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Cook v S (CA&R 141/2021) [2022] ZAECGHC 13 (22 February 2022)

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Criminal Law
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Brief Summary

Criminal Law — Sentencing — Life imprisonment for rape of minor — Appellant pleaded guilty to raping his step-daughter, aged 13, resulting in pregnancy and abortion — Trial court imposed life sentence, considering personal circumstances, but emphasizing the severity of the crime and the need for societal protection — Appeal against sentence dismissed as no misdirection found, and the sentence deemed appropriate given the gravity of the offence.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an appeal against sentence in the Eastern Cape Division of the High Court, Grahamstown. The appellant, Donovan George Cook, appealed against the sentence imposed by the Gqeberha Regional Court, where he had been convicted of rape.


The respondent was the State. The appeal was directed only at the correctness of the sentence, not the conviction.


Procedurally, the appellant had pleaded guilty at the commencement of the trial and delivered a written statement in terms of section 112 of the Criminal Procedure Act 51 of 1977. On 2 July 2021, the regional court convicted him and imposed life imprisonment, applying the minimum-sentence regime. The appellant then approached the High Court on appeal, contending that the regional court should have found substantial and compelling circumstances justifying a lesser sentence than the prescribed sentence.


The dispute concerned sentencing for the rape of a child under 16, including whether the trial court properly balanced the appellant’s personal circumstances against the seriousness of repeated sexual offending within a familial relationship, and whether appellate interference was justified.


2. Material Facts


The material facts relied upon by the appeal court were largely drawn from the appellant’s section 112 written statement and the sentencing material placed before the regional court.


It was undisputed, on the appellant’s own plea explanation, that he committed sexual penetration of the complainant by inserting his penis into her vagina. It was also accepted that this occurred on more than one occasion during 2019, after the appellant had attended weekend parties and consumed substantial quantities of alcohol. The appellant admitted that these acts took place without the complainant’s consent and that he knew his conduct was wrongful and unlawful.


It was further accepted that the complainant was the appellant’s step-daughter, that he had raised her as a father figure, and that she lived with him and her biological mother. The offending took place after he returned home and entered the complainant’s room. The court accepted that the complainant became pregnant, and that this led to an abortion, which formed part of the consequences considered in aggravation.


For purposes of sentence, the appellant’s personal circumstances accepted by the regional court included that he was 52 years old, a first offender, had no formal education, and was the father of four children (with the youngest child living with the complainant’s mother). The appellant was not described as a primary caregiver. Health difficulties (back problems and issues with sight and hearing) were mentioned in general terms, without detailed substantiation.


The State’s submissions, accepted as part of the context for sentence, included that the complainant was 13 years old when first raped, that the rapes occurred in her own bedroom, and that the perpetrator was a person she had regarded as a father. The State emphasised the trauma of pregnancy and abortion and contended that the guilty plea should not carry substantial mitigatory weight, suggesting it may have been prompted by the availability of DNA evidence. The appeal court treated this as relevant to the assessment of whether the plea demonstrated genuine remorse.


3. Legal Issues


The central legal question was whether the regional court’s sentence of life imprisonment was vitiated by misdirection or was so disproportionate that it justified appellate interference. This included determining whether the regional court correctly applied the minimum-sentence framework and whether it properly considered whether substantial and compelling circumstances existed to justify a departure from the prescribed sentence.


The dispute primarily concerned the application of law to facts and the exercise of a sentencing discretion within the constraints of the minimum-sentence legislation. It also involved a limited evaluative inquiry into whether factors advanced in mitigation (such as a guilty plea, alleged remorse, health issues, and first-offender status) cumulatively constituted “substantial and compelling circumstances” and whether the sentencing court had materially misdirected itself by overemphasising aggravation at the expense of personal mitigation.


A further, subsidiary issue arose from the State’s reference to intoxication: whether alcohol consumption could operate as mitigation in the absence of evidence that it diminished moral blameworthiness. However, the appeal court recorded that this line of argument was not pursued by the appellant on appeal.


4. Court’s Reasoning


The High Court approached the appeal through established appellate principles governing interference with sentence. It emphasised that sentencing lies primarily within the discretion of the trial court and that an appellate court may not interfere merely because it would have imposed a different sentence. Interference is warranted only where there is a material misdirection, an irregularity resulting in a failure of justice, or where the sentence is so disproportionate that no reasonable court would have imposed it, often articulated as a “striking” or “startling” disparity between the trial court’s sentence and that which the appellate court would consider appropriate.


Applying these principles, the court examined whether the regional magistrate failed to consider relevant mitigating factors or overemphasised the seriousness of the offence and the interests of society. The appellant relied on the minimum-sentence jurisprudence associated with substantial and compelling circumstances, including the proportionality enquiry directed to the crime, the offender, and the interests of society.


On the record, the appeal court found it “patently clear” that the magistrate did consider the appellant’s personal circumstances, including age, first-offender status, parenthood, and stated health issues. The magistrate also considered the guilty plea and the submission that it avoided secondary trauma for the complainant, as well as the contention that the appellant was remorseful. The appeal court therefore rejected the contention that the magistrate ignored personal circumstances or failed to weigh them.


The High Court then assessed whether the mitigation advanced amounted to truly convincing reasons justifying deviation from the prescribed sentence. It stressed the gravity of the offending as described in the record: the complainant was a child, the acts were repeated, they occurred in her bedroom and home environment, and the offender occupied a paternal position, amounting to a severe breach of trust affecting both the complainant and her mother. The court considered the pregnancy and abortion as significant aggravating consequences contributing to the enduring impact on the complainant.


In evaluating the mitigating factors, the court took a cautious approach to the guilty plea. It noted that a guilty plea is not inevitably proof of remorse and that, on the facts, it was reasonably arguable that the plea could have been influenced by the strength of the State’s evidence (including DNA-related evidence alluded to by the State). The court treated this as limiting the weight that could be placed on the plea as a marker of remorse.


The court similarly found the appellant’s age to be of limited significance in the circumstances described: he was neither so young as to materially shift the sentencing enquiry toward rehabilitation nor so old as to make imprisonment unduly harsh. The health complaints were treated as insufficiently detailed to carry substantial mitigatory weight, and the court stated there was no apparent reason why such issues could not be addressed through ordinary correctional healthcare services. The fact that the appellant was not a primary caregiver reduced the relevance of hardship to dependants. The court also found that first-offender status, in itself, carried limited weight given the seriousness and circumstances of the offence.


Having considered the cumulative effect of these factors, the court concluded that they did not reach the threshold of substantial and compelling circumstances required to depart from the prescribed minimum sentence. In the court’s evaluation, the seriousness of repeated child rape by a father figure, in the complainant’s home and bedroom, and with the resulting pregnancy and abortion, warranted the “strongest censure that the law permits.” The court considered that society would expect a decisive response and that the regional court’s conclusion that life imprisonment was just and proportionate fell within the proper exercise of the sentencing discretion.


Finally, the court held that no basis existed to interfere with the sentence, as there was no misdirection of the requisite nature or degree and no disproportionality justifying appellate substitution.


5. Outcome and Relief


The High Court dismissed the appeal against sentence.


The sentence of life imprisonment imposed by the Gqeberha Regional Court remained in place. The judgment did not record any separate or additional order as to costs in relation to the appeal.


Cases Cited


S v Bogaards 2013 (1) SACR 1 (CC).


S v Hewitt 2017 (1) SACR 309 (SCA).


S v Malgas 2001 (1) SACR 469 (SCA).


Director of Public Prosecutions, Grahamstown v Peli 2018 (2) SACR 1 (SCA).


S v Mahlangu and others 2012 (2) SACR 373 (GSJ).


S v Romer 2011 (2) SACR 153 (SCA).


S v Livanje 2020 (2) SACR 451 (SCA).


S v Fielies [2014] ZASCA 191 (Supreme Court of Appeal case no 851/2013, 28 November 2014) (unreported).


S v Mathekga and another 2020 (2) SACR 559 (SCA).


S v Gebengwana and another (Eastern Cape Division case no CA&R 186/2015, 21 September 2016) (unreported).


S v Fazzie 1964 (4) SA 673 (A).


S v Zinn 1969 (3) All SA 57 (A).


S v Cele 1990 (1) SACR 251 (A).


S v Makie 1991 (2) SACR 139 (A).


S v Eadie 2002 (1) SACR 663 (SCA).


Legislation Cited


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3.


Criminal Law Amendment Act 105 of 1997, section 51(1) and Part I of Schedule 2.


Criminal Procedure Act 51 of 1977, section 112.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the regional court took proper account of the appellant’s personal circumstances, the guilty plea, and the submissions regarding remorse, and then weighed these against compelling aggravating features, including repeated rape of a 13-year-old child by a stepfather in a position of trust, the occurrence of the offences in the child’s bedroom, and the pregnancy and abortion resulting from the offending.


The court held further that the mitigating factors relied upon did not cumulatively constitute substantial and compelling circumstances justifying a deviation from the prescribed sentence of life imprisonment, and that there was no misdirection or disproportionality warranting appellate interference. The appeal against sentence was accordingly dismissed.


LEGAL PRINCIPLES


Appellate interference with sentence is restricted. A court of appeal may not substitute its preferred sentence merely because it would have sentenced differently; interference requires a material misdirection, an irregularity resulting in a failure of justice, or a sentence so disproportionate that it produces a “striking” or “startling” disparity from what is appropriate.


The minimum-sentence regime requires courts to impose the prescribed sentence unless substantial and compelling circumstances exist. In applying this framework, the inquiry includes whether the prescribed sentence is proportionate to the offence, the offender, and the interests of society, and whether the cumulative mitigating factors amount to truly convincing reasons to depart.


A guilty plea does not automatically establish genuine remorse, and its mitigatory weight depends on the circumstances, including whether it may have been influenced by the strength of the evidence.


Mitigatory considerations such as being a first offender, age, and generalised health complaints may carry limited weight where the offence is exceptionally serious and aggravating features are overwhelming, particularly in cases involving repeated rape of a child by a person in a parental role and a breach of trust with severe consequences for the complainant.

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[2022] ZAECGHC 13
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Cook v S (CA&R 141/2021) [2022] ZAECGHC 13 (22 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE
NO. CA&R 141/2021
DONOVAN
GEORGE
COOK
Appellant
and
THE
STATE
Respondent
JUDGMENT
LAING
J:
[1]
This
is an appeal against sentence.
[2]
The
appellant was charged with rape, in contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
, read with,
inter
alia
,
sub-section 51(1) and
Part I
of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (‘CLAA’), as amended. The
offence involved the rape of
a young girl, under the age of 16 years.
Statement
in terms of section 112
[3]
At
the commencement of trial, the appellant pleaded guilty to the charge
and submitted a written statement to the court
a
quo
in terms of section 112 of Act 51 of 1977. He admitted that he had
committed an act of sexual penetration with the complainant.
This had
happened on more than one occasion. He had raised the complainant as
his step-daughter and she had lived with him and
her biological
mother. The appellant admitted further that he had attended many
parties at the weekend during the course of 2019
and had consumed
substantial amounts of alcohol. Upon his return home, he would enter
the complainant’s room and insert his
penis into her vagina
without her consent. This subsequently resulted in the complainant’s
falling pregnant, which led to
an abortion. The appellant had known
at the time that his actions were wrongful and unlawful.
[4]
On
2 July 2021, the Gqeberha Regional Court found the appellant guilty
and sentenced him to life imprisonment.
Evidence
for purposes of sentence
[5]
The
court
a
quo
accepted the submissions made by the appellant’s legal
representative with regard to his personal circumstances. To that

effect, the appellant was 52 years old at the time of sentence and a
first offender. His drinking habits had led to the commission
of the
offence. The appellant was remorseful about what had happened
[1]
and pleaded guilty at the commencement of proceedings, without
wasting the court’s time and without exposing the complainant

to the risk of experiencing secondary trauma as a result of having to
testify.
[6]
He
had no formal education. He is the father of four children, three of
whom stay separately with their mother, while the youngest
is the son
of his current partner (the complainant’s mother) and stays
with her. He is not a primary care-giver.
[7]
Moreover,
the appellant had health problems in relation to his back, and
difficulties with regard to sight and hearing. No further
details
were given.
[8]
The
State asserted that the complainant had been 13 years old when she
was first raped. This happened in her own bedroom and had
been
committed by someone whom she had considered as her father. She had
had to endure the trauma of a pregnancy and an abortion.
[9]
The
fact that the appellant had pleaded guilty did not assist. It was
suggested by the State that the appellant would not have done
so
unless his DNA profile had been matched with that of the complainant
and the aborted foetus.
Issues
to be decided, and approach
[10]
The
primary issue for consideration by this court is whether the
imposition of a life sentence on the appellant by the court
a
quo
was correct. In that regard, it is a well-established principle that
a court of appeal will not interfere lightly with the trial
court’s
exercise of its discretion.
[2]
In E du Toit et al
Commentary
on the Criminal Procedure Act
(Jutastat, RS 66, 2021), at ch30-p42A, the learned authors observe
that:
“
A
court of appeal will not, in the absence of material misdirection by
the trial court, approach the question of sentence as if
it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do so would be to usurp
the sentencing
discretion of the trial court…”
[3]
[11]
The
circumspect approach to be adopted by the court of appeal has been
emphasised frequently. In
S
v Bogaards
2013 (1) SACR 1
(CC), Khampepe J held, at [41], that:
“
It
can only do so [i.e. interfere with the sentence imposed] where there
has been an irregularity that results in the failure of
justice; the
court below misdirected itself to such an extent that its decision on
sentence is vitiated; or the sentence is so
disproportionate or
shocking that no reasonable court could have imposed it.”
[12]
Similarly,
Maya DP held in
S
v Hewitt
2017 (1) SACR 309
(SCA), at [8], that:
“
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate court may
not
interfere with this discretion merely because it would have imposed a
different sentence. In other words, it is not enough
to conclude that
its own choice of penalty would have been an appropriate penalty.
Something more is required; it must conclude
that its own choice of
penalty is the appropriate penalty and that the penalty chosen by the
trial court is not. Thus, the appellate
court must be satisfied that
the trial court committed a misdirection of such a nature, degree and
seriousness that shows it did
not exercise its sentencing discretion
at all or exercised it improperly or unreasonably when imposing it.
So, interference is
justified only where there exists a “striking”
or “startling” or “disturbing” disparity
between
the trial court’s sentence and that which the appellate
court would have imposed. And in such instances the trial court’s

discretion is regarded as having been unreasonably exercised.”
[13]
It
is the duty of this court to interfere with the sentence only where
the trial court’s exercise of its discretion was clearly
wrong.
Failing this, the sentence must be left undisturbed.
Discussion
and findings on sentence
[14]
The
appellant cited
S
v Malgas
2001 (1) SACR 469
(SCA) in relation to the test for whether
substantial and compelling circumstances exist to justify a departure
from the prescribed
minimum sentence. This entailed a determination
of whether the sentence was proportionate to the crime, the criminal,
and the interests
of society. Furthermore, argued the appellant, not
affording proper weight to a factor relevant to the imposition of
sentence,
such as the accused’s personal circumstances, could
constitute a misdirection.
[4]
It
was asserted that the magistrate had failed to consider properly the
personal circumstances of the appellant and the circumstances
of the
case, and had over-emphasized the seriousness of the offence and the
interests of society. If regard had been given to the
appellant’s
personal circumstances, his plea of guilty, his having been a first
offender, and his having demonstrated remorse,
then this would have
warranted a departure from the prescribed minimum sentence.
[15]
The
State referred to
DPP,
Grahamstown v Peli
2018 (2) SACR 1
(SCA) as authority for the proposition that for
intoxication to be considered as a substantial and compelling
circumstance in mitigation,
it had to be shown that the consumption
of alcohol had impaired or affected the appellant’s mental
faculties or judgment,
thereby diminishing his or her moral
blameworthiness.
[5]
This aspect,
however, was not pursued by the appellant and nothing further needs
to be said in that regard.
[16]
Turning
to the record, it is patently clear that the magistrate took into
account the appellant’s personal circumstances,
including his
age, the fact that he was a first offender, that he was the father of
four children, and that he experienced various
health problems.
[6]
Furthermore, the magistrate considered the submissions made by the
appellant’s legal representative with regard to his plea
of
guilty and the avoidance of secondary trauma for the complainant.
[7]
She also considered the submissions made to the effect that the
appellant had demonstrated remorse.
[8]
In weighing these up, together with other mitigating factors, the
magistrate found that:
“
the
aggravating factors in this case… are overwhelming. I am
therefore of the view that the imposition of the prescribed
minimum
sentence will be just and proportionate to the crimes in question and
having a balance [sic] the personal circumstances
of the accused, the
crime committed and the interests of society, those taken together
with the purposes of punishment [sic], I
am of the view that the…
sentence [of life imprisonment] will be appropriate in the
circumstances.”
[9]
[17]
The
magistrate cannot be criticised for not having taken the personal
circumstances of the appellant into account. These were balanced

against the nature of the offence and the interests of society,
whereupon the magistrate held correctly, with respect, that the
fact
that the appellant had raped the complainant while she was a
13-year-old girl, in the sanctity of her bedroom, and as a father

figure, was a severe breach of trust. Moreover, he had betrayed the
trust of the complainant’s mother. The rapes had taken
place
without a condom, causing the complainant to fall pregnant. The
resulting abortion must have further traumatised the complainant.
As
the magistrate rightly observed, the complainant’s life has
been affected permanently.
[10]
[18]
The
rape of a young girl, repeatedly, in these circumstances and with
these consequences, must inevitably attract the strongest
censure
that the law permits.
[19]
The
framework for the interpretation and application of the minimum
sentence provisions of the CLAA remains that described in
S
v Malgas
2001 (1) SACR 469
(SCA). In
S
v Mahlangu and others
2012 (2) SACR 373
(GSJ), Satchwell J observed, at 377g-h, with
reference to
Malgas
:
“
Firstly
the legislature, in enacting the Act,
[11]
aimed at ensuring a ‘severe, standardized and consistent
response from the courts’. Secondly, the emphasis in sentencing

has shifted ‘to the objective gravity of the type of crime’.
Thirdly, substantial and compelling circumstances means
‘truly
convincing reasons’. There must not be marginal differences in
personal circumstances or degrees of involvement.
At the end of the
day, ‘the ultimate cumulative impact of the circumstances must
be such as to justify a departure’.”
[20]
It
is not axiomatic that the appellant’s plea of guilty, in this
matter, reveals a sense of remorse. He may well regret his
actions,
but it could also be argued, as the State has done, that he was left
with no choice with regard to his trial strategy
once the results of
the DNA test had become known. On its own, the plea does not
convincingly demonstrate remorse. Furthermore,
the appellant’s
age is inconsequential; he is neither particularly young, allowing
the possibility of rehabilitation, nor
particularly old, preventing
him from managing the rigors of imprisonment. Very little, if
anything, was advanced in relation to
the nature and severity of his
health problems. There is no apparent reason why these cannot be
addressed by the usual healthcare
services made available to
offenders. Furthermore, the appellant’s children are under the
care and supervision of their respective
mothers, leaving aside for
the moment the question of the extent to which the appellant should
be allowed access, if any, to the
complainant. He is not a primary
caregiver. And the fact that he is a first offender is of little
assistance. Cumulatively, the
personal factors mentioned in relation
to the appellant do not constitute truly convincing reasons for why a
departure from the
minimum prescribed sentence would have been
justified. They do not amount to substantial and compelling
circumstances when the
gravity of the crime and the interests of
society are properly taken into consideration.
[21]
The
rape of a child is an abhorrent offence. The periodic rape of a child
in the sanctity of her own bedroom, in her own home, by
her own
father (albeit her step-stepfather), is possibly one of the most
serious of offences that exists. The complainant will
carry the
experience with her for the rest of her life, knowing, too, that she
had had to abort a foetus, the tragic outcome of
a deeply troubling
relationship. The community is repulsed by such a crime and will
expect the law to respond decisively.
Relief
and order
[22]
Consequently,
having had regard for the record and the arguments advanced on behalf
of the appellant and respondent, respectively,
this court cannot find
any basis upon which to interfere with the sentence imposed by the
court
a
quo
.
[23]
I
order, accordingly, that the appeal against sentence be dismissed.
_________________________
JGA
LAING
JUDGE
OF THE HIGH COURT
I
concur.
________________________________
SM
MFENYANA
ACTING
JUDGE OF THE HIGH COURT
APPEARANCE
Counsel
for the appellant
:
Mr.
Charles, instructed by the Legal Aid
Board,
Grahamstown.
Counsel
for the respondent
:
Adv Zantsi,
instructed by the Director of
Public
Prosecution, Grahamstown.
Date
of hearing

:       09 February 2022
Date
of delivery of judgment
:
22 February 2022
[1]
The record, at 6-7, indicates that the appellant
felt ‘very bad’ about what he had done to his child, as
conveyed
by his legal representative.
[2]
See
S v Romer
2011 (2) SACR 153
(SCA);
S v Hewitt
2017 (1) SACR 309
(SCA); and
S v
Livanje
2020 (2) SACR 451 (SCA).
[3]
The learned authors also referred to
S
v Malgas
2001 (1) SACR 469
(SCA);
S
v Fielies
[2014] ZASCA 191
(unreported, SCA case no 851 / 2013, 28 November 2014);
S
v Mathekga and another
2020 (2) SACR
559
(SCA); and
S v Gebengwana and
another
(unreported, ECG case no CA&R
186 / 2015, 21 September 2016.
[4]
To that effect, the appellant cited
S
v Fazzie
1964 (4) SA 673
(A) and
S
v Zinn
1969 (3) All SA 57 (A).
[5]
See, too,
S v Cele
1990 (1) SACR 251
(A), at 254h-I and 255b-c;
S
v Makie
1991 (2) SACR 139
(A), at
143c-d; and
S v Eadie
2002 (1) SACR 663
(SCA), at 673j-674f.
[6]
At 16 of the record.
[7]
Op cit, 17-18.
[8]
Op cit, 22-24.
[9]
Op cit, 25.
[10]
Op cit, 22.
[11]
The reference is to the CLAA.

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