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[2016] ZAGPPHC 495
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Director of Public Prosecutions North Gauteng v Alberts (A835/14) [2016] ZAGPPHC 495; 2016 (2) SACR 419 (GP) (30 June 2016)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A835/14
30/6/2016
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
In
the matter between:
DIRECTOR
OF PUBLIC
PROSECUTIONS
Appellant
NORTH
GAUTENG
and
GERHARDUS
JOHANNES
ALBERTS
Respondent
JUDGMENT
Baqwa
J (Kubushi J concurring)
Child
pornography
- Appeal against sentence
-
Nature of the offence
-
Section 28(1)(d) of the Constitution
-
Protection of children against maltreatment
as
subjects of pornographic material
-
The purpose of the
Films and Publications Act 65 of 1996
-
Specific issues on sentencing
-
Need to adopt
a
global
perspective due to online sexual abuse
-
Need for harmonisation of sentencing.
Summary
The
background to this case is that the accused has been a collector of
pornographic material involving children for a number of
years. He
began making the collection after serving in the army until the time
of his arrest. The collection was made online and
he did not have
direct contact with the children nor did he take the photographs
himself.
The
judgment of the court a quo captures his interest as follows:
"He had the
following preferences. The children had to be between the ages of 9
and 12. I must state when looking at the photos,
there is quite a few
children that is well under that age group. Interest was further
according to the e-mails sent anal, animal,
girl and girl, man on
girl, boy/girl, feisty and incest and the children must look happy.
He was also cross­ examined on these
preferences and at no stage
he denied this."
At
the court a
quo
the appellant had been sentenced to serve a
term of five (5) years imprisonment.
Held
,
that taking into account the nature
of the offence, its impact on the 481 victims and their families and
the level of depravity
of the underlying crimes further perpetrated
by continued publication of the images, the court
a
quo
misdirected itself by
not giving sufficient weight to the aggravating factors referred to
in the grounds of appeal.
Held
,
further that the crimes committed on
the minor children could not only be described as disgusting and
degrading but that, as was
testified by the experts, their youth had
been taken away and their future tarnished and that the court
a
quo
had been correct in
determining that a non-custodial sentence would be inappropriate
taking into account the seriousness of the
offences and the interests
of society.
Held
,
accordingly, that the appeal against
sentence had to be upheld and the sentence by the Regional Court,
Pretoria be set aside and
be substituted with the sentence of ten
(10) years imprisonment and that the respondent's name be recorded in
the Register of Sex
Offenders.
Annotations:
Reported
cases
S v C
1996 (2) SACR 370
(SCA)
S v Malgas
2001 (1) SACR
469
(SCA)
De Reuck v Director of
Prosecutions, Witwatersrand Local Division and Others
[2003] ZACC 19
;
2003
(2) SACR 445
(CC)
Du Toit v Ntshinghila
2016 (2) All SA 328
(SCA)
Statutes
Criminal Procedure Act 51
of 1977
Constitution of the
Republic of South Africa, 1996
Films and Publications Act 65 of 1996
Children's Act 38 of 2005
Children's Amendment Act
41 of 2007
Sexual Offences and
Related Matters Act 32 of 2007 Films and Publications Amendment of
Act 3 of 2009
Introduction
[1]
The respondent appeared before the Regional Court, Pretoria on four
hundred and eighty two (482) charges of possession of child

pornography in contravention of
Section 27
(1) (9) of The
Films and
Publications Act, 65 of 1996
.
[2]
He initially pleaded not guilty on 27 January 2012 but changed his
plea on 31 August 2012 and was convicted on 481 charges.
[3] The respondent was
sentenced to two five year terms of imprisonment which were ordered
to run concurrently in terms of the provisions
of Section 276 (1) (i)
of Act 51 of 1977 on 22 August 2014. Leave to appeal against
sentence was granted to the appellant on 11 November 2014.
[4]
The court
a quo
gathered the charges into two groups and in
that regard stated as follows:
"I went through the
images and where actual penetration is evident as under the old rape
charges, I grouped them into that
group. The rest of the images
depicted, I grouped into another group."
The
Background
[5]
The background to this case is that the accused has been a collector
of pornographic material involving children for a number
of years. He
began making the collection after serving in the army until the time
of his arrest. The collection was made online
and he did not have
direct contact with the children nor did he take the photographs
himself.
[6]
The judgment of the court a
quo
captures his interest as
follows:
"He had the
following preferences. The children had to be between the ages of
9
and 12. I must state when looking at the photos, there is
quite
a
few children that is
well under that age group. Interest was further according to the
e-mails sent anal, animal, girl and girl,
man on girl, boy/girl,
feisty and incest and the children must look happy. He was also
cross-examined on these preferences and
at no stage he denied this."
[7] Doctors Labuschagne
and Viljoen also testified as part of the pre-sentencing procedures
after having held interviews with the
respondent.
Personal
Circumstances
[8] The respondent was
born on […] January 1973 and he was 41 years old at the time
of sentence. He was born in the Cape
Province and was an adopted
child. He describes his family life as not being pleasant mainly due
to his father who was abusive.
He describes his school life as fairly
lonely and regarded himself as the odd one out. After school he was
drafted into the army.
At the time of arrest he was working for the
Pretoria City Council as a systems controller. He has a life partner
and they have
been together for about 10 years. No children were born
of the relationship. The respondent stated that his interest in child
pornography
began after he left the army when he viewed nude pictures
of children on an artwork site on the internet.
The
Nature of the Offence and the Law
[9]
It is generally accepted that children are the most vulnerable
members of society and crimes perpetrated against them are usually

highly disturbing and lead to heightened outrage in societies where
they are committed. Specific legislation has been passed for
the
protection of children but despite progressive children's rights
legislation in line with international conventions the crimes
against
children seem to remain alarmingly high.
[10]
The South African Constitution expressly addresses the rights of
children and affords them specific protection. Section 28
(1) (d)
provides that every child has the right to be protected from
maltreatment, neglect, abuse and/or degradation. The Child
Protection
Act and its amendment 41 of 2007 (promulgated in 2010) addresses
children's rights in its entirety. Section 110 specifically
deals
with the protection of children and resonates with the United Nations
Convention and African Union Charter on the protection
of children's
rights.
Section 110
of the
Children's Amendment Act mandates
a long
list of persons in their professional capacities to report any child
abuse. Section 54 of the Sexual Offences and Related
Matters Act 32
of 2007 compels
"[a} person"
who
knows or who has a
"reasonable belief or suspicion"
of any form of sexual abuse against
a child or mentally challenged individual to report it to a police
official.
[11]
In the unreported decision of
Du Toit v Ntshinghila
2016 (2)
All SA 328
(SCA) commenting on the use of pornographic materials
Ponnan JA stated as follows:
"[1] '[T]he use of
children
as ....
subjects of
pornographic materials is very harmful to both the children and the
society as
a
whole' (New York
v Ferber
458 US 747
(1982)). Ferber observed that child pornography
generates
a
set of harms
distinct from those generated by pornographic depictions of adults
-
harms related to the sexual abuse of children. The Films and
Publications Act
65
of 1996
(the "Acf".), enacted to inter alia address the child
pornography, has, amongst its objects, the protection of
children
from exposure to disturbing and harmful materials and from premature
exposure to adult experiences (Section 2 (b)) and
to make the
use
of children
-
and
their exposure to
-
pornography
punishable (Section 2 (c)). As it was put in De Reuck v Director of
Public Prosecutions (Witwatersrand Local Division)
and Others
[2003]
ZACC
19
;
2004 (1) SA 406
(CC)
para 61:
"The purpose of the
legislation is to curb child pornography which is seen as an evil in
all democratic societies. Child pornography
is universally condemned
for good reason. It strikes at the dignity of children, it is harmful
to children who are used in its
production, and it 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."
[2]
Pornography is notoriously difficult to define. In Jacobellis v Ohio
(No. 11)
[1964] USSC 164
;
378 US 184
, Justice Stewart intuitively opined:
'I shall not today
attempt further to define the kinds of material I understand to be
embraced within that shorthand description
[hard-core pornography],
and perhaps I could never succeed in intelligibly doing so.' Defining
child pornography is no less difficult.
'Child pornography',
according to Section 1 of the Act, 'includes any image, however
created, or any description of
a
person, real or simulated, who is or who is depicted, made to
appear, look like, represented or described as being under the age
of
18 years –
(a)
engaged in sexual conduct;
(b)
participating in, or assisting another person to participate
in, sexual conduct; or
(c)
showing or describing the body, or parts of the body, of such
a
person in a manner or in
circumstances which, within context, amounts to sexual exploitation,
or in such
a
manner that it
is capable of being used for the purposes of sexual exploitation.'
In terms of Section 24 B
(1):
'any person who
unlawfully possesses
....
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."'
Specific
Issues on Sentencing
[12]
Sentencing in child pornography cases is discussed in an article
titled
"The
Trivialisation of Child Pornography Crimes in South African Courts"
by
lyavar Chetty, KINSA Africa, 2014
(http://kinsa.neUnews/trivialisation-child-p
ornography-crimes-south-african-courts-iyavar-chetty/).
In that article the writer opines:
"Fundamental to
appropriate and effective legal responses to the online sexual abuse
and exploitation of children is
a
proper understanding of the complexities involved in not just
the creation but also the dissemination and sinister use of child
abusive images, commonly referred to as child pornography. The
interesting issues which arise from child abusive images include

child protection concerns, technological architecture and politics of
the internet and the implication of offenders who operate
in
cyberspace but whose devastating effects are most keenly felt at the
local level and within communities. But the suspended sentencing
of
convicted child pornography offenders by South African courts (seen
as nothing more than
a
"slap
on the wrist') suggest that the subject
-
matter is full of ignorance, confusion and lack of the proper
understanding of the reality of child pornography.”
[13] To further
illustrate the point Chetty writes in the same article:
"A South African
Court's recent suspended sentence of
a
person convicted of
a
child
pornography crime stands in chilling contrast to the recent
sentencing of
a
couple in the
United States of America. Patricia Ayers was sentenced to 1 590 years
in prison after pleading to 53 counts of producing
child pornography.
And her husband, Matthew Ayers, also pleaded guilty to 25 counts of
producing child pornography and was sentenced
to 750 years in prison.
Both received the maximum penalties for each count, (Couple Sentenced
to More Than 1 000 years After Child
Pornography Production,
Florence, USA, Katelyn Murphy, 24 October 2014). Remember also the
report by Korea Times, Seoul, South
Korea
a
few years ago that an Arizona man who received
a
200 year prison sentence for possessing 20 pornographic images
of children failed to persuade the Supreme Court to have his sentence

reduced."
[14] Chetty concludes by
saying:
"In order to ensure
appropriate sentencing of those convicted of involvement in child
pornography acts, the crime should be
seen not simply as the
possession or distribution of child abuse images but as the sexual
abuse, exploitation, degradation, and
impairment of the dignity of
all children and the promotion of the use of child pornography for
sexual gratification through the
portrayal of children as acceptable
sexual objects."
[15]
The article by Chetty captures the essence not only of how child
pornography ought to be viewed in consideration of sentence
but also
echoes a view that has not yet sufficiently penetrated the South
African jurisprudence in regard to offences against children.
There
seems to be a chasm between the public outrage that is expressed when
those offences are committed and the manner in which
the courts
articulate that outrage when sentences are meted out. It is true that
sentencing is a balancing act in that it has to
take into account the
interests not only of the criminal but also to consider the
seriousness of the crime and the interests of
society. In my view the
court, as the upper guardian of minor children ought not to be
hesitant in protecting the interests of
one of the most vulnerable
groups in our society. The courts, in my view, are
enjoined
by the Constitution to do so. It is not an option which they may or
may not take.
[16] Chetty makes
reference to the practice in the United Kingdom in this regard when
he states:
" The advice of the
United Kingdom's Sentencing Advisory Panel to the Court of Appeal on
Offences Involving Child Pornography
should, therefore, be followed
by South African Courts:
'....it is fundamental
.... that sentencing for these offences should reflect the harm
suffered by the children who are abused and
exploited by the
production of indecent photographs. An offender sentenced for
possession of child pornography should be treated
as
being in
some
degree
complicit in the original abuse which was involved in the making of
the images. Sentences for possession should also reflect
the
continuing damage done to the victim or victims, through copying and
dissemination of the pornographic images. Those who make
or
distribute the images bear
a
more
direct responsibility for the eventual use
as
well for encouraging further production"
[17] In casu, it appears
from the evidence of the experts including Dr Labuschagne that
possessors of child pornographic material
view it as a lesser evil in
that they were not involved in the production thereof and for that
reason should not be seen as complicit
in the crimes committed in the
production thereof.
[18]
Having viewed the images which the respondent was accused of
possessing, those images can only be described as depicting absolute

depravity. A number of them depict very young children being raped in
different positions. The depictions in themselves are outrageous
in
the extreme.
[19]
Chetty makes reference to the practise in the United States and the
view that is taken with regard to child pornography. He
writes:
"The possession of
child pornography should, in fact, be seen
as
not far from falling within the scope of what is defined
as
depraved recklessness or reckless endangerment in the United
States. Depraved indifference or reckless endangerment describers
conduct
which is
"so
wanton,
so
deficient in
a
moral sense of concern,
so
lacking in regard for the life of or lives of others, and
so
blameworthy
as
to
warrant the
same
criminal
liability
as
that which the
law imposes upon
a
person who
intentionally causes
a
crime."
Depraved indifference refers to a person's state of mind in
recklessly engaging in conduct which creates a grave risk
of harm
-
conduct that shows utter disregard for the value of human life
not because such
a
person
means to cause harm but because he or she simply does not care
whether or not such conduct will lead to harm. Depraved indifference

to human life reflects
a
wicked,
evil or inhuman state of mind, as manifested by brutal, heinous and
despicable acts. It is evinced by conduct that is wanton,
deficient
in
a
moral sense of concern,
and devoid of regard for the life or lives of others. (See, for
example,
People v Register,
60 N. Y. 273
,
469 NYS 2s
599
and
People v Russell,
91 NY2d 280
, 287)."
[20]
It is an absolute necessity to understand not only the nature of the
crime but also the impact it has not only on the victim,
the victim's
family but also the society at large. By society, it must be
understood not only the society in and around the victim
but society
in a global sense due to the advances in technology through which
images can go around the world in a matter of seconds.
[21]
As Chetty
(supra)
puts
it,
"what matters is that there can be no proper
interpretation and application of a law if there is no proper
understanding and
appreciation of the subject matter of that law. The
subject matter of
Section 27
(1) of The
Films and Publications Act is
child pornography and is a direct response to the constitutional
rights of children to be protected from what child pornography
is all
about
-
maltreatment,
neglect, abuse and degradation, as enshrined in Section 28 (1) (d) of
the Constitution."
Lack
of Harmonised Sentencing Policies
[22]
In an article entitled
"Lack
of the Appropriate Custodial Sentencing of Child Pornography
Offenders Amounts to the Trivialisation of the Online Sexual
Abuse
and Exploitation of Children"
by
lyavar Chetty, (
www.scribd.com/iyavar),
the writer makes a comparison of sentences meted out internationally
and sentences handed down by South African Courts in similar
cases.
The comparison, in my view demonstrates the ground that still needs
to be covered not only with regard to an understanding
of the nature
of the crime but also with regard to the legislative regime with
regard to child pornography.
[23]
Chetty writes as follows:
"The online sexual
abuse and exploitation of children is a global crime. Given the
global nature of the trade of child pornography,
and the fact that
the all offenders in all countries
access
and download the same images from the same sites, the
difference in sentencing policies in different countries is
disturbing and
makes no
sense.
The
lack of harmonisation of sentencing policies to combat one of the
most heinous crimes against children stands in stark and chilling

contrast to the harmonisation of the child pornography industry by
internet and mobile phone paedophiles and child terrorists.
Compare,
for instance, sentences handed down to those convicted of the
possession of child pornography in the United States:
(1)
Round Rock Man Gets
2 Life Sentences
for Child
Pornography ­ "Round Rock Police obtained
a
search warrant of Baley's house and seized several computers
that contained 1 500 photographs and 50 video clips of graphic child

pornography";
(2)
The Eagle Times, Claremont, NH, USA. A Vermont man will spend
next 13 years in prison
after he pleaded guilty to transporting
child pornography across state lines
;
(3)
Detroit Free Press, Detroit, Ml, USA reported that Mariscal
was sentenced by
a
federal
judge to
100 years in prison for producing, importing and
distributing child pornography
;
(4)
Korea Times, Seoul, South Korea
-
An Arizona man who received
a
200 year prison sentence for possessing 20 pornographic
images of children failed on Monday to persuade the Supreme Court to
have
his sentence reduced;
(5)
KHQ Right Now, Spokane, WA, USA had
a
report of 66 year old Thomas Herman who was sentenced to
10
years in prison in federal court after pleading guilty to one
count of possession of child pornography;
(6)
Muncie Star Press, Muncie, IN, USA. Rinehart, 33, pleaded
guilty before Judge David F. Hamilton to two counts of producing
child
pornography and was sentenced to
15 years in prison
;
(7)
Frederick News Post, Fredrick, MD, USA reported that
a
Frederick man whose computers contained
thousands of images
of child pornography accepted
a
plea agreement that put him in jail for 18 years;
(8)
Appleton Post Crescent, Appleton, WI, USA.
A
32 year old Oshkosh man faces up to
575 years in prison and
$2.3 million in fines if convicted
on
23 counts of possessing child pornography;
(9)
Justin Fritscher, […] November 25, 2010" Porn
charge could bring 200 years: Images of children found on computer
brought
in for repair
- a
convicted
sex
offender arrested Tuesday
night could face a
200 year prison sentence, if convicted, after
five images of child pornography went found
on
his computer,
Madison-Rankin District Attorney
Michael Guest said;
(10)
http://amplify.com/u/bne2x. Production of Child Pornography
Results in More Than
27 years in Prison
for 23 Year Old Austin
Man;
(11)
Man
possessed 'astronomical amount' of child pornography faces 2114 years
in jail
-
http:/
lwww.whptv.com/news/locall
storv/IPDATE-Distributinq-child-porn-collection-containedlbEUH, 20
January 2011; and
(12)
Prison: 700 years in Houston child sex, porn case:
A
Houston man has been sentenced to three life terms in prison
for sexual assault of
a
child
and 720 years more for possessing child pornography. Rodney Williams
changed his plea to guilty during jury selection Monday
in a case
prosecutors
say
involved a
5
year old girl. Investigators
say
the case began last July, when his common-law wife found
digital images on a camera that showed him sexually assaulting
a
child. Investigators
a/so
recovered more than 70 images of child pornography on
computers in his home. Williams, who's 23, must serve three life
sentences
for super aggravated sexual assault of
a
child under the age 6.
He was also sentenced to 720 years
in prison for the child pornography found
on
his computer and digital camera.
(Associated
Press,
04/0512010)
In contrast,
some
of the sentences imposed by South African courts are as
follows:
(1)
Two Newlands East men get 5 year sentences, wholly suspended for 5
years, after pleading guilty to the creation, production, possession

and distribution of child pornography and indecent assault;
(2)
Man who claims to have child pornography for research
sentenced to
a
fine of R24 000
,
half of which was conditionally suspended. The magistrate agreed to
a
deferred
fine of sixteen monthly payments of R750.00;
(3)
Teacher found guilty of possession of child pornography and
exposing children to pornography sentenced to 5 years imprisonment
suspended
for 5 years
;
(4)
Man who indecently assaulted his own daughter and took
pornographic pictures of her over
a
period of two years
sentenced to 7 years imprisonment
,·
(5)
"Father Christmas" guilty of indecent assault, exposing
children to pornography and possession of child pornography sentenced

to 5 years imprisonment
;
(6)
Man found guilty of four counts of creation and possession of
child pornography and of exposing children to pornography sentenced

to 5 years in prison
;
(7)
Teacher found guilty of possession of 180 minutes of video
recording, 265 digital movie clips, 16 slides and 626 still images of

child pornography and indecent assault of children sentenced to 6
years imprisonment
;
(8)
Man court finds to be
a
homosexual paedophile
sentenced to 2 years imprisonment, with 1 year suspended, for
possession of child pornography; and
(9)
Man found guilty of indecent assault of two minor children and the
creation and possession of 71 images of child pornography has

sentence reduced to
6
years imprisonment, with 2 years
suspended for 5 years.
Courts have an
opportunity to harmonise sentencing in child pornography cases,
without having to submit to any bureaucratic protocols.
It is not
difficult to find points of similarities in child pornography cases:
the same or substantially similar number of the
same type of images
downloaded from the same websites by perverts in different countries.
There is no impediment to the harmonisation
of sentencing policies.
Courts, therefore, have an opportunity to make a major contribution
to the harmonisation of child pornography
laws and enhance the
protection of all children from sexual abuse exploitation.
Until the 2004
amendment, the creation, distribution, production and possession of
child pornography constituted a single offence,
with a maximum of 5
years imprisonment.
However, Parliament, concerned at the increase
in incidents of sexual abuse and exploitation of children in
pornography, both nationally
and internationally, amended section 27
of the Act in two important respects. Firstly, Parliament created
possession, creation,
importation and distribution as separate
offences and, secondly, increased the permitted maximum to 10 years
for each separate offence.
"
[24]
Prior to the amendment of Act 3 of 2009
Section 27
of the
Films and
Publications Act 65 of 1996
provided as follows:
"(1)(a) Any person
shall be guilty of an offence if he or she –
(i)
is in possession of;
(ii)
creates or produces or in any way contributes to, or assists
in, the creation or production of;
(iii)
imports or in any way takes steps to procure, obtain or
access, or
(iv)
knowingly exports, broadcasts or in any way distributes or
causes to be exported, broadcast or distributed,
a
film or publication which contains child pornography or which
advocates, advertises or promotes child pornography or the sexual
exploitation of children.
Section 30
(1A)
Any person found guilty
of
a
contravention of
Section
27
(1) may
be
sentenced to
a
fine or to imprisonment for
a
period not exceeding ten
years
or to both
a
fine and
such imprisonment."
[25]
The appellant submits that an effective sentence of five (5) years
imprisonment in terms of 276 (1) (i) of Act 51 of 1977,
is in the
circumstances of this case shockingly light and inappropriate.
[26] The respondent on
the other hand submits that imposing .sentence is mainly a function
of the trial court and that the powers
of this court to intervene are
limited.
Grounds
of Appeal
[27]
The appellant submits that the magistrate erred in attaching
insufficient weight to the aggravating features present,
inter
alia
that:
·
The respondent possessed a vast amount of child abuse images;
·
That he collected these over an extended period of time;
·
That the images depict sexually abusive acts including the rapes of
children as small as 2 years old;
·
That the respondent, by collecting the images, promoted the
production thereof and that his conduct served to instigate
and
perpetuate the sexual abuse of children, thereby effectively making
him an accomplice to the continued sexual violation of
children.
·
That the respondent was in the process of
"ordering"
child pornography to be created to
his specifications - which would of necessity have involved the
further sexual abuse of children;
·
That the crimes in hand are not victimless, but that the victims of
the offences are children who had not only been sexually
abused but
who have to live with the knowledge that images portraying them being
raped or sexually violated will remain in the
public domain forever,
reminding them of the abuse and perpetuating the infringement of
their rights to privacy, dignity, bodily
and psychological integrity.
·
The respondent used a false identity and address to mask his identity
which also indicates that a lot of planning and time
went into the
commission of these crimes.
[28] The respondent
submits that most of these aggravating features were mentioned in the
judgment of the court a quo and that by
so doing the magistrate
applied her mind properly to those aspects. The fact of the matter
is, it is one thing to mention aggravating
factors but it is another
matter to bring those to bear on the sentence itself. It is the
sentence that gives effect to the moral
indignation of the community
and to the deterrent effect sentence should have on would be
offenders.
[29]
The appellant in his heads of argument refers to the case of
S v C
1996 (2) SACR 181
(c) in which the following was said:
"Rape is regarded by
society
as
one of the most
heinous of crimes, and rightly
so. A
rapist does not murder his victim
-
he murders her self-respect and destroys her feeling of
physical and mental integrity and security. His monstrous deed often
haunts
his victim and subjects her to mental torment for the rest of
her life
- a
fate often worse
than
loss
of life. Serial
rapists and murderers are regarded by society
as
inherently evil beings. They are the·most feared and
loathed criminals in our community. Society demands protection in the

form of heavy and deterrent sentences from the courts against such
atrocious crimes."
[30]
The respondent submits that reference to this case is irrelevant as
the respondent is not charged with rape. As stated (supra)
it is
quite evident from the pornographic images that a significant number
of the children were raped in order to secure those
images. The fact
that the accused was not charged for rape does not refute that
reality. Even the court a quo in handing down sentence
referred to
"images and where
actual penetration is evident”.
[31] The court a quo goes
on to say the following:
"However the effect
on children, although the accused denies this, is severe. There are
very young children involved in this
case. I even... in one of the
photos there is
a
child under
the age of 2 depicted on the photos and when I state under the age of
2 I am very lenient with regard to my estimation.
The effect on these
children is severe and that, due to people like the accused, this
industry thrives."
[32] In his report, Dr
Labuschagne states:
"It must be pointed
out that whether or not the offender has previous hands-on offences,
he has participated in an industry
that supports the sexual abuse of
children. For each image produced. a child was sexually abused..."
(My emphasis)
In the present case we
are dealing with a conviction in which 481 children were abused.
[33]
Dr Labuschagne concludes his report as follows:
"In conclusion I
diagnosed the accused
as a
paedophile with accompanying interest in zoophilia, otherwise
known
as
bestiality and
incest. These sexual interests will remain present throughout the
accused lifetime. I believe that the accused poses
a
significant threat to sexual wellbeing of children between the
ages of 9 and 12. Due to his use of the internet, it is clear that
it
is not only children in his immediate environment that are
threatened, but children in any part of the world."
[34]
Taking into account the nature of the offence, its impact on the 481
victims and their families, the level of depravity referred
to
(supra),
the court
a quo
misdirected itself by not
giving sufficient weight to the aggravating factors referred to in
the grounds for appeal.
[35]
In S v
Malgas
2001 (1) SACR 469
(SCA) at para 12 497 e - g
Marais JA states as follows:
"Where material
misdirection by the trial 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. As it is said, an appellate Court is 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 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 "."
[36]
In
De Reuck v Director of Prosecutions, Witwatersrand Local
Division and Others
[2003] ZACC 19
;
2003 (2) SACR 445
(CC) para 63, The
Constitutional Court, acknowledging the international law applicable
remarked as follows with reference to the
harm intrinsic to the
making and possession of child pornography:
"[63]
Similarly, article 1 of the Universal Declaration of Human
Rights stresses the importance of human dignity. It states: "All

human beings are born free and equal in dignity and rights."
Children merit special protection by the state and must be protected

by legislation which guards and enforces their rights and liberties.
This is recognised in
section 28
of our Constitution. Children's
dignity rights are of special importance. The degradation of children
through child pornography
is a serious harm which impairs their
dignity and contributes to
a
culture
which devalues their worth. Society
has
recognised that childhood is a special stage in life which is
to be both treasured and guarded. The
state
must ensure that the lives of children are not disrupted by
adults who objectify and
sexualise
them through the production and
possess
on
of child pornography. There is obvious physical harm
suffered by the victims of sexual abuse and by those children forced
to yield
to the demands of the paedophile and pornographer, but there
is
a/so
harm to the dignity
and perception of all children when
a
society allows sexualised images of children to be available.
The chief purpose of the statutory prohibitions against child
pornography
is to protect the dignity, humanity and integrity of
children.
[64]
Little need be said about the second purpose of section 27 which is
to protect children from being used in the production of
child
pornography. The expert evidence in this
case
confirms that abusing children in this way is severely harmful
to them. The psychological harm to the child who was photographed
is
exacerbated if he or she knows that the photograph continues to
circulate among viewers who use it to derive sexual satisfaction."
[37] The crimes committed
on the minor children can indeed only be described as disgusting and
degrading. Their youth was taken
away and their future had been
tarnished. It would be difficult for them to recover from the scars
of the acts perpetrated upon
them. That much is evident from the
expert evidence. The court a quo was correct in determining that a
non-custodial sentence would
be inappropriate taking into account the
seriousness of the offences and the interests of society.
[38]
On a conspectus of all the facts and the applicable law it is quite
apparent that even though the court a
quo
seemed to take
cognisance of the aggravating factors in this case, it erred in not
affording adequate weight to them in the sentence
passed. I therefore
find the sentence meted out materially inadequate and disturbingly
inappropriate.
[39]
In S v
Swart
2004 (2) SACR 370
(SCA) at para 12 the court held
that:
"In our law
retribution and deterrence
are
proper purposes of punishment and that they must be accorded
due weight in any sentence that
is
imposed. Each of the elements of punishment
is
not required to be accorded equal weight, but instead proper
weight must be accorded to each according to the circumstances.
Serious
crimes will usually require that retribution and deterrence
should come to the fore and that rehabilitation of the offender play
a
relatively smaller role."
[40] Upon consideration
of all relevant facts and submissions by counsel in this case I am
persuaded that the misdirection of the
court a quo entitles the court
to consider the question of sentence afresh.
[40]
Wherefore, I propose that the following order be made:
40.1.
The appeal against sentence is upheld.
40.2.
The sentence handed down by the Regional Court, Pretoria is set aside
and substituted with the following.
40.3.
The respondent is sentenced to serve a term of ten (10) years
imprisonment.
40.4.
The respondent's name will be recorded in the Register of Sex
Offenders.
It
is so ordered.
__________________________
S. A. M. BAQWA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I
agree.
__________________________
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Heard
on
:

19 April 2016
Delivered
on
:

30 June 2016
For
the Appellant
:
Advocate A. Coetzee
Advocate
C. P. Harmzen
For
the Respondent
:
Advocate C. J. van Wyk