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[2010] ZASCA 83
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S v Opperman and Another (643/09) [2010] ZASCA 83; 2010 (2) SACR 248 (SCA) ; [2010] 4 All SA 267 (SCA) (31 May 2010)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case No:
643/09
I
n
the matter between:
RENIER OPPERMAN
First
Appellant
DIRK JOHANNES OPPERMAN Second Appellant
and
THE STATE
Respondent
Neutral citation:
Opperman
v The State (643/09)
[2010] ZASCA 83
(31 May
2010)
Coram:
Lewis,
Heher, Leach JJA, Griesel and Majiedt AJJA
Heard:
5 May 2010
Delivered:
31
May 2010
Summary:
Criminal
procedure – sentence – rape and indecent assault –
young children – influence on sentence of low
intelligence and
lack of insight of accused.
ORDER
On appeal from:
North
Gauteng High Court (Circuit Local Division for the Western Circuit
District, Motimele AJ sitting as court of first instance).
The appeal is dismissed.
JUDGMENT
MAJIEDT
AJA dissenting (Griesel AJA
concurring with Majiedt
AJA):
[1]
The
sexual abuse of children is a widespread social ill in our country.
This fact was recognised by this court some fifteen years
ago in
S
v D.
1
Statistics for 2007/8 show that a staggering 44.4 percent of all
rapes and 52 percent of all indecent assaults were perpetrated
against children.
2
It was estimated in 2005 that between 400 000 and 500 000 children
are sexually abused each year.
3
Anecdotal data suggests that a vicious cycle is discernible in such
cases where the sexually abused victim of today is likely to
become
tomorrow's sexual abuser.
Sexual abuse within
a family context appears to be on the increase, judging by cases
reported in the law reports and from other
sources.
4
All three of these aforementioned phenomena feature prominently in
the present matter.
[2]
The
appellants, twin brothers, were convicted in a regional court of two
counts of indecent assault and rape. The two victims are
the
appellants' nephew and niece, ie their sister's son and daughter. The
children were six and three years old respectively at
the time of the
commencement of the commission of the offences and the appellants
were in their late twenties.
5
The indecent assault charges were in respect of both the boy and the
girl and the rape charge relates to the girl.
[3]
The
regional magistrate imposed sentence after conviction, but the
sentences were set aside by the high court because the regional
magistrate did not have the requisite sentencing jurisdiction in the
matter.
6
The court below (Motimele AJ sitting as court of first instance in
the North Gauteng High Court, Circuit Local Division for the
Western
Circuit Division) thereafter imposed sentence as follows on the
appellants:
(a)
the
first appellant was sentenced to six years' imprisonment for each
indecent assault count and to 25 years' imprisonment for rape;
and
(b)
the
second appellant was sentenced to six years' imprisonment on each
count of indecent assault and 20 years' imprisonment on the
rape
count.
In both instances the sentences were
ordered to run concurrently so that the first appellant was
effectively sentenced to
25
years' imprisonment and the second appellant effectively to 20 years'
imprisonment. The present appeal, with leave of the court
below, is
directed against sentence only and, in essence, it relates to the
sentence on the rape conviction.
[4] The factual matrix underlying the
conviction, briefly, was that the appellants, who are of low
intellect, lived on a plot together
with their sister (the
complainants' mother), the two complainants and the appellants'
parents. I interpose briefly to observe
that the extent of the
appellants' low intellect and its impact on the moral
reprehensibility of their crimes is one of the central
issues in this
appeal. Over the period of 2000 to 2001 the appellants perpetrated
various acts of indecent assault on both complainants
by:
(a) showing pornographic material to
the boy
;
(b) rubbing their exposed private parts against his;
(c) stimulating
the
boy's penis with their hands; and
(d) licking the girl's private parts.
Both appellants were also found to
have penetrated the girl vaginally with their penises
during that same period. A highly unsatisfactory feature is that
neither the evidence nor the judgment contains any detail as to
when
exactly and on how many different occasions the indecent assaults and
rape had been committed.
[5]
During
cross-examination of the complainants it was suggested to them that
they had in fact been engaged in improper sexual conduct
with each
other. Both of them rejected this suggestion.
7
The girl also rejected the startling suggestion made to her during
cross-examination that she had in fact seduced and enticed the
first
appellant into committing these improper acts with her. The girl did,
however, admit in the course of testifying in examination-in-chief
and under cross-examination that she had also been sexually abused
prior to and subsequent to the present incidents by two other
persons, namely one Louwtjie and 'oom Nico'.
[6] The regional magistrate rejected
the versions advanced by the appellants in their testimony in the
defence case as false. Those
versions consisted largely of
exculpatory explanations as well as allegations against the two
complainants along the lines put
in cross-examination on their
behalf, alluded to above.
[7]
A
social worker, Ms Bruwer, compiled pre-sentence reports in respect of
both appellants. These reports were handed in by agreement
at the
sentencing stage and Ms Bruwer confirmed the contents of the reports
in oral evidence. She was not cross-examined at all
by the defence.
The contents of the reports were not challenged at all at the trial
or during the proceedings before us. The veracity
of the allegations
in the reports, including material hearsay allegations, are therefore
not in issue for present purposes. The
probative value of
unchallenged hearsay allegations during sentencing proceedings bears
consideration, which I will discuss in
due course.
[8]
The
following relevant facts pertaining to the appellants' personal
circumstances can be gleaned from the reports:
(a)
The
appellants were 29 years old at the time of sentence, which was
imposed on 17 September 2002 (it will be recalled that the offences
were found to have been committed over a period from 2000 to 2001).
(b)
The
appellants were first offenders.
8
(c)
The
appellants attended special schools; the first appellant completed
grade nine and the second appellant grade ten. They had unstable
employment records and were employed at various places for relatively
short periods of time. These frequent employment changes
were
apparently caused by their parents' frequent relocation.
Significantly the second appellant at one stage conducted his own
electrical business and the first appellant was employed there.
(d)
The
appellants conveyed to Ms Bruwer that they were themselves indecently
assaulted by family members during their childhood and
teenage years.
When their parents became aware of this, counselling was arranged for
the appellants. At that time it became known
that the parents
themselves had in turn been child victims of sexual abuse by older
persons.
(e)
Ms
Bruwer expressed the view that, notwithstanding their limited
intellectual capacity, both appellants had sufficient insight to
distinguish between acceptable and unacceptable conduct.
[
9] In
her reports Ms Bruwer recorded that, while she did not have personal
contact with the victims due to their young age, a psychiatric
report
(which does not form part of the record) indicates that the offences
have impacted as follows on the victims:
(a)
In
the case of the girl, she experiences emotions of rejection and
inferiority. She exhibits a strong need for affection and acceptance,
which may in itself leave her vulnerable to further molestation. Her
father reported that she behaves improperly by sitting on
the laps of
strange men and by kissing them. She masturbates frequently and has a
fear of being alone and of sleeping alone.
(b)
The
boy understands that he has been abused, but regards himself as
having been naughty due to what has occurred. He lacks confidence
in
adults, by virtue of him having been abused by two persons who are
well known to him. He is guilt ridden for failing to protect
his
younger sister and consequently has very low self-esteem. He was
indecently assaulted in an ostensibly safe environment by
people whom
he was supposed to trust – this may lead to feelings of
insecurity and lack of trust. He performs poorly at school.
[10]
The
failure to hand in the psychiatric report and to lead the evidence of
the author thereof concerning the impact of the offences
on the
complainants during the sentencing proceedings is disconcerting and
ought to be strongly deprecated. It constitutes important
evidence to
assist the sentencing court in arriving at an appropriate sentence
providing, as it does, some insight into the short
term effects of
the appellants' crimes.
9
[11] This leads me to a consideration
of the probative value of the hearsay allegations in that report
which had been subsumed into
Ms Bruwer's reports. As stated, these
reports were received as evidence by the regional magistrate by
consent of the State and
the defence. Moreover, the contents of the
reports were admitted as correct. In
S
v Olivier
10
this court undertook a general discussion of the probative value of
facts admitted by agreement during the sentencing stage. Briefly
stated, material factual averments ought generally to be proved on
oath during the sentencing stage.
11
Where the factual basis of a pre-sentence report or an opinion or
recommendation contained therein is disputed in a material respect,
the author of the report is required to testify on oath.
12
In the absence of a pertinent challenge thereto and sans any
controverting evidence, facts unequivocally admitted by a party
become
proved facts.
13
This holds true too, in my view, for hearsay allegations embodied in
such admitted facts. As a consequence, the impact of the offences
on
the complainants formed part of the proved facts during the
sentencing stage in this matter. It is well to remind oneself of
the
wide powers of a sentencing court in receiving such evidence on
sentence as it thinks fit in terms of
s 274(1)
of the
Criminal
Procedure Act, 51 of 1977
.
14
[1
2] The
court below correctly approached the matter as one in which the
minimum sentence stipulated in
s 51
read with Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (the Act) did not find
application. This is so by reason of
the fact that the appellants had
not been alerted to those provisions in the charge sheet and at the
commencement of their trial.
15
In its assessment of a suitable sentence, the court below had regard
to the various aggravating factors, namely the fact that rape
had
been perpetrated on a young and innocent child, that the offences had
been perpetrated over a protracted period, the prevalence
of the
offence and the fact that the offences amounted to a betrayal of
trust, having been committed in a family environment where
the
complainants were supposed to look up to the appellants for
protection. The learned judge regarded the first appellant as the
ringleader and imposed a heavier sentence on him than on his brother,
the second appellant. He expressed the view that 'It might
well be
that the accused are not rocket scientists. They may not be your A+
students at school and indeed may not be very bright,
but they are
capable of functioning normally and appreciating the consequences and
the seriousness of their actions'.
[1
3] The
limited powers of an appellate court in respect of sentence are well
known and need not be restated. Counsel for the appellants
relied on
two misdirections by the court below. She submitted that the court
below materially misdirected itself, firstly, by having
insufficient
regard to the appellants' personal circumstances and, secondly, by
making the findings referred to in the preceding
paragraph. These
contentions are devoid of merit. The court below referred to the
mitigating personal circumstances of the appellants
and took them
into account in its judgment, particularly their low level of
intellect and the fact that they had themselves been
sexually abused
by adults during their formative years. In my view the court below
did not commit any material misdirections on
sentence.
[14
] I
turn now to a consideration of whether the sentence imposed can be
said to be excessive to the extent of inducing a sense of
shock. As
stated, the appeal is in effect directed against the sentence imposed
on the appellants for rape. An important point
of departure is that
as far as the rape conviction is concerned, the severity of the
sentence must be judged against the background
that the benchmark for
a conviction of rape on a girl under the age of 16 years is life
imprisonment in terms of the relevant legislation.
16
It matters not, in my view, that life imprisonment was not an
obligatory sentence in the present matter by virtue of the fact that
the appellants had not been informed of the provisions of the Act,
either in the charge sheet or at the trial. This was but a technical
defect. The stark reality is that, but for this technical
shortcoming, the appellants would have faced a prescribed sentence of
life imprisonment on the rape conviction. Any assessment of an
appropriate sentence therefore has to be made with full recognition
of the legislative benchmark. That is not to say that, if the
prosecution had done its work properly in this case, life
imprisonment
would necessarily have been an appropriate sentence for
rape. For the reasons that follow I am of the view that it would not
have
been and that the sentence imposed by the court below is indeed
appropriate.
[15
] The
moral reprehensibility of rape and society's abhorrence of this
rampant scourge are unquestioned.
17
The most cursory scrutiny of our law reports bears testimony to the
fact that our courts have, rightly so, visited this offence
with
severe penalties. This reprehensibility and abhorrence is so much
more pronounced
in
the instances of the rape of very young children as is the case here.
The court below correctly took into account the fact that
the
complainant was an innocent, defenceless and vulnerable victim. She
was raped over a prolonged period by her two uncles whom
she had
trusted. The short term psychological effects of this heinous crime
are readily evident from the psychological report incorporated
into
Ms Bruwer's reports. One can only speculate on the long term effects.
It is striking that the rape victim's father had conveyed
to Ms
Bruwer that he harbours fear that she and her brother will not
recover completely from their ordeal and that in his view
his
daughter in particular had been severely prejudiced.
[16
] The
learned judge below was justified, in my view, in regarding the fact
that the girl had been raped by her own uncles as an
aggravating
factor. The notion that rape within a family is less reprehensible
than rape outside of it has been firmly dispelled
by this Court in
S
v Abrahams.
18
The factors
adumbrated by Cameron JA in that case are particularly apposite in
the present matter.
[17
] The
appellants' low intellect is an established fact. Less clear is the
extent thereof. Their counsel laid much emphasis on it
during
argument in this court. I think it is greatly exaggerated. On the
evidence before us these two men were in gainful employment
at a
number of places. The first appellant worked at two furniture
companies, a hospital, a general dealer, three security companies,
a
contractor and, as stated, in the second appellant's electrical
business. He appears to have lost his employment rather frequently,
due to his parents' frequent relocation. He did not appear to have
much difficulty in obtaining new employment in such instances.
The
second appellant held positions at an enterprise known as AN Quick
Stitch, at a hospital, a furniture company, a tractor company,
a
security company, an engineering concern and at three different
cellular phone outlets. He also set up his own steel business,
worked
as a plumber and, as stated, established his own electrical business
where he employed the first appellant. On the available
evidence this
hardly fits the profile of two young men who were so intellectually
challenged that their raping of their young niece
over an extended
period should invite a measure of leniency. The expert witness, Ms
Bruwer's unchallenged evidence contained in
her report, was that,
notwithstanding the appellants' limited intellectual capacity, they
were capable of distinguishing between
acceptable and unacceptable
conduct. The first appellant’s evidence lends significant
credence to this finding. In examination-in-chief
he testified as
follows:
'
Dit
was nou begin in die kar, in die kar gewees, en toe sy (the girl
complainant) vir my pa-hulle sien, toe klim sy van my skoot
af. Toe
kom (the boy complainant), toe wil (hy) ook weer begin. Toe sê
ek vir hom … nee, toe sê (hy) vir my
‘allright’
dan sal ons daar by ouma se huis. Toe het ek maar saam gespeel, ek
weet dit is verkeerd, ek weet dit was
verkeerd.'
The first appellant also
acknowledged
, when
questioned by the regional magistrate, that he knew that it was wrong
to fondle the children’s private parts and to
permit them to
fondle his. Ms Bruwer's finding finds further support in the
appellants’ employment history. A reading of
their oral
testimony confirms that they are not at the intellectual level of
normal men in their late twenties. But they hardly
strike me as
severely mentally retarded men. The learned judge was fully justified
in making the findings that he did on this aspect.
[1
8] A
factor which weighs with me more is the evidence that the appellants
themselves had been subjected to sexual abuse during their
formative
years. Regrettably no evidence was adduced on the effect of this
abuse on their sexual development in later life. But,
as indicated
above, anecdotal information suggests that the young abused become
abusers themselves in later life. And there is
some suggestion to
this effect in Ms Bruwer's report in respect of the impact of the
crimes on the complainants. The court below
was fully cognisant of
this particular factor as is evident from its judgment.
[1
9] The
sentences imposed are indubitably severe. But I do not regard them as
shockingly inappropriate – that appellation could
conceivably
have been justified if life imprisonment had been imposed for the
rape. Imprisonment of 25 and 20 years respectively
encapsulates the
undeniable gravity of the rape of a very young child over a
protracted period. Added to this is the appellants'
complete lack of
remorse. In fact, the first appellant sought to shift the blame for
his misdeeds to the young victim, accusing
her of seducing and
enticing him into indecently assaulting and raping her. This is a
further aggravating factor.
[
20] Any
sentence with a shorter term of imprisonment would to my mind
overemphasize the appellants' personal circumstances and
underemphasize the seriousness of the rape. There are really only
three mitigating factors of note, namely the appellants’
limited intellectual capacity, the fact that they are first offenders
and their own sexual abuse during their childhood and teenage
years.
The sentence imposed by the court below gives recognition to the
mitigating factors, without losing sight of the gravity
of the
offence and its impact on the appellants' nephew and niece, in
particular the latter. To elevate the appellants' personal
circumstances above that of society in general and these two child
victims in particular would not serve the well-established aims
of
sentencing, including deterrence and retribution.
19
In
S v Vilakazi,
Nugent JA formulated it as follows:
'
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of "flimsy
grounds" that
Malgas
said should be avoided.'
20
[21] In
Vilakazi
21
this court also pointed to the absence of gradation between a
sentence of ten years' imprisonment ordinarily prescribed for rape
and life imprisonment prescribed if any of eight aggravating features
mentioned in Schedule 2 Part I, read with s 51(1), of the
Act is
present. This court emphasized that the proportionality of the
prescribed sentence must be determined on the circumstances
of each
particular case.
[22] I have given cautious and
anxious consideration to the facts and circumstances of this case,
mindful of the caveat issued by
Nugent JA in
Vilakazi
that '[c]ustodial
sentences are not merely numbers'.
22
What weighs particularly heavily with me is the rape victim's age
(between three and five years of age over the period that the
rapes
were committed). In this regard, I respectfully adopt the approach by
Nugent JA in
Vilakazi
in examining where
this particular 'complainant's age fits in the range between infancy
and 16 (years). . .'
23
On that approach a substantially longer term of imprisonment than the
one imposed in
Vilakazi
(15 years) seems to
me to be justified in the present instance. The protection of young
children plays an important role when it
comes to sentencing in
matters of this nature.
24
[23
] The
court below correctly ameliorated the cumulative effect of the
sentence by ordering concurrence of the shorter terms of imprisonment
for the indecent assaults with the longer term of imprisonment for
the rape. The learned judge was justified in differentiating
between
the two appellants on sentence – on the first appellant's own
evidence he took the lead in committing these offences.
I can find no
ground warranting interference with the sentence on appeal. I would
dismiss the appeal.
___________________
S A MAJIEDT
ACTING
JUDGE
OF APPEAL
Heher JA (Lewis and Leach JJA concurring):
[24] I have read the
judgment of my colleague Majiedt AJA. For the reasons which follow I
have arrived at a different conclusion.
[25] This appeal raises
difficult questions which are bound to provoke emotional responses
unless the interplay of all the facts
is carefully analysed and
assessed.
[26] There are certain
very unsatisfactory features which complicate the case. In one sense
they are the natural consequence of
reliance on the uncorroborated
evidence of young children given a year or more after the event. In
another they result from the
lax attitude of the prosecution and the
trial court.
[27] The appellants were
charged with three offences:
1. The rape of the 4 year
old girl, A.
2. Indecent assault on A
by touching her private parts and/ or pressing their fingers into her
private parts.
3. Indecent assault on
the six year old boy, B, by touching his penis (‘geslagsdeel’)
and/or sucking on his penis (‘geslagsdeel’).
[28] Each
offence was alleged to have been committed ‘op of omtrent
gedurende 2000-2001’. The high court confirmed the
convictions
without querying their basis and sentenced the appellants as if they
had been charged with multiple rapes and acts
of indecent assault.
While I have some doubt as to the sufficiency of the charge sheet to
cover repeated offences,
25
the question was not debated before us and the trial was conducted as
an investigation into the conduct of the appellants over
the whole
period without objection. For the reasons set out below I am of the
view that the matter has no material bearing on the
sentencing of the
appellants. It is thus unnecessary to pursue the enquiry.
[29] The
second reservation is that the evidence went far beyond the
particulars furnished in the charge sheet. In addition to the
acts
identified in para 4 of the judgment of Majiedt AJA, B testified that
the appellants (or, at least, the first appellant) deliberately
masturbated in front of him and that the appellants compelled A to
suck his penis. However, no amendment of the charge sheet was
applied
for. The act alleged in count 3,
viz
that the appellants sucked on B’s penis, was not established,
although the touching of his private part was. I ignore the
additional evidence in assessing the appropriate sentence.
[30]
Sentencing is about achieving the right balance (or, in more
high-flown terms, proportionality).
26
The elements at play are the crime, the offender and the interests of
society or, with different nuance, prevention, retribution,
reformation and deterrence. Invariably there are overlaps that render
the process unscientific; even a proper exercise of the judicial
function allows reasonable people to arrive at different conclusions.
This seems to be a case in point. There is ample room for
controversy
in the combination of psychological problems, sexual assaults and
young victims. The cases show a need for great sensitivity
on the
part of courts towards victims and abusers in such cases. But where
the accused’s conduct was explicable by psychological
defects
the consequence has almost always been mitigatory.
27
[31] The crime was
loathsome and despicable: the serious abuse of two very young
children in a domestic situation by adult members
of the family who
should each have protected the victims against the other’s
predations. The psychological consequences to
the victims were bound
to be severe even without physical harm. Disgust and outrage are
justifiable reactions. A balanced outlook
is more difficult to
achieve.
[32] The appellants
maintained their innocence in whole or in part throughout the trial.
They cast blame on the children without
any justification. That was
an aggravation.
[33] The appellants were
adult in body, but it is clear to me that both were anything but
mature in mind. In their late twenties,
they still lived in the
parental home, apparently subsisting on scraps of diverse employment
supplemented by disability pensions.
How far short they fell in
intellect is made clear by the nature of the defence. They testified
and, apparently, expected the court
to believe, that seriously
improper behaviour of a deviant nature was initiated by a four-year
old girl and her six-year old brother,
that neither of the
appellants was able to
resist her temptations and that the two children were actually seen
in the act of having or attempting sexual
intercourse with each
other.
[34] This
last seems to me the most telling factor in the assessment of moral
blameworthiness. Indeed, even if, properly understood,
the charges
embraced multiple acts of rape and abuse, my perception of the
appropriate punishment would not change. Seriously stunted
moral
sensibility is not quickened by the repetition of conduct which other
right-thinking members of society know to be reprehensible
or, even,
evil. The appellants started with a material deficit. When they gave
evidence the gap had not narrowed. Knowledge of
the wrongfulness of
the appellant’s conduct was proved. That was necessary for mens
rea. But I am far from satisfied that
it was matched by insight into
the seriousness of their offence
28
or by an ability to resist the pull of their own lusts, both
qualities which one would expect to find in a mature adult possessing
even a limited perception of correct social norms.
[35] According to the
social welfare reports produced in evidence both appellants were
indecently assaulted as children by various
adult persons. So were
all their siblings. So also both their parents. The mother of the
complainants (whom the probation officer
consulted) was raped by her
own brother. Small wonder that the appellants showed neither remorse
nor insight into their offences.
[36] As the magistrate
recognised, the environment in which the appellants and the children
were obliged to cohabit in close proximity
was far from desirable and
proved,
given
the appellants’ susceptibilities, to be a recipe for disaster.
29
To this must be added the likelihood that, having been abused in
youth, they were, in the circumstances, less likely to regard
socially deviant conduct as abnormal.
[37]
Society
demands retribution and, rightly, protection from anti-social
elements. But I cannot agree with the magistrate that the
two
appellants are to be regarded as dangers to society. Their’s
was essentially a crime arising in a specific domestic context.
The
probability of repetition must be remote.
[38] Deterrence
as an object of sentence in a case of this nature is, in my view,
fanciful. Seeking to dissuade potential sexual
offenders by
increasing the punishment meted out to the appellants seems not only
morally opprobrious
30
but also far-fetched in its prospect.
[39] As to the
rehabilitation of the appellants, if such be possible, they have
already served almost eight years behind bars. Prolonging
their
detention to twenty years or more would hardly confer an additional
benefit to themselves or society.
[40] I cannot ignore that
the legislature has set its face against sexual offences in which
children are victims with unmistakable
disapproval and draconian
sanctions. The appropriate sentences must reflect that intention.
[41] Nevertheless, in
sentencing, individualization and not collective responsibility for
the prevalence of serious crime remains
the court’s primary
focus. While there is no room for misplaced sympathy in dealing with
offenders, one should never divorce
determination of the appropriate
punishment from the quality of the human material nor the reasons for
its frailty. Even here
mercy can find a place in almost all cases.
[42] Striving as I must
to decide how the relevant factors should be translated into a
sentence which meets legitimate societal
demands and is not unfair to
the appellants, I come to the conclusion that I would have imposed an
effective sentence not exceeding
15 years on both appellants. I
cannot find sufficient persuasive evidence in the record to justify a
distinction between them on
the grounds of degree of participation or
moral turpitude.
[43]
Section 282
of the
Criminal Procedure Act 51 of 1977
provides that:
‘
Whenever
any sentence of imprisonment imposed on any person on conviction for
an offence is set aside on appeal or review and any
sentence of
imprisonment or other sentence of imprisonment is thereafter imposed
on such person in respect of such offence in place
of the sentence of
imprisonment imposed on conviction or any other offence which is
substituted for that offence on appeal or review,
the sentence which
was later imposed may, if the court imposing it is satisfied that the
person concerned has served any part of
the sentence of imprisonment
imposed on conviction be antedated by the court to a specified date,
which
shall not be earlier than the date on which the sentence of
imprisonment imposed on conviction was imposed
,
and thereupon the sentence which was later imposed shall be deemed to
have been imposed on the date so specified.’ (My emphasis.)
[44] The appellants have
been continuously held in custody as convicted prisoners since 17
September 2002 when the regional court
imposed the initial
‘sentence’. That ‘sentence’ was set aside as
invalid on 25 February 2005 (ie 2 years
and 5 months into the
‘sentence’) and replaced by the sentence imposed by the
high court. The last-mentioned date is
‘the date on which the
sentence of imprisonment imposed on conviction was imposed’
within the terms of
s 282.
If 15 years imprisonment was the
appropriate sentence then the terms of our order should be adapted to
take account of both the
statute and the true length of incarceration
of the appellants.
[45] In the result:
1. The appeal succeeds.
2. The sentences imposed
by the court a quo are set aside and substituted by the following:
‘The first and
second appellants are sentenced to imprisonment for 12 years and
seven months, all counts to be treated as
one for the purpose of
sentence.’
____________________
J A HEHER
JUDGE OF APPEAL
APPEARANCES:
For appellants: L
Augustyn
Instructed
by Bloemfontein Justice Centre, Bloemfontein
For respondent: S
Scheepers
Instructed by Director
of Public Prosecutions, Bloemfontein
1
S v D
1995 (1)
SACR 259
(A) at 261c-d.
2
South African Police Service website:
http:/www.saps.gov.za/statistics/reports/crimestats/2008/docs/introduction
2008; (Accessed on 20 May 2010).
3
Jacobs M, Shung-King M and Smith C, South African
Child Gauge(2005): Children's Institute, University of Cape Town.
4
Leoschut, L and Burton, P, 2006 – 'How rich
the rewards: Results of the 2005 National Youth Victimisation
Survey'. Centre
for Justice and Crime Prevention Cape Town (2006) at
62.
5
The charges were formulated in the charge sheet
to the effect that the rape and indecent assaults had allegedly been
perpetrated
over a period from 2000 to 2001. The regional magistrate
found this to be the case, ie, that the appellants had over a period
ranging from 2000 to 2001 on diverse occasions committed the
offences which they had been charged with.
6
The matter was finalised prior to the amendment
of the
Criminal Law Amendment Act 105 of 1997
, in terms of which
regional courts are now clothed with the requisite sentencing
jurisdiction in cases such as the present one.
7
Both complainants gave their testimony through an
intermediary in terms of
s 170A
of the
Criminal Procedure Act 51 of
1977
.
8
Although Ms Bruwer alluded in her report to a
previous conviction for fraud committed in 1995 by the second
appellant, the appellants
were treated as first offenders in the
court below and this was accepted as correct by both counsel in
their heads of argument
in this court.
9
In recent years, the impact of crime, particularly violent crime, on
victims, has assumed an important role in sentencing considerations.
This is manifested, inter alia, by the development of a Victims'
Charter by the Department of Justice and Constitutional Development.
10
Olivier v The State
(318/09)
[2010] ZASCA 48.
11
Olivier v The State
para
7 and cases cited there.
12
S v R
1993 (1)
SA 476
(A) at 492E.
13
Gordon v Tarnow
1947
(3) SA 525
(A) at 531. P J Schwikkard & S E van der Merwe,
Principles of the Law of Evidence
3
ed
(2009) para 26.5.5.
14
C
f
S v Giannoulis
1975 (4) SA 867(A)
874A-B.
15
Compare:
S v Ndlovu
2003
(1) SACR 331
;
2003 (1) SACR 331
;
[2003] 1 All SA 66
(SCA) para 12;
S
v Mabuza & others
2009 (2) SACR
435
(SCA) para 10.
16
S v Malgas
2001
(1) SACR 469
;
2001 (2) SA 1222
;
[2001] 3 All SA 220
(SCA) para 25;
S
v Sikhipha
2006 (2) SACR 439
(SCA)
para 17.
17
S v Vilakazi
(576/07)
[2008] ZASCA 87
,
2009 (1) SACR 552
(SCA), para 1;
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
;
1997 (3) SA 341
at 5 a-d (SACR); 345 A-C (SA).
18
2002 (1) SACR 116
(SCA) para 23.
19
S v Lister
1993
(2) SACR 228
(A) at 232g-h;
S v
Salzwedel & others
1999 (2) SACR
586
(SCA) at 592c-e;
2000 (1) SA 786
(SCA) at 791A-C.
20
Para 58.
21
P
ara 13.
22
P
ara 21.
23
P
ara 59.
24
S v McMillan
2003
(1) SACR 27
(SCA) at 33h-i.
25
See
S v Mponda
2007 (2) SACR 245
(C).
26
See particularly
S v Dodo
2001 (1) SA 594
(CC) paras 35 to
38.
27
S v S
1977
(3) SA 830
(A);
S v B
1980 (3) SA 846
(A);
S v O
2003 (2) SA 141
(C).
28
Recognised by the trial court as ‘’n ernstige gebrek aan
insig’.
29
In the words of the magistrate ‘die hele dinamiek het homself
as ‘n teelaarde daargestel vir hierdie tipe van praktyk’.
30
Cf the remarks of Botha JA in
S v Collett
1990 (1) SACR 465
(A) at 469i-470i in relation to retribution.