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[2012] ZASCA 154
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Bailey v S (454/2011) [2012] ZASCA 154; 2013 (2) SACR 533 (SCA) (1 October 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 454/2011
In the matter between
PATRICK CLIVE BAILEY
....................................................................
APPELLANT
and
THE STATE
...........................................................................................
RESPONDENT
Neutral citation:
Bailey v
The State
(454/11)
[2012] ZASCA 154
(01
October 2012)
Coram:
Brand, Heher, Malan, Bosielo and Pillay
JJA
Heard: 18 September 2012
Delivered: 01 October 2012
Summary: Criminal Law – appeal against a
sentence of imprisonment for life on a charge of rape under the
provisions of ss 51(1)
read with Part 1 of Schedule 2 and
51(3)(
a
)
of the
Criminal Law Amendment Act 105 of 1997
– whether
substantial and compelling circumstances exist justifying a deviation
from the minimum sentence of imprisonment
for life prescribed by the
Act.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
Eastern Cape High Court,
Grahamstown (Schoeman, Roberson JJ and Grogan AJ sitting as a court
of appeal)
The appeal against the sentence of imprisonment for life
is dismissed.
___________________________________________________________
JUDGMENT
___________________________________________________________
BOSIELO JA (Brand, Heher, Malan and Pillay JJA
concurring):
[1] The appellant was convicted on his plea of guilty of
the rape his twelve year old daughter in the Regional Court, Port
Elizabeth
on 29 October 2009. Having found no substantial and
compelling circumstances as envisaged by
s 51(3)(
a
) of the
Criminal Law Amendment Act 105 of 1997 (the Act) the appellant was
sentenced to imprisonment for life in terms of s 51(1)
of the Act.
The appellant appealed to the Eastern Cape High Court, Grahamstown
(Schoeman, Roberson JJ and Grogan AJ) which dismissed
the appeal on
20 December 2010 by a majority of two to one. The appellant is
appealing against that judgment with the leave of
the court below.
[2] As the appellant had pleaded guilty to the charge,
the material facts surrounding the commission of this offence are
very scanty.
Suffice to state that the appellant admitted that he had
unlawful sexual intercourse with the complainant, and, importantly
that
he knew that she was below the age of sixteen years at the time
of the commission of the offence. In fact she was twelve years old
during the sexual intercourse.
[3] The nub of the appellant’s attack against the
imposition of life imprisonment is that the majority of the members
of the
court erred in not finding (a) that the sentence imposed is
unreasonable and out of kilter with the sentences imposed for similar
offences by this court (b) that the facts and circumstances adduced
by the appellant amounted to substantial and compelling circumstances
which justified a sentence less than life imprisonment. I interpose
to record that the minority disagreed, and Roberson J held
instead
that: ‘I cannot say that with its own peculiar circumstances it
is a worse case than those to which I have referred,
or is devoid of
substantial factors compelling the conclusion that such a sentence is
inappropriate and unjust.’ In the circumstances,
the minority
proposed to set the sentence of life imprisonment aside and replace
it with a sentence of imprisonment for 25 years
antedated to 10
September 2009.
[4] It became clear that the issue in this appeal is
whether the court erred in not finding that the facts put forward by
the appellant
amounted to substantial and compelling circumstances
justifying a sentence other than life imprisonment as envisaged by s
51(3)(
a
) of the Act.
In the context of this case, the section requires that if the court
is satisfied that substantial and compelling circumstances
exist
which justify the imposition of a sentence less than life
imprisonment, it must enter those circumstances on the record of
the
proceedings and may thereupon impose such a lesser sentence as it
deems appropriate.
[5] In argument before us Ms Crouse, appearing for the
appellant, referred to three considerations which she submitted
qualified
as substantial and compelling circumstances, to justify a
lesser sentence than life imprisonment. First, that remorse emanated
from the fact that the appellant pleaded guilty and further that he
verbalised such remorse to the probation officer who interviewed
him
for a pre-sentence report; second, that there are prospects of the
appellant being rehabilitated; and third, that it was mentioned
to
the probation officer that in 2005, the appellant started to use
drugs. It was contended that the fact that the appellant pleaded
guilty should be accepted as a demonstration of remorse, more so,
that he continued to express some contrition to the probation
officer. The argument was developed further that, based on this, it
must be found that the appellant has shown that he has an
appreciation of the wrongfulness of his conduct and insight which
makes him amenable to rehabilitation. Relying on
S
v Sikhipha
2006 (2) SACR 439
(SCA) counsel
argued that life imprisonment would effectively deny the appellant
the opportunity for rehabilitation. Regrettably,
counsel was not able
to explain what role and effect, if any, the alleged use of drugs by
the appellant had on his commission of
this offence. Therefore no
value can be attached to the alleged use of drugs by the appellant.
[6] The further argument raised by Ms Crouse was that
life imprisonment was out of kilter with sentences imposed on other
similar
cases by this court. In support of this argument she
referred, amongst others, to
S v Abrahams
2002 (1) SACR 116
(SCA),
S v Sikhipha
(above) and
S v Nkomo
2007 (2) SACR
198
(SCA). The crux of this argument was that, notwithstanding the
fact that all these matters involved rape which fell within the
purview of s 51(1) of the Act, where, absent substantial and
compelling circumstances, the court was obliged to impose life
imprisonment,
this court notwithstanding, did not impose imprisonment
for life. In fact the court set aside the sentences of life
imprisonment
which had been imposed by the trial courts and replaced
them with different custodial sentences.
[7] On the other hand, Ms Packery for the respondent
submitted that the facts placed before the court by the appellant did
not qualify
as substantial and compelling to justify a lesser
sentence than life imprisonment. She argued that the mere fact that
the appellant
pleaded guilty did not necessarily support the
conclusion that he was remorseful as the plea of guilty could have
been motivated
by various factors eg that the appellant realized that
the evidence against him was overwhelming and that it would be futile
to
plead not guilty.
[8] Concerning the prospects of rehabilitation, Ms
Packery contended that the appellant placed no facts before the court
to demonstrate
any probability of rehabilitation. To the contrary,
the appellant had two previous convictions for theft for which he was
sentenced
to six months and three years imprisonment respectively. He
was also convicted of or attempting to escape and on two counts of
fraud. Moreover, he was convicted on a count of attempted rape for
which he received a 5 year sentence of which 3 years were suspended.
Based on this, she submitted that, instead of providing support for
the prospects of rehabilitation as argued the record of the
appellant’s previous convictions manifested quite the contrary.
[9] In responding to the argument that life imprisonment
in this case is out of kilter with sentences imposed in, for
instance,
Abrahams, Sikhipha
and
Nkomo,
Ms Packery
contended that the facts of this case, in particular the serious
psychological and emotional impact which this rape
had on the
complainant as described in the Victim Impact Report, distinguishes
it from those cases and calls for life imprisonment
as mandated by
the legislature. In particular, she submitted that the mere fact that
the complainant did not suffer any physical
injuries could not be
said to be mitigating as the complainant suffered serious emotional
and psychological harm.
[10] In support of this submission, Ms Packery referred
us to the Victim Impact Report which was handed in by consent, which
depicts
a sad and painful picture of the complainant after the rape.
Amongst the most severe of the after-effects of the rape are that:
she suffers from (a) anxiety, fear and sleeping disorder; (b)
misplaced feelings of guilt and shame; (c) mood swings. She has also
lost her trust in mankind and harbours a great sense of anger and
hostility towards her father, whom she feels has abused her trust.
In
addition she has developed hatred for her brother as he reminds her
of her father and sadly, she no longer trusts her own mother.
[11] She argued further that, as a result of the rape,
the complainant left school prematurely when she discovered that she
was
pregnant. She furthermore suffered two miscarriages. The rape
left the complainant with a distorted understanding of love and she
confuses sexual intercourse with love.
[12] It is clear to me that the rape has had a very
serious and deleterious effect on the complainant. One gets the
picture of her
whole life in tatters. Although the social worker did
not indicate whether the complainant could through counselling be
cured of
these after-effects, it cannot be gainsaid that the impact
is both devastating and far-reaching. Undoubtedly, this makes this
case
heinous and different from those referred to. To my mind, any
comparison of this case with the three referred to is misguided if
the intention is to use them as precedent binding any court not to
impose life imprisonment as a sentence, particularly where the
offence falls within the purview of s 51(1) of the Act.
[13] It can hardly be disputed that rape of young girls
by their fathers is not only scandalous; it has become prevalent as
well.
To all right-thinking people it is morally repugnant. It has
emerged insidiously in recent times as a malignant cancer seriously
threatening the well-being and proper growth and development of young
girls. It is an understatement to say that it qualifies to
be
described as a most serious threat to our social and moral fabric.
[14] Dealing with the rape of a minor by her father,
Cameron JA described it graphically as follows in
S
v Abrahams
para 17:
‘
Of all the grievous violations of the
family bond the case manifests, this is the most complex, since a
parent, including a father,
is indeed in a position of authority and
command over a daughter. But it is a position to be exercised with
reverence in the daughter’s
best interest, and for her
flowering as a human being. For a father to abuse the position to
obtain forced sexual access to his
daughter’s body, constitutes
deflowering in the most grievous and brutal sense.’
Later in the judgment para 23 Cameron JA proceeded to
say:
‘
Second, rape within the family has its own
peculiarly reprehensible features, none of which subordinate it in
the scale of abhorrence
of other crimes.’
Importantly in para 23(
c
)
dealing with the effect of incestuous rape as is the case here, he
states that:
‘
Third, and lastly the fact that family rape
generally also involves incest (I exclude foster and step-parents,
and rapists further
removed in family lineage from victims)
grievously complicates its damaging effects. At common law incest is
still a crime. Deep
social and religious inhibitions surround it and
stigma attends it. What is grievous about incestuous rape is that it
exploits
and perverts the very bonds of love and trust that the
family relation is meant to nurture.’
The facts of this case amply demonstrate this.
[15] It is true that
Abrahams
,
Sikhipha
and
Nkomo
all involved rapes that fall under s 51(1) of the Act.
Yet the court after having considered all the relevant facts came to
the
conclusion that, in those cases, a sentence of life imprisonment
was disturbingly disproportionate to the offence to a point where
it
could be described as unjust. The court then imposed various terms of
imprisonment in respect of each of the cases in the place
of the
ordained life imprisonment.
[16] What then is the value of such a comparative
analysis of previous cases. Can this trend, if it can be called that,
qualify
to be elevated to the status of a precedent which is intended
to bind all the courts which have to consider sentence whilst
sentencing
an accused who has been convicted of rape read with s
51(1) of the Act? Is a court expected, without proper consideration
of the
peculiar facts of this case, to slavishly follow the so-called
trend not to impose life imprisonment for rape? By doing so, a court
would be acting improperly and abdicating its duty and discretion to
consider sentence untrammelled by sentences imposed by another
court
albeit in a similar case. It follows in my view that such a sentence
would be appealable on the basis that the sentencing
court either
failed to exercise its sentencing discretion properly or at all.
Commenting on the utility of such a comparative approach
Marais JA in
S v Malgas
2001 (1) SACR 469
(SCA) para 21 said the following:
‘
It would be foolish of course, to refuse to
acknowledge that there is an abiding reality which cannot be wished
away, namely, an
understandable tendency for a court to use, even if
only as a starting point, past sentencing patterns as a provisional
standard
for comparison when deciding whether a prescribed sentence
should be regarded as unjust. To attempt to deny a court the right to
have any regard whatsoever to past sentencing patterns when deciding
whether a prescribed sentence is in the circumstances of a
particular
case manifestly unjust is tantamount to expecting someone who has not
been allowed to see the colour blue to appreciate
and gauge the
extent to which the colour dark blue differs from it.
As
long as it is appreciated that the mere existence of some discrepancy
between them cannot be the sole criteria and something
more than that
is needed to justify departure, no great harm will be done.’
(
own emphasis.)
[17] Van den Heever JA put it more succinctly in
S
v D
1995 (1) SACR 259
(A) at 260e when she
stated that: ‘I agree that decided cases on sentence provide
guidelines not straightjackets.’
I also agree with this correct
approach.
[18] Our everyday experience in the criminal courts
proves that, save where multiple accused are charged as co-accused in
one case
for having committed the same offence, no two cases present
exactly the same factual matrix. To compound the problem further, it
is hard to imagine two accused persons who have exactly the same
personal circumstances. Further still in a case involving rape
for
instance, it is unthinkable that two different complainants in two
different cases would manifest the same physical, emotional
or
behavioural problems after the rape. Evidently, these are important
matters which must be considered in the determination of
an
appropriate sentence as they have a direct bearing on what an
appropriate sentence should be. It follows in my view, that the
sentence in such matters will be different because of the variation
in personal circumstances of the accused, the nature and gravity
of
the offence and all other factors germane to sentencing.
[19] The minority judgment in the court below appears to
reflect the misunderstanding that the refusal by this court to
endorse
the life imprisonment imposed in the three cases of
Abrahams,
Sephika
and
Nkomo
constitutes a benchmark or a precedent
binding other courts. That is a misconception. Such an approach or
trend can never be elevated
to a benchmark or binding precedent.
Those cases remain guidelines. Suffice to state that it remains an
established principle of
our criminal law that sentencing discretion
lies pre-eminently in the sentencing court and must be exercised
judiciously and in
line with established and valid principles
governing sentencing as enunciated in a long line of cases which
includes
S v Zinn
1969 (2) SA 537
(A) which espoused a proper
consideration and balancing of the well-known triad;
S v Rabie
1975 (4) SA 855
(A) at 862; and
S v de Jager and another
1965
(2) SA 616
(A) at 628-9. This salutary approach has recently been
endorsed by Marais JA in
S v Malgas
para 12.
[20] What then is the correct approach by an appellate
court on appeal against a sentence imposed in terms of the Act? Can
the appellate
court interfere with such a sentence imposed by the
trial court after exercising its discretion properly simply because
it is not
the sentence which it would have imposed or that it finds
it shocking? The approach to an appeal on sentence imposed in terms
of
the Act, should in my view, be different to an approach to other
sentences imposed under the ordinary sentencing regime. This in
my
view is so because the minimum sentences to be imposed are ordained
by the Act. They cannot be departed from lightly or for
flimsy
reasons. It follows therefore that a proper enquiry on appeal is
whether the facts which were considered by the sentencing
court are
substantial and compelling or not.
[21] The most difficult question to answer is always:
what are substantial and compelling circumstances? The term is so
elastic
that it can accommodate even the ordinary mitigating
circumstances. All I am prepared to say is that it involves a value
judgment
on the part the sentencing court. I have, however, found the
following definition in
S v Malgas
(above) para 22 to be both
illuminating and helpful:
‘
The greater the sense of unease a court
feels about the imposition of a prescribed sentence, the greater its
anxiety will be that
it may be perpetrating an injustice. Once a
court reaches the point where unease has hastened into a conviction
that an injustice
will be done, that can only be because it is
satisfied that the circumstances of the particular case render the
prescribed sentence
unjust, or as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs
of society. If
it is the result of a consideration of circumstances
the court is entitled to characterise them as substantial and
compelling and
such as to justify the imposition of a lesser
sentence.’
[22] Reverting to this appeal the question to be
answered is whether the majority of the court below erred in failing
to find that
the circumstances of this case were so substantial and
compelling as to justify a departure from imprisonment for life.
[23] This makes a consideration of the appellant’s
personal circumstances necessary. He was 38 years old at the time of
the
commission of the offence; he was 40 years old during sentencing.
He is married to the complainant’s mother and they have
3
children including the complainant. He was gainfully employed before
his arrest and he was responsible for the maintenance of
his
children. He had a drug habit which was caused by the death of his
father. He also pleaded guilty and expressed remorse for
his actions.
The appellant had previous convictions for theft, fraud, attempted
rape and other offences.
[24] On the other hand, the complainant was twelve years
old when she was raped; the appellant is her biological father. This
rape
therefore is incestuous, which is found to be morally repugnant
by many if not all right thinking people. In addition before the
rape
the appellant had performed improper sexual practices on her twice.
The full extent of the emotional and psychological suffering,
as they
appear from The Victim Impact Report had already been discussed
earlier. Undoubtedly, these are seriously aggravating circumstances
which deserve to be given appropriate weight in the consideration of
an appropriate sentence. Like the majority of the court below
I am
not persuaded that the appellant’s circumstances meet the
threshold of substantial and compelling circumstances set
out in s
51(3)(
a
) of the Act.
[25] In the result, the appeal against the sentence
imposed is dismissed.
_________________
L.O. BOSIELO
JUDGE OF APPEAL
Appearances:
For Appellant : L Crouse (with her DP Geldenhuys)
Instructed by:
Legal Aid, Grahamstown
Legal Aid, Bloemfontein
For Respondent : W Packery
Instructed by:
Director Public Prosecutions, Bloemfontein
Director Public Prosecutions, Bloemfontein