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[2015] ZAGPPHC 272
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Strydom v S (A463/2014) [2015] ZAGPPHC 272 (5 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE NO: A
463/2014
DATE: 5 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between
STRYDOM,
JACQUES
............................................................................................................
APPELLANT
and
THE
STATE
...........................................................................................................................
RESPONDENT
JUDGMENT
MUDAU AJ:
[1] The appellant,
Mr Jacques Strydom, appeared before the regional magistrate, Benoni,
on 2 counts of rape and 3 counts of sexual
assault in violation of
section 3 and 5 respectively, read with other relevant provisions of
the Criminal Law Amendment Act (Sexual
Offences and Related Matters)
32 of 2007 and with the provisions of
section 51
of the
Criminal Law
Amendment Act 105 of 1997
. He was convicted and sentenced as follows:
Count 1 rape-10
years’ imprisonment
Count 2 (sexual
assault)-3 years’ imprisonment.
Count 3 (rape)-10
years’ imprisonment.
Count 4 (sexual
assault)-3 years' imprisonment.
Count 5 (sexual
assault) -5 years’ imprisonment
[2] In consideration
of the cumulative effect of the sentences, the trial court ordered
that some of the sentences imposed were
to run concurrently. An
effective sentence of 21 years imprisonment was therefore imposed.
The appellant was declared unfit to
possess a firearm. An order was
made to have his personal details entered on the register of sexual
offenders. The appeal is directed
only against the sentence in
respect of the rape and sexual assault charges with leave of the
court below. The appellant asks for
a reduction in sentence.
[3]
A brief background surrounding the offences committed is essentially
as follows: at the time of the incidents of rape and sexual
assault,
the appellant was the director of sport at the high school where the
complainants, all below 16 years of age, attended.
His duties
included coaching boys whose ages ranged between 14 to 15 years in
various sporting codes for example cricket, rugby
and athletics. The
modus operandi
of
the appellant was ingenious and simple. The incidents in question
were apparently preceded by a grooming process during which
time the
appellant established a relationship of trust not only with the
complainants, but also with some of their families’
members.
The boys would from time to time visit him in his office and also at
his house where they engaged in such activities such
as watching
movies and at times, having a braai. It was during these visits that
the offences were committed. In most cases he
made them perform
sexual acts on him and he, in turn, performed oral sex on some of
them.
[4] The trial court
considered a pre-sentencing report that was presented by the
appellant. From this report, it is clear the appellant
was during the
sentencing stage, 31 years of age, a bachelor and without dependents.
His highest standard of education attained
is matric. As the director
of sport at the school where he worked, he earned R10, 000-00. His
biological parents divorced when
he was still a toddler. He has one
sibling from their relationship. His biological father, who refused
to have anything to do with
him from a young age, has since passed.
The mother remarried which resulted in 2 additional step-siblings. By
the age of 17, he
had moved out of the house he lived with his mother
as he felt there was no stability in her love life. He felt unwanted.
At the
time of his arrest the appellant lived with friends and had no
stable home. No record of previous convictions was proved against
him. The appellant informed the trial court that he was a diabetic
patient.
[5]
The legal position with regard to the question of appeal against
sentence was clearly dealt with in
S
v RABI
E
1975 (4) SA 855
(A)
by
Holmes JA at page 857 in the following terms:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal -
(a) should be
guided by the principle that punishment is "pre-eminently a
matter for the discretion of the trial Court";
and
(b) should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the
discretion has not
been "judicially and properly exercised".
2.
The test under (b) is whether the sentence is vitiated by
irregularity
or misdirection or is disturbingly inappropriate.”
It
is therefore settled law that an appeal court’s power to
interfere with a sentence is circumscribed to instances where
the
sentence is vitiated by an irregularity, misdirection or where there
is a striking disparity between the sentence and that
which the
appeal court would have imposed had it been the trial court. See
generally: S
v
Petkar
1988 (3) SA
571
(A)
: S v
Snyder
1982 (2) SA
694
(A):
S v
Sadler
2000(1)
SACR 331 (SCA)
:
Director of Public Prosecutions, KZN v P
2006
(1)
SACR 243
(SCA) p
ara 10;
and Mayisela v S
2013
(2) SACR 129
(GNP).
[6] In considering
the appellant's counsel's contention of misdirection, it is necessary
to have regard of the appellant's offences,
and of the trial court's
concept thereof as well as its assessment of the scope and gravity
thereof. The rape of any child under
the age of 16 is a heinous and
abhorrent crime, which is why the lawmaker has placed this type of
rape in the category of crimes
attracting a life sentence in terms of
Section 51 of the Criminal Law Amendment Act, 105 of 1997
(hereinafter referred to as “the
Act”) (as amended) .
Section 51(3) of the Act provides that the court is at liberty to
impose a lesser sentence provided
there are substantial and
compelling circumstances to justify the imposition of such a lesser
sentence.
[7]
According to Marais JA, in the Malgas case,
(S
v Malgas
2001
(2) SA 1222
(SCA)
the factors which are to be considered in determining whether
substantial and compelling circumstances exist are all the factors
traditionally taken into account in assessing an appropriate
sentence, bearing in mind, however, that it is no longer
‘
business
as usual’
and
that the emphasis has shifted to the objective gravity of the type of
crime as well as the need for effective sanctions. The
magistrate
found in this matter however and as indicated above, that there were
substantial and compelling circumstances justifying
a departure from
the mandatory minimum sentences in imposing the effective sentence
complained of.
[8]
In considering an appropriate sentence, the traditional approach
which is of general application is that, let the punishment
fit the
criminal as well as the crime and the interests of society ( see
Karo,
1961
(1) SA 231
(AD)
at
p. 236A - B, and S v Zinn
1969
(2) SA 537
(AD)
at
page
540G.)
The
trial court observed that that the appellant expressed no remorse and
that this must count against him. I agree. The appellant
clearly took
advantage of the complainants' respective young age. As sport
director, the appellant without doubt abused the position
of
authority and trust he held in relation to the children for his own
ulterior motives and selfish interests. In order to gain
the victims
and their parents’ trust, he offered the children sport
bursaries. He was no longer primarily a sport mentor
as he set out to
be doing. His conduct was described by Dr Labuschagne, a
psychologist, as that of typical paedophile.
[9]
According to the victim impact report admitted at the trial, the
appellant
“
purposely targeted children with
emotional problems, financial needs, unsupportive or un involved
parents or children that have
experienced a traumatic loss".
All
the complainants were severely and negatively affected by the
incidents of crime and have poor self-image. Some of them had
to
repeat their classes. They continue to have difficulties with
interpersonal relations which will require
“
extensive
psychological intervention to minimize the impact of the trauma they
experienced”.
[10]
It has been contended on behalf of the respondent that the appellant
had been grooming each victim over time enabling him to
sexually
abuse them. In S
v Muller
2007
(2) SACR 60
(W)
para
35 (also referred to by counsel), Satchwell J, defined grooming as “a
psychological process used by the paedophile to
access his victim(s)”.
This
best describes the appellant’s conduct in relation to the
children in this matter.
[11]
It was contended on behalf of the appellant that crimes were
committed without the use of physical force or weapons. This aspect
however, cannot be considered in isolation. Rape is inherently an act
of violence (see S
v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W)
at
para 25. In S
v G
N
2010 (1) SA
CR 93
(T)
at
page 98 c-e where this court stated:
“
The
unquestionable emotional harm that rape does may very gravity, but it
generally deserves more emphasis than physical injuries”.
It makes no
difference whether the victim is a female or a male person. The rape
of a male is just as abhorable as the rape of a
female person.
[12]
In
GK v S
2013 (2) SACR 505
(WCC)
for
example, the sentence imposed by the court a quo of life imprisonment
was set aside and substituted by a sentence of 17 years
. In that
case, the similarities are that it involved oral rape as well albeit
in respect of a 7-year-old child. The differences
however, are the
accused was young and further that alcohol was found to have played a
role. The trial court considered the circumstances
with regard to the
commission of the offence by the appellant, cumulatively with the
appellant’s personal circumstances,
as well as the other
traditional factors.
[13] Consideration
being had to the totality of all the relevant factors, I have great
difficulty in holding that the trial court,
with the advantage of the
atmosphere of the trial, exercised judicial discretion improperly. It
remains my view that the sentence
imposed does not induce any sense
of shock. No grounds exist upon which interference is warranted in
the sentence so carefully
decided upon by the trial court in this
matter. In the contrary, the trial court was merciful as the sentence
borders on the lenient
side.
[14] It follows
accordingly, that, there is no basis for this court’s
interference with the trial court's sentence. In my
respectful view,
the trial court passed the sentence in a dispassionate and objective
manner required of our courts. The appeal
is without any merit.
[15] In the result
the following order is proposed:
1. The appeal
against sentence is dismissed.
MUDAU TP
ACTING JUDGE OF
THE HIGH COURT
I agree and it is
ordered.
DE VOS
JUDGE OF THE HIGH
COURT
Date of hearing: 5
February 2015
Date of judgment: 5
February 2015
APPEARANCES
For the appellants:
Mr I Monethi
For the respondent:
Ms A Coetzee