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[2013] ZASCA 43
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Mugridge v S (657/12) [2013] ZASCA 43; 2013 (2) SACR 111 (SCA) (28 March 2013)
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IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 657/12
Not
Reportable/Reportable
In
the matter between:
S
P M
......................................................................................................
APPELLANT
and
THE
STATE
........................................................................................
RESPONDENT
Neutral Citation:
M
v S
(657/12)
[2013] ZASCA 43
(28 March 2013)
Coram:
MAYA,
SHONGWE JJA and ERASMUS AJA
Heard:
15 February 2013
Delivered:
28 March 2013
Summary:
Criminal Law – rape, indecent assault,
crimen
injuria –
whether the trial
court erred in convicting the Appellant – absence of consent –
consent through conduct – whether
it is not reasonably possibly
true that the Appellant believed that the complainant had consented
to the intercourse – sexual
grooming – whether the
sentence is shockingly inappropriate.
______________________________________________________________
ORDER
______________________________________________________________
On
appeal from
: South Eastern Cape Local Division, Port Elizabeth
(Dambuza J sitting as court of first instance).
The
appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
ERASMUS AJA (MAYA AND
SHONGWE JJA concurring)
Introduction
[1] This is an appeal
against the appellant’s conviction on several charges relating
to the sexual abuse of his adopted minor
daughter and the sentence
imposed on the charge of rape. The South Eastern Cape Local Division
(Dambuza J) convicted and sentenced
the appellant as follows:
Count 1: Rape (15 years
imprisonment)
Count 2: Indecent assault
(18 months imprisonment)
Count 3: Crimen injuria
(18 months imprisonment)
Count 5: Contravention of
s 27 (1)(a) read with ss 1, 30 and 30B of the films and publications
Act 65 of 1996 – Child pornography
(3 years imprisonment)
Count 6: Contravention of
s 4(a) or 4(b) read with ss 1, 13, 17 to 25 and 64 of the drugs and
drug trafficking Act 140 of 1992 –
Possession of drugs (a fine
of R500.00 or one month imprisonment)
Count 7: Fraud –
Alternative: Forgery and uttering (2 years imprisonment)
It was ordered that the
sentences on counts 2-7 should run concurrently with the sentence on
count 1.
The effective sentence is
thus 15 years’ imprisonment.
[2] The trial court
granted the appellant leave to appeal to this court against the
convictions on counts 1, 2 and 3 and the sentence
on count 1. The
appeal against the convictions, ie those charges dealing with the
direct sexual misconduct against the complainant,
is based on two
separate legal issues.
These can be summarised
as whether:
(a) the complainant
consented to the acts in question (the consent issue); and
(b) the appellant was
under the impression that the complainant had legally consented (the
mens rea
issue).
[3] In the court a quo,
the appellant denied that he was guilty of any of the three charges,
claiming that the complainant had consented
to the acts in question.
In the event that the court found that she did not consent, he argued
that he had subjectively believed
that she had. Moreover, he claimed
that she was in fact the one who had misled him and offered herself
to him. The High Court rejected
his version of the facts, which
finding was wisely not challenged in this court. The only questions
that remain are whether the
complainant legally consented to the acts
in question and whether the appellant had the requisite
mens rea
to be convicted of the charges.
[4] To determine the
above, it is necessary to review in some detail the progression of
the interaction between the appellant and
the complainant, so to
assess whether, on the facts of the matter, the apparent submission
and acquiescence of the complainant
amounted to consent in the legal
sense.
[5] The facts are that
the appellant was a senior pastor of a church in Port Elizabeth,
after obtaining diplomas in theology and
ministerial training in the
United Kingdom and Namibia. The appellant’s former
brother-in-law is the biological father of
the complainant. The
biological mother had abandoned the complainant when she was a baby
after which the complainant was placed
in a place of safety. For the
first few years of her life, the complainant was cared for by her
extended family as her parents
were unable to maintain her, and her
father was a chronic drug addict. When the complainant was
approximately seven years old,
her mother – who was also a drug
addict and prostitute – approached the appellant and his wife
with a request for them
to foster the complainant. The mother
explained that she was unable to cope with raising the complainant
any longer. An informal
agreement was then reached, which saw the
complainant living permanently with the appellant, his wife and their
two daughters.
As the complainant grew older, she became
self-conscious regarding her identity within the family, and the
appellant and his wife
decided to formally adopt her.
[6] During 2002 –
the year before the formal adoption – when the complainant was
14 years of age, she discovered that
the appellant had installed a
hidden video camera that could record images of her when using the
bathroom and shower. Upon the
discovery, she stopped using that
particular bathroom, opting to use a second bathroom instead. The
appellant then installed another
camera in the second bathroom and
connected it to a video recorder. The recordings were not limited to
the complainant but also
captured her sisters, the natural daughters
of the appellant. The complainant would in some instances cover the
lens of the camera,
but often forgot to do so when using the
bathroom. She did not inform anybody about these incidents at the
time.
[7] During that same
year, the complainant recorded an intimate moment with a certain boy
in her personal diary. The appellant discovered
the entry and
suggested to her that the boy would hurt her. He expressed his
preference that such intimate moments should be with
him rather than
another. The complainant’s response was to laugh. She never
told her adoptive mother about this conversation,
nor did the
appellant tell his wife about the diary entry. However the
relationship between the appellant and the complainant grew
more
intimate, and; they would progressively start to share secrets and
even go to restaurants together, without other members
of the family
being present. The appellant regularly bought the complainant gifts,
including expensive clothes, shoes and CDs,
which were hidden from
the appellant’s wife. When his spouse eventually became aware
of the unequal treatment, she complained
about the special privileges
the complainant was getting from the appellant. This situation led to
the deterioration of the relationship
between the complainant and her
adoptive mother.
[8] Eventually, the
appellant came to frequently touch the complainant inappropriately.
He would always apologise thereafter, claiming
it was an accident.
The complainant hid this conduct from her mother.
[9] During 2003, the
appellant’s wife often travelled out of town on business, while
their one daughter was living overseas
and the other working. As a
result, the complainant was sent to a boarding school in
Graaff-Reinet. During the September school
holidays of that year, the
complainant returned home with a friend. Her mother subsequently
grounded her for disciplinary reasons.
When the complainant and her
friend wanted to attend an under 18’s club, in contravention of
the mother’s grounding
order, the appellant granted her
permission on the condition that she afford him certain “privileges”.
The appellant
subsequently took the complainant and her friend to the
club and later fetched them.
[10] On returning home,
and after the friend had gone to bed, the appellant called the
complainant to his study and told her that
she had to repay him by
having an intimate moment with him. She refused. Later that same
evening, whilst the appellant’s
wife was sleeping in her
bedroom, the complainant was again summonsed by the appellant, and
told to keep her end of the deal.
The appellant kissed her,
rubbed her breasts and put his hand down her pants, touching her
private parts. She was scared and said
nothing. The complainant’s
silence was met with the appellant’s pronouncement that it was
not as bad as she had feared
after all. The complainant did not
report this to the mother.
[11] Before the end of
the same school holidays, whilst the mother was again away on
business, the appellant called the complainant
to his bedroom and
ordered her to get into bed with him. She protested that her sister
was in the house, but eventually succumbed,
got into bed with him and
performed oral sex on the appellant.
[12] At the end of the
school holidays, when the complainant returned to Graaff-Reinet, the
relationship between herself and the
appellant intensified. The two
exchanged text messages and would call one another, but never spoke
about the incidents of the holidays.
The complainant did not report
these incidents to anyone.
[13] During the final
school term of that year (2003), the appellant and the complainant
arranged to meet in Graaff-Reinet on a
Friday before she would visit
Port Elizabeth for the weekend. The complainant was aware that the
visit of the appellant was intended
for them to have sexual
intercourse. She thought that by inviting a friend she would somehow
be able to get out of the arrangement.
The appellant took the
complainant and the friend to a local restaurant where he bought them
food and alcohol. While still at the
restaurant, the complainant
suggested that her friend spend the night with the appellant and
herself at the guesthouse. The appellant
refused, stating that he and
the complainant already had plans. As the evening progressed, the
appellant plied the complainant
with more liquor, whereafter the
complainant became very drunk.
[14] Upon their arrival
at the guesthouse from the restaurant, the complainant continued
drinking until she was drifting in and
out of consciousness. She was
not willing to engage in sexual intercourse and tried to push the
appellant away, but as a result
of her inebriated state, she was too
weak to succeed. The appellant then carried her to the bed, undressed
her, and had sexual
intercourse with her. It being the first time she
had had sexual intercourse, it was painful and she bled.
[15] After the
intercourse, the appellant went to sleep. He and the complainant left
for Port Elizabeth the next morning. The complainant
testified that
she did not tell her mother as she was ashamed and felt she had
brought the incident on herself. Furthermore, she
thought the mother
would take the appellant’s side.
[16] A few weeks later,
the appellant again visited Graaff-Reinet. He took the complainant to
a different guesthouse where he again
had sexual intercourse with
her. The complainant did not resist his sexual advances as at this
stage, she felt she had no choice
but to go along with what he was
doing.
[17] The incidents of
sexual intercourse between them became more frequent, particularly
after she went to study at a different
educational institution closer
to home and when the appellant’s wife was out of town. The
appellant and the complainant developed
codes for their sexual
episodes; ‘partying’ meant that they would drink, watch a
pornographic movie and then have sex,
whereas ‘play’
meant they would just spend quiet time together and then have sex.
They would regularly drink and watch
pornographic movies before
sexual intercourse. The appellant would discuss his future ideas for
sexual acts with the complainant.
On one occasion, when the
appellant’s wife was at home, they took a drive along the
seaside to a quiet spot in order to have
intercourse there.
[18] During that year,
2004, the complainant told a friend about the details and nature of
her relationship with the appellant.
Her friend tried to convince her
to report the problem, but the complainant did not as she felt she
had brought it upon herself.
Later that same year, she told her
friend that the incidents had ceased, later admitting in the court
below that she had lied as
she was afraid that the friend would tell
someone about it and this would have detrimental consequences for the
family. The episodes
of sexual intercourse were frequent until about
June of that year. Then there was a break of approximately six
months.
[19] During January 2005,
the appellant and the complainant decided to have a ‘party’
on an occasion when the appellant’s
wife was out of town. The
appellant provided the complainant with an ‘ecstasy’
1
tablet, telling her that
it would make her more relaxed when they were having sexual
intercourse. He indicated that she should take
the tablet as he ‘did
not want to have sex with a lifeless body’. According to the
complainant the effect of the tablet
was to give her lots of energy.
They continued to watch a pornographic movie and took liquor, and
after a while her vision got
blurred. Her first recollection
thereafter was the next morning when her sister was shouting at her,
demanding to know what the
appellant was doing in her bed. The
appellant was in fact in her bed, and both were completely naked.
When the appellant woke up,
he provided the complainant with a tablet
indicating that it would assist in reversing the effect of the
ecstasy tablet. He proffered
an explanation that the complainant
should give to his wife upon her return. However, the appellant’s
wife was not convinced
by this tale and the complainant was taken to
the house of family friends where she was to stay for a while. The
appellant was
told to leave the house as well.
[20] After a few weeks,
the complainant was confronted by her mother, with a request that she
tell the truth of the relationship
between herself and the appellant.
However she stuck to the fabrication that she and the appellant had
agreed upon because she
thought her mother and sisters would not
believe her. Additionally, they had told her what the impact would be
if the appellant
and his wife should divorce – including the
likelihood that the complainant would once again be sent back to a
place safety.
[21] After a while,
however, she moved back home to her mother and sister. At this stage,
she also developed a relationship with
a male friend. When the
appellant learned of this, he requested that the complainant spend
the night with him, but the complainant
refused. The next morning,
she found the appellant in the common home where he was engaged in an
altercation with his wife. He
demanded that he be permitted to live
somewhere else with the complainant. The complainant agreed to the
arrangement in an effort
to halt the trouble within the family.
[22] Instead of the
appellant and the complainant moving, his wife and daughter moved to
an apartment. He remained in the common
home with the complainant.
There arose a pattern in which the appellant and his wife tried to
reconcile but it constantly proved
unsuccessful.
[23] The complainant told
the appellant about an incident between herself and a female friend
where the female friend attempted
to kiss her. The appellant
suggested that they invite this female friend to the home and that he
would set up a camera and film
them when they engaged in activities
of ‘a lesbian nature’. He told the complainant that he
would give her a tablet
that would make her forget what had happened.
On the day in question, the camera having been set up where the
appellant would watch
the complainant and her friend kissing, the
complainant could not go through with the act and the plan was
abandoned.
[24] The appellant
indicated that they should include a female sex worker in their acts
as he wanted to sleep with two females at
the same time. The
complainant resisted the idea, which led to heated arguments. One
evening, the appellant was extremely upset
and indicated to the
complainant that he had already arranged to get ecstasy and cocaine
and to obtain the services of a female
sex worker. This arrangement
could not be reversed, he said. In preparation for the night ahead,
the complainant took ecstasy and
consumed copious amounts of alcohol.
[25] At approximately
03h00 that morning, the appellant set off to collect the third sexual
partner. The group watched a pornographic
movie. The appellant and
the complainant used cocaine, whereafter he directed the complainant
and the sex worker to engage in sexual
conduct. All of this was
photographed by the appellant. The sex worker stayed until early the
next morning. On a subsequent occasion,
the complainant and the sex
worker had to get in and out of the shower and perform sexual acts on
a bed whilst the appellant photographed
them.
[26] The complainant was
still seeing her male friend and requested permission from the
appellant to do so. He agreed on the condition
that she would offer
him a ‘party night’ on her return. She went to the male
friend and told him about the relationship
with the appellant.
[27] During the course of
that night the appellant insisted that she return home and indicated
that she was ‘wasting’
his night. He threatened her,
saying that he would report to the police that she had stolen his
car, whereupon she returned home.
Arriving there, she found the
appellant smoking marijuana, drinking and using ecstasy. He again
accused her of wasting his night
and instructed her to take an
ecstasy tablet. She pretended to do so, but spit it into the toilet
instead. The complainant then
informed the appellant that she had
told her male friend of the relationship between herself and the
appellant. The argument between
the complainant and the appellant
continued and the appellant took his firearm, threatening to kill
himself. When the complainant
told the appellant that her biological
father would kill him if he found out about the relationship, he
intimated that people would
believe his story rather than hers.
[28] At some stage during
the argument the appellant left the room to go to the bathroom, at
which point the complainant hid behind
a table. On returning to the
room, the appellant could not find the complainant and, assuming that
she had run away, left in his
car. On leaving, the appellant dropped
some ecstasy tablets on the ground. The complainant took these
tablets, the cocaine, the
CD with photos of the complainant and the
female sex worker and the appellant’s firearm and hid these
items in the bedroom
of one of her sisters. In doing this, the
complainant felt that she had secured sufficient proof of the events
to convince people
of the veracity of her claims. The complainant
then left the house and hid in a nearby vacant plot for the duration
of the night
and the next morning.
[29] By the following
afternoon, the complainant became very tired and re-entered the
house. The appellant was present and the complainant
tried to run
away, but the appellant chased after her, caught her and brought her
back into the house. He enquired where his gun
was, but the
complainant would not tell him. Some time later the complainant
managed to go to her sister’s room and hid under
the bed. The
appellant again left the house but came back later. The complainant
noticed the spare keys to the appellant’s
car in a drawer in
his study. She took the keys, climbed out of the study window and
drove to the house of her male friend. She
was pursued by the
appellant.
[30] When the appellant
arrived at the house of the complainant’s friend, his car was
parked in the driveway. He shouted for
the complainant, and demanded
she return his car keys. The complainant’s friend gave the keys
to the appellant, but he continued
to demand that the complainant
come outside.
[31] The complainant’s
friend activated his security alarm and guards from the security
company arrived and phoned the police.
The friend’s mother also
arrived on the scene and demanded that the appellant leave her
property.
[32] The complainant then
phoned her mother. When the mother arrived, the complainant disclosed
the details of the relationship
between herself and the appellant,
informing her mother that all the suspicions she had had regarding
the relationship were in
fact true. They went to the police station,
where the complainant was asked to identify a CD with photos of
herself and the female
sex worker. She was then taken to hospital and
tested for drugs.
[33] At the ensuing
trial, the court below dealt with the above evidence holistically in
finding that the complainant had not consented
to the acts, and that
the appellant had the requisite
mens rea
to commit same. The
court rejected the defence of the appellant as to consent and
mens
rea,
by evaluating the complainant’s behaviour in the
context of the relationship that existed at the time of the
commission of
the offence, including the vulnerabilities of the
complainant and the application of general logic.
[34] The court a quo
noted that, on the facts, the complainant had not displayed any
particular conduct which indicated her lack
of consent over and above
her objections as described above. However, any perceived
acquiescence could not be construed as consent,
as the appellant had
‘slowly groomed (the complainant)’ to ensure that she
ultimately submitted.
[35] The court further
accepted the complainant’s explanation that:
(a) she was wholly
convinced that she would not be believed should the appellant deny
her allegations;
(b) she had nowhere else
to go and might have been returned to the place of safety should she
‘cause trouble’ for her
adoptive family;
(c) her disclosure would
cause trouble for the church and the community, more particularly
given the appellant’s stature within
the family, community and
church; and
(d) she felt guilty and
believed that she has brought this upon herself.
[36] The common law crime
of rape can only be committed where a complainant has not consented
to sexual intercourse. Consent –
specifically the lack thereof
– is therefore an essential element of the crime and thus the
consent of the complainant, should
it have been given, would nullify
or vitiate the unlawfulness of the conduct.
2
In the absence of serious
physical harm – insofar as it relates only to the crimen
injuria and indecent assault charges herein
– the presence of
consent would have an effect on the element of unlawfulness thereof.
3
[37] In law, consent has
the following requirements:
(a) the consent itself
must be recognised by law;
(b) it must be real
consent; and
(c) it must be given by a
person capable of consent.
[38] The question of
whether consent in the context of sexual offences will be ‘recognised
in law’ is determined with
reference to considerations of
public policy, with the following factors relevant in the making of
such a determination:
‘
[T]he nature and extent of the
harm, both physical and psychological; and the age and relationship
of the parties, especially if
the conduct involves the exploitation
or abuse of children.’
4
[39] The first and last
of the aforementioned requirements need no further discussion for the
purposes of the instant matter. Rather,
as noted earlier, it must be
assessed whether, on the facts of this matter, the apparent
submission and acquiescence of the complainant
amounted to consent in
the legal sense.
[40] The law requires
further that consent be active, and therefore mere submission is not
sufficient. In
Rex
v Swiggelaar
,
5
Murray AJA commented as follows:
‘
The authorities are clear upon
the point that though the consent of a woman may be gathered from her
conduct, apart from her words,
it is fallacious to take the absence
of resistance as
per se
proof of consent. Submission by itself
is no grant of consent, and if a man so intimidates a woman as to
induce her to abandon resistance
and submit to intercourse to which
she is unwilling, he commits the crime of rape. All the circumstances
must be taken into account
to determine whether passivity is proof of
implied consent or whether it is merely the abandonment of outward
resistance which
the woman, while persisting in her objection to
intercourse, is afraid to display or realises is useless.’
[41] While it follows
that consent could encompass submission, the converse is not always
true. One has to have regard to the totality
of facts in order to
determine whether acquiescence to certain sexual conduct also
constitutes consent. This is particularly so
as there are various
factors which may operate to nullify consent. These include age,
considerations of public policy and a failure
to appreciate the
nature of the conduct being consented to.
[42] In light of this, in
the context of sexual relations involving children, any appearance of
consent to such conduct is deserving
of elevated scrutiny, with
particular attention to be paid to the fact that the person giving
the consent is a child. The inequalities
in the relationship between
the child victim and the adult perpetrator are of great importance in
understanding the construction,
nature and scope of the child’s
apparent consent to any sexual relations. These inequalities may most
likely influence the
child’s propensity to consent to sexual
relations, as ‘the outcome of forced choices, precluded
options, constrained
alternatives, as well as adaptive preferences
conditioned by inequalities’,
6
the latter being particularly relevant in the instant matter. It is
of great relevance that this power differential – and
the
effect it has in negating the legitimacy of sexual relations between
children and adults – was explicitly recognised
by Satchwell J
in
S v
Muller
.
7
[43] In
Marx
v S
,
8
Cameron JA (dissenting) recognised the extent to which apparent
consent by a child to sexual relations with an adult acquaintance
does not render such conduct lawful absent a clear understanding of
the surrounding circumstances which underlie the child’s
acquiescence. In particular, the child’s vulnerability and
resultant openness to manipulation is deserving of heightened
scrutiny. A system of gifts and privileges being accorded as a reward
for compliant behavior – effectively acquiescence to
sexual
relations in response to sexual grooming – serves to extract
what appears to be consent from the child victim. As
in the
Marx
matter,
the complainant in this instance ‘was entangled in a web of
rewards and punishments at the hands of an elder whose
intrusive
conduct became increasingly difficult to resist. The very complexity
of the situation lay in the fact that the comforts
and rewards it
offered – the attention and love she craved – were given
subject to a sinister overlay of mounting sexual
intrusion’.
9
[44] The court a quo
equated the conduct of the appellant to sexual grooming.
10
At common law, the
clearest definition of sexual grooming to emerge from our courts was
that laid out by Satchwell J in
S
v Muller
2007
(2) SACR 60
(W) para 35, namely that grooming is ‘a
psychological process used by the paedophile to access his
victim(s)’. The
court
11
also referred to Duncan Brown’s definition of sexual grooming,
12
being that:
‘
Grooming . . . is explained as
an ongoing process aimed at the child accepting sexual activities
. . . It “is generally
seen as a cycle of abuse, and can
include for example befriending a potential victim to allow the child
to acquiesce to sexual activity.”
The grooming aspect
involves an aspect of deceptive trust created by the offender and
manipulation of the child by the adult. It
is the fact that o
ne
of the parties to the relationship is in such a position of power
over the other
that renders
such sexual activity morally wrong and punishable within the realms
of the criminal law.’ (My emphasis).
[45] It is accepted that
sexual grooming consists of the perpetrator of the subsequent sexual
abuse utilising and manipulating a
position of authority over the
victim and the victim’s environment in a manner which opens the
victim up to the intended
abuse itself.
13
Ost
14
notes that ‘[a]ny behaviour that is designed to build up a
relationship of trust with a child with the longer-term goal of
involving the child in some sexually related act or acts could
constitute grooming’.
[46] Turning to the facts
in the instant matter: The complainant’s history is
characterised by instability which undoubtedly
had a negative effect
on her. The appellant himself testified that he had observed her at
school, showing off and having a ‘tremendous
inferiority
complex’. She was exposed to undue hardship in the early years
of her life, at which time the appellant and his
wife had come to her
assistance in offering her the comforts and support she had not
otherwise enjoyed. They brought her up in
a strict environment, yet
an environment in which she was spoilt by the appellant.
[47] The facts indicate
that the complainant did not consent to the acts, as illustrated, for
instance, by the filming incidents
where she became aware of the
cameras and moved the cameras or tried to cover the lens. This
constitutes clear objection. Moreover,
the complainant had
consistently registered her objection throughout the earlier
incidents of inappropriate touching by the appellant.
[48] The first instance
of oral sex and the complainant’s apparent submission thereto
cannot be recognised as consent, due
to the pressure which the
appellant had applied to complainant in order to extract such
submission. The manner in which the appellant
leveraged gifts,
privileges and threats, created a situation wherein the complainant
felt indebted and fearful, vitiating any perceived
consent to the
sexual activities.
[49]
In respect of the Graaff-Reinet incident, the first instance
of sexual intercourse between the appellant and complainant, it is
clear that the complainant was not in a position to physically exert
her resistance to the conduct of the appellant, because of
her state
of inebriation. She did not consent to the sexual intercourse, which
is sufficient for the conviction of rape to be sustained.
The court
further found that the grooming of the complainant, by the appellant,
also affected her ability to consent and his claim
in regard of
mens
rea
cannot be sustained.
[50] After the first
sexual encounter, the appellant plied the complainant with drugs,
aimed at inducing the complainant to become
a willing partner to the
sexual ‘relationship’, including the instances involving
sexual acts with the prostitute.
But it remained the appellant in
charge, instructing the two to comply with his wishes and for his
benefit.
[51] When the appellant
was confronted in cross-examination as to why he would not initially
go further than touching after the
first incident, he indicated that
he had already developed a sexual interest in the complainant but
that there was no doubt that
at that stage, she would not have
consented to his sexual advances. It was clear from his own evidence
that he realised that, by
engaging in what the court a quo described
as sexual grooming, he could extract a modicum of consent out of the
complainant.
[52] The appellant had
manipulated the complainant’s fragile state and his stature in
the community to his advantage, slowly
inviting her to acquiesce to
his advances. This was improper and calculating, and rendered the
appellant culpable. In particular,
the complainant’s compliance
with the appellant’s demands was a consequence of his conduct
and a direct result of his
calculated distortion of his position of
authority over her. This calculation encompassed his provision of
drugs and alcohol, which
were utilised in order to further weaken the
complainant’s resistance and cloud her judgment. Consequently,
the appellant
went out of his way to entice the complainant’s
consent by effectively subduing her ability to give consent freely
and voluntarily.
This evidenced his guilty mind, and rendered him
culpable.
[53] Having found that
real consent was absent, insofar as the perceived acquiescence or
submission of the complainant was a direct
result of manipulation by
the appellant, the appellant’s claim that he was under the
impression of real consent need only
be stated to be rejected.
[54] I now turn to the
question of sentence. The appeal in respect of sentence relates only
to the sentence imposed on the rape
charge. Having found that the
conviction on the rape charge attracted a prescribed minimum
sentence,
15
the court a quo was
obliged to consider whether substantial and compelling evidence
existed before imposing a lesser sentence. The
trial court found the
personal circumstances of the appellant to be substantial and
compelling and imposed a sentence of 15 years’
imprisonment.
The appellant argues that the gravity of the sentence induced ‘a
sense of shock’ and was too harsh.
[55] The imposition of a
sentence is a matter for the discretion of the trial court which, if
exercised judicially, the appeal court
will not interfere with.
16
[56] Courts strive to
balance various factors in order to arrive at a sentence that is
just. In the careful consideration of the
relevant factors, the
public interest must be an ever-present concern. The prescribed
sentences for particular crimes were set
by the legislature in
response thereto. When deviating from these sentences the public
interest cannot be ignored due to the risk
of confidence in the
judicial system being undermined. The courts are not dictated to by
public opinion but must be mindful thereof.
Evidence of sexual abuse
of particularly vulnerable individuals engenders the outrage it does
in part due to the prevalence of
sex crimes and their grievous impact
on victims and society in general.
[57] In evaluating
whether the sentence in the instant matter is just, it is important
to note that the incidents happened when
the complainant was a child,
whose interest and protection is paramount within society.
17
Courts are enjoined to
emphasise – by the sentences imposed for offences against
children – the community’s disgust
in and repulsion of
this type of behaviour.
[58] In this matter the
appellant was unable to identify either any particular misdirection
by the trial court or the presence of
a factor that indicates that
the trial court did not exercise its discretion judicially. However,
the trial court had the benefit
of the evidence of experts who
described the effect of the offences on the complainant as profound,
serious and pervasive. The
appellant was not only in a position of
trust as the complainant’s adoptive father, but he also
systematically abused that
position to groom the complainant for his
own nefarious exploits.
[59] It is submitted on
behalf of the appellant that his age
18
and the fact that the
complainant did not sustain any injuries during the incidents should
have been accorded more weight by the
trial court. I strongly
disagree. The appellant exploited his superiority in standing, age
and familial power to manipulate and
subordinate the complainant, as
was described by Cameron JA in
Marx
:
‘
The phenomenom of domestic
sexual predation . . . requires like any other crime special
understanding, appropriate to its distinct
characteristics. The
domestic or familial predator’s means are not violent . . .
[h]e exploits the opportunities that intimate
engagement offers, and
the physical spaces the home affords, to prey upon his victim. And he
uses the ties that bind him to her
– often both emotional and
material – to secure both compliance and concealment.
When the victim is less than half his
age . . . and subject to his influence and authority as an elder,
these factors operate with
acute force. When she is a child craving
affection and attention . . . her peculiar susceptibility to abuse
and exploitation must
be appreciated . . . .’.
19
[60] This court has
repeatedly stressed the gravity of this type of offence, and the
sentence imposed in the instant matter can
in no way be characterised
as “inducing a sense of shock” or of “being too
harsh”.
20
There is no reason to
interfere with the sentence imposed. If anything more has to be said,
then having regard to the continuous
and relentless manner in which
the appellant groomed the complainant into sexual conduct, and the
negative effects this has had
on her and the family’s life, the
appellant should consider himself fortunate to have been sentenced to
only 15 years’
imprisonment.
Order
[61] I hereby give the
following order:
The appeal is dismissed
N ERASMUS
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: E Crouse (with her E Theron)
Instructed
by:
Swarts
Attorneys, Port Elizabeth
Symington
& de Kok, Bloemfontein
FOR RESPONDENT: M L le
Roux
Instructed
by:
The
Director of Public Prosecutions, Port Elizabeth
The
Director of Public Prosecutions, Bloemfontein
1
This
refers to the well-known illicit drug.
2
See
CR Snyman
Criminal Law
5
ed (2008) at 355 and the cases cited therein.
3
J
Burchell
Principles of Criminal Law
(2010) at 333.
4
Burchell
s
upra
at
339.
5
Rex
v Swiggelaar
1950 (1) PH H61 (A).
6
SW
Mills
‘
Reforming the
law of rape in South Africa’
in
C McGlynn and VE Munro (eds)
Rethinking
Rape Law: International and Comparative Perspectives
(2010)
at 259
.
7
S
v Muller
2007 (2) SACR 60
(W) para 37.
8
Marx
v S
[2005] 4 All SA 267
(SCA).
9
Marx
v S
[2005] 4 All SA 267
(SCA) para 108.
10
It
is common cause that the offence of grooming, pursuant to
s 18
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
is of no application to the merits of this matter, as the
conduct in question occurred prior to the coming into effect of that
Act. Nevertheless, it is apparent that the Appellant’s conduct
can be equated to ‘sexual grooming’. The question
that
arises is thus whether the conduct of grooming, as found by the
court a quo, vitiated any perceived consent that was given
by the
complainant.
11
Para
37.
12
JD
Duncan Brown ‘
Developing strategies for collecting and
preventing grooming evidence in a high tech world’
(2001)
14 American Prosecutors’ Research Institute: National Centre
for Prosecution of Child Abuse Update No. 11.
13
See
also D Minnie ‘The grooming process and the defence of consent
in child sexual abuse cases’ (2008) at 34-35.
14
S
Ost
Child Pornography and Sexual Grooming
(2009) at 34.
15
See
s 51(1)
of the
Criminal Law Amendment Act 105 of
1997
read with
s 51(3)
and
part 1
of Schedule 2 to the Act.
16
S
v Pieters
1987 (3) SA 717
(A) at 727F,
S v Kock
1988
(1) SA 37
(A) at 41C,
S v S
1988 (1) SA 120
(A) at 123I,
S
v Dhlamini
1988 (2) SA 302
(A) at
310D,
Director of Public Prosecutions,
Kwazulu-Natal v P
2006 (3) SA 515
(SCA) para 10.
17
See
Director of Public Prosecutions,
Transvaal v Minister of Justice and Constitutional Development
2009 (4) SA 22
(CC) paras 71-79 and
S
v M
(
Centre
for Child Law
as amicus curiae) 2008
(3) SA232 (CC) paras 12-26, and the cases and international law
instruments cited therein. Of particular
significance are the
Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
art 25 (childhood is ‘entitled
to special care and
assistance;); Convention on the Rights of the Child, 20 November
1989, United Nations, Treaty Series, vol.
1577, p. 3; and the
African Charter on the Rights and Welfare of the Child, 11 July
1990, CAB/LEG/24.9/49 (1990). See also
S
v McMillian
2003 (1) SACR 27
(A) para
9.
18
The
appellant was 56 years of age at the time of sentence.
19
Marx
v S
[2005] 4 All SA 267
(SCA) paras 203-204.
20
See
S v RO
2012 (2) SACR 248
(SCA) para 1
; S v Vilakazi
2012 (6) SA 353
(SCA); 2009 (a) SACR 552 (SCA) para 2;
S v
Abrahams
2002 (1) SACR 116
(SCA) para 29;
Bailey v S
(454/11)
[2012] ZASCA 154
(1 October 2012);
S v Kwanape
(422/12)
[2012] ZASCA 168
(26 November 2012).