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[2009] ZASCA 134
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Coetzee v S (502/08) [2009] ZASCA 134; 2010 (1) SACR 176 (SCA) ; [2010] 2 All SA 1 (SCA) (30 September 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No 502/08
In the matter between:
M P COETZEE
Appellant
and
THE STATE
Respondent
Neutral citation:
Coetzee
v The State
(502/08)
[2009] ZASCA 134
(30 September 2009)
Coram:
Mpati
P, Mthiyane
et
Mhlantla JJA
Heard:
31
August 2009
Delivered:
30
September 2009
Summary: Criminal law â
Sentence â appellant, a pastor â sentenced to an effective term
of four years' imprisonment upon
conviction on four counts of
indecent assault and two counts of
crimen
iniuria
. On appeal all
counts treated as one for purposes of sentence â sentence set aside
and replaced with one of four years' imprisonment
in terms of
s
276(1)(i)
of the
Criminal Procedure Act 51 of 1977
.
ORDER
____________________________________________________________
On appeal from:
High
Court, Pietermaritzburg (Koen J and Gorven AJ,
sitting as a court of appeal).
1. The appeal succeeds.
2. The sentences imposed by the
trial court are set aside and replaced with the following:
'The accused is sentenced to four
years' imprisonment in terms of
s 276(1)(i)
of the
Criminal Procedure
Act 51 of 1977
.'
JUDGMENT
___________________________________________________________
MHLANTLA JA (Mpati P and
Mthiyane JA concurring):
[1] The appellant was convicted
in the Regional Court, Richards Bay, on four counts of indecent
assault and two counts of
crimen
iniuria
. He was
sentenced to an effective term of four years' imprisonment. An appeal
against conviction and sentence was dismissed by
the
Pietersmaritzburg High Court (Koen J, Gorven AJ concurring). The
present appeal is against sentence only and is before us with
the
leave of the court below.
[2] The essence of the attack on
the regional magistrate's decision on appeal is that he misdirected
himself or failed to properly
exercise his discretion in that the
sentence he imposed is excessive and induces a sense of shock.
[3] The facts relevant to
sentence are briefly the following. The appellant was employed as a
pastor at the Apostolic Faith Mission
Church in Meerensee, Richards
Bay. All the complainants and their parents were members of the
appellantâs church. The appellant
also provided counselling
sessions to members of his church. There was, however, a dispute as
to whether the constitution of the
church permitted him to do so. A
youth pastor, Mr Francois van Niekerk, testified that the appellant
was not entitled to conduct
counselling sessions. The parents of two
of the complainants had nevertheless requested the appellant to
provide counselling to
them. The incidents forming the subject of the
appeal occurred during the period between August 2002 and January
2005.
[4] The first incident, being
count 1, occurred in August 2002 and involved Ms Natasha Lamprecht,
who was then 19 years old. Her
mother had discovered a diary which
revealed that Natasha had begun to have sexual relations with her
boyfriend. Her parents, probably
disapproving of what was going on,
arranged for Natasha to consult the appellant. The counselling
session took place in the appellant's
house in his study.
[5] The appellant's wife was
present in the house when he indecently assaulted Natasha. The
counselling session commenced with what
appeared to be a normal
discussion. Out of the blue the appellant began to stroke her leg,
moving his hands up and down, and then
rubbed her thigh. Despite her
objection, he pulled up her dress and touched her vagina. He then
asked her if she ever imagined
having a relationship with a pastor
and began to ask searching questions about her sexual relations with
her boyfriend. Natasha
felt shocked, stunned and nervous and did not
know what to do about this intrusion. She cried and felt traumatised.
Soon after
leaving the appellant's home, she reported the incident to
her boyfriend.
[6] The second complainant,
Ms Adele Taljaard, then 16 years old, was indecently assaulted on two
occasions. The relevant counts
are counts 3, 4 and 5 respectively.
Adele's father had assaulted her for spending a weekend with her
boyfriend. Because of the
seriousness of the assault a social worker,
to whom the matter had been reported, referred her to the appellant
for counselling.
The first incident occurred on 21 January 2003 at
Adele's home. She was alone with her brother when the appellant
arrived for the
counselling session. He asked her brother to leave
the house as he wanted to talk to her alone. The so-called
counselling session
commenced with him inspecting the weal marks on
her legs. He then applied a cream high up on her thigh after he had
pulled up her
skirt. He touched her vagina saying that he was
'closing it'. These incidents relate to count 3. The appellant forced
her to sit
on his lap. He asked her about her sexual relations with
her boyfriend and about her preference in relation to sexual acts. He
pushed open her blouse, as he put it, in order to see her brassiere.
These incidents relate to count 5. He then asked her to come
to his
house the next day when he would discuss her case with her parents.
[7] The incident in regard to
Count 4 occurred on 22 January 2003. Adele arrived at the appellantâs
house and was met by his wife
who showed her to the appellantâs
study. Her parents were not present. The appellant sat very close to
her and lifted her skirt,
thus exposing her underwear. She testified
that she was shocked and felt ashamed. She left immediately
thereafter and later reported
both incidents to her boyfriend.
[8] Counts 8 and 9 relate to
incidents involving Ms Lee-Ann van Rensburg, then 21 years old. Her
parents were concerned about her
self-esteem and well-being and
referred her to the appellant for counselling during January 2005.
The two families had a close
relationship and Lee- Ann regarded the
appellant as a father figure and a person to whom she could talk
about anything. On the
day in question the appellant arrived at
Lee-Annâs parental home for the counselling session after he had
telephoned her. As
with the other complainants, the appellant behaved
oddly. He began with lifting Lee-Ann's skirt and went on to rub her
thighs
and then touched her vagina. Subsequently he put his hands
inside her bra and looked at her breasts. He then asked her to take a
shower and stated that he would choose underwear for her. After she
had had a shower, he asked her about her sexual relationship.
Lee-Ann
testified that she felt very uncomfortable about the encounter.
[9] Following the appellant's
conviction two pre-sentencing reports were obtained, one from a
probation officer and the other from
a correctional officer. Ms
Mthembu, a social worker, reported that the appellant did not
verbalise remorse although she deduced,
from his conduct, the
presence of some remorse. She recommended a sentence with an option
of a fine or correctional supervision.
Ms Mabuyakhulu, on the other
hand, recorded that the appellant showed no remorse for his actions
and raised concern about the practical
difficulties which would arise
from the implementation of a sentence of correctional supervision.
She concluded that the appellant
was not a suitable candidate for
correctional supervision.
[10] The magistrate rejected the
suggestion that a wholly suspended sentence or correctional
supervision be imposed. He concluded
that a term of direct
imprisonment was the only appropriate sentence. In respect of each of
the counts of indecent assault, the
appellant was sentenced to six
years' imprisonment, two years of which were suspended for four years
on condition he is not again
convicted of indecent assault or
crimen
iniuria
during the
period of suspension. A sentence of 18 months' imprisonment was
imposed in respect of each of the
crimen
iniuria
counts, half
of which was suspended for three years on condition that the
appellant is not again convicted of
crimen
iniuria
, or indecent
assault, committed during the period of suspension. All the sentences
were ordered to run concurrently.
[11] The court below concluded
that it was in the interests of society that the appellant be
sentenced to a term of incarceration
and that any non-custodial
sentence would merely be a slap on the wrist. The appellant's appeal
against sentence was thus dismissed.
The court below altered the
sentences by treating all the indecent assault counts as one for
purposes of sentence and imposed a
sentence of six years'
imprisonment, two years of which were suspended for four years on
condition that the appellant was not again
convicted of indecent
assault or
crimen
iniuria
committed
during the period of suspension. Regarding the two
crimen
iniuria
counts, the
court imposed a sentence of 18 months' imprisonment, half of which
was suspended for three years on similar conditions.
The sentences
were ordered to run concurrently.
[12] In this court it was
contended that the regional magistrate committed a misdirection in
that he associated the offences in
this case with rape. He relied on
authorities which dealt with rape and, in the result, exercised his
discretion as if he were
sentencing a rapist. The second criticism
was that the magistrate had placed undue emphasis on the element of
deterrence as an
object of punishment, with the result that he
imposed a sentence that was excessive in the circumstances of this
case.
[13] The imposition of sentence
is a matter falling pre-eminently within the judicial discretion of
the trial court. The test for
interference by an appeal court is
whether the sentence imposed by the trial court is vitiated by
irregularity or misdirection
or is disturbingly inappropriate.
1
[14] Regarding the first
challenge, I am, like Koen J in the court below, not persuaded that
the regional magistrate misdirected
himself in expressing certain
sentiments concerning assault on women and children after he had
referred to the judgment in
S
v Ncheche
[2005] ZAGPHC 21
;
2005 (2)
SACR 386
(W), which dealt with rape. In my view this was no more than
an indication of the seriousness of the offence. The magistrate in
fact, despite his reference to
Ncheche
,
recognised that the
offences in question were not committed in a violent manner. And it
is clear from the sentence eventually imposed
that the magistrate did
not treat the appellant as a rapist. In my view, a harsher sentence
would have been imposed had the magistrate
regarded the appellant as
a rapist. In the result, I conclude that there was no material
misdirection, justifying interference
on that basis.
[15] I turn now to consider the
second challenge, which is that the magistrate, in considering an
appropriate sentence, overemphasized
the seriousness of the offences
and attached too much weight to the element of deterrence. Amongst
the factors mentioned in mitigation
of sentence was that the
appellant was a first offender. He is married and has children. He
had already lost his job at the church
where he worked at the time of
the incidents. The complainants were not young girls but mature women
who were already sexually
active. Counsel for the respondent
conceded, correctly in my view, that a sentence of four years'
imprisonment in these circumstances
was severe. He submitted that a
sentence in terms of s 276(1)(i) of the Criminal Procedure Act 51 of
1977 (the Act) would be more
appropriate.
[16] It was submitted, on behalf
of the appellant, that he had a psychological problem and should be
referred for psychological
evaluation. This argument cannot be
sustained. In my view, if the defence considered that the appellant
had a psychological problem
for which he required therapy, it should
have raised this at the trial and taken the necessary steps to secure
a report to that
effect and have it placed before the trial court.
This court cannot speculate on that score. The appellant cannot
expect preferential
treatment and be given a second opportunity to
present his case. This court cannot remit the matter to the trial
court on that
basis, more so since the appellant had already been
interviewed by a probation officer and a correctional officer before
sentence
was imposed.
[17] Even if there was no
misdirection, however, as I have indeed found there was none, it
would still be competent for this court
to interfere if it were
satisfied that the trial court had not exercised its discretion
reasonably and imposed a sentence which
is inappropriate in the
circumstances. Although each case stands against the setting of its
own facts and circumstances, it may
be necessary to have a look at
comparative cases in determining whether the trial court properly
exercised its discretion in its
imposition of sentence.
[18] The first of these examples
is
S v R
,
2
where the accused was convicted of indecently assaulting a 15 year
old boy and was sentenced to 18 months' imprisonment, half of
which
was suspended on condition that the appellant received psychiatric
treatment. In a further appeal, this court considered
the suitability
of correctional supervision in terms of s 276(1)(h) of the Act. The
court set aside the sentence and remitted the
matter to the trial
court for the imposition of such a sentence. In
S
v R
, evidence was
placed before the court by a probation officer that the accused's
conduct in that case stemmed from personality defects
and a drinking
problem. In the present matter we do not have any evidence touching
on the appellant's psychological make-up or
any evidence justifying
an order in terms of s 276(1)(h) of the Act. We are therefore not at
liberty to approach the present matter
on the same basis as Kriegler
AJA did in
S v R
.
[19] In
S
v D
,
3
the accused was convicted of indecently assaulting an eight year old
girl. He was sentenced to 6 years' imprisonment, two years
of which
were conditionally suspended. On appeal, this court set aside the
sentence and replaced it with a sentence of three years'
imprisonment
in terms of s 276(1)(i) of the Act, plus a further two yearsâ
imprisonment suspended for five years on certain conditions.
[20] In
S
v K
,
4
the appellant pleaded guilty to seven counts of contravening s
14(1)(b) of the Sexual Offences Act 23 of 1957. He had committed
the
offences on young boys who were street children. He was sentenced to
an effective term of seven years' imprisonment. Expert
evidence
tendered on behalf of the appellant recommended that he be sentenced
to a period of correctional supervision and be compelled
to undergo
intensive psychotherapy. On appeal to the Provincial Division the
sentence of seven yearsâ imprisonment was confirmed
on the basis
that the appellant had previous convictions for the same offence and
that he had in the past not reacted positively
to treatment and the
boys had begun to display deviant behaviour.
[21] In
S
v R
,
5
the appellant, a 25 year old primary school teacher, had been
convicted on six counts of indecent assault involving his male
pupils.
He was sentenced to five years' imprisonment of which two
years were conditionally suspended. A clinical psychologist had
testified
in mitigation of sentence. On appeal this court confirmed
the sentence due to the seriousness of the offences.
[22] In
S
v V
,
6
the appellant was convicted on a charge of a contravention of s
14(1)(b) of the Sexual Offences Act, in that he had committed an
indecent sexual act with a girl under the age of 16. He was sentenced
to five years' imprisonment of which two years were suspended
on
certain conditions.
[23] In
S
v McMillan
,
7
the accused, a 32 year old man, who had an unhappy childhood and was
molested as a child was convicted of five counts of indecent
assault
against three boys ranging in age between nine and 12 years. The
evidence before the trial court was that he suffered from
a sexual
deviance and that he had a need for intensive psychiatric treatment
over a long term. The trial court, despite the expert
evidence
imposed a sentence of ten years' imprisonment. On further appeal to
this court, Brand JA held that it was expected of
courts, through the
sentences they imposed, firstly to reflect society's resentment and
repugnance for the present type of conduct,
and, secondly, insofar as
it was possible by sentencing, to prevent the recurrence of thereof,
either by the particular offender
or by others. The court held that
the sentence of ten years' imprisonment, particularly when compared
with sentences imposed in
comparable cases and which were confirmed
on appeal, was too severe. The court set aside the sentence and
replaced it with one
of five years' imprisonment in terms of s
276(1)(i) of the Act.
[24] In
S
v O
,
8
the accused pleaded guilty to three counts of indecent assault and
one of attempted indecent assault on four boys ranging in age
from
eight to 12 years. He was sentenced in the trial court to eight and a
half years' imprisonment. On appeal all four charges
were taken
together for purposes of sentencing and his sentence was reduced to
four years' imprisonment, of which three years were
suspended on
certain conditions, including that the accused subject himself to
programmes for treatment of sexual offenders.
[25] In
S
v Egglestone
,
9
the appellant, who had been conducting an escort agency employing
high school teenagers from impoverished communities, was convicted
in
the High Court on three counts of indecent assault, one of rape, one
of assault and one of kidnapping. On appeal to this court
the
convictions of kidnapping and assault were set aside. This led to a
reduction of the sentence. The rape and indecent assault
on the one
complainant were taken together for the purpose of sentencing and the
appellant was sentenced to eight years. In regard
to the two counts
of indecent assault on the other two complainants where the appellant
had touched the breasts of one of the complainants
and had rubbed the
leg and stomach of the other complainant, the court confirmed the
sentence of six months' imprisonment on each
count.
[26] Turning to the facts of this
case and having regard to sentences imposed in the above named cases
and, given the personal circumstances
of the appellant, namely that
he is a first offender, coupled with the fact that the complainants
were no longer young and immature
and did not appear to have suffered
permanent psychological trauma, it seems to me that a custodial
sentence of four years was
excessively severe. In the result this
court is at large to interfere with the sentence on the basis that it
is disturbingly inappropriate.
[27] The seriousness of the
offences committed by the appellant cannot be underestimated. He did
not show remorse. He abused his
position as pastor and the position
of trust placed in him by the complainants and their parents. All the
complainants were vulnerable
and in need of counselling. Having
regard to all of the above factors, I am of the view that a custodial
sentence should be imposed,
but the length of the appellant's
incarceration be left in the hands of the Commissioner. I propose to
impose a sentence of direct
imprisonment in terms of s 276(1)(i) of
the Act. To achieve this goal, all the counts will be taken as one
for purposes of sentence.
Accordingly a sentence of four years'
imprisonment in terms of s 276(1)(i) of the Act will be appropriate.
[28] In the result the following
order is made:
1. The appeal succeeds.
2. The sentences imposed by the
trial court are set aside and replaced with the following:
'The accused is sentenced to four
years' imprisonment in terms of
s 276(1)(i)
of the
Criminal Procedure
Act 51 of 1977
.'
_______________
N
Z MHLANTLA
JUDGE
OF APPEAL
Appearances:
For Appellant J Marais SC
Breytenbach Attorneys,
DURBAN McIntyre & van der Post, BLOEMFONTEIN
For Respondent P Bezuidenhout SC
Director of Public
Prosecutions,
PIETERMARITZBURG
Director of Public
Prosecutions,
BLOEMFONTEIN
0000
1
DPP, KwaZulu-Natal v P
2006 (1) SACR 243
;
[2006] 1 All SA 446
(SCA) at para 10.
2
1993
(1) SACR 209
(A).
3
1995
(1) SACR 259
(A).
4
1995
(2) SACR 555
(O).
5
1995 (2) SACR 590
(A).
6
1994 (1) SACR 598
(A).
7
2003
(1) SACR 27
(A).
8
2003 (2) SACR 147
(C).
9
[2008] ZASCA 77
;
2009
(1) SACR 244
(SCA).