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[2014] ZAGPJHC 268
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Steyn v S (A278/13) [2014] ZAGPJHC 268 (16 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A278/13
DATE:
16 OCTOBER 2014
In the matter
between:
THOMAS FREDERICK
STEYN
....................................
Appellant
And
THE
STATE
...............................................................
Respondent
J U
D G M E N T
KEIGHTLEY, AJ:
INTRODUCTION
[1] In this appeal
the appellant pleaded guilty to, and was convicted of the following
offences under the Criminal Law (Sexual Offences)
Amendment Act 32 of
2007 (“the Act”):
[1.1] sexual
grooming of a child in terms of section 18(2)(b) of the Act (Count
1);
[1.2] compelling or
causing a child to witness a sexual offence in terms of section 21(1)
of the Act (Count 2); and
[1.3] Sexual assault
in terms of section 5(1) of the Act (Count 3).
[2] The appellant
was sentenced in the Johannesburg Regional Magistrates’ Court
to direct imprisonment for a period of four
years on count 1, one
year on count 2 and four years on count 3. The magistrate ordered
that the sentences in respect of counts
1 and 2, but not count 3,
should run concurrently. In effect, therefore, the magistrate
sentenced the appellant to an effective
period of imprisonment of
eight years.
[3] In addition to
this, the magistrate made an order in terms of
section 276B(2)
of the
Criminal Procedure Act 51 of 1977
fixing a non-parole period of four
years in respect of the appellant’s imprisonment, meaning that
the appellant would be
required to serve a minimum of four years of
his sentence before being eligible to be considered for parole.
[4] The appeal
against the sentence imposed by the magistrate comes to this court
following a successful petition made by the appellant
under
section
209C
of the
Criminal Procedure Act.
[5
] We were advised
by counsel representing the appellant at the hearing of the appeal
that the appellant has been serving his sentence
for approximately 22
months.
[6] Let me dispense
with a minor procedural issue right away: the appellant seeks
condonation for non-compliance with Rule 51(3)
of the Uniform Rules
of Court for his failure timeously to file a proper record of the
appeal. This application is not opposed,
and there would seem to be
no reason not to grant the condonation that is sought. Although
there was some delay in the filing
of a full record, and hence in the
hearing of the appeal, this court ultimately received the benefit of
a clear and full record
of the trial.
[7] Before dealing
with the appellant’s grounds of appeal, and the merits of the
submissions advanced in support of them,
it is necessary to set out
the relevant facts pertaining to the offences in respect of which the
appellant was convicted.
THE RELEVANT
FACTS
[8] The complainant
in this matter is SR. The appellant is his stepfather. The
appellant married SR’s mother when SR was
about 4 years old.
From the time of the marriage onwards, and until after the commission
of the offences that are the subject
matter of this appeal became
public, SR lived together with his mother, the appellant and the two
younger children born of their
marriage. The youngest of these
children has Down’s syndrome. Although SR is the appellant’s
stepson, they were part
of a family unit.
[9] In 2006, when SR
was in Grade 7, he was given a sex education lesson at his school.
The appellant stated in his plea explanation
that during the December
holidays that followed, he found out from SR what had been discussed
during the sex education lesson.
The appellant told SR that he also
wanted to discuss this topic with him. Thereafter, he provided SR
with a book, “Wat
seuns will weet” (What boys want to
know). From January 2007, he “started working through the
book” with SR.
This involved a discussion of masturbation.
[10] The appellant
did not explain, in either his plea explanation or in his evidence in
mitigation, what led him to take the steps
that followed thereafter.
He testified that he could not remember the precise details.
However, essentially, what occurred was
that for the next two years,
the appellant persistently engaged in conduct with SR that involved
him climbing into bed with SR
in the mornings, rubbing his body
against SR’s, engaging in self-masturbation while he was with
SR, and masturbating SR.
This also occurred in the bathroom of the
family home, while SR showered. On some occasions he would shower
together with SR
and masturbate him. The appellant admits that he
engaged in acts of self-masturbation in the presence of SR in order
to encourage
SR to do the same. While this activity was being
conducted, SR’s mother, and his two young half-siblings would
have been
present in the family home.
[11] The appellant
recorded in his plea explanation that these incidents occurred up to
three to four times a week.
[12] I detail the
nature of the appellant’s conduct, unappetising as it may be,
because in my view it is important for purposes
of appreciating fully
the nature and seriousness of the offences involved. The commission
of these offences spanned a period of
two years. On the appellant’s
own version, these were not isolated incidents, but took place up to
three to four times a
week. The appellant’s sexual abuse of SR
occurred at a time when SR’s own sexuality was developing, from
the time
that he was 14 years old until he was 16. The acts were
committed by his stepfather, someone to whom SR was entitled to look
for
guidance and protection. What is worse is that they occurred in
the sanctuary of the family home. The appellant used the guise
of
showing a parental interest in SR’s development to encourage SR
into sexual acts with him at a time when he was young
and
impressionable, and dependent on SR. The abuse of trust at the heart
of the appellant’s conduct is manifest.
[13] The appellant
only ceased these activities when, in his words, SR “cracked”
one day when the appellant approached
him in the usual way.
According to the appellant’s testimony, on this occasion, SR
reacted extremely traumatically. The
appellant came to the
realisation of what he had done and from that time on, he did not
repeat his conduct.
[14] The appellant’s
conduct remained a secret for more than a year after this. The
appellant did not seek help from anyone,
nor did he tell his wife
what had occurred. Matters only came out into the open in June 2010
when, after an altercation with the
appellant, SR told his mother
what had happened.
[15] When confronted
by his wife, the appellant did not deny what he had done. He also
sought the help of a therapist, Professor
Spies, with whom he
remained in therapy for a considerable time. Prof Spies provided
expert evidence in mitigation of sentence
at the trial. She
explained that the root of the appellant’s conduct lay in his
childhood. At some point in his childhood
the appellant’s
parents had become involved in business ventures and were less
present in the home. The appellant was sent
to a new school as a
boarder. In high school he struggled to make friends. Eventually he
befriended a boy who introduced the
appellant to masturbation. The
appellant engaged in masturbation with this boy, and with other boys
because he was afraid of losing
their friendship. He withdrew from
these activities when he was in about Grade 10.
[16] The appellant
testified that it was only as a result of his therapy that he
realised that these childhood events gave rise
to unconscious
“drivers” (“dryfvere”) over which he had no
control. These “drivers” had spurred
him onto to
committing the acts with SR even though he knew they were wrong.
[17] In her
testimony, Prof Spies told the court that in view of the progress
made by the appellant in therapy, and in his understanding
of the
drivers that had caused him to commit the offences with SR, she
doubted whether he would re-offend.
[18] The court a quo
also received evidence on the impact of the appellant’s
offences on SR. The clinical psychologist who
prepared a report on
SR, Dr van Tonder, concluded that although SR was mentally fit and
able to testify in court, “…
he will not be able to
effectively testify in open court facing his abuser, he will be
severely further traumatized and …
(will) suffer undue mental
stress due to the fact that his alleged abuser, is and was in a
position of power, was the father figure
in the home environment, and
was the adult and parent in the alleged abuse.” Dr van Tonder
concluded that SR would suffer
undue mental stress and that it was
not in his best interests to testify in open court.
[19] Consequently,
SR did not give evidence in court. The court relied on the report of
Dr van Tonder, as well as on the testimony
of SR’s biological
father and his mother, for purposes of determining the impact of the
abuse on him.
[20] Dr van Tonder
reported that SR suffers from a range of clinical symptoms as a
result of the “long-term multiple traumas”
that were
inflicted on him by the appellant. These include, among others,
anxiety, depression, nightmares, poor memory and concentration,
paranoid ideation and hyper vigilance, poor self-esteem, anger and
incidental suicidal ideation. Dr van Tonder concluded that
these
symptoms were significant and impaired SR’s schoolwork and
social functioning. SR explained the emotional effect of
the trauma
to Dr van Tonder as follows: “Ek voel altyd soos ʼn
gebreekte mens, en voel jaloers op van my vriende wat
sulke perfekte
gesinne het. Die mooi van seks het vir my lelik geword, want dit
herinner my aan pyn and hartseer. Ek pak gereeld
op as gevolg van te
veel herinneringe van die verlede. … (Die appellant) het my
hanteer asof ek ʼn vloerlap en ʼn
stuk gemors was. Ek het
gevoel ek is ʼn disaster, en dit sou beter wees as ek nie bestaan
nie.” This extract perhaps
says it all: SR felt as if he was a
disaster, and that it would have been better had he never been born.
[21] SR’s
school marks dropped dramatically and he left school in Grade 11. He
subsequently re-enrolled at a private teaching
institution and wrote
matric in 2011. However, he failed and had to rewrite matric in
2012. Although he passed, some of his results
were quite poor.
[22] SR’s
biological father testified that he suffered massive mood swings and
became aggressive, particularly if the subject
matter of the
appellant’s trial was raised. In 2011 he was admitted to a
psychiatric hospital for a week when he suffered
a breakdown. SR is
resistant to continuing in therapy and taking medication for his
symptoms. His mother told the court a quo
that sometimes it is as if
SR is possessed by demons, and that this can be triggered by
anything, even small things.
THE GROUNDS OF
APPEAL
[23] The appellant
submitted that the magistrate had misdirected himself in the
following respects in imposing the sentences on
the appellant:
[23.1] he
over-emphasised the interests of the community and under-emphasised
the personal circumstances of the appellant;
[23.2] he ought to
have attached more weight to the appellant’s expressed and
demonstrated remorse for his actions;
[23.3] he ought to
have attached more weight to the best interests of the minor children
of the appellant, particularly the youngest,
who suffers from Down’s
Syndrome and requires special consideration;
[23.4] he should
have attached more weight to the evidence of Prof Spies and her
expert report;
[23.5] a sentence of
direct imprisonment was unreasonable, not in the interests of
justice, or was disproportionate to the seriousness
of the offences
upon which the appellant was convicted; and
[23.6] the
magistrate ought to have imposed instead, a sentence of correctional
supervision and, if appropriate, a suspended sentence.
[24] In addressing
the court, counsel for the appellant, Mr Scheepers, chose to deal
with the grounds of appeal by grouping them
into logical categories.
For purposes of this judgment, we will deal with the grounds of
appeal in in line with these categories.
REMORSE
[25] Firstly, Mr
Scheepers dealt with appeal grounds two and four, viz. the remorse of
the appellant and the evidence of Prof Spies.
[26] In this regard,
Mr Scheepers submitted that the magistrate had wrongly found that the
appellant had not shown genuine remorse.
He pointed to extracts from
the transcript of the evidence to demonstrate that the appellant had
in fact expressed remorse.
[27] In addition, he
pointed to what he submitted was an error in the magistrate’s
judgment in finding that Prof Spies’s
report expressed the view
that the appellant did not know that what he was doing was wrong, and
that this conflicted with the appellant’s
own evidence in this
regard. Mr Scheepers indicated that Prof Spies’s report
accepted that the appellant knew that his conduct
was wrong, and that
in fact the report was consistent with the appellant’s evidence
in this regard.
[28] Mr Scheepers
also pointed to what he indicated was a further error in the
magistrate’s judgment, where the magistrate
seems to have noted
that the appellant only ceased his abusive behaviour after SR told
his mother what had occurred. It was common
cause on the facts that
he ceased this behavior more than a year before SR made the
revelation to his mother, although it is also
common cause that the
appellant took no steps to rectify matters or to seek help until
after SR had revealed what the appellant
had done.
[29] Mr Scheepers
submitted that these errors were misdirections that influenced the
exercise of the magistrate’s discretion
in imposing a custodial
sentence on the appellant. He submitted that these errors affected
the magistrate’s conclusion that
the appellant was not
genuinely remorseful for the offences he had committed.
[30] I am unable to
accept the appellant’s submissions in this regard.
[31] If one has
regard to the judgment of the magistrate it is apparent that he was
acutely aware of the need to determine the existence
or not of
genuine remorse with reference not only to what an accused person
says, but also from the surrounding actions or circumstances.
The
magistrate cited the dictum of Ponnan JA in S v Matyityi, in this
regard to the effect, inter alia, that:
“Whether the
offender is sincerely remorseful and not simply feeling sorry for
himself or herself at having been caught is
a factual question. It
is to the surrounding actions of the accused rather than what he says
in Court that one should rather look.”
[32] Bearing this in
mind, it is clear that the magistrate was not bound to determine this
issue solely on the basis of the appellant’s
expressions of
remorse in court. It is so that the appellant did express remorse.
However, it is also so that time and again
in his evidence he resorts
to the explanation that although he knew what he was doing was wrong,
he was driven to act by unconscious
factors over which he had no
control. This detracts somewhat from the impact of the expressed
remorse, and indicates that the
appellant may not yet have come to a
full appreciation and acknowledgment of his errors.
[33] In any event,
the magistrate quite correctly considered the surrounding
circumstances in determining the question of remorse.
Even if, as Mr
Scheepers submitted, the learned magistrate was wrong in respect of
the two issues described above, this does not
take the matter further
for the appellant. Whether the magistrate understood Prof Spies’s
report correctly as regards the
appellant’s knowledge of the
wrongfulness of his conduct is not of material significance. Nor, in
my view, is the fact that
the magistrate mistakenly recorded in his
judgment that the appellant ceased his activity when SR revealed the
matter to his mother.
What the magistrate correctly concluded was
that the appellant knew that what he was doing was wrong, and that he
continued for
a period of two years with his abusive conduct despite
this knowledge. This was a significant and relevant factor forming
part
of the surrounding circumstances that placed doubt on the
genuineness of the appellant’s expressions of remorse.
[34] In my view, the
learned magistrate committed no misdirection in concluding from a
consideration of all the surrounding circumstances
that the appellant
had not shown true remorse for his actions.
[35] I should add
that, in any event, even if the remorse expressed by the appellant
were to be accepted as undoubtedly genuine,
this would not be the end
of the matter. Remorse is but one of the factors relevant to a
court’s discretion in imposing
an appropriate sentence. It is
not the only or necessarily the determining factor. In my view, in
the circumstances of this case,
given the nature and seriousness of
the offences committed, and their impact on SR, a custodial sentence
would have been warranted
even in the face of genuine remorse on the
appellant’s part.
[36] In my view,
therefore, and for these reasons, the appellant cannot succeed in his
appeal based on these grounds.
THE INTERESTS OF
THE COMMUNITY VERSUS THE INTERESTS OF THE APPELLANT
[37] The appellant
contends that the magistrate placed too much emphasis on the
interests of the community and too little emphasis
on the interests
of the appellant in imposing the sentences on him.
[38] As far as the
interests of the appellant are concerned, the judgment of the
magistrate reflects that he took careful account
of his personal
circumstances, and of Prof Spies’s report in this regard. The
court accepted that the appellant, as a chartered
accountant, was a
productive member of society, and that he financially supported his
two minor children and had an emotional bond
with them. The court
took note of the appellant’s personal history, and his own
negative sexual experiences when he was
a boy. The magistrate
furthermore accepted that there were indications of a good prognosis
for rehabilitation in respect of the
appellant.
[39] The magistrate
weighed against all of this the interests of the community, the
nature and gravity of the offences in question,
and the impact on the
complainant, SR. The court regarded as an aggravating circumstance
the fact that the offences had been
committed on a child as young as
14, that the conduct had persisted for a period of two years, that
the offences were committed
in the family home, and that the
appellant had abused his position by committing these offences with
his stepson.
[40] The magistrate
also took into account the prevalence of this type of crime and the
community’s expectation that courts
will impose sentences that
show that such offences will not be tolerated. In addition, the
court took into account that the sentence
should serve a deterrent
purpose, not only in respect of the appellant, but also in respect of
other members of society who might
be tempted to engage in such
activities.
[41] The appellant
contends that the magistrate erred in finding that it was necessary
to protect other youngsters from the appellant,
including the
appellant’s own young son. While the appellant is correct that
there is no evidence that he committed similar
acts on anyone other
than SR, this does not reflect a misdirection on the part of the
magistrate. As I have indicated, the magistrate
reached the
conclusion that a custodial sentence was appropriate after a careful
weighing of the appellant’s circumstances,
the broad interests
of the community in preventing these types of offences, and the
particular impact on SR. In this, the magistrate
did not place any
particular emphasis on the danger that the appellant might actually
pose to other youngsters and to his young
son. Nor was this the sole
or even predominant reason for the magistrate imposing a custodial
sentence on the appellant. The
magistrate noted the possibility of
this danger. However, he went further than this in that he also
based his decision regarding
sentence on other community-related
factors, including the expectations of the community, the prevalence
and seriousness of the
offences, and the deterrent impact of
sentencing on other would-be offenders. In my view, these are all
relevant factors and the
learned magistrate cannot be faulted for the
manner in which he undertook the balancing exercise between personal
and community
interests.
[42] The appellant
contends further under this head that the learned magistrate
misdirected himself by referring to remarks made
by a government
Minister at a conference expressing concern that in the eyes of the
community courts were too lenient in the sentences
they imposed for
offences of this nature. The appellant submits that in this the
magistrate permitted himself to be influenced
in his decision on
sentencing the appellant, and that this amounts to a misdirection
warranting interference by this court.
[43] I cannot accept
this submission. In referring to remarks made by the Minister in his
judgment, the learned magistrate was
hardly stating something new.
The opinion that courts need to impose sentences that reflect the
seriousness of sexual offences
against children is expressed
repeatedly and publicly in our country, for good reason: these
offences are serious and pervasive.
[44] The Preamble of
the Act records the impact of sexual offences on particularly
vulnerable members of society, such as children.
It records the
pervasiveness of sexual offences, and the need, and indeed South
Africa’s international obligation under
the United Nations
Convention on the Rights of the Child, to put effective measures in
place to combat sexual offences against
children. The Act further
records the inadequacy and ineffectiveness of the existing common law
and statutory law in dealing with
sexual offences against vulnerable
persons.
[45] The Minister’s
remarks referred to by the magistrate in his judgment were in
accordance with an appreciation of the objectives
of the Act. So
too, was the learned magistrate’s reference to ex-President
Mbeke’s historic comment that as a result
of the promulgation
of the Act, it was no longer “business as usual” in
respect of sexual offences. In light of this,
the magistrate cannot
be said to have misdirected himself in any way by referring to these
comments, and taking them into account.
[46] In my view,
therefore, and for these reasons, the appellant cannot succeed in his
appeal based on this ground.
THE ALLEGED FAILURE
TO TAKE INTO CONSIDERATION THE BEST INTERESTS OF THE APPELLANT’S
MINOR CHILDREN
[47] The appellant
submits that the trial court misdirected itself in not fully taking
into consideration the best interests of
the appellant’s minor
children, and in particular the best interests of his young son, who
was born with Down’s Syndrome.
The appellant relies on the
Constitutional Court judgment in the matter of S v M (Centre for
Child Law as Amicus Curiae) in support
of this submission.
[48] As the learned
magistrate correctly pointed out in his judgment, in that case the
Constitutional Court was expressly, and solely
concerned with the
sentencing of primary caregivers, and not to a wider class of
breadwinners. In other words, it was concerned
with the case where a
parent with whom a child lives, and who performs the necessary
everyday tasks, faces a custodial sentence.
The Constitutional Court
was careful to express that its judgment did not pronounce on the
duties of a sentencing court where
the breadwinner is not also the
primary caregiver.
[49] In the
appellant’s case, although the evidence established that he was
the principal breadwinner, in that his earning
capacity exceeded that
of his wife and mother of the children, he was not the primary
caregiver. The children lived with their
mother, and had done so
from the time that the appellant was asked to leave the family home
when his conduct with SR came to light.
The appellant had regular
access to the children, and had developed a good bond with them, but
that is as far as it went. There
was no dispute that their mother
was the primary caregiver in every sense.
[50] The appellant
supported his minor children financially. Evidence led at the trial
indicated that the family would suffer a
financial setback if they
lost his financial support as a result of him being sent to prison.
However, the mother was in steady
employment, and she indicated that
they would make do. She also gave evidence that she had moved house
to be closer to her family
and would have easier access to their
support. In addition, she testified that although the two children
would miss their regular
contact with their father if he went to
prison, she would make sure that she did everything to ensure that
they maintained their
bond with him. To this end, she was prepared
to take them to visit him in prison.
[51] The magistrate
expressly took all of this into account in determining an appropriate
sentence. He also referred to the injunction
of the Constitutional
Court in S v M to the effect that:
“… it
is important to be mindful that the issue is not whether parents
should be allowed to use their children as a
pretext for escaping the
otherwise just consequences of their own misconduct.”
[52] In my view, it
is plain from the learned magistrate’s judgment that he took
full account of the impact that the appellant’s
imprisonment
would have on the interests of the minor children, including the
appellant’s Down’s syndrome son, and
that he did not
misdirect himself in this regard. Of course, it would be better for
them to have a father who was free to earn
a living and support them.
But this does not mean that the learned magistrate was compelled to
impose a non-custodial sentence
and that he misdirected himself in
this regard. He was required to take all relevant factors into
account, which he did. He also
took into account that the minor
children would remain with their primary caregiver if the appellant
went to prison, and that they
would be well looked after. I find
that the learned magistrate gave sufficient consideration to the best
interests of the minor
children, and that he did not misdirect
himself as averred.
[53] In my view,
therefore, and for these reasons, the appellant cannot succeed in his
appeal based on this ground.
REMAINING ISSUES
[54] I find that
none of the grounds of appeal relied on by the appellant warrant an
interference with the sentence imposed by the
magistrate. The
magistrate did not misdirect himself by imposing custodial sentences
on the appellant as opposed to correctional
supervision. Given that
the appellant was convicted of persistent and repeated sexual
offences involving a child for a period
of two years, a sentence of
correctional supervision would reflect a disproportionate emphasis on
the appellant’s personal
circumstances at the expense of the
interests of the community and the complainant. It would undermine
one of the express purpose
of the Act, viz. to provide more effective
protection for vulnerable victims of these types of crimes. In my
view, one of the
means of achieving this objective is to ensure that
sentences act as a real deterrent, not only in respect of the sexual
abuser
in the dock, but also in respect of other would-be offenders.
These were factors that quite correctly in my view weighed with the
magistrate in imposing a custodial sentence on the appellant.
[55] Accordingly,
the appellant’s contention that he ought correctly to have been
sentenced to correctional supervision falls
to be rejected.
[56] However, that
is not the end of the matter. There are two remaining issues that
fall to be considered:
[56.1] In the first
place, and as I indicated earlier, the magistrate attached a
non-parole period of 4 years in respect of the
concurrent sentences
imposed on the appellant in respect of counts 1 and 2. In doing so,
he applied
section 276B(2)
of the
Criminal Procedure Act. In
light
of recent pronouncements by the Supreme Court of Appeal on the proper
application of this section, it falls to this court
to determine
whether the magistrate misdirected himself in this regard.
[56.2] In the second
place, the magistrate ordered that the 4 year terms of imprisonment
imposed in respect of counts 1 and 3 should
not run concurrently.
This court must also consider whether there was a misdirection on the
part of the magistrate in this regard.
[57] Dealing first
with the
section 276B(2)
issue.
[58]
Section
276B(2)(b)
provides that:
“If a person
who is convicted of two or more offences is sentenced to imprisonment
and the court directs that the sentences
of imprisonment shall run
concurrently, the court shall, subject to subsection (1)(b), fix the
non-parole period in respect of
the effective period of
imprisonment.”
[59] The Supreme
Court of Appeal recently ruled on the proper interpretation of this
section in S v Mthimkulu. It held that despite
the use of the word
“shall”:
“…
properly construed,
(s276B(2))
does not oblige a sentencing court to
fix a non-parole period in respect of the effective period of
imprisonment as a matter of
routine whenever it has ordered two or
more sentences imposed on a convicted person to run concurrently.
What
s276B(2)
in fact does is to enjoin a sentencing court, once it
has exercised its discretion under
s276B(1)(a)
against a convicted
person, to then fix the non-parole period in respect of the effective
period of imprisonment, taking cognisance
of the provisions of
s276B(1)(b)
”.
[60] In other words,
a sentencing court must first exercise a discretion to determine
whether the imposition of a non-parole period
is appropriate, and
only if it has properly exercised this discretion is it obliged,
under
section 276B(2)
, to fix the non-parole period applicable.
[61] As regards the
discretion to make an order imposing a non-parole period, the SCA in
S v Stander held that:
“An order
under
section 276B
should … only be made in exceptional
circumstances, when there are facts before the sentencing court that
would continue,
after sentence, to result in a negative outcome for
any future decision about parole … (for example) undisputed
evidence
that the accused had very little chance of being
rehabilitated.”
[62] The court held
further that before a sentencing court exercises its discretion, both
parties must be given an opportunity to
address the sentencing court,
and that a failure to afford them this opportunity constitutes a
misdirection.
[63] In the present
matter, it is plain from the record of the trial that the parties
were not afforded an opportunity to address
the sentencing court
before it imposed an order under
section 276B.
In fact, the
magistrate appeared to treat the section as obliging him to attach a
non-parole period to the custodial sentences,
meaning that the
exercise of a discretion on his part was absent.
[64] In this, the
magistrate clearly misdirected himself, and this court must correct
the situation. As to what the consequences
of the magistrate’s
misdirection should be, I am guided by the manner in which the SCA
dealt with the issue in S v Mthimkulu.
In its judgment, the court
held that while it may be proper to remit the case back to the
sentencing court for it to hear the
parties on whether an order under
section 276B
is appropriate, this may not always be in the interests
of justice. Thus, where there are particular facts to warrant it, an
appeal
court may for itself determine whether an order under
section
276B
is appropriate rather than remitting the matter back to the
sentencing court. This is what the SCA did in S v Mthimkulu.
[65] As in the
Mthimkulu case, there are indeed particular facts before this court
to warrant our determination of whether an order
under
s276B
is
appropriate, rather than remitting the matter back to the
magistrates’ court. The appellant is a first offender who
pleaded guilty to the offence. The evidence indicates that he never
denied his actions. These are all factors that persuaded the
court
in Mthimkulu. Critically, in the present case the magistrate
accepted that there were good prospects for the appellant’s
rehabilitation.
[66] In light of
these factors, I am of the view that there are no exceptional
circumstances warranting the imposition of a non-parole
period under
section 276B
in this case. The interests of justice require that the
magistrate’s order in this regard must be set aside.
[67] I turn now to
the decision of the magistrate that the sentences only in respect of
counts 1 and 2 should run concurrently,
and not the sentence in
respect of count 3.
[68] An order that
sentences are to run concurrently is called for where the evidence
shows that the relevant offences are “inextricably
linked in
terms of the locality, time, protagonists and, importantly, the fact
that they were committed with one common intent.”
[69] The magistrate
was alive to this when he gave his reasons for ordering that the
sentences on counts 1 and 2 should run together.
He indicated that
this was appropriate because these two offences were closely
connected. However, he did not indicate his reasons
for concluding
that the offence under count 3 was not similarly closely connected to
those under counts 1 and 2.
[70] The charge
against the appellant under count 1 was the offence of sexual
grooming of children, under section 18(2)(b) of the
Act. The
elements of this offence are as follows (insofar as they are relevant
to the facts of the present case):
[70.1] the
commission of any act by the alleged perpetrator with or in the
presence of a child complainant,
[70.2] with the
intention of encouraging or persuading the child, or diminishing or
reducing his or her resistance or unwillingness
to,
[70.3] among others,
perform a sexual act with the perpetrator, or
[70.4] perform an
act of self-masturbation in the presence of the perpetrator, or
[70.5] be in the
presence of or watch the perpetrator perform a sexual act or an act
of self-masturbation, or
[70.6] expose his
body parts or parts of his body to the perpetrator in a manner or in
circumstances which violate or offend the
sexual integrity or dignity
of the child.
[71] “Sexual
act” is defined under section 1 of the Act as meaning “an
act of sexual penetration or an act of
sexual violation”
(emphasis added).
[72] The charge
against the appellant under count 2 was that of compelling or causing
a child to witness sexual offences, sexual
acts or self-masturbation
under section 21(1) of the Act. A person commits this offence if
they:
[72.1] unlawfully
and intentionally compel or cause a child complainant, without his
consent,
[72.2] to be present
or to watch the perpetrator,
[72.3] while the
perpetrator commits a sexual offence.
[73] The charge
against the appellant under count 3 was that of sexual assault under
count 5(1). Sexual assault under this provision
is the unlawful and
intentional sexual violation of a complainant.
[74] “Sexual
violation” is defined under section 1 of the Act, in relevant
part, as including any act that causes direct
or indirect contact
between the genital organs of one person and any part of the body of
another person, or the masturbation of
one person by another person.
[75] It is common
cause on the facts that the acts constituting the offences under all
three counts were committed by the appellant
against the same
complainant, SR, over the same period of time. As I indicated above,
this overlap is relevant to the question
of whether the sentences in
respect of all three counts should run concurrently.
[76] Of further
relevance, and critically so, for purposes of the present case, is
the question of whether all of the offences were
committed with a
common intent.
[77] It is here that
in my view the magistrate erred. While he correctly identified a
close connection between counts 1 and 2,
he regarded count 3 as not
sharing a sufficiently close connection to warrant a concurrency of
sentences. If one has regard to
the elements of counts 1 and 3, it
is difficult to justify the magistrate’s conclusion in this
regard.
[78] The sexual
grooming of a child complainant involves the perpetrator conducting
himself in such a manner as to reduce the child’s
unwillingness
to among others, perform a sexual act with the perpetrator. Sexual
acts cover sexual violations, and sexual assault
is a form of sexual
violation. As such, a perpetrator’s masturbation of a child
complainant (which is a form of sexual assault)
is a sexual act.
[79] The appellant
admitted that his conduct over the two-year period involved not only
self-masturbation in the presence of SR,
but also his masturbation of
SR. This latter conduct amounts to sexual assault for purposes of
count 3.
[80] Clearly,
therefore, the appellant’s sexual grooming of SR (count 1) was
committed with an intent not only to expose SR
to witnessing the
appellant’s unlawful sexual conduct (count 2), but also to
reduce SR’s unwillingness to the appellant
committing acts of
sexual assault against SR (count 3). It seems clear to me that all
three of the offences inherently involved,
and were committed with, a
common intent, and all three sentences ought to have run
concurrently. In my view, the magistrate misdirected
himself by
separating out count 3 from the other two charges in this regard.
[81] The magistrate
ought properly to have ordered that the sentences on counts 1, 2 and
3 should run concurrently. This would
have reduced the effective
period of the appellant’s direct imprisonment from 8 years to 4
years.
[82] It may be that
by ordering only counts 1 and 2 to run together, the magistrate
intended to signal that the offence of sexual
assault is a
particularly serious form of child sex abuse, and that, taken
cumulatively, the appellant’s conduct was such
that he deserved
an effective sentence of more than 4 years imprisonment. However,
this amounts to no more than speculation on
my part, as the
magistrate’s judgment is silent in this respect. Had this been
the intention of the magistrate, he ought
to have considered imposing
a sentence of greater than 4 years in respect of count 3, rather than
incorrectly directing that count
3 should not run concurrently with
counts 1 and 2.
[83] In view of the
magistrate’s misdirection in this regard, I am constrained to
amend the order to reflect that the sentencing
on all three of the
offences should run together.
ORDER
[84] I make the
following order:
1. The appellant’s
appeal against his sentence succeeds only to the extent indicated
below:
1.1 The magistrate’s
order under section 276B(2) of Act 51 of 1977 in terms of which a
non-parole period of 4 years was imposed
on the appellant, is set
aside.
1.2 The magistrate’s
order to the effect that the sentences in respect of counts 1 and 2
should be served concurrently is
set aside and is replaced by the
following order:
“In terms of
section 280(2) of Act 51 of 1977 the periods of imprisonment under
counts 1, 2 and 3 shall be served concurrently.
R KEIGHTLEY
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree:
B MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date Heard: 06
October 2014
Date of Judgment:
16 October 2014
Counsel for the
Appellants: Adv. JHL Scheepers
Instructed by:
VFV Attorneys
Counsel for the
Respondent: Adv. A Deoraj
Instructed by:
The Office of the DPP