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[2010] ZASCA 162
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Booysen v S (268/10) [2010] ZASCA 162; 2011 (1) SACR 448 (SCA) (1 December 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
268/10
In the matter between:
PATRICK BOOYSEN
..................................................................................
Appellant
and
THE STATE
............................................................................................
Respondent
Neutral citation:
Patrick Booysen v The State (268/10)
[2010] ZASCA 162
(1 December 2010)
Coram:
PONNAN, MHLANTLA and TSHIQI JJA
Heard: 22 November 2010
Delivered: 1 December 2010
Summary:
Appeal against sentence – s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (as amended) – whether
substantial and
compelling circumstances present justifying a
departure from the prescribed minimum sentence.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Eastern Cape High Court (Port Elizabeth)
(Jones, Pickering and Dambuza JJ as a full court):
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
TSHIQI JA (PONNAN AND MHLANTLA JJA concurring):
[1] The appellant, Patrick Booysen, a 43 year old
male, was indicted in the Eastern Cape High Court (per Jansen J) on a
charge of
rape of a ten year old girl. He was convicted and sentenced
to life imprisonment in terms of the minimum sentencing legislation,
s 51(1) of the Criminal Law Amendment Act 105 of 1997 (as amended).
1
He appealed, with leave of that court (Jansen J)
to the full court against sentence only. His appeal was dismissed.
The present
appeal also against sentence only is before us with leave
of this court.
[2] The pertinent question before the full court and presently before
us is whether the trial court should have found substantial
and
compelling circumstances to be present, justifying a departure from
the prescribed minimum sentence of life imprisonment.
[3] The circumstances in which the rape occurred are not disputed and
may be summarised as follows:
The complainant, who referred to the appellant as ‘Oom Pat’
throughout her testimony during the trial, was the daughter
of the
appellant’s neighbour and a family friend. She testified that
her mother had forced her to sleep at the appellant’s
home the
evening before the rape. The following day, this ten year old child
did the laundry, hung it to dry and folded it. Thereafter,
she was
called by the appellant who then raped her in a room in his house.
[4] Her account of her ordeal shows that she was in a lot of pain
when she was being raped. This is not surprising considering
that she
was a virgin and was being violated by a drunken man old enough to be
her father. She testified that she screamed and
that the appellant
covered her mouth to muffle her screams. Her ordeal was interrupted
when two young men came and knocked on the
appellant’s door.
[5] The brutal nature by which the complainant was robbed of her
virginity is proved by the gynaecological evidence that shows
that
the labia majora was tender, that the hymen was torn in three places
and that she had a blood stained discharge from her vagina.
It is
significant that her hymen still showed three fresh tears three to
four days after the rape.
[6] At the commencement of the trial, the appellant pleaded guilty to
the charge and in amplification of his plea his counsel read
out a
statement in terms of s 112(2) of the Criminal Procedure Act 51 of
1997. A plea of not guilty was however entered in terms
of s 113. At
the conclusion of the State case he did not testify but simply closed
his case.
[7] It was submitted on behalf of the appellant that the following
personal circumstances cumulatively constituted substantial
and
compelling circumstances and that they ought to have been recognised
as such by the court below. These were that the accused
was 46 years
old at the date of sentencing, was unemployed and received a social
grant for a disability to his arm. He had passed
standard one. His
wife was gainfully employed as a domestic worker. He had no criminal
convictions since 1987. It was further submitted
that the fact that
he had consumed alcohol and drugs during the course of the morning
before the rape should also be taken into
account. But no details
were furnished of the extent of the consumption or its effect on him.
His counsel further submitted that
his guilty plea should be taken
into account. She was however constrained to concede that it cannot
be objectively viewed as a
sign of remorse because, apart from the
fact that the s 112 statement attempted to portray the complainant as
a seductress, the
guilty plea was probably entered because the
appellant was in effect caught in the act by the boys who interrupted
him.
[8] It may be helpful at this stage to deal with
the approach adopted by our courts in applying the minimum sentencing
legislation.
The purpose of the legislation was described by Marais
JA in
S v Malgas
2
as a temporary measure aimed at dealing with
‘
an
alarming burgeoning in the commission of crimes of the kind
specified, resulting in the government, the police, prosecutors and
the courts constantly being exhorted to use their best efforts to
stem the tide of criminality which threatened and continues to
threaten to engulf society’.
[9] The approach to an enquiry such as the present appears at
476e-477b of the judgment and the legislation has been followed
consistently by the courts in applying the minimum sentence
legislation. The learned judge of appeal stated at 476f – 477f:
‘
It was
of course open to the High Courts even prior to the enactment of the
amending legislation to impose life imprisonment in
the free exercise
of their discretion. The very fact that this amending legislation has
been enacted indicates that Parliament
was not content with that and
that it was no longer to be “business as usual” when
sentencing for the commission of
the specified crimes.
In what respects was it no
longer to be business as usual? First, a court was not to be given a
clean slate on which to inscribe
whatever sentence it thought fit.
Instead, it was required to approach that question conscious of the
fact that the legislature
has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which
should
ordinarily
be
imposed for the commission of the listed crimes in the specified
circumstances. In short, the Legislature aimed at ensuring a
severe,
standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be
seen to be,
truly convincing reasons for a different response. When considering
sentence the emphasis was to be shifted to the
objective gravity of
the type of crime and the public's need for effective sanctions
against it. But that did not mean that all
other considerations were
to be ignored. The residual discretion to decline to pass the
sentence which the commission of such an
offence would ordinarily
attract plainly was given to the courts in recognition of the easily
foreseeable injustices which could
result from obliging them to pass
the specified sentences come what may…Whatever nuances of
meaning may lurk in those words,
their central thrust seems obvious.
The specified sentences were not to be departed from lightly and for
flimsy reasons which could
not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders,
personal doubts as to the efficacy of
the policy implicit in the amending legislation, and like
considerations were equally obviously
not intended to qualify as
substantial and compelling
circumstances. Nor were
marginal differences in the personal circumstances or degrees of
participation of co-offenders which, but
for the provisions, might
have justified differentiating between them. But for the rest I can
see no warrant for deducing that
the legislature intended a court to
exclude from consideration,
ante
omnia
as it were, any
or all of the many factors traditionally and rightly taken into
account by courts when sentencing offenders.’
(See also
S v
Abrahams
3
)
[10] In
S v Matyityi
4
approximately nine years after
Malgas
this court noted that criminality is still on the
rise in our country despite the imposition of minimum sentences and
has again
stressed the relevance of the legislation as follows (para
23):
‘
Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues
to be
alarming. It follows that, to borrow from
Malgas,
it
still is “no longer business as usual”. And yet one
notices all too frequently a willingness on the part of sentencing
courts to deviate from the minimum sentences prescribed by the
legislature for the flimsiest of reasons – reasons, as here,
that do not survive scrutiny. As
Malgas
makes
plain courts have a duty, despite any personal doubts about the
efficacy of the policy or personal aversion to it, to implement
those
sentences. Our courts derive their power from the Constitution and
like other arms of state owe their fealty to it. Our constitutional
order can hardly survive if courts fail to properly patrol the
boundaries of their own power by showing due deference to the
legitimate
domains of power of the other arms of state. Here
parliament has spoken. It has ordained minimum sentences for certain
specified
offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons for departing from them.
Courts
are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such as “relative youthfulness”
or other equally vague and ill-founded hypotheses that appear to fit
the particular sentencing officer’s personal notion
of
fairness. Predictable outcomes, not outcomes based on the whim of an
individual judicial officer, is foundational to the rule
of law which
lies at the heart of our constitutional order.’
[11] It is against this background that the appeal should be
considered. There is no suggestion that the personal circumstances
of
the accused were not taken into account by the trial court. The issue
is whether they are such that they amount to substantial
and
compelling circumstances. The personal circumstances of the appellant
cannot be viewed in isolation. They have to be weighed
against the
aggravating circumstances of the offence.
[12] The aggravating circumstances were the following:
The appellant was viewed as a father figure by the complainant. This
is apparent from her reference to him as ‘Oom Pat’
throughout her testimony. The families are neighbours. The rape took
place at the appellant’s home while the complainant
had been
sent by her mother, apparently against her will, to go there for a
visit. The significance of this evidence is that when
the appellant
raped the complainant, he did not only abuse a position of trust but
also took advantage of the complainant’s
neglect by her family;
as described by his neighbour, Ms Lindoor, in her testimony. Ms
Lindoor testified that everyone at the complainant’s
home
abused alcohol and fought all the time. She also stated that she
frequently gave the complainant food. A day after the rape
incident,
she yet again called the complainant from the street and offered her
food. Ms Lindoor, who must be commended for the
mature manner in
which she handled the incident, also contacted the welfare
authorities in order to offer further assistance to
the minor child.
[13] What happened to the complainant in this
matter can be compared to
S v D
5
,
where Van Den Heever JA stated:
‘
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those who think
they
can get away with it, and all too often do. Even where an offence is
brought to light, our adversarial system often results
in the courts
failing the victims. Had appellant (presumably confident that he
could bribe the impoverished children to silence)
not taken the whole
group with him, and had not, as a result, one of the boys been able
to give good evidence of the events of
that
evening,
appellant would indeed have got away with it. Mar was found to be as
incompetent to testify as E. It would probably have
taken very
little, even had they been rated capable of testifying, for
appellant’s attorney to show them up as unreliable
witnesses.
Appellant’s conduct in my
view was sufficiently reprehensible to fall within the category of
offences calling for a sentence
both reflecting the Court’s
strong disapproval and hopefully acting as a deterrent to others
minded to satisfy their carnal
desires with helpless children. His
victim was doubly vulnerable. Not only was she very young, but she
had neither a safe haven
to return to nor any of the armour caring
parents try to provide for their children. She was perhaps chosen for
that very reason:
sexually attractive she certainly was not.’
[14] As in
S v D
,
the complainant in this matter was victimised simply because she was
vulnerable. It was noted by the trial court, that the complainant
was
small and had not yet developed sexually. Her breasts were very small
and her pubic hair was barely visible. The complainant
was therefore
simply a child. It was fortunate that the two young men arrived at
the time, because had this not occurred, the appellant
would probably
have managed to get away with the crime.
[15] There was no victim impact report presented into evidence by the
State. However, the trial judge noted in his judgment that
when the
child was brought into the court for him to observe her closely, she
unexpectedly came into contact with the appellant
and became
hysterical, screamed and clung to the court orderly. Such a reaction
by the child, a year after the rape had occurred,
is a clear
indication that the consequential emotional and psychological trauma
was profound. The trial judge was correct in my
view, in his
conclusion that the complainant at the age of ten years was old
enough to realise what was happening to her and to
conclude that the
stigma and the emotional and psychological scars will remain with her
for the rest of her life.
[16] In
S v Jansen
6
,
Davis J encapsulated the horrific
nature of rape perpetrated on children as follows:
‘
Rape
of a child is an appalling and perverse abuse of male power. It
strikes a blow at the very core of our claim to be a civilised
society. It is sadly to be expected that the young complainant in
this case, already burdened by a most unfortunate background
(for
example her mother killed her father at an earlier stage in her life)
and who had, notwithstanding these misfortunes, performed
reasonably
well at school, will now suffer the added psychological trauma which
resulted in a marked change of attitude and of
school performance.
The community is entitled to demand that those who perform such
perverse acts of terror be adequately punished
and that the
punishment reflect the societal censure.
It is utterly terrifying that we
live in a society where children cannot play in the streets in any
safety; where children are unable
to grow up in the kind of climate
which they should be able to demand in any decent society, namely in
freedom and without fear.
In short, our children must be able to
develop their lives in an atmosphere which behoves any society which
aspires to be an open
and democratic one based on freedom, dignity
and equality, the very touchstones of our Constitution.’
[17] Although Ms Lindoor, a neighbour, testified in this matter, none
of the complainant’s parents testified. It is not clear
from
the record whether they attended the trial to offer her emotional
support. There is paucity of information on the emotional
and
psychological consequences of the rape, except for that observed and
noted by the trial judge.
[18]
In
S
v Matyityi
(para 17) stressed the
benefits of a balanced perspective achieved by considerations of both
the circumstances of the perpetrator
and the victim as follows:
‘
By
accommodating the victim during the sentencing process the court will
be better informed before sentencing about the after effects
of the
crime. The court will thus have at its disposal information
pertaining to both the accused and victim and in that way hopefully
a
more balanced approach to sentencing can be achieved. Absent evidence
from the victim the court will only have half of the information
necessary to properly exercise its sentencing discretion. It is thus
important that information pertaining not just to the objective
gravity of the offence but also the impact of the crime on the victim
be placed before the court. That in turn will contribute
to the
achievement of the right sense of balance and in the ultimate
analysis will enhance proportionality rather than harshness.
Furthermore, courts generally do not have the necessary experience to
generalise or draw conclusions about the effects and consequences
of
a rape for a rape victim. As Müller and Van der Merwe put it:
“
It is
extremely difficult for any individual, even a highly trained person
such as a magistrate or a judge, to comprehend fully
the range of
emotions and suffering a particular victim of sexual violence may
have experienced. Each individual brings with himself
or herself a
different background, a different support system and, therefore, a
different manner of coping with the trauma flowing
from the abuse.”
’
[19] The achievement of such a balance is
extremely difficult when the complainants are young victims, as
Nugent JA remarked in In
S
v Vilakazi
7
:
‘
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many
prosecutions fail
for that reason alone. In those circumstances each detail can be
vitally important. From those who are called
upon to sentence
convicted offenders such cases call for considerable reflection.
Custodial sentences are not merely numbers. And
familiarity with the
sentence of life imprisonment must never blunt one to the fact that
its consequences are profound.’
[20] The appellant did not use a condom. This is yet another
aggravating factor, specifically at a time when the whole world is
grappling with the scourge of the HIV and AIDS pandemic. The majority
of rape victims are not only left to deal with the physical,
emotional and psychological trauma of the rape, but are also exposed
to the possible hardships associated with living with HIV,
its side
effects and stigma. The only manner in which victims may be protected
is through anti-retroviral drugs, which also have
side effects. It is
not clear ex facie the medical report (J88) whether or not this
precaution was taken with regard to this young
girl. No evidence was
led in this regard.
[21] Not having found substantial or compelling circumstances to be
present, the trial court found no justification to depart from
the
prescribed minimum sentence. Clearly there are none. To find
otherwise would be to fall into the trap of doing so for ‘flimsy
reasons’ and ‘speculative hypothesis favourable to the
offender’ as was cautioned against in
Malgas
. This the
trial judge did not do, and consequently did not err in that regard.
It follows that the appeal must fail.
[22] In the result the appeal is dismissed.
______________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES
APPELLANT: J M COERTZEN
Instructed by Legal Aid Board
Port Elizabeth;
Legal Aid Board, Bloemfontein.
RESPONDENT: J N THYSSE
Instructed by The Director of Public Prosecutions,
Port Elizabeth;
The Director of Public Prosecutions, Bloemfontein.
1
Section
51(1) of The Criminal Law Amendment Act 105 of 1997 (as amended)
prescribes a minimum sentence of life imprisonment for
the rape of a
person under the age of 16 years (Schedule II Part 1).
2
2001
(1) SACR 469
(SCA) at 476e.
3
2002
(1) SACR 116
(SCA) para 26.
4
(659/09)
[2010] ZASCA 127
(30 September 2010).
5
1995
(1) SACR 259
(A) at 260g-261d.
6
1999
(2) SACR 368
(C) at 378g-379a.
7
2009
(1) SACR 552
(SCA) para 21.