual intercourse at the family home during a time when the complainant’s mother was absent (having taken younger children to school). He claimed that the complainant had initiated the intercourse by pleading for sexual satisfaction and that he eventually relented despite acknowledging it was wrong.


The High Court recorded that, despite there having been multiple charges, the complainant denied that anything beyond the admitted incident had occurred. This was relied upon in argument for the appellant as an indicator that the complainant could distinguish between events that did and did not occur, and also that she may have had greater appreciation of sexual matters than initially suggested.


The defence did not present persuasive evidence disputing the psychologist’s conclusions on the complainant’s level of mental disability. The appellant’s own observation that the complainant could do mathematics and that he had assisted her with homework was noted, but the High Court treated this as of limited value, including because it had not been squarely put to the psychologist in cross-examination.


In relation to testimony, the psychologist considered the complainant competent to testify if appropriately prepared and if an intermediary were used, which the regional magistrate accepted. The record reflected that the complainant’s evidence was elicited through very simple questioning and that her answers were typically brief and basic.


3. Legal Issues


The central legal questions were whether the State had proved beyond reasonable doubt that the complainant was a “person who is mentally disabled” as defined in section 1 of SORMA, with the result that, by operation of section 57(2) of SORMA, she was incapable of consenting to a sexual act. This required the court to determine whether the complainant’s mental disability met the statutory threshold that she was, at the time, unable to appreciate the nature and reasonably foreseeable consequences of a sexual act (or fell within any of the other definitional categories).


A related issue was the significance of the appellant’s consent defence in the light of section 57(2), and whether the evidence relied upon by the appellant (including the complainant’s alleged contemplation of marriage and her denial of other incidents) undermined the finding of incapacity to consent.


In respect of sentence, the legal issue was whether the regional magistrate correctly applied the minimum sentencing framework under section 51 of the Criminal Law Amendment Act 105 of 1997 read with Part III of Schedule 2, which prescribed life imprisonment where the victim is mentally disabled as contemplated by SORMA, and whether the finding of substantial and compelling circumstances justifying a lesser sentence (15 years) was open to the trial court and immune from appellate interference.


The dispute therefore involved a combination of fact (the complainant’s level of mental disability and functional understanding), application of law to fact (whether those facts met the statutory definition and triggered section 57(2)), and a value judgment/discretionary assessment in sentencing (whether substantial and compelling circumstances existed and whether the sentence warranted interference).


4. Court’s Reasoning


The High Court emphasised the structure of SORMA’s provisions on consent and mental disability. It held that section 57(2) is peremptory in providing that a mentally disabled person is incapable of consenting to a sexual act. However, it also stressed that not every mental disorder or disability automatically triggers the provision; rather, the State must establish that the disability brings the complainant within one or more of the definitional criteria in section 1 of SORMA, including inability to appreciate the nature and reasonably foreseeable consequences of the sexual act.


Against that statutory framework, the court evaluated the appellant’s argument that the evidence should be viewed holistically and that certain features (such as the complainant allegedly contemplating marriage, and her denial of other incidents) suggested a greater understanding of sexual matters. The court acknowledged that these were genuine concerns which could not be trivialised. Nonetheless, it treated the psychologist’s evidence as central, noting her qualifications, experience, and the extent of her consultation with the complainant (approximately eight hours over more than one session). The court considered her well placed to express an opinion on the complainant’s level of understanding regarding the consequences of sexual intercourse.


Although the court noted that the psychologist’s report did not “directly substantiate” the conclusion by explicitly mapping each factual finding to the wording of section 57(2), it held that, when her evidence was considered as a whole, it placed the complainant’s condition “squarely” within the ambit of the statutory definition, particularly the criterion in section 1(a) (inability to appreciate the nature and reasonably foreseeable consequences of a sexual act). The court relied on the psychologist’s evidence that the complainant did not understand conception, contraception, or sexually transmitted illnesses, and that this lack of understanding meant she could not make an informed decision about participation in intercourse.


The High Court also drew support from the complainant’s manner of testimony as reflected in the record: her limited vocabulary, short and elementary responses, and the general impression of an unsophisticated young woman with intellectual disability. The court accepted that the complainant had not been asked in evidence to address each statutory criterion explicitly, but concluded that the State nonetheless proved beyond reasonable doubt that the complainant was unable to understand the possibility of conception, disease transmission, and contraception, and accordingly was unable to appreciate the nature and reasonably foreseeable consequences of sexual intercourse.


On that basis, the High Court reasoned that the questioning directed at establishing whether the complainant in fact consented was irrelevant, because the legal position was that she was incapable of consenting if she fell within section 57(2). It held that the regional magistrate correctly convicted the appellant on the first charge in light of the expert finding and the statutory framework, and found no basis to disturb the conviction on appeal.


Turning to sentence, the High Court recorded that the appellant had been warned that life imprisonment was the prescribed minimum sentence because the victim was alleged to be mentally disabled as contemplated in SORMA, engaging section 51 of the Criminal Law Amendment Act 105 of 1997 and Part III of Schedule 2. The regional magistrate had found substantial and compelling circumstances to depart from life imprisonment, including that the appellant was a 53-year-old first offender and a sickly man, and imposed 15 years’ imprisonment.


The High Court placed the offence within the wider context of domestic rape and socio-economic vulnerability, stressing that the complainant’s dire circumstances were exacerbated by her mental disability and that the appellant took advantage of that vulnerability. Nonetheless, it approached the appellate inquiry as one focused on whether there was a proper basis to interfere with the sentence imposed by the trial court. It concluded that the magistrate had considered relevant circumstances and that there was no basis for interference with the sentence.


5. Outcome and Relief


The High Court dismissed the appeal against both conviction and sentence.


The order confirmed the appellant’s conviction on the single count of statutory rape and confirmed the sentence of 15 years’ imprisonment, together with the direction that the appellant’s name be included in the Register of Sexual Offenders. The judgment did not record any separate or special order as to costs.


Cases Cited


No prior reported cases were expressly cited in the judgment.


Legislation Cited


The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, including section 1 (definition of “person who is mentally disabled”), section 3 (rape), section 5(1) (sexual assault), and section 57(2) (incapacity to consent where mentally disabled), was cited and applied.


The Criminal Law Amendment Act 105 of 1997, including section 51 read with Part III of Schedule 2 (prescribed minimum sentences), was cited and applied.


The Criminal Procedure Act 51 of 1977, including section 115 (plea explanation), was cited.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the State proved beyond reasonable doubt that the complainant’s intellectual disability brought her within the statutory definition of a “person who is mentally disabled” in section 1 of SORMA, particularly because she lacked understanding of conception, contraception, and sexually transmitted diseases, and therefore could not appreciate the nature and reasonably foreseeable consequences of sexual intercourse.


The court held that, once section 57(2) of SORMA applied, the complainant was incapable of consenting to the sexual act as a matter of law, rendering the appellant’s reliance on a factual consent defence irrelevant to criminal liability for rape.


The court held further that the regional magistrate’s sentence of 15 years’ imprisonment, imposed after finding substantial and compelling circumstances to depart from the prescribed sentence of life imprisonment, disclosed no basis for appellate interference. The appeal against conviction and sentence was accordingly dismissed and the conviction and sentence were confirmed.


LEGAL PRINCIPLES


A complainant’s mental disability does not automatically trigger statutory incapacity to consent; the State must prove that the disability meets one or more of the statutory criteria in the definition of “person who is mentally disabled” in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.


If the complainant is proved to be mentally disabled as defined, section 57(2) of SORMA operates notwithstanding contrary law to render the complainant incapable of consenting to a sexual act. In such circumstances, factual enquiry into whether the complainant subjectively consented does not provide a legally cognisable defence to rape.


Expert psychological evidence on intellectual functioning and understanding of the consequences of sexual activity may be central to determining whether the complainant falls within the statutory definition, and the court may evaluate such evidence together with the complainant’s demonstrated functioning as reflected in testimony.


Where the prescribed minimum sentencing regime under section 51 of the Criminal Law Amendment Act 105 of 1997 is engaged, a sentencing court must impose the prescribed sentence unless substantial and compelling circumstances justify a lesser sentence; an appellate court will not interfere where the trial court considered relevant factors and no proper ground for interference is shown.

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[2016] ZAWCHC 121
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Prins v S (A153/16) [2016] ZAWCHC 121; 2017 (1) SACR 20 (WCC) (19 September 2016)

IN THE HIGH COURT
OF SOUTH AFRICA
WESTERN CAPE
DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A153/16
In
the matter between:
CHRISTOPHER JOSEPH
PRINS
..........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 19 SEPTEMBER 2016
GAMBLE,
J:
[1] The appellant appeared
before the regional magistrate for Parow on three charges under the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32
of 2007 (“SORMA”). He was charged with two contraventions
of sec 3 of SORMA (rape
through penile penetration of the vagina) and
one contravention of sec 5(1) (an act of sexual assault through the
touching of the
complainant’s vagina). He pleaded not guilty to
all charges. After hearing the evidence of various witnesses the
regional
magistrate convicted the appellant of one charge of
statutory rape and acquitted him on the remaining two charges. The
appellant
was sentenced to 15 years imprisonment and it was directed
that his name be included in the Register of Sexual Offenders. His
appeal
against both conviction and sentence is with the leave of the
trial court.
[2] The appellant was duly
warned before the trial court that he faced a minimum sentence of
life imprisonment in respect of the
charges of statutory rape by
virtue of the fact that the victim was said to be “
a person
who is mentally disabled as contemplated in section 1 of
[SORMA]”.
In such circumstances the provisions of
section 51
of the
Criminal
Law Amendment Act 105 of 1997
read with
Part III
of Schedule 2
thereto, oblige a court to impose the ultimate sentence unless it is
satisfied that substantial and compelling circumstances
exist which
justify the imposition of a lesser sentence. The trial court found
that such circumstances did exist and accordingly
a sentence of 15
years was imposed.
[3] At the commencement of
the trial the regional magistrate heard the evidence of Ms Janine
Hundermark, a clinical psychologist
in the employ of Cape Mental
Health, a local NGO with more than 100 years of involvement in the
field of mental health. Ms Hundermark
conducted an assessment of the
victim for purposes of evaluating the level of intellectual
functioning, her ability to consent
to sexual intercourse and her
competence to testify. The assessment comprised various interviews
with the victim, her uncle and
aunt (with whom she resided at the
time) and another aunt. The victim’s mother was not
interviewed. The reason for this is
not directly ascertainable from
the record but judging from the evidence of Ms Hundermark it seems
but it may have been due to
the mother’s perceived
unreliability and sympathy for the appellant who is her husband and
the stepfather of the victim,
who was 19 years old at the time of the
assault upon her.
[4] The report of the
psychologist relied on certain basic tests to establish the
intellectual ability and scholastic aptitude of
the victim, as also
to establish her current level of functioning. It was found that the
victim had an IQ range of between 50 and
69, which placed her in the
range of mild intellectual disability, while in regard to her
scholastic aptitude it was found that
the victim’s “test
age” was 6 years and 0 months and that she functioned at the
level of a Grade 1 child. On
this assessment she was regarded as
suffering a moderate intellectual disability.
[5] Ms Hundermark
investigated the victim’s understanding of sexual matters and
noted that, while she had received sex education
at school and was
aware of the correct names for the male and female sexual organs, she
had no knowledge whatsoever of sexual matters
and had no
understanding of the concepts of contraception, sexually transmitted
illnesses or conception. The psychologist came
to the conclusion that
the victim was, in the circumstances, unable to consent to sexual
intercourse by virtue of the provisions
of
section 57
(2) of SORMA.
[6] As regards the
victim’s ability to testify, Ms Hundermark was of the opinion
that the victim would be a competent witness
in court provided that
she was properly briefed in advance as to the process confronting
her, and provided further that use was
made of an intermediary. The
regional magistrate accepted this recommendation and the victim
testified with the assistance of such
an intermediary.
[7] At plea stage the
appellant offered no explanation in terms of
section 115
of the
Criminal Procedure Act 51 of 1977
, preferring to exercise his right
to silence. However it became apparent fairly early on in the cross
examination of the victim
that the defence on the first rape charge
was one of consent: the appellant admitted to a single incident of
sexual intercourse
with the victim at the family home one morning in
the absence of the victim’s mother who had taken her two
younger children
to school. His claim was that the victim had pleaded
with him to satisfy her sexually and after expressing his reluctance
in that
regard on a couple of occasions (and candidly admitting to
the court that it was not the right thing to do) he succumbed to her

entreaties.
[8] The provisions of
section 57(2)
of SORMA are clear and to the point –
“
57(2)
Notwithstanding anything to the contrary in any law contained, a
person who is mentally disabled is incapable of consenting
to a
sexual act”
[9] That section must be
read in conjunction with the following definition in
section 1
of
SORMA –
“
person who is
mentally disabled”
means a person affected by any
mental disability, including any disorder or disability of the mind,
to the extent that he or she,
at the time of the alleged commission
of the offence in question was –
(a)
unable
to appreciate the nature and reasonably foreseeable consequences of a
sexual act;
(b)
able
to appreciate the nature and reasonably foreseeable consequences of
such an act, but unable to act in accordance with that
appreciation;
(c)
unable
to resist the commission of any such act; or
(d)
unable
to communicate his or her unwillingness to participate in any such
act;”
[11] The import of the
definition is that it is not
any
form of mental disability,
mental disorder or disability of the mind which will render purported
consent by the victim proscribed
under
sec 57(2).
Rather, the
disability must be of such a nature and/or extent that it would
preclude the victim from being able to appreciate one
or more of the
listed consequences contemplated in subsections (a) to (d) of the
definition. Accordingly, if an accused raises
the defence of consent
on a charge of rape, and the State is unable to establish that the
victim lack of understanding falls into
one of the listed categories
referred to in subsections (a) to (d), it would be open to an accused
to maintain that defence and
the State would therefore have to adduce
evidence to negative that allegation of consent, as part of its
overall onus of proof.
[12] In argument before
us, counsel for the appellant did not take issue with the fact that
the victim suffered a degree of mental
disability. Rather, he argued,
the evidence had to be considered holistically before the court could
be satisfied that the victim
was unable to appreciate the
consequences of engaging in sexual intercourse. In this regard
counsel highlighted the anecdotal evidence
that the victim was
contemplating marriage at the time of the attack. It was said that
the reason that she had not in fact concluded
a marriage to her male
friend was because her parents were not satisfied with the suitor’s
ability to care for the victim
in a home of his own.
[13] Then, it was argued,
there was the worrying fact that, despite 2 charges of sexual
penetration and one of sexual assault having
been laid against the
appellant, the victim expressly denied that anything other than the
admitted incident had occurred. Counsel
suggested that the victim’s
ability to distinguish between incidents that had occurred and those
that had not, implied that
she had more knowledge of sexual matters
than originally appeared to be the case.
[14] The concerns raised
by counsel are by no means to be trivialized or ignored: they are
very real concerns. But at the end of
the day this court has before
it the report and evidence of an expert qualified to comment on the
victim’s ability to appreciate
what would happen to her should
she engage in sexual intercourse. Ms Hundermark qualified as a
clinical psychologist in 2004, conducts
a private practice, and, in
addition, has consulted to Cape Mental Health for 10 years while
working on a study of their’s
known as “The Sexual Abuse
Victim’s Empowerment Project”. She appears therefore to
be pre-eminently qualified
to express an opinion about the victime’s
level of understanding of the consequences of sexual intercourse.
[15] In her report, the
psychologist did not directly substantiate her finding that the
victim was unable to consent to intercourse
by virtue of the
provisions of
section 57
(2) of SORMA. However, having considered her
evidence, it seems clear to me that Ms Hundermark’s finding
referred to in paragraph
5 above brings the victim’s mental
disability squarely within the ambit of the definition thereof
contained in
section 1(a)
as set out above.
[16] Ms Hundermark was
subjected to thorough cross examination by the appellant’s
erstwhile legal representative. From this
it transpired that she had
counsulted with the victim on more than one occasion, and then too
for lengthy periods of time –
about 8 hours in total. She was
criticized for not consulting the victim’s mother who, it was
said, would have been the best
source of background detail. Ms
Hundermark provided the following explanation in that regard –
“
We didn’t
consult with her mother because we were told by the police that the
mother was very negative about this - this case
and it - I hear that
was second-hand that the mother had - the story had been that the
mother had taken [L] and the other two girls
originally to Saartjie
Baartman and that then at some point the mother had decided to take
her husband back and that the welfare
and Saartjie Baartman did not
believe that that was in the best interest of [L]. So she was put
into the care of her uncle and
aunt. She
[ie the mother]
was
then not interested in the assessment….
…
.”(S)ometimes
it’s quite difficult to get access to the person and that was
the case in - I mean that was in this case
the - the mother was
unwilling or unable to - to come and so she wasn’t consulted
with.”
[17] The cross examination
of the psychologist also traversed her understanding of the
provisions of
section 57
(2) of SORMA, to which the witness replied
as follows –
“
I have a whole
lot of criteria and when it comes to an (sic) person with
intellectual disability they need to understand all about
sex. She
didn’t if you ask the questions where does a baby come from or
how does somebody become pregnant. So she didn’t
know anything
about conception. She knows what sex is as in the actual act but she
didn’t know about conception, contraception,
sexually
transmitted illnesses so that means she doesn’t have the
information; she cannot make a decision with that; she
cannot give or
withhold consent and according to all of those criteria I’m
coming to that conclusion.”
[18] When asked whether
the victim understood that she could fall pregnant, Ms Hundermark
said the following –
“
In fact she did
mention something about there being conversation about her being
pregnant but I don’t know if that came before
or after but
certainly in her general understanding of sexual matters how
conception works, contraception, all of the consequences
of being
involved in sex she really did not know that much. I have to say that
at some point in our conversation she did mention
something about a
baby but I got the feeling that that had been spoken about
afterwards.”
[19] Finally, Ms
Hundermark described the victim as having an “
incredibly
anxious fearful nature”,
adding that she was fearful
towards adults, reluctant to take any initiative, and was generally
unassertive and frightened.
[20] No persuasive
evidence was put up by the defence in relation to the level of the
victim’s mental disability or functioning.
All that there was
from the appellant was his own limited observation that the victim
could do maths and that he had helped her
with her homework. This was
not an aspect upon which the psychologist was cross-examined and so
its evidential value is very limited.
[21] When it came to the
question of the victim’s ability to testify, there was no
objection or challenge from side of the
defence. Clearly her mental
disability was apparent to those present in the court
a quo.
The record before us reflects that the examination of the victim
(both in chief and under cross) was conducted in the most elementary

fashion possible. The victim’s replies to short and simple
questions were mostly single words or short phrases. For example,

when initially asked by the prosecution to describe what the
appellant had done to her she simply said “
Vir my
geabuse
het”.
Thereafter she described in jilted phrases
that he had “
in my
vagina”
….
“penis ingesit”
.
[22] The impression that
one has after reading the record is that the victim is indeed an
unsophisticated young woman with intellectual
disability, as the
evidence of the psychologist suggests. The victim was never asked in
evidence to deal with the criteria which
form the basis of the
evaluation of her degree of impairment as required in the definition
in
section 1
of SORMA. That notwithstanding, I am satisfied that the
State established beyond reasonable doubt that the victim was unable
to
understand the possibility of conception or of the contraction of
a sexually transmitted illness should she engage in sexual
intercourse,
nor that she understood what contraception embraced. In
the circumstances, I am satisfied that the victim was unable to
appreciate
both the nature and reasonably foreseeable consequences of
participating in an act of sexual intercourse.
[23] Accordingly, the
questioning of the victim in relation to the defence of consent was
irrelevant. Similarly irrelevant was her
persuasive evidence that she
did not so consent. The regional magistrate correctly convicted the
appellant on the first charge
in light of the expert finding of the
psychologist regarding the victim’s mild mental disability. In
my view then, the conviction
is unassailable on appeal.
[24] As regards sentence,
the regional magistrate took into account that the appellant was a
first offender who was 53 years of
age and was a sickly man. These
factors, she found, constituted substantial and compelling
circumstances to deviate from the prescribed
sentence of life
imprisonment.
[25] The facts of this
matter are all too commonplace in our society today. A variety of
studies inform us that the incidence of
rape is high in the domestic
situation, particularly in poor communities where, in a case such the
present, the parties live in
cramped conditions as backyard dwellers.
The dire socio economic circumstances in which this hapless victim
found herself were
exacerbated by virtue of the fact that she was
mentally disabled and that the appellant took advantage thereof. The
magistrate
considered all the relevant circumstances and I can find
no basis with which to interfere with the sentence.
[26] In the circumstances
I would dismiss the appeal against both conviction and sentence.
GAMBLE J
I AGREE.
IT IS SO ORDERED - THE
CONVICTION AND SENTENCE ARE CONFIRMED.
DESAI
J
Date
of Hearing: 10 September 2016
Appearances
For
the Appellant - Adv G. Smith instructed by
Keith
Hamblin & Co
Cape
Town
For
the Respondent – Adv E. Cecil
Ofiice
of the director of Public Prosecutions
Cape
Town

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