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[2020] ZAWCHC 43
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S v Harker (CC10/2019) [2020] ZAWCHC 43 (21 May 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: CC10/2019
In
the matter between:
THE
STATE
and
HERMAN
HARKER
CORAM:
Wille, J
DATE
OF ARGUMENT: 13
th
of May 2020
DATE
OF SENTENCE: 21
st
of May 2020
JUDGMENT
ON SENTENCE
WILLE,
J:
INTRODUCTION
[1]
Sentencing
often requires more thought and consideration than is traditionally
given to this very difficult process. Sentencing
involves a very
delicate balancing act, taking into account, inter alia, the
seriousness of the offences perpetrated by the offender,
the
offender’s personal circumstances and the vested interests of
society. This is often referred to as the triad in
Zinn
[1]
.
The imposing of sentence on an offender, therefore of necessity,
requires an objective analysis and evaluation of a number of
difficult factors.
[2]
A
balanced approach to sentencing must always be adopted, with
reference to the specific facts of each case. Deterrence and
rehabilitation
are important factors that fall to be considered in
evaluating the appropriate sentence to be imposed upon an offender.
At the
same time, a court must be mindful of the crimes upon which
the offender stands convicted.
[3]
Every
crime that has been committed has its own set of facts and factors,
that aggravate or mitigate that specific crime. By way
of example,
when violent crime is committed, the degree and extent of the
violence used, coupled with the cruelty of the attack
must be taken
into consideration. This, in turn, must again be considered in the
correct context, taking into account, inter alia,
the character of
the victim.
[4]
The -
after
effects
- of a crime must also be taken into account, particularly so when
the offender’s actions have a ripple effect on the victims
in
the immediate community. In this case, this is a particularly
important consideration.
[5]
A morally unacceptable motive may also be an aggravating factor in
connection with any sentence to be imposed. So too, the apparent
‘vulnerability’ of the victim of a crime may also
‘weigh-in’ as an aggravating factor, worthy of
consideration.
THE
NATURE OF THE CRIMES
[6]
The offender has been convicted of fifteen counts of rape, two counts
of sexual assault and four counts of abduction. The fifteen
convictions of rape, all fall squarely within the provisions of the
minimum sentencing regime and carry with them a minimum sentence
of
life imprisonment.
[2]
It goes
without saying that these are all very serious crimes. I have to find
substantial and compelling circumstances in order
to deviate from the
minimum sentencing regime.
[3]
Most of the victims, as set out in my judgment on conviction,
suffered emotionally and psychologically and still so suffer. The
lives of these victims have been changed for the worst, and to some
extent, forever.
THE
INTERESTS OF SOCIETY
[7]
Crimes in general, but especially against woman offend against the
aspirations and ethos of all South Africans. Some of the
victims in
this case were very young woman and were a soft target for the
offender. The youngest victim was nine years old.
[8]
Not only do crimes against woman in this country amount to a serious
invasion of the dignity of the victims, but these crimes
do not
contribute towards our claims that we live in a civilized society.
However, at the same time;
‘
the object
of sentencing is not to satisfy public opinion, but to serve the
public interest’
[4]
[9]
The sentence to be imposed upon the offender, in these circumstances,
must accordingly in some measure reflect a censure to
this conduct
and behaviour.
THE
PERSONAL CIRCUMSTANCES OF THE OFFENDER
[10]
The relevant personal circumstances of the offender do not, in my
view, in any manner come to his assistance. He is (66) years
old,
married and has dependents. He has an unfortunate lengthy list of
previous convictions and has served considerable time having
been
incarcerated for a variety of different offences. Notably, he has a
number of previous convictions for the crime of
impersonating
a police officer.
[11]
His record shows that he has several previous convictions for rape
and at least two of these previous offences, involved the
rape of a
minor.
[5]
The offender was
released on parole during September 2006 and was subject to parole
supervision until August 2007.
He was adopted. His biological mother never made any attempts to get
to know him until he started looking for her. He has never
met his
biological father.
[12]
Whilst he was an awaiting trial prisoner in this matter, his son,
suffering from depression, committed suicide. It is also
alleged that
the apartment in which his ex-wife and his late son lived, has since
been torched.
THE
SUBMISSIONS ON BEHALF OF THE STATE
[13]
Mr Julius, filed a number of victim impact reports in support of his
submissions on sentence. The victims indicated that they
were badly
affected and traumatized by the crimes perpetrated upon them, in that
they felt that ‘
life
was no longer worth living’
.
The victims all suffered from shock, fear, grief, stress and
embarrassment. They are all attempting to receive mental and
psychological treatment which is also causing financial hardship to
them and their families. Professional counselling is also limited
in
view of their poor socio-economic circumstances. Some of the victims
are struggling academically and are generally fearful of
engaging in
any relationships with men.
[14]
It is submitted that the offender continued with his -
crime
spree
- until he was arrested and that had he not been arrested, then in
that event, more victims would have fallen prey to his criminal
behaviour. Further, it is emphasised that the offender threatened his
victims and their families with death and instilled real
fear in
them. It is correct that a number of victims testified that the
offender threatened them with death if they in any manner
reported
his actions. Further it is correct that the offender threatened to
cause harm to the family members of his victims, if
they preferred
charges against him.
[15]
Further, it is advanced that there are no substantial and compelling
circumstances present which permit the court to deviate
from the
ordained prescribed minimum sentences and that the offender should be
sentenced to life imprisonment in respect of each
and every
conviction of rape. Further, that I impose upon the offender a period
of direct imprisonment in respect of the other
offences upon which he
stands convicted.
THE
SUBMISSIONS ON BEHALF OF THE OFFENDER
[16]
It is submitted that a balanced approach must be adopted as
prisons
are -
grim
and
hellish
- places. It is conceded that moral justification dictates that this
offender deserves to be punished. However, it is advanced
that
punishment must also not be seen is as revenge, although some would
justify revenge in these circumstances. It is so, that
prison
conditions in in our country are particularly dire and prisoners
experience extreme overcrowding, including poor ventilation,
lack of
natural light, inadequate ablution facilities, lack of sanitation and
privacy, insufficient supervision and poor healthcare
provision.
[17]
In terms of section 73(1)(b) of the Correctional Services Act,
[6]
a person sentenced to life imprisonment, theoretically remains in
prison for the rest of his or her natural life. But, if a prisoner
sentenced to life imprisonment is already an elderly person, then the
possibility of parole is almost always present. Life imprisonment
is
in practice, regarded as a sentence of (25) years of imprisonment.
[18]
The parole provisions that are relevant may be summarized as follows;
‘
A person sentenced to
life imprisonment may not be placed on parole until he or she has
served at least twenty five (25) years of
the sentence; but such a
prisoner may, on reaching the age of sixty five (65) years, be placed
on parole after he has served at
least fifteen (15) years of the
sentence’
[7]
[19]
It is accordingly advanced on behalf of the offender, that on an
optimistic assumption that he may reach an age of (81) years,
after
(15) years, he could be considered to be released on parole.
Therefore, it is argued, that it does not matter at all, whether
the
sum total of the sentences imposed by this court, exceeds the
effective sentences that have been expressed to be desirable.
[20]
This, therefore could mean, that the -
practical effect
- of
imposing (15) life terms upon the offender in this case, would only
be to the benefit of the public’s yearning for retribution,
prevention and deterrence for this type of crime.
DISCUSSION
[21]
In my view, the offender has not exhibited true remorse for his
actions. He did not show -
genuine
remorse
- at any stage during the proceedings for his criminal behaviour. To
be fair to the offender, I must to comment on one of the charges
preferred against him.
[22]
In this case, where he was linked positively by DNA evidence, for the
rape of a nine year old girl, he stated that he must
-
take
his punishment
- and requested the court to show mercy on him. Despite
consideration, I am unable to find any redeeming factors in favour of
the offender, in mitigation of sentence. I find only aggravating
factors. The victims were all from strained socio-economic
backgrounds,
were poor and young. They were stalked by the offender
and in some cases, this, under the pretext of him being an
‘educator’.
[23]
I am expected to depart from the prescribed minimum sentence regime
in the event that I am able to -
find
and identify
- substantial and compelling circumstances to justify such a
departure, to the benefit of the offender.
[24]
It must be emphasized that my point of departure in connection with
the imposition of an appropriate sentence upon the offender
is not a
blind application of these provisions, but rather a balancing
exercise with specific reference to the triad in
Zinn.
[25]
In addition, I am obliged to keep in the forefront of my mind that a
-
specified
sentence
-
has been prescribed by law as the sentence that should be regarded as
ordinarily appropriate in these circumstances.
[26]
In my view, there are no facts which are either -
substantial
and compelling
- to the benefit of the offender, when objectively evaluated against
the manner in which the crimes were committed, or alternatively,
why
the crimes were committed.
Further,
some of the defences offered up by the offender in this connection,
bear further scrutiny. These are the defences of ‘consent’.
He advanced that he was in a relationship with some of his victims
and that he enjoyed consensual sexual intercourse with them.
This is
certainly not a mitigating factor in favour of the offender. I find
this to be -
aggravating
- to the detriment of the offender.
[27]
I accept that the socio-economic circumstances of the offender were
not ideal and that absent from his childhood life, was
a good role
model. While this is generally a factor that may be taken into
account when imposing sentence, I do not find the mere
existence of
this position to be of sufficient weight to qualify as substantive
and compelling, in these particular circumstances.
[28]
When an offender has been incarcerated as an awaiting trial prisoner
for a long period of time, this may be taken into account
when an
appropriate sentence is imposed. On a strict interpretation of the
law, this does not amount to a ‘substantive and
compelling
circumstance’, but that having been said, nothing prevents this
court, to take into account the period that the
offender has been
incarcerated, pending his or her trial, for the purpose of imposing
the appropriate sentence. In the present
matter, it is so, that the
offender has been an awaiting trial prisoner for a long period of
time since his arrest. However, the
arrest of the offender, in this
case, effectively brought an end to his criminal activity. I have
taken all these factors into
account in order to attempt to achieve a
sentence, which I believe to be proportionate in the circumstances.
[29]
I find favour with the submissions advanced by Mr Julius to the
effect that public interest must be properly served in the
sentencing
of this particular offender, taking into account the nature of the
crimes and the effects thereof, upon these vulnerable
victims.
ORDER
[30]
In the result, the order issued out in connection with the sentences
imposed upon the offender, is as follows:
1.
That
in connection with count (1), the crime of abduction, the offender is
sentenced to (5) years direct imprisonment.
2.
That
in connection with the crimes of rape in counts (2) and (3) of the
indictment, the offender is sentenced to
life
imprisonment on each count
.
3.
That
in connection with the crimes of rape in counts (4) and (5) of the
indictment, the offender is sentenced to
life
imprisonment on each count.
4.
That
in connection with the crimes of sexual assault in counts (6) and (7)
of the indictment (taken together for the purposes of
sentence), the
offender is sentenced to (10) years direct imprisonment.
5.
That
in connection with the crime of abduction in count (8) of the
indictment, the offender is sentenced to (5) years direct
imprisonment.
6.
That
in connection with the crime of rape in counts (9), (10), (11), (12),
(13) and (14) of the indictment, the offender is sentenced
to
life
imprisonment on each count.
7.
That
in connection with crime of abduction in count (15) of the
indictment, the offender is sentenced to (5) years direct
imprisonment.
8.
That
in connection with the crimes of rape as set out in counts (16) and
(17) of the indictment, the offender is sentenced to
life
imprisonment on each count
.
9.
That
in connection with the crime of abduction as set out in count (18) of
the indictment, the offender is sentenced to (5) years
direct
imprisonment.
10.
That
in connection with the crimes of rape as set out in counts (19), (20)
and (21) of the indictment, the offender is sentenced
to
life
imprisonment on each count
.
(In
summary, the offender is sentenced to (15) terms of life imprisonment
and to (30) years of direct imprisonment)
________________
WILLE,
J
[1]
S v Zinn 1969 (2) SA 537 (A)
[2]
Section 51(1)
of Act 105 of 1977 - read with Part 1 of Schedule 2
[3]
S v Malgas
2001 (2) SA 1222 (SCA)
[4]
S v Mhlakaza
and Another
1997 (1) SACR 515
, p 518
[5]
It is noted that the last of
these offences was committed a very long time ago
[6]
Act 111 of 1998 (the Act)
[7]
S 73(6)(b)(iv) of the Act.