About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 74
|
|
S v A.R (A483/15) [2017] ZAWCHC 74; 2017 (2) SACR 402 (WCC) (21 July 2017)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No:
A483/15
REPORTABLE
In
the appeal between:
THE
STATE
Appellant
and
A
R
Respondent
JUDGMENT DELIVERED ON 21 JULY 2017
LE
GRANGE J et WEINKOVE AJ
[1]
The Respondent in this matter was charged in the Regional Court,
sitting in Parow, with 2 130 counts relating to child
pornography and sexual exploitation of children. He pleaded guilty to
all these offences which
inter alia
included the contraventions of s 5(1) of Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (Sexual
Assault),
contraventions of s 20(1) of Act 32 of 2007 (the use of a
child for the creation of child pornography) and various
contraventions
of s 24B (1) (a), (b) and (c) of the Films and
Publications Act 65 of 1996 (the possession, creation and the
importation of child
pornography).
[2]
Counts 4-17 attracted the prescribed minimum sentence of 10 years’
imprisonment as contemplated in terms of s 51(2) (b)
(i) - Part III
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. The
magistrate during sentence found that there were substantial and
compelling circumstances to justify the imposition of a lesser
sentence and took all 2 130 counts together for the purpose of
sentence. A term of 8 years’ imprisonment was imposed which
was
wholly suspended for 5 years on the ordinary conditions.
[3]
The State, aggrieved at the sentence, launched an application in
October 2015 for leave to appeal in terms of
s 310A
(1) of the
Criminal Procedure Act 51 of 1977
. According to the State, the
imposed sentence was too lenient, inappropriate and disproportionate
to the crimes committed, the
interest of society and the personal
circumstances of the Respondent.
[4]
The salient facts underpinning the convictions, in brief, are the
following. T
he Respondent was arrested in
January 2011 and at the time was 32 years of age. He stayed with his
wife and two minor children then
aged 6 and 3 years old, near
Durbanville. The Respondent’s sister-in-law LC also stayed with
them during the period 2001
to 2007. At the time in 2001, LC
was still a minor.
[5]
In December 2010, the Respondent went on holiday and requested his
friend and neighbour, PT, to look after his house. It was
during this
period that PT, in order to watch movies, obtained access to the
Respondent’s computer. He came across some pornographic
material and with shock recognized his own minor son, JT, who at the
time was 8 years old. PT also recognized two minor girls of
a close
friend, who at the time was 6 and 9 years old, on some of the
pornographic footage. LC was also in some of the pornographic
images
and video recordings that he stumbled upon.
[6]
PT, upon discovering the large amount of child pornographic material,
immediately informed the mother of the two minor girls.
The matter
was reported to the police and the Respondent was arrested soon
thereafter. The police then conducted a search of the
Respondent’s
premises.
[7]
A number of the Respondent’s electronic devices were seized and
sent for forensic examination. A large volume of child
and other
pornographic material was found on three of the Respondent’s
devices namely an Emerald desktop, an Acer laptop
and a My Passport
external hard drive.
[8]
The Respondent initially appeared in the magistrate’s court
after his arrest. He was released on bail in the amount of
R 1000.00.
Thereafter the matter was transferred to the Regional Court for
trial. It appears from the papers filed of record that
the matter was
struck from the Regional Court’s roll in 2011 due to the
charge-sheet not being be properly finalised by the
Prosecution. In
November 2012, the matter was re-enrolled and the Respondent was
accordingly charged
.
[9]
In March 2014, after a number of postponements, the Respondent
elected to plead guilty and was convicted on all 2130 counts.
The
matter was then postponed as both the Respondent and the Prosecution
indicated that they would lead
viva voce
evidence regarding sentence.
[10]
The Respondent relied on the evidence and reports compiled by Dr.
Rosa Bredekamp, a counselling psychologist, and Dr. Petri
van der
Merwe, a psychiatrist, in mitigation of sentence. The Prosecution led
the evidence of Professor Labuschagne, an investigative
psychologist
employed at the South African Police Services (SAPS).
[11]
The Respondent was ultimately sentenced on 3 August 2015.
[12]
After the State’s application for leave to appeal on the
sentence was successful, the matter was enrolled for hearing
in March
2017.
[13]
Advocate R Liddell appeared for the Respondent and Advocate Kortjie
for the State. Due to the late filing of the heads of argument
and
the resultant condonation application by the State, the matter was
postponed to 23 June 2017 for hearing as the Respondent
elected to
oppose the condonation sought by the State.
[14]
According to the State, the delay in enrolling the matter for hearing
was largely as a result of the record that was discovered
being
incomplete in November 2015 by the Magistrate’s Court appeals
clerk. It appears from the papers filed of record that
the record was
incorrectly numbered; relevant exhibits were not part of the record;
and the compact discs containing the offensive
pornographic material
that was downloaded from the Respondent’s electronic devices
and which forms an integral part of the
charge-sheet was untraceable.
According to the State it was only in late August 2016 that they
succeeded in obtaining all the required
documentation and exhibits to
complete the record for the hearing of this appeal.
[15]
The Respondent raised a number of objections to the delay in
prosecuting the appeal and the manner in which the matter was
enrolled for hearing. According to the Respondent, the condonation
lacked in substance and should not be regarded as being available
for
the mere taking. It was argued on behalf of the Respondent that the
condonation application by the State only relates to the
late filing
of its heads of argument and not for the late filing of the record.
Furthermore, the State failed to properly comply
with
Rule 67
of the
Magistrate’s Court Rules which regulates criminal appeals. The
complaint in this regard was that instead of filing
the relevant
notice of appeal on the clerk of the Regional Court, the said notice
was filed on the Registrar of this Court.
Furthermore, the
record of appeal together with the State’s notice of appeal was
not placed before the presiding magistrate.
The record that was
placed before the magistrate was apparently the one utilized in the
application for leave to appeal.
It was also contended that the
notice of appeal lacked in substance as it failed to set forth
clearly and concisely the grounds
of appeal. In this regard, the
Respondent contended that the matter should be struck from the roll,
alternatively be dismissed.
[16]
It is now well established in our law that the general approach to
applications of this nature is that the Court has a discretion
to be
exercised judicially upon a consideration of all the facts and is
essentially a matter of fairness to both sides. Relevant
considerations will include the degree of non- compliance, the
explanation therefor, the prospects of success, the importance of
the
case, the respondent’s interest in the finality of the
judgment, the convenience of the Court and the avoidance of
unnecessary
delay in the administration of justice. In this regard
see
S v Di Blasi
1996
(1) SACR 1
(A) at 3f-g. Ordinarily a consideration of the merits of
the matter is essential to an adjudication of an application for
condonation.
[17]
The non-compliance with the Rules of this Court regarding the late
filing of the record and heads of argument by the State
is to be
denounced. But as often observed, the rules exist for the courts and
not the other way round. The court must not be governed
by the rules
to a point where they are hamstrung in the performance of the core
function of dispensing justice. See
Eke
v Parsons
2016 (3) SA 37
(CC) para 39.
The complaint that the record of appeal was not placed before
the magistrate but only the one utilized in the
application for leave
to appeal, is with all respect of no moment. The magistrate on 19
October 2015 certified that the transcript
was a true record of
proceedings that was tried before her. It was further recorded that
she had nothing further to add regarding
her reasons for conviction
and sentence and that it should be accepted in consideration of the
appeal. Having regard to the
relevant considerations as
mentioned, we do not consider that the Respondent had materially been
prejudiced in this regard. The
complaint that the State’s
notice of appeal lacked in substance is in our view without merit.
The State had clearly and concisely
set out the grounds of appeal and
the Respondent has indeed responded thereto in some detail in his
affidavit opposing the condonation
application. To strike this matter
from the roll would hamstring this Court in the proper administration
of justice.
[18]
Turning to the sentence. The main issue for consideration is whether
the magistrate committed a material misdirection that
warrants
interference by this Court.
It is trite that sentence is a
matter for the discretion of the court burdened with the task of
imposing the sentence. The Court
of Appeal may only interfere if the
reasoning by the court is vitiated by misdirection or when the
sentence imposed can be said
to be startlingly inappropriate or
induce a sense of shock or when there is a striking disparity between
the sentence imposed and
the sentence the Court of Appeal would have
imposed.
[19]
The Respondent’s personal circumstances were fully canvassed in
the pre-sentence report that was compiled and testified
to by Dr
Bredekamp. At the time of sentencing the Respondent was 36 years’
of age and married with two minor children of
9 and 6 years,
respectively. He is a qualified civil engineer and in full time
employment. He currently holds a very senior position
at his work.
His wife at the time was also working and studied part-time towards
an educational degree. The Respondent, before
his arrest, lived a
reasonably comfortable family life. The arrest and subsequent court
proceedings, according to the pre-sentence
report, had a negative
impact on the Respondent’s marriage and family life as his wife
was oblivious of his obsession with
child pornographic material.
[20]
According to the Respondent, his interest in younger children was
aroused when he was between the ages of 19 and 20 years’
old.
During that period he regularly peeped at the naked bodies of their
neighbour’s young daughters. In 2006, he connected
to the
internet and immediately gravitated towards pornographic websites, in
particular those that illustrated pornographic material
of young
children. Graphic material of naked boys and girls of 10 years’
old and younger was extremely appealing and sexually
stimulating to
him, although according to the Respondent there was no desire to have
sexual intercourse with the children. The
search for these websites
would normally occur at night when his family was asleep.
[21]
Between 2005 and 2006 he started to take nude pictures of LC. At that
time LC was between 13 and 15 years’ of age. According
to the
Respondent, these photographic sessions were done in secret. LC grew
up in front of him, and according to the Respondent,
she was not shy
to expose her naked body to him. According the Respondent he thought
that LC started to enjoy exposing herself
to him.
[22]
LC is currently an adult and since the episodes of exposing herself
to the Respondent has moved on with her life. It appears
she was
reluctant to become involved as a witness due to her current adult
life and harboured no ill-feelings towards the Respondent.
[23]
The photographs taken of some of the children in particular that of
the Respondent’s friends or neighbours were all done
without
their knowledge or whilst asleep. In one instance the Respondent
first withdrew the foreskin of a complainant’s penis
before
taking pictures of his naked body. In respect of one girl, her
underwear was first removed before pictures were taken of
her naked
body. According to the pre-sentence report, the Respondent could not
provide an explanation why he decided to take nude
pictures of his
close friends’ children whilst in his care. There were also
videos taken of the Respondent’s son whilst
in the bath with a
friend. The pictures and video material mostly concentrated on the
private parts of the young friend. Similar
images and video material
were also taken of the other complainants. A video was also
downloaded with similar images in the bath
where young pre-
pubescent
boys were having oral sex. A number of video recordings were made of
LC. In one instance she was encouraged to use her own finger
to
sexually stimulate herself. There were also videos where LC had
to
shave her genitals and do other voyeuristic deeds whilst in the
bathroom.
[24]
The pictures and other child pornographic material were all used by
the Respondent for his own sexual gratification as the
viewing
thereof would normally result in him masturbating.
[25]
According to the Respondent, when in front of his computer, it was
like he was in his own fantasy world. The viewing of child
pornography was therefore, according to the Respondent, pleasant and
a stress reliever.
[26]
According to Dr. Bredekamp, there was no evidence to suggest that the
Respondent was using these child pornographic materials
for financial
gain or for trading in it in some form or the other. It appeared that
the Respondent used it at times when he experienced
high levels of
stress and used it as a relieving and coping mechanism.
[27]
Dr. Bredekamp was of the firm view that the Respondent was not a
paedophile as there was no evidence of grooming or any sexual
encounters with his victims which according to her was a precondition
for paedophilia. She also expressed the view that the Respondent
was
a low risk for violent sexual offences due to the following factors:
his intellect, intimacy with his wife, fixed employment,
middle class
life-style, no substance dependencies or personality disorders, his
insight of the offences committed and the remorse
shown in the
present instance. It needs to be mentioned that Dr. Bredekamp did not
initially view any of the pictures or videos
that were the subject
matter of the charges the Respondent faced, before compiling her
report. It was only during cross-examination
that she was shown some
of these pictures and videos. According to the Respondent’s
attorney at the time, the viewing of
these materials by Dr Bredekamp
prior to compiling her report was not feasible as it would have taken
weeks if not months to do
so due to the large volume thereof.
[28]
Dr. Bredekamp also placed reliance on the fact that the Respondent
after his initial arrest sought the assistance of Dr. M
Londt, a
Senior Clinical Social worker, who apparently specialized in an
anti-child abuse treatment programme called Child Abuse
Therapeutic
and Training Services (CATTS). The reference to Dr. Londt’s
report was initially accepted subject to her giving
viva
voce
evidence. This never materialized
and the report was not part of the record.
[29]
Dr. Bredekamp was further of the view that the particular child
pornographic addiction coupled with the Respondent’s
stress
induced environment could be successfully managed on a permanent
basis with an appropriate community based sentence option
coupled
with certain suspensive conditions.
[30]
The evidence of the psychiatrist, Dr. P van der Merwe was largely
that the Respondent suffers from generalized anxiety and
that this
disorder or behaviour would ordinarily result in him trying to escape
the real world by regularly feeding into child
pornography. He did
not express any opinion whether the Respondent is a person with
paedophilia.
[31]
Professor Labuschagne who testified on behalf of the State, disagreed
completely with the opinion expressed by Dr. Bredekamp,
and in
particular in so far as she has opined that the Respondent was not a
person with paedophilia. According to Professor Labuschagne,
in the
Diagnostic and Statistical Manual of Mental Disorders, 5
th
edition (DSM-5) that was released in 2013, one of the important
additions to the text on Pedophilic Disorder, [302.2 (F65.4), page
698] under the heading “
Associated
Features Supporting Diagnosis”
records
the following: “
The extensive use
of pornography depicting prepubescent children is a useful diagnostic
indicator of pedophilic disorder. This is
a specific instance of the
general case that individuals are likely to choose the kind of
pornography that corresponds to their
sexual interests.”
[32]
According to Professor Labuschagne, the contention that for a person
to be classified as a paedophile there must have been
physical sexual
contact between the offender and victim was wrong and inconsistent
with the DSM-5 diagnostic manual. According
to him the diagnostic
criteria in the DSM-5 defines Pedophilic Disorder as follows:
“
Diagnostic Criteria: (A)
- Over a period of at least 6
months, recurrent, intense sexually arousing fantasies, sexual urges,
or behaviors involving sexual
activity with a prepubescent child or
children (generally age 13 years or younger)
”.
According to Professor Labuschagne the Respondent’s conduct
falls squarely within this definition.
[33]
The Probation officers did compile victim assessment reports and in
terms of these reports the complainants, on the sexual
assault
counts, were unaware of what transpired. At the time the complainants
were between 8 and 9 years’ old. The families
were good friends
and or neighbours’ of the Respondent, and they often visited
each other. The parents of the complainants
were devastated, angry
and expressed their utter disgust with the Respondent for breaching
their trust. Some parents refused that
their children be interviewed
by the Probation officers for fear of alerting them to what
happened.
[34] The magistrate in her reasons for
sentence, stated
inter alia
on page 308 and further of the
typed record, the following:
“
The
complainant in count 1 (KV) was clearly asleep when the assault took
place and she has no knowledge of the incident. Likewise
the
biological children of the accused as per the probation officer’s
report.
The
investigation was also able to identify that the offence has not
impacted the wellbeing of both the […] children as well
as the
other (V) child that is involved in this case.
The state
however did not provide any information or report indicating the
impact that these offences had on (L C). Safe to say
that I was
provided the pictures of (L C) which he had taken and it appeared to
the Court from the pictures that (L C) was although
a child a willing
participant sometimes edging the accused on to take these pictures of
herself.
The child of (DT) was also asleep
when the offences took place. Now the seriousness of the offence
depends on the outlook of society.
Accused is a
first offender, he pleaded guilty and had suffered from various
psychological problems previously.
This matter has
been both withdrawn and struck off the roll since the initial arrest.
In that time the
accused attended a sexual offences program with Marcel Lont. He also
had sessions with Petrie van der Merwe and
Rosa Bredekamp.
Reports to this
effect was handed in however in the light of the state’s expert
Dr Labuschagne the Court will make very little
reference to Rosa
Bredenkamp’s report.
Clearly the
accused is not a danger to the community. There’s no evidence
presented by the state that he has violent tendencies
and since his
arrest the accused went to seek help and is still in the process of
attending programs to assist him and help him
from resisting or
committing offences of this type of nature.
So I’m
saying that the state has not proved any kind of propensity on the
part of the accused to commit offences of this nature
or further
offences in this regard.”
[35]
Child pornography is universally condemned for good reason. It
strikes at the dignity of children, it is harmful to those children
used in its production and it is potentially harmful because of the
attitude to child sex that it fosters and the use to which
it can be
put in grooming children to engage in sexual conduct. See
De
Reuck v DPP (Witwatersrand Local Division) and Others
[2003] ZACC 19
;
2003 (12) BCLR 1333
(CC) para 61. It is a violation of the right to
privacy, the right to dignity and security of the person which
incorporates the
right of children to have their best interests
considered to be of paramount importance.
[36]
By promulgating this Act to deal exclusively and precisely with acts
of child pornography in any form, affirms the seriousness
with which
the legislature, and by extension society, wants to eradicate all
forms of discrimination and violence against women
and children. This
is in line with the State’s obligation under s 28 of our
Constitution which provides that the best interests
of the child
shall be of paramount importance.
[37]
In considering an appropriate sentence the magistrate, in our view,
misdirected herself in certain respects. The fact that
the
complainants were unaware of the nature of the sexual assault that
took place upon their person purely because they were asleep
can
hardly be regarded as a factor that diminishes the seriousness of the
offence. In fact, the Respondent physically touched his
victims. In
one instance he pushed the foreskin of a victim’s penis back
and in the other instance removed a victim’s
underwear. All of
this was purposely and meticulously planned for his own sexual
pleasure.
[38]
The same applies to the suggestion by the magistrate that LC in some
of the pictures was ‘
a willing
participant sometimes edging the accused on to take these pictures of
herself’.
It seems the
magistrate was of the view that the pictures and videos taken of LC
had no negative impact on her as a victim
and as a result is of a
less serious nature. This approach by the magistrate was clearly
wrong. The videos and pictures relating
to LC cannot be regarded as
harmless or less serious. Certain videos relate to the Respondent
filming and encouraging LC to masturbate,
to shave her genitals and
to do other voyeuristic deeds whilst in the bathroom. The filming and
taking of nude pictures of LC happened
over a period of years and
multiple videos were made. In our view it is incongruous to suggest
that LC was a ‘willing participant’
in the true sense of
the word. She was at the time a minor girl child who was living with
the Respondent and his wife. She was
pre-pubescent, fully trusted the
Respondent and could have hardly appreciated the full psychological
impact of her actions at the
time. Common sense dictates that the
Respondent must have over a period of time created a false sense of
security and trust with
LC. The Respondent’s behaviour in this
regard can hardly be described as less serious. In fact the opposite
of this is more
accurate. It was this false sense of trust, if not
grooming which allowed LC to participate and not speak out.
[39]
The bulk of this child pornographic material was accumulated by the
Respondent over a number of years for his own sexual benefit.
In our
view the magistrate clearly underscored the seriousness of the
offences and the interest of society when she stated that
“
the
State failed to prove any kind of propensity on the part of the
Respondent to commit offences of this nature and that he is
not a
danger to society”
. The
Respondent pleaded guilty to
2 130
counts which
inter alia
included the contraventions of s 5(1) of Act 32 of 2007 (Sexual
Assault), contraventions of s 20(1) of Act 32 of 2007 (the use
of a
child for the creation of child pornography) and various
contraventions of s 24B (1) (a), (b) and (c) of Act 65 of 1996 (the
possession, creation and the importation of child pornography).
Counts 4-17 attracted the prescribed minimum sentence of
10 years’
imprisonment as contemplated in terms of s 51(2) of Act 105 of 1997.
On the established facts there is no doubt that
the Respondent has a propensity to commit these offences. Each image
of child pornography
in whatever form is and remains a crime-scene.
In the present instance the Respondent also physically abused some of
his victims
whilst asleep. He was calculated and manipulative. He
exploited his victims when they were at their most vulnerable. To
suggest
that he is not a danger to society is simply, misguided.
Moreover the grouping together of all the counts for the purpose of
sentence
in this instance was also undesirable. Here a number of
offences were committed where the elements of the crime to be proven
cannot
be regarded as closely connected. Our higher courts have
repeatedly warned of the undesirability to take convictions in
respect
of divergent counts together for the purpose of sentence. In
this regard see,
S
v Swart
2000 (2) SACR 566
SCA at 574
para [19] and the cases referred to therein.
[40]
Having established that the magistrate committed material
misdirections that warrants interference, this Court is now at
liberty
to consider sentence afresh.
[41]
During argument Advocate Liddel repeatedly referred the Court to the
relevant personal circumstances of the Respondent and
that after his
arrest, he voluntary submitted himself for psychotherapy and group
sessions with Dr. Londt. To this end the argument
was that the
Respondent will benefit most for his sexual affliction under the
supervision of professional help than in prison.
It was contended
that if there is an interference with the sentence that correctional
supervision as a sentencing option be considered.
It appears from the
Respondent’s opposing affidavit that he is to date still in
group therapy for his condition.
[42]
The State relied on sentences passed in some comparable cases to
demonstrate that the imposed sentence was disproportionate
and too
lenient. According to the State, the gravity of the offences in this
matter calls for a custodial sentence.
[43]
In considering the sentences imposed in some comparable cases, this
Court is aware that each case has its own set of unique
facts and
cannot serve as anything more than a rough guide to what might be an
appropriate sentence in the present instance.
[44]
In
S v De Klerk
2010 (2) SACR 40
(KZP), the appellant who at the time was 39 years
old was convicted on three counts of indecent assault on sisters aged
6, 7, and
11 years old, respectively. He pleaded guilty to all three
counts and was sentenced to an effective sentence of 30 years’
imprisonment. On appeal and after due consideration of comparable
cases; the relevant principles pertaining to sentence; and certain
experts’ well - researched and reasoned evidence; the trial
court’s sentence was set aside and substituted with three
years’ correctional supervision on appropriate stringent
conditions.
[45]
In
S v Kleinhans
2014 (2) SACR 575
(WCC), the appellant was a 74 year old well-to-do
businessman who had been convicted of numerous contraventions of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
, relating to the manufacture of child pornography, sexual
assault and sexual grooming. The charges all related to three
complainants,
minor girls, whom the appellant had befriended over a
period of five years. The Appellant in the court a quo was sentenced
to an
effective term of 15 years imprisonment. On appeal despite
evidence that the Appellant would benefit from community-based
treatment
programme, the Court held that the seriousness of the
offences required a period of imprisonment. An effective term of four
years’
imprisonment was imposed with a further four years’
suspended on certain conditions.
[46]
More relevant to the present matter, by reason of the similar facts
is the matter of
S v Stevens
2007 JDR 0637 (E), in which the appellant was convicted of two counts
of indecently assaulting two girls, aged 5 years and
8 counts
of contravening section 27(1)(a)(i) and (ii) of the Films and
Publications Act 65 of 1996 (i.e. creating and possession
of child
pornography). In that matter, the appellant removed the
undergarments of the girls whilst they slept in order to
take
photographs. He took some other photographs with more active
participation on their part, in certain instances placing his
finger
on the vagina of the young girls. Some 71 photographs were taken but
were used by the appellant only for his own sexual
gratification.
There was no evidence that the girls suffered any physical harm, nor
had they showed any serious signs of psychological
harm by the time
of trial. The regional magistrate sentenced the appellant to a total
of eight years imprisonment of which three
years were conditionally
suspended. On appeal the sentence was altered to one of six years
imprisonment, two of which were suspended
on certain conditions.
[47]
In the present instance, the Respondent is a first offender, who
pleaded guilty and submitted himself to therapy under the
supervision
of Dr. Londt for his sexual condition. Dr. Londt was not called as an
expert witness to give evidence at the trial
court. It is therefore
unclear to what extent and degree the Respondent’s sexual
condition needs therapeutic intervention.
Dr. Bredekamp’s
evidence was largely concerned about the Respondent’s personal
circumstances. At one stage she even
admitted to not viewing the
pornographic material prior to compiling her report.
[48] The sentencing process is, of
course, not solely directed at establishing whether the offender can
be rehabilitated through
a non-custodial sentence. That is only one
of the purposes of sentence, albeit an important one. In
S v
Stevens
, supra, the principal argument of the appellant was that
a non-custodial sentence should be imposed to allow him to receive
private
treatment for his sexual affliction under the supervision of
his family, as such facilities are not available in prison. In
rejecting
this argument the court held as follows:
‘
[5] …
What is offered instead is a spurious argument that a convicted
sexual offender, who is admittedly a danger to society,
should have
the benefit of private treatment for his sexual affliction under
supervision of his family simply because he might
not get adequate
treatment in prison. In my judgment that would disregard almost
totally the seriousness of the offences he has
committed and the
community expectations in that regard. It is true that offences of
this kind evoke strong passions and that the
courts must,
dispassionately, weigh up those concerns against, amongst other
factors, the appellant’s personal circumstances.
But due regard
for personal circumstances cannot mean that the nature of the
offences and the community expectations in regard
thereto should be
disregarded. In my view the magistrate was correct in finding that a
custodial sentence was appropriate in the
circumstances of this
matter.’
[49]
We find ourselves in agreement both with the sentiments expressed by
the Court in that matter and the approach adopted.
[50]
In the present instance, we are in agreement that the magistrate was
correct, on a conspectus of all the evidence to have found
that there
were substantial and compelling circumstances present which justified
a deviation from the minimum sentence applicable
on counts 4-17.
Notwithstanding the presence of considerable mitigating factors,
principally in the form of the Respondent’s
personal
circumstances, we consider that a non-custodial sentence would not
achieve an appropriate balance between the other equally
important
factors namely, the seriousness of the offences and the interest of
society. A non-custodial sentence would, in our view,
unduly focus on
the rehabilitation of the Respondent and would lessen the retribution
and prevention elements of sentence, to the
extent that it would
bring the administration of justice into disrepute.
[51]
For these reasons and taking into account all relevant factors, the
imposed sentence by the magistrate of 8 years’ imprisonment
which was wholly suspended on certain conditions needs to be set
aside and be replaced.
[52]
In our view, an effective term of 10 years’ imprisonment of
which 2 years is conditionally suspended is a more just and
equitable
sentence in this matter.
[53] In the result the following order
is made:
1.
The appeal succeeds.
2.
The sentence of 8 years’ imprisonment
which was wholly suspended for 5 years’ o
n
condition that the Respondent is not again found guilty of
contravening
Sections 5(1)
and
21
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act No 32 of 2007
or
Sections
1
and
24
(a), (c) and (d) of the
Films and Publications Act No 65 of
1996
, is set aside and replaced with the following sentence:
2 (a) Counts 1-3 are taken together
for purposes of sentence and the accused is sentenced to a period of
3 years imprisonment.
(b)
Counts 4-17 are taken together for purposes of sentence and the
accused is sentenced to 10 years imprisonment of which 2 years
is
suspended for 5 years on condition that he is not again found guilty
of contravening
section 5(1)
of Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, section 20(1) of
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
,
section 1
of the
Films and Publications Act 65 of 1996
, and
section
24B
(1)(a), (b) and (c) of the
Films and Publications Act 65 of 1996
during the period of suspension.
(c)
Counts 18-63 are taken together for purposes of sentence and the
accused is sentenced to 8 years imprisonment.
(d)
Counts 64-1776, 1778-2077 and 2079-2130 are taken together for
purposes of sentence and the accused is sentenced to 8 years
imprisonment.
(e)
Counts 1777 and 2078 are taken together for purposes of sentence and
the accused is sentenced to 8 years imprisonment.
(f)
In terms of
section 280(2)
of the
Criminal Procedure Act 51 of 1977
,
the terms of imprisonment set out under paragraph (a), (c), (d) and
(e) are to run concurrently with that imposed under paragraph
(b) in
respect of counts 4-17.
(h)
In terms of
section 50(2)
(a) of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
the accused’s
name is to be entered into the Register for Sexual Offenders.
________________________________
Le
Grange, J
I agree
________________________________
Weinkove,
A.J