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[2019] ZAWCHC 55
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Beale v S (A283/18) [2019] ZAWCHC 55 (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 café 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 30B 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 ‘d
agga
’.
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 13
th
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
l
, 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, i
t
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 B. 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 24B (1)
of the Act.  (The court will disregard that
the appellant in
fact also admitted to s 24B (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 DPP
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 t
he
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
DPP 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 236B, 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 225B 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 Toit,
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 24B (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 10 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
judgment 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 S G SIEVERS, AJ
Acting Judge of the High Court
The
appeal was heard on 22 March 2019.
The
Appellant was represented by Adv P Van der Berg, from Knysna.
The
attorney for Appellant was Mr C Jeppe from Plettenberg Bay
For
the Respondent was Adv E Kortje, assisted by Ms Marx, from Knysna, on
behalf of the NDPP.
The
judgment was prepared by Judge E Steyn and Acting Judge F S G
Sievers.
The
judgment was handed down on 3 May 2019.