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2021
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[2021] ZAGPPHC 65
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Wagener v S (A340/19) [2021] ZAGPPHC 65 (2 February 2021)
IN
THE HIGH COURT OF THE REPUBLIC
OF
SOUTH AFRICA, GAUTENG DIVISION
PRETORIA
CASE
NUMBER: A340/19
In
the matter between:
M
N
WAGENER
Appellant
And
THE
STATE
Respondent
JUDGMENT
Baloyi-Mere
AJ
Introduction
1.
This is an appeal by the Appellant against the
sentence of ten (10) years direct imprisonment imposed by the
Regional Court sitting
at Brits on four charges of possession of
child pornography in contravention of Section 24B(1)(a) of the Film
and Publications
Act 65 of 1996 as Amended (“the Act”),
and on accessing of internet sites containing child pornography
in terms
of Section 24B(1)(c) of the same Act. The images comprised
all-in-all almost 20 000 (twenty thousand) images.
2.
The Appellant pleaded guilty as charged. All the
counts were taken together for purposes of sentencing. An effective
ten years direct
imprisonment sentence was imposed. In addition the
accused was declared unfit to possess a firearm.
3.
The
Appellant contend that the Magistrate in the
court
a quo
failed, in imposing a sentence of ten years direct imprisonment, to
accord sufficient weight to the Appellant’s personal
circumstances, and the
court
a quo
accorded undue weight to the apparent lack of remorse of the
Appellant, misconstrued the effect of deterrence and placed undue
reliance on the reasoning of the court in
Director
of Public Prosecutions Gauteng v Alberts
[1]
.
Summary
of Facts
4.
The Appellant was arraigned in the Brits Regional
Court and charged with five counts of contravening the provisions of
the Act.
The offences in all the charges were alleged to have
taken place during November 2012 – April 2015 in the area of
Brits.
The first count related to offences committed by the
downloading of 1 669 (one thousand six hundred and sixty-nine)
visual
images and photos from the internet and the saving thereof on
a micro SD card. In count two, the Appellant was charged with
downloading 1 317 (one thousand three hundred and seventeen)
visual images and photos from the internet and saving them in
a
Hitachi 320 hard drive. In count three, the Appellant was charged
with downloading 16 400 (sixteen thousand four hundred)
images
and photos from the internet and storing them in a Seagate Baracuda
hard drive. In count four, the Appellant was charged
with
downloading 37 videos and DVD’s from the internet and saving
them in a Seagate Baracuda hard drive. In count five, the
Appellant
was charged with visiting 335 websites on his Lenovo computer, which
websites were of naked children and child pornography.
The Appellant
pleaded guilty to all five charges.
5.
In mitigation of the Appellant’s sentence,
a Clinical Psychological Forensic report was submitted to the court
authored by
Dr Johnathan Geoffrey Scholtz a Clinical Psychologist. I
will summarize the conclusions and recommendations of Dr Scholtz in
the
next few paragraphs.
6.
Dr Scholtz dealt with the personal circumstances
of the Appellant, in that he is a first time offender, 52 years old,
has a support
base in his nuclear family, has been financially
impacted by the case, became addicted to pornography over a period of
time which
process was fuelled by boredom, social isolation,
loneliness and the abuse of alcohol which was at that time up to a
bottle of
whiskey per day. He also indicated that the Appellant has a
depressive disorder for which he has been undergoing treatment since
2012. Dr Scholtz further indicated that pornography, substance,
gambling, food, sex or intense exercise often become a form of
self-medication for depressive feelings and/or a sense of loneliness
and meaninglessness, conditions that are both present in the
life of
the Appellant.
7.
The Appellant also indicated concern when
confronted with the fact that his actions might damage children
because it creates a market
for child pornography. Dr Scholtz
observed that the Appellant was genuinely remorseful and fearful that
he might inadvertently
damage children. Dr Scholtz further observed
that these observances bode well for personal rehabilitation.
8.
The Appellant has taken responsibility for his
actions although he explained the role that alcohol abuse, boredom
and depression
might have played in his life but he also
accepted that he has only himself to blame. He declared himself
willing and desirous
of rehabilitation and change. It is also stated
in the report that the Appellant understand the destructive role that
alcohol and
pornography have played in his life. He also indicated
that he is desirous and willing to be rehabilitated for his
addiction. He
also stated his desire and willingness to undergo
psychotherapy and other programs of rehabilitation.
9.
Dr Scholtz concluded that the Appellant is not
anti-social or psychopathic. In his report, Dr Scholtz dealt with
recidivism rates
amongst psychopathic and non-psychopathic prisoners
and indicated that the psychopathic offenders are up to three times
more likely
to reoffend than the latter within a period of just one
year. The doctor further indicated that the Appellant is not
psychopathic.
10.
Dr Scholtz further observed that the Appellant
does not pose a risk of sexual offending. Based on the perspective
gained by considering
the characteristics and typologies of
paedophiles in the literature, Dr Scholtz concludes that the
Appellant cannot be considered
to be paedophilic.
11.
Dr Scholtz found, in relation to the Appellant’s
clinical condition and general mental health, that the Appellant has
major
depressive disorder, abuses alcohol and does not meet the
criteria for a diagnosis of paedophilia. Currently pornography
addiction
is not classified as a mental disorder and the probability
of neurological damage should also be considered in relation to the
Appellant. Dr Scholtz further indicated that it has been established
that executive functioning is adversely affected with long
term abuse
of substance. He further indicated that executive function include
self-monitoring and self-regulation. Frontal dysfunction
would
include impulsivity, compromised judgment, deficient self-awareness
and inability to shift behaviour or attitude.
12.
The
Appellant, in his heads of argument, relied on the
Alberts
case
and
Beale
v S
[2]
(“Beale”).
Both these cases are distinguishable from the case at hand. In the
Alberts
case the Appellant there had also downloaded and visited child
pornography sites and pleaded guilty to contravention of Section
27(1)(9) of the Act. The distinguishing factor in that case is that
the Appellant therein requested specific videos to his own
preference
and that preference included videos of sexual acts committed on
children between the ages of nine (9) and twelve (12)
and that he
also wanted the children to look happy. The Appellant in the present
case only downloaded the images and photos from
the internet, stored
and watched them. It was never argued that at any stage he requested
videos and images to any particular preference.
The court sentenced
Alberts
to
five (5) years direct imprisonment which sentence was set aside in
the Appeal Court and substituted with a sentence of ten (10)
years
direct imprisonment and that the Respondent’s name be recorded
in the register of sex offenders.
13.
The
Beale
matter is also distinguishable from the present case. In the
Beale
matter, the Appellant, who engaged in what is termed “peer to
peer file sharing of child pornography images”, also
pleaded
guilty to contravention of Section 24B(1)(a) read with Sections 1 and
30B of the Act as amended. In paragraph 29
of the judgment the Court held as follows:
“
[29] The
expert called by appellant recorded in his report that the appellant
scored “extremely high” on the relevant
test, supporting
his impression that he has “strong anti-social personality
traits” and that literature reports that
such a personality
type has a prominent risk factor for offending as well as recidivism
for sexual offences. Colonel Stollarz noted
in her report that
individuals with this disorder are characterised by a pattern of
disregard for and the violation of the rights
of others, disregarding
the feelings of others and that they rationalize their behaviour and
show little remorse.”
14.
The Appellant in that case was sentenced to
fifteen (15) years imprisonment in the Regional Court, George in the
Western Cape. The
appeal was heard by a full court and the sentence
was set aside and replaced by a sentence of ten (10) years
imprisonment and the
remainder of the sentence imposed by the court a
quo remained in place. That case is distinguishable from the
present case
in that the Appellant in that case acted after
downloading the child pornography images and photos by sharing it in
what is called
“peer to peer file sharing” and also the
psychologist found him to have paedophilic tendencies. In the present
case
the Appellant did not share the images with anyone and the
psychologist who interviewed and wrote a report on his psychological
state did not find him to be paedophilic in that he might harm
children in future.
15.
Although these two cases are,
as indicated above, distinguishable
from the present case, it is apposite to consider what was held in
the
Beale
case at
paragraph 15:
“
[15] We
accept that the Appellant was not convicted of manufacturing child
pornography or of molesting children, but the argument
that an
accused only possessed disturbing and disgusting images as a
mitigating factor, ignores the reality that possession of
the
prohibited material creates a trading platform or market of this
illegal “industry”. Every image contained in a
child
pornography reflect abhorrent prohibited sexual conduct, often
including violence, involving children. Every image reflects
the
sexual violation of and the impairment of the dignity of the child,
every time that is viewed. As argued, children, including
babies and
toddlers, are the unidentified, voiceless victims of child
pornography. It cannot be disputed that these victims will
bear the
emotional scars of the abuse for life.”
16.
This quotation still applies to the present case
in that irrespective of the fact that
despite the fact that the children
in the images and videos were never identified, still children
somewhere out there have
suffered this physical and emotional abuse
and they are going to have to live, if still alive, with their
emotional and physical
scars for the rest of their lives.
17.
Sentences in comparable matters are merely a
guide to sentencing and the circumstances and facts in every case
differ. Previous
sentences in comparable matters are not to be taken
as sentencing straightjackets.
18.
The
SCA has held in numerous cases,
S
v Prinsloo and Others
[3]
and
Gcaza
v S
[4]
that a court on appeal will only interfere with a sentence if a trial
court misdirected itself in passing a sentence, and even
misdirection
alone does not suffice for a court to interfere on appeal. The courts
have held further in
State
v Malgas
[5]
that the Appeal Court may be justified in interfering in the sentence
imposed if the disparity between the sentence of the trial
court and
the sentence which the Appellate Court would have imposed can be
described as shocking, startling or disturbingly inappropriate.
The
courts have also held in
Prinsloo
supra
that
the trial court’s finding of fact and credibility are presumed
to be correct, because the trial court has had the
advantage of
seeing and hearing the witnesses and it is in the best position to
tell whether the witnesses were telling lies or
not. In every appeal
against sentence whether imposed by the Magistrate or a Judge, the
court hearing the appeal should be guided
by the principle that the
punishment is pre-eminently a matter for the discretion of the trial
court and should be careful not
to erode such discretion hence the
further principle that the sentence should only be altered if the
discretion has not been judicially
and properly exercised. The test
is whether the sentence is vitiated by irregularity or misdirection
or disturbingly inappropriate
[6]
.
19.
In coming to our conclusion, we have considered a
number of factors including the charges against the Appellant, the
personal circumstances
of the Appellant. We have also considered the
facts and sentences imposed in comparable matters, the seriousness of
the crimes,
the purpose of sentencing and the balancing of mitigating
and aggravating circumstances. We have also taken into consideration
the caution that was given in
Malgas
supra
that:
“
[12] ... a
court exercising appellate jurisdiction cannot, in the absence of the
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. …
However, even in the absence of material
misdirection, an appellate
court may yet be justified in interfering with the sentence imposed
by the trial court. It may do so
when the disparity between the
sentence of the trial court and the sentence which the appellate
court would have imposed had it
been the trial court is so marked
that it can properly be described as “shocking”,
“startling”, or “disturbingly
inappropriate”.”
20.
The other factor that has been taken into
consideration is the forensic report prepared by the Clinical
Psychologist, Dr Scholtz.
In his report, Dr Scholtz did not find the
Appellant to have paedophilic tendencies and therefore found that he
does not pose a
danger to society. Considering all the mitigating
factors cumulatively, we believe that an effective sentence of five
(5) years
would be more appropriate and proportionate than the ten
(10) years direct imprisonment imposed by the
court
a quo
. The disparity in the sentences
entitles this Court to interfere.
21.
Accordingly we order as follows:
1.
The appeal against sentence succeeds.
2.
The sentence of ten (10) years imprisonment is
set aside and replaced with the following:
The
accused is sentenced to eight years imprisonment of which three years
is suspended
on
condition that the appellant not be found guilty of contravention of
the same crimes as in this matter, committed during the
period of
suspension
3.
The remainder of the sentence of the Magistrate
will remain in place.
EM
Baloyi-Mere
Acting
Judge of the High Court
I
agree
and it is so ordered.
N
Davis
Judge
of the High Court
Date
of hearing: 25 January 2021
Date
of Judgment: 2 February 2021
Counsel
for Appellant: Adv J Moller
Counsel
for the State: Adv J J
Kotze
[1]
2015 (2) SACR 419
GP
[2]
(A283/18)[2019] ZAWCH C 55 (03 May 2019)
[3]
2016 (2) SACR 25(SCA)
[4]
(1400/2016)
[2017] ZASCA 92
(09 June 2017)
[5]
2001 (1) SACR 469 (SCA)
[6]
See also S v Sadler
[2000] ZASCA 105
;
[2000] 2 All SA 121
(A).