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[2019] ZAWCHC 47
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Beale v S (A283/18) [2019] ZAWCHC 47; 2019 (2) SACR 19 (WCC) (3 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case:
A283/18
In
the matter between
WILLIAM
ALEXANDER
BEALE
Appellant
and
THE
STATE
Respondent
JUDGMENT:
3 MAY 2019
STEYN
J AND SIEVERS. AJ
[1]
This is an appeal against a sentence of 15 years imprisonment imposed
on the appellant in the Regional Court, George, following
the
conviction of the appellant to an offence related to possession of
child pornography in terms of the provisions of the
Films and
Publications Act 65 of 1996
as amended by the Films and Publications
Amendment Act, No. 3 of 2009 ('the Act').
[2]
One of the objects of the Act (s 2) is to regulate the possession and
distribution of certain publications to protect children
from
exposure to disturbing harmful materials and to make the use of
children, and their exposure to pornography, punishable.
[3]
Section
24B
of the Act deals with the prohibition, offences
and penalties on possession of films, games and publications. It
states that:
'(1)
Any person who-
(a)
unlawfully possesses;
(b)
creates,
... or assists in the creation or production of;
(c)
imports
or
in any way
takes steps to
procure
,
obtain or
access
or
in any way knowingly assists in, or facilitates the importation,
procurement, obtaining or accessing of; or
(d)
knowingly
makes
available,
exports, broadcasts or in
any way distributes or causes to be made available, exported,
broadcast or distributed or
assists
in
making
available,
exporting, broadcasting
or distributing, any film, game or publication which contains
depictions, descriptions or scenes
of
child pornography
or
which advocates,
advertises,
encourages or promotes child pornography or the sexual exploitation
of children,
shall be guilty of an
offence.' (Own underlining here as elsewhere)
[4]
It is common knowledge that sexual offences, including offences
related to child pornography, are not easily detected. In this
matter
the appellant was arrested following an international investigation
into child pornography by Belgian and South African
Police. An online
child pornography network was discovered where members of the network
'engaged in peer to peer file sharing'
of child pornographic
images; a term we deal with later. It was ascertained that a member
of this network, with a known username,
gained access to the network
from South Africa. (We refrain from mentioning the names of the
network or the username.) The South
African Police established where
the user gained access from and upon investigation seized a notebook
computer of the appellant
at an internet cafe belonging to him,
discovering images, films, publications and videos containing child
pornography.
[5]
The appellant could not avoid pleading guilty in a Regional Court in
George to 18 644 contraventions of s
24B (1) (a)
read with ss
1 and 308 of the Act, as amended, as well as ss 92(2), 94 and 276(1)
of the Criminal Procedure Act 51 of 1977 ('the
CPA'). He also pleaded
guilty to the possession of 5 gram of
'dagga'.
[6]
The appellant did not testify on the merits of the matter or in
mitigation of sentence. On his behalf a written statement in
terms of
s 112 (2) of the CPA was handed in, in which he pleaded guilty. The
evidence of two witnesses was presented on behalf
of the appellant
who, together with his representative, put certain facts to the court
in mitigation of sentence.
[7]
In his s 112 statement the appellant recorded the following, set out
in slightly abbreviated terms:
'1.
On the 13th January 2015 I was at home when the South African Police
arrived ... with a search warrant ... to search the premises....
(The) police seized my ... notebook computer...;
2.
I was informed ... that I was under investigation for being a member
of a child pornography network ... where members of the
network
engaged in peer to peer file sharing
of child pornography
images;
3.
I admitted ... that I am the owner/author of the username ... which I
use ... to gain access to (the network) enabling me to
engage in the
viewing of child pornography images
and peer to peer file sharing;
4.
The police then proceeded to access (the network) on my ... notebook
by using my username ... , after which I was immediately
arrested ...
and detained;
5.
I was presented by the prosecutor with a report compiled by a
forensic specialist ... who examined the storage device located
in my
... notebook and discovered a number of files stored under both the
visible directory structure and in the unallocated cluster
(without a
directory structure) of the storage medium;
6.
The storage device contained images and multimedia files (videos)
containing child pornography;
7.
I accept the authenticity of the aforementioned report ... and its
findings in as far as it relates to my ... (computer);
8.
I admit that from the year 2013 to 13 January 2015 and at or near
Plettenberg Bay ... I unlawfully and intentionally possessed
photographs, publications, films and videos which contained
depictions or scenes of child pornography as described in Annexure
A
to I, a detailed breakdown which is attached hereto as Annexure
WAB1,
and which was stored in the ... computer's hard drive. I
acknowledge that at all times the images I possessed were in fact
child
pornography as defined in
s1
of the
Films and Publications Act
65 of 1996
;
9.
I acknowledge that at all times I knew that my actions were unlawful
and if caught I could be charged with an offence and sentenced
in a
court of law.'
[8]
The term
'peer to peer file sharing',
admitted by the
appellant, was not explained by him or his representatives. The state
argued that the term referred to the sharing
by peers of images with
other peers or users of an internet site, in this case a site related
to child pornography, as the term
logically implies. File sharing is
a known method applied by internet users to access media files of
peers, such as movies and
pictures, using software programs to
connect to each other via the internet. The approach of counsel for
the appellant was that
the appellant was not charged with, or found
guilty of distribution of images.
[9]
As regards the charge of
'possession'
of child pornography, it
was argued on behalf of the state that not only the vast number, but
also the nature of the content of
many of the images and videos,
admittedly possessed by the appellant, often constituting hard core,
violent child pornography,
required that a heavy sentence be imposed.
The magistrate and the representatives of the parties viewed some
images. The magistrate
recorded that the images and videos viewed
were horrific and gruesome, degrading and disgusting in nature,
depicting images where
babies, toddlers and teenagers are raped,
sexually abused and bonded. We did not view the images but, relying
on the descriptions
of the different images in the files before us,
many images and videos can only be described as abhorrent, shocking
and disgusting,
including pornography of a sexual nature perpetrated,
as noted, on babies, toddlers and young children. Some file names
were described
in the Preamble to the Charge Sheet including a
description of a step-daughter who
'cries really good'
and a
'Babygirl Fuck Video'.
Some images were labelled in the
annexures that include: vaginal sex with infant, or toddler or female
child or anal penetration
with toddler or female child or objects
inserted into the vagina of the above. Some
'milder'
images
are of
'children posing naked displaying their bodies to be used
for purposes
of
sexual exploitation and child grooming'.
[10]
On behalf of the appellant the court heard the evidence of and
received the reports of Mr L. Setsuna (with regard to correctional
supervision) and Mr T van der Walt (a clinical psychologist). Colonel
8. Stollarz, employed by the SAP as an investigative/forensic
psychologist, testified on behalf of the state.
[11]
The magistrate took the 18 644 images/counts together for purposes of
sentencing and sentenced the appellant to fifteen years
direct
imprisonment, the maximum term that could be imposed by the
magistrate. This is one of the highest sentences imposed in
South
Africa on charges related to possession of child pornography to date.
The appellant was declared unfit to possess a firearm
and it was
ordered that the appellant's name be recorded in the National
Register for Sexual Offences in terms of s 52 of the Criminal
Law
(Sexual Offences and Related Matters) Amendment Act, 32 of 2007
('SORMA'). It is against the sentence of imprisonment in respect
of
the transgression of the
Films and Publications Act that
the appeal
is directed. (The appellant was also sentenced to R 500- or 30-days
imprisonment for the possession of dagga.)
[12]
The appellant's counsel argued that a term of 5 years imprisonment
would be appropriate. His previous plea for a non-custodial
sentence
was sensibly abandoned. The state argued that a sentence of 15 years
imprisonment was proportionate, appropriate and just
in the serious
circumstances of the matter.
[13]
It is no secret that in this digital age the existence and production
of child pornography, constituting the vilest possible
form of
degradation, exploitation and abuse of children, abuse that has no
geographic boundaries and that is perpetuated repeatedly,
has
increased at an alarming rate in South Africa and in this court's
area of jurisdiction. The offence can hardly be over
emphasised.
This crime is a heinous, despicable crime that has resulted in public
outrage, explaining why the community and activist
groups follow
trials related to child pornography and publicly voice their concerns
when they form perceptions that courts may
be trivialising these
offences, where many images constitute sexual exploitation of and
appalling violent sexual crimes against
children, including babies
and toddlers.
[14]
Mr van der Berg, who appeared for the appellant, acknowledged that
the crime which the appellant has been found guilty of is
a serious
crime. He submitted however that
'possession'
is the least
serious of the categories of offences created by s 248 (1) of the
Act. (The court will disregard that the appellant
in fact also
admitted to s 248 (1) (c) and (d), the importation of child
pornography and the sharing or making available, thereof.)
[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 for this
illegal
'industry'.
Every image contained in child pornography
reflects abhorrent prohibited sexual conduct, often including
violence, involving children.
Every image reflects the sexual
violation of and the impairment of the dignity of a child, every time
that it 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 their abuse for life.
[16]
The
Children's Act, 38 of 2005
, dictates that all organs of state in
any sphere of government, must respect, protect and promote the
dignity and the rights of
children and that the best interests of
children are of paramount importance in all matters where the
interests of children are
at stake.
Section 28
of our Constitution
also emphasises the paramountcy of the child's best interests in
matters concerning the child. The Constitution
enshrines the rights
of children to be protected from maltreatment, neglect, abuse or
degradation and prescribe that they should
not be required or
permitted to perform work or provide services that are inappropriate
for a person of a child's age; or to place
at risk the child's
well-being, education, physical or mental health or spiritual, moral
or social development.
[17]
Carolissen v OPP
2016 (2) SACR 171
was a matter heard in this
court as an appeal to an order following an extradition application
to the USA, related to offences
relating to child pornography, Gamble
J (with Donen AJ
concurring)
commented:
'The
rights of children in South Africa are specifically addressed and
protected in s 28 of the Constitution. Moreover, there is
a plethora
of legislation (including SORMA) which has been introduced in the
constitutional era to give content to the protection
afforded to
children in the Bill of Rights. Our courts, too, have consistently
sought to advance the
"paramountcy'
or
"best
interests"
principle embodied in s 28(2) of the Constitution
in all matters concerning children. For instance, in
Du Toit (v
the Magistrate and Others
2016(2) SACR 112 SCA) the Supreme Court
of Appeal recently reiterated the importance of that approach in a
case concerning a prosecution
for possession of child pornography. In
that matter the court cited extensively from the decision of the
United States Supreme
Court in
(New York v Ferber
458 US 747
(1982)) stressing the immense harm which such matters causes to
children when they are forced to be the subjects of such offences.'
[18]
In the
Carolissen
judgment, supra, the magistrate at the court
in Kuils River, Cape, ordered that the appellant was liable to be
extradited to the
USA to stand trial in the Federal Court in the
state of Maine on charges relating to the production and
dissemination of child
pornography. The appellant was arrested
pursuant to a request from the USA government. He had previously
sought assistance for
an addiction to internet child pornography and
had been diagnosed with paedophilia. His offences were committed via
'cybercrime'
from Cape Town.
[19]
We are aware of, and we were referred to, several other child
pornography related cases heard on appeal in the Cape Town
High Court
and other courts in South Africa over the last few years. Trials
related to child pornography are usually, as in the
present matter,
conducted in the Regional Courts and as such this court may not be
aware of the number of trials heard, or sentences
generally imposed
in such courts. We are aware of a matter that was heard in George,
where early in 2016, about a year after the
appellant was
apprehended, another arrest was made in the George area of a 38-year
old man, a Mr James, who was in possession
of a vast amount of child
pornographic images on his computer and cell phone. He also pleaded
guilty, was convicted and eventually
sentenced in the George Regional
Court in July 2018. We are not aware of full details of the matter,
but we believe that he was
sentenced to 12 years imprisonment of
which 4 years were suspended.
[20]
In
De Reuck v Director of Public Prosecutions
&
Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC) para 61 the Constitutional Court considered
charges relating to the possession and importation of child
pornography under
the previous legislative framework and stated that
the purpose of the legislation was to curb child pornography which is
seen as
an evil in all democratic societies. Child pornography is
universally condemned for good reason, as it strikes at the dignity
of
children, is harmful to children who are used in its production,
and is potentially harmful because of the attitude to child sex
that
it fosters and the use to which it can be put in grooming children to
engage in sexual conduct.
[21]
In one of the matters heard in the Western Cape High Court,
S v AR
2017 (2) 402 (SACR) Le Grange, J with Weinkove AJ concurring
stated that: '[36] By promulgating this Act to deal exclusively and
precisely with acts of child pornography in any form, affirms the
seriousness with which the legislature, and by extension society,
wants to eradicate all forms of discrimination and violence against
women and children. This is in line with the State's obligation
under
s 28 of our Constitution which provides that the best interests of
the child shall be of paramount importance.'
[22]
Section 30 of the Act, which previously provided for prescribed
punishments, was deleted by the Amendment Act No 3 of 2009.
Section
276(1) of the CPA authorises courts to impose sentences, whether at
common law or under statute, where no other provision
governs the
imposition of a sentence. In the
Carolissen
judgment, supra,
Gamble J referred to
Director of Public Prosecutions, WC v Prins
and Others
2012 (2) SACR 183
(SCA) para [38] and noted that the
effect of the judgment is that in respect of those offences under
SORMA with which a person
is charged in the High Court, the maximum
sentence which can be imposed is life imprisonment and if charged in
the Regional Court,
the maximum sentence is 15 years imprisonment.
[23]
Mr van der Berg argued that the magistrate was unduly influenced by
the reaction of members of the community who were present
in court,
expressing their interest (and according to the magistrate, their
disgust) in relation to the violation and abuse of
children. It is
trite that the community's reaction to a crime and their subsequent
demands usually relate to the seriousness of
the crime in society's
view, and these considerations should be considered in the court's
determination of a sentence for an offence.
In S v
Flanagan
1995 (1) SACR 13
(A) at 17 e-f the court held that the interests
of society are not served by a sentence that is too lenient, and that
such a sentence
is inappropriate. An appropriate sentence is neither
too lenient nor too severe.
[24]
In
OPP North Gauteng v Thabethe
2011 (2) SACR 567
(SCA) at
para 22 the court held that our courts have an obligation in imposing
sentences to impose a sentence which reflects the
natural outrage and
revulsion felt by law-abiding members of society and that a failure
to do so would have the effect of eroding
public confidence in the
criminal justice system.
[25]
In
S v Blank
1995(1) SACR 62 (AD) Grosskopf JA stated at p73
e-f, that it is not wrong, as stated in
R v Karg
1961
(1) SA 231
(A) at 2368, that:
'...
the natural indignation of interested persons and of the community at
large should receive some recognition in the sentences
which the
courts impose; and it is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient, the administration
of
justice may fall into disrepute.'
[26]
Ms Kortje, appearing for the State with Ms Marx, conceded that while
the sentences imposed by different courts could not be
compared with
mathematical precision, sentences should generally not be
disproportionate to other sentences for similar offences,
where the
accused's personal circumstances are similar. She referred to
S v
Marx
1989 (1) SA 222
(AD) at 2258 where Smalberger JA remarked
that our courts generally attempt to punish in equal proportion equal
participation in
an offence, unless there was a disparity in the
personal circumstances of the offenders, in which case unequal
sentences were justified.
The court emphasised that justice must be
seen to be done in the eyes of the offender as well in the eyes of
the public:
'Ongelyke
strawwe op gelyke misdadigers ten opsigte van dieselfde misdryf druis
in teen die algemene gevoel van geregtigheid. (Du
Tait,
Straf in
Suid-Afrika
op 118).'
[27]
The appellant's personal circumstances were considered. The
psychologist (Van der Walt) who was called on behalf of the appellant
and the psychologist (Stollarz) who was called by the state submitted
a joint minute agreeing upon the following:
1.
The appellant was subjected to severe
abuse, emotional, sexual and physical; this may have played a role in
the development of deviant
sexual interests;
2.
The appellant has a paraphilia, (a
condition characterized by abnormal sexual desires) namely urophilia;
(The latter relates to
a dependence or deviancy related to urine.)
3.
The appellant has a paedophilic
disorder;
4.
The appellant has strong antisocial
personality traits and the Minnesota Multiphasic Personality
Inventory 2 indicates elevations
of antisocial personality traits;
5.
The appellant has no known history of
contact offences;
6.
At the time of his arrest, the appellant
was using cannabis;
7.
The appellant reported desisting in the
use of opiates since being in a rehabilitation centre;
8.
The appellant has one previous
conviction for possession of cannabis;
9.
The appellant is not currently a suicide
risk;
10.
Following the appellant's arrest, he
experienced major changes in his circumstances, which led to symptoms
of anxiety and depression;
11.
The appellant's adoptive family members
had no concerns with regards to him and his behaviour prior to his
arrest;
12.
There is no cure for paedophilia;
13.
There is no international
'best
practice'
programme for the
treatment of paedophilia;
14.
The appellant has a good social support
system from his family members;
[28]
About the joint finding that appellant showed strong antisocial
personality traits: - The courts have been advised and accept
that
this term describes a personality disorder and that, as appears to be
the case in this matter, people who suffer from this
disorder:
'show
a longstanding pattern of disregard for and the violation of the
rights of others and they fail to conform to social norms
with
respect to lawful behaviour.'
See
Gcaza v S
(1400/2016) [2017] ZASCA 92 (9 June 2017) para [29).
[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 antisocial
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 rationalise their behaviour and
show little remorse.
[30]
Both psychologists impressed the court
a quo
as witnesses. Van
der Walt's interview with the appellant was more comprehensive, as he
was able to spend more time with him. Van
der Walt was of the opinion
that the risk of recidivism by the appellant was relatively low,
while Stollarz was of the opinion
that it was medium. The magistrate
found that a risk remains a risk, whether low or medium.
[31]
The experts noted that the appellant had been subjected to abuse as a
child, which may have played a role in his development
of deviant
sexual interests.
It was recorded by van der Walt that a clear
association has been found between childhood sexual abuse and serious
mental health
disturbances.
(This is one reason why the effect on
the victims of the appellant's conduct cannot be trivialised.) But,
in this case, as noted
by the magistrate, and apparent from the
reports of both experts, the appellant himself adamantly denied that
his dysfunctional
history played a role in his conduct. The history
of appellant's abuse had occurred many years before he was arrested
for his offensive
conduct in this matter.
[32]
The appellant's motive was morally reprehensible. He carefully
planned the offences he intended to commit. He did not inadvertently
stumble on child pornography. He regarded the downloading from the
'dark web'
of the pornographic images as a challenge and
appeared to be proud of the fact that he was able to access locked
sites, which he
could only do by himself first supplying images of a
shocking nature, to show that he could be trusted. He was candid in
admitting
to Stollarz that he searched for content of a sexually
violent, shocking nature.
[33]
Of concern is that the appellant showed no empathy or sympathy
towards the children depicted in the downloaded images, indicating
a
lack of insight or remorse in the abhorrent nature of his conduct. He
agreed that he was addicted to viewing the downloaded images,
images
that he downloaded, deleted, uploading images again and sometimes he
spent up to 8 hours at a time viewing. He stated that
he knows that
he is supposed to feel bad, but he does not. It was recorded that he
did not think therapy would cure him. In any
event the success of
therapeutic intervention was reportedly questionable, although van
der Walt maintained that long-term therapy
may assist in
rehabilitating the appellant.
[34]
The appellant's personal circumstances, all considered by the
presiding magistrate, include that he was a 39-year-old male,
unmarried with no children, at the time of the offence(s). He was
employed, earned a small salary and was self-supporting. As noted,
it
is clear from the reports that the appellant had experienced a
dysfunctional, unhappy childhood, where he was subjected to abuse,
emotional, sexual and physical. Neither parent was a role model nor
was his foster mother, who physically, verbally and emotionally
abused him. It was concluded by the experts that the appellant tried
to escape his childhood memories in adulthood, by living in
his own
world, distancing himself from the rest of the world. The deviant
behaviour by the appellant demonstrates the permanent
emotional scars
left on an individual following abuse, although appellant downplayed
the effect on himself.
[35]
The appellant unavoidably pleaded guilty to the charges and accepted
responsibility for his actions. However, he did not testify
and
accordingly the true extent of his remorse, if any, could not be
established effectively, as noted by the magistrate. Stollarz
recorded that the appellant
'shows no remorse'
for his
actions, other than explaining that he was being rejected by the
community and
' persecuted'
by the media, aspects that angered
him.
[36]
True remorse entails
'repentance and inner sorrow'
or a
feeling of guilt. It may be considered as a mitigating factor as a
remorseful offender is generally unlikely to repeat an offence.
A
plea of guilty may convince a court that an offender has remorse, but
where an accused pleads guilty as he was caught red-handed
or had no
other option, because of the strength of the case against him, a plea
of guilty is a neutral factor, which in our view
is the case in this
matter.
[37]
In
S v AR
(supra) the court was seized with an appeal by the
State against sentence in the following circumstances:
'[39]
... The respondent pleaded guilty to 2 130 counts which
inter alia
included the contraventions of s 5(1) of Act 32 of 2007 (Sexual
Assault), contraventions of s 20(1) of Act 32 of 2007 (the use of
a
child for the creation of child pornography) and various
contraventions of s 248 (1) (a), (b) and (c) of Act 65 of 1996 (the
possession, creation and the importation of child pornography).
Counts 4-17 attracted the prescribed minimum sentence (at the time)
of 1O years' imprisonment as contemplated in terms of s 51(2) of Act
105 of 1997. On the established facts there is no doubt that
the
respondent has a propensity to commit these offences. Each image of
child pornography in whatever form is and remains a crime-scene.
In
the present instance the respondent also physically abused some of
his victims whilst asleep. He was calculated and manipulative.
He
exploited his victims when they were at their most vulnerable. To
suggest that he is not a danger to society is simply, misguided.'
[38]
The court in AR, where the accused was sentenced to ten years
imprisonment with two years suspended, had regard
inter alia
to
the comments in
Kleinhans (v S)
2014 (2) SACR 575
(WCC), where
the appellant was a 74-year-old well-to-do businessman, who had been
convicted of numerous contraventions of SORMA,
relating to the
manufacture of child pornography, sexual assault and sexual grooming.
The charges related to three complainants,
minor girls, whom the
appellant had befriended over a period of five years. He was
sentenced to an effective term of 15 years imprisonment.
On appeal,
despite argument and evidence that the appellant would benefit from a
community-based treatment programme, the court
held that the
seriousness of the offences required a period of imprisonment. An
effective term of four years' imprisonment was
imposed with a further
four years suspended on certain conditions.
[39]
Ms Kortje referred to the sentence in the matter of
Director of
Public Prosecutions North Gauteng v Gerhardus Johannes Alberts
(Unreported judgement of Gauteng High Court, Pretoria delivered
on 30 June 2016). Alberts was a forty-one-year-old man with a life
partner and no children. He collected pornographic material involving
children online for several years. He did not have direct
contact
with the children, nor did he take any photographs himself. He was
convicted of 481 counts of possession of child pornography.
His
sentence of direct imprisonment of five years in terms of section
276(1)(i) of Act 51 of 1977 was increased to ten years direct
imprisonment by the court on appeal.
[40]
The images possessed by
Alberts
were described by the court as
depicting absolute depravity, many depicting very young children
being raped. The contents of the
images are comparable to some of
those in the present matter. As in the present matter, it was
considered that Alberts, by collecting
the images, promoted the
production thereof and so perpetuated the sexual abuse and violation
of children. An aggravating factor
in the Alberts case was that
Alberts was in the process of ordering child pornography to be
created to his specifications. Whilst
this aspect is absent in the
present matter, the volume of the images collected by appellant, is
far greater than that seen in
comparable cases.
[41]
In
AS Botha v the State
(unreported) Free State High Court
A163/2014, the court dealt with an appeal against sentence where the
accused had pleaded guilty
to,
inter alia,
the creation or
production of; the importation or procurement of; and the possession
of child pornography. These three charges were
taken as one for
purposes of sentence and the accused was sentenced to 7 years
imprisonment.
[42]
In
D Binneman v the State
(unreported) Western Cape High Court
A111/2018 the appellant pleaded guilty to 1137 counts of possession
of child pornography. Appellant
used chat rooms and internet sites to
groom, expose to pornography and take pictures of children ranging
from 2 to 14 years old.
The accused was a first offender, 28 years
old, gainfully employed with no children. The appeal court upheld the
court a
quo's
sentence of ten years direct imprisonment.
[43]
In
Director of Public Prosecutions: Gauteng Division, Pretoria v
Hamisi
2018 (2) SACR 230
(SCA) Dambuza JA (Lewis JA and Rogers
AJA concurring) held as follows:
'[15]
It is trite that a wide discretion is allowed to a trial court in the
assessment of punishment. In the absence of material
misdirection by
the trial court, the appeal court cannot approach the question of
sentence as if the appeal court were the trial
court, and then simply
substitute the sentence of the trial court with that which it
prefers. On the other hand, where the court
of appeal finds
sufficient disparity
between the sentence imposed by the trial
court and that which it would have imposed, the court of appeal is
obliged to interfere.'
[44]
As noted by the magistrate, sentences in comparable matters are
merely a guide to sentencing, as the circumstances and facts
in every
matter differ. Previous sentences in comparable matters are not
sentencing strait jackets. In the
Gcaza
judgment of the SCA,
supra, it was emphasised that a court on appeal will only interfere
with a sentence if the trial court misdirected
itself in passing
sentence, and even misdirection alone, does not suffice for a court
to interfere on appeal. A misdirection should
be material, as held by
Trollip JA in
S v Pillay
1977 (4) SA 531
(A) at 535 E-H and
Marais JA in
S v Malgas
2001 (1) SACR 469
(SCA) par 12:
'A
court exercising appellate jurisdiction cannot in the absence of a
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. Where material misdirection
by the trail court vitiates its exercise of
that discretion, an
appellate court is of course entitled to consider the question of
sentence afresh. In doing so, it assesses
sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance... an appellate court
is (then) at large. However,
even in the absence of material misdirection, an appellate court may
yet be justified in interfering
with the sentence imposed by the
trail 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 trail court,
is so marked
that it can properly be described as "shocking",
"startling" or "disturbingly inappropriate"
...
'.
[45]
The court held that in the latter situation the appellate court may
not substitute the sentence which it thinks appropriate:
'...
merely because it does not accord with the sentence imposed by the
trial court or because it prefers it to that sentence. It may
do so
only where the difference is so substantial that it attracts epithets
of
the kind mentioned.'
[46]
The numerous aggravating circumstances in this matter are obvious.
Counsel for the appellant had difficulty to point out any
convincing
material misdirections by the magistrate in the trial court. That the
court should show mercy, was one of his pleas,
but the appellant
himself had not begged for mercy, a sentiment that should be earned,
usually by showing remorse, which may have
been better demonstrated
if the appellant had testified in mitigation of sentence, a sentiment
shared by the magistrate.
[47]
We agree that the 18 644 counts constituting the first charges
against the appellant should be taken together for purposes
of
sentence. However, after a thorough consideration of the facts and
the sentences imposed in comparable matters, the facts in
the present
matter, including the seriousness of the crimes, the appellant's
personal circumstances, the purposes of sentence,
the balancing of
mitigating and aggravating circumstances, an element of mercy, in
view of the history of abuse suffered by the
appellant in his younger
days, as well as the interests of the community and ultimately the
interests of children and their protection,
we believe a sentence of
(10) ten years imprisonment would be more appropriate and
proportionate than the fifteen (15) years imposed
by the court
a
quo.
The disparity is such that this court is entitled to and
obliged to interfere.
[48]
Accordingly we order:
1.
The appeal against sentence succeeds.
The sentence of fifteen (15) years imprisonment is set aside and
replaced with the following:
2.
The accused is sentenced to ten (10)
years' imprisonment
;
3.
The remainder of the sentence of the
magistrate will remain in place;
4.
The sentence is anti-dated to 7 November
2017.
_______________
E
STEYN,J
Judge
of the High Court
_______________
F
SIEVERS, AJ
Acting
Judge of the High Court