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[2015] ZAGPPHC 291
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E.S.M v S (A488/2014) [2015] ZAGPPHC 291 (21 April 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
A488/2014
DATE: 21 APRIL
2015
E[...] S[...]
M[...]
...........................................................................................................................
APPELLANT
and
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
KHUMALO J
INTRODUCTION
[1] The Appellant
was arraigned and convicted in the Middleburg Regional Court on a
charge of rape for contravening s 3 read with
s 1, 56 (1), 57, 58,
59, 60, and 61 of the Criminal Law Amendment Act (Sexual Offences and
Related Matters) 32 of 2007 ("the
Sexual Offences Act"),
with s 256, and 261 of the Criminal Procedure Act 51 of 1977 ("the
Act") subject to the provisions
of s 51 (1) and Schedule 2 of
the Criminal Law Amendment Act 105 of 1997 ("the Minimum
Sentence Act"). He was sentenced
to life imprisonment. With
leave of the trial court he is appealing against the conviction and
sentence.
[2] It was alleged
in the charge sheet that during September to November 2009 at Mhluze
the Appellant unlawfully and intentionally
committed an act of sexual
penetration with the complainant, to wit, ND, an 11 year old girl by
penetrating her vagina with his
penis, without the consent of the
complainant.
[3] The complainant
is related to the Appellant in that their mothers are half-sisters.
During the trial the Appellant, who was
duly represented, pleaded not
guilty, alleging that the sexual intercourse was consensual and
initiated by the complainant.
[4] At the beginning
of the trial he made the following formal admissions in terms of s
220 of the Act -
[4.1] That he admits
that he engaged in sexual intercourse with the complainant during the
period mentioned in the charge sheet.
[5] He further in
his explanation of Plea stated that during June 2009 the complainant
and her mother visited his grandmother's
residence in Wonderfontein.
During this time the complainant approached him and told him that she
was in love with him and requested
to engage in sexual intercourse.
He enquired on her age and complainant told him she was 16 years old.
His response was that they
must wait until complainant was 21 years
old before they can engage in any sexual intercourse. He then
travelled to Middleburg
from Wonderfontein with the complainant and
her mother, more specifically to the residence of the Appellant's
grandfather, where
they resided from September to November 2009.
During that period the Appellant engaged in sexual relations with the
complainant
at her request for the first time.
[6] It is argued on
Appellant's behalf that due to the fact that the complainant
consented to the sexual intercourse and claimed
to the Appellant that
she was 16 years old, Appellant was not supposed to be convicted of s
3 of the Sexual Offences Act but of
s 15 of the said Act for an act
of consensual sexual penetration with a child. The argument was based
from a point of view that
since the allegation was that the
complainant projected herself to be 16 years old, the issue should be
whether or not Appellant
believed the complainant and if he did his
believe should exculpate him from s 3 criminal liability diminishing
his moral blameworthiness
to that of s 15 offence (a lesser offence).
[7] The learned
magistrate on the other hand decided the case, regarding the fact in
issue to be whether the accused was aware of
the age of the
complainant. However on referring to the relevant
legislation/statute, I consider the starting or focus point to
be
whether or not the complainant was according to the law capable of
consenting to sexual intercourse.
APPLICABLE LAW
[8] The offence of
rape is defined in s 3 of the Sexual Offences Act as follows:
"Any person (A)
who unlawfully and intentionally commits an act of sexual penetration
with a complainant (B) without the consent
of (B), is guilty of the
offence of rape."
And s 15 of the
Sexual Offences Act reads:
"A
person (a) who commits an act of sexual penetration with a
child
(B)
is, despite the consent of B to the commission of such an act, guilty
of the offence of having committed
an
act of consensual sexual penetration with a child."
[9] In terms of s 1
of the Sexual Offences Act a child is defined as follows:
"child"
means-
(a) A person under
the age of 18 years; or
(b) With reference
to sections 15 and 16, a person 12 years or older but under the age
of 16 years"
Therefore for the
application or purpose of s 15 and 16, a child would have to be 12
years or older and under the age of 16.
"consent"
means voluntary or coerced agreement. And
(2) Circumstances in
subsection 2 in respect of which a person (B) (The complainant ) does
not voluntarily or without coercion agree
to an act of sexual
penetration, as contemplated in s 3 and 4 include but are not limited
to, the following:
(a) ... (b)...
(c)...
(d) Where B is
incapable in law of appreciating the nature of the sexual act,
including where B is, at the time of the commission
of such sexual
act;
(i) Unconscious;
(ii)
(iii)
A child below the age of 12 years
;
or
(iv) A person
mentally disabled
Therefore a child
does not voluntarily agree to an act of sexual penetration when the
child is below the age of 12 years. In that
regard there cannot be
consensual sexual penetration in respect of a child of that age.
[10] Section 261 (1)
(g) of the Act provides as follows:
"if the
evidence on a charge of rape or compelled rape, as contemplated in s
3 or 4 of the Sexual Offences Act respectively,
or any attempt to
commit any of those offences, does not prove any such offence or an
attempt to commit any such offence, but the
offence of
(a) to (f)
(g) having committed
an act of consensual sexual penetration with a child as contemplated
in
s 15
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
, the accused may be found guilty of the offence
so proved."
[11] Whilst s 56 (2)
(a) of the Sexual Offences Act provides that:
"Whenever an
accused person is charged with an offence under section 15 or 16, it
is, subject to subsection (3) a valid defence
to such a charged
person to contend that the child deceived the accused person into
believing that he or she was 16 years or older
at the time of the
alleged commission of the offence and the accused person reasonably
believed that the child was 16 years or
older."
s 57 of the Act
concerning the inability of children under 12 years and persons who
are mentally disabled to consent to sexual acts
provides that:
"(1)
Notwithstanding anything to the contrary in any law contained, a male
or female person under the age of 12 years is incapable
of consenting
to a sexual act."
[12] It was argued
that it was therefore of utmost importance if the Appellant was
indeed deceived into believing that the complainant
was 16 years old.
His believe being reasonable under the circumstances.
[13] It was common
cause that the couple met when the complainant and her mother visited
the farm in Middleburg. However the consensual
sex took place when
the Appellant was now visiting the complainant's home in September
2009 in Mhluze.
[14] According to
Complainant it was the Appellant's idea that they have sexual
relations. She had informed the Appellant that she
was 11 years old.
She never told the Appellant that she is 16 years old or that she
does not want to have sexual intercourse with
him. She actually
wanted to have sexual intercourse with Appellant and had told him
that she loved him. The first time she met
Appellant her mother told
him her age.
[15] Whilst Mrs
Dlamini testified that according to her the Appellant was aware of
the complainant's age and aware of the school
that complainant
attended that goes up to grade 7 as he sometimes took the house keys
to the complaint at school. She also recalled
that when the Appellant
arrived with his uncle at Mhluzi she introduced the complainant and
complainant's younger sister to the
Appellant and mentioned the ages
of the children as 11 and 8 years old, respectively. When the
Appellant was staying with them
she had noticed that the Appellant
and complainant would sometimes whisper to each other and at the same
time observed a change
in complainant's behaviour. She was called by
the school and informed that complainant wanted to commit suicide but
when she confronted
the complainant she cried and refused to talk. A
report was then made by appellant to her that he and complainant were
in a love
relationship. When she mentioned that complainant was a
child, he said he wanted to have her as his wife.
[16] Captain
Badernhorst, a forensic social worker who at the request of the state
assessed and conducted two forensic interviews
with the complainant
said in her testimony that was backed by her report that, the 11 year
old child has not yet reached sexual
maturity and therefore highly
unlikely that she would have been able to make informed decisions
about sexual activity or about
entering into a sexual relationship.
According to her the child is very, very vulnerable for intimidation.
Regarding sexual matters,
a child aged 11 is very young to go into or
even think about sexual relationships, the nature and extent of which
she does not
fully comprehend. At that age she saw the child, due to
her being highly vulnerable, "entering into a relationship"
with
the Appellant and submitting to his sexual demands as the only
way in which to keep Appellant from committing suicide. The reason
the complainant acquiesced in court to have initiated the sexual
contact with the Appellant was that she was helping him, trying
to
protect him. The child is damaged emotionally and gave the Appellant
sex because he wanted it.
[17] Appellant
alleged that it all started in September 2009, they were in a room
listening to DVD's. The complainant came to his
room while he was
asleep and laid down next to him on the bed. He woke up and the two
of them started kissing. A conversation started
during which there
were discussions about the Appellant's past relationship where he
lost a girlfriend in an accident and his attempt
to commit suicide
and complainant's loss of a friend through suicide. Complainant then
told him that she loved him and would not
like to find herself in the
same situation. Appellant thereupon inquired from her what her age
was, to which the complainant responded
that she was 16 years old. He
believed her because she told him about another boy that was
proposing love to her. He told her,
however, to wait until she had
finished school and turned 21 before they could become involved in a
sexual relationship. Despite
the Appellant's initial concern they
eventually ended up having sexual intercourse after the complainant
undressed and insisted
to have sexual intercourse with the Appellant.
[18] Under cross
examination Appellant said they started kissing and then he asked
complainant her age. When he was asked if they
started by kissing
before he knew her age, he turned around and said he asked
complainant her age before they started kissing and
she told him she
was 16 years old. He then again said he kissed her before he was
informed of her age as complainant wanted them
only to kiss. Later
when confronted about the inappropriateness of that behavior he
reverted to the initial assertion that he knew
her age before they
started kissing as complainant informed him that she was older than
16 years. He also alleged to have taken
steps to make sure that the
complainant was indeed 16 years old by asking the complainant on
numerous occasions about her age and
enquiring from her if she was
indeed telling the truth and not lying to him. According to him it
was difficult to can say how old
the complainant was because by mere
seeing her one cannot tell. He had sexual intercourse with her even
if he knew she was young
because complainant wanted proof that he
does love her.
[19] The learned
magistrate accepted that since it was not an issue that sexual
intercourse took place, a fact that remained in
issue after all was
whether the accused was aware of the age of the complainant. It
related to consent.
[20]
The trial court assessed the evidence and stressed that it was aware
and had taken into account that the complainant's evidence
had a
number of discrepancies, vagueness and what it referred to as
confusions, and also aware that it had to carefully consider
such
evidence because of the double sword application of complainant being
young and a single witness. However due to the report
that was
prepared by Badenhorst, explaining the contradictions and
consistencies the court was assured into accepting her evidence.
See
S V Teixeira
1980
(3) SA 755
(A) at 761 where the court in evaluating the evidence of a
single witness stressed that 'a final evaluation can rarely, if ever,
be made without considering whether such evidence is consistent with
the probabilities/ The fact that it is corroborated would
also
strengthen its probity, without which it may be rejected if it also
has a litany of intrinsic probabilities, omissions and
contradictions.
[21] The court
recognized that the complainant's evidence that the Appellant was
informed of her age by herself and her mother was
corroborated by her
mother. The court also found it improbable that complainant would
have lied to the Appellant and said she is
sixteen because a child of
her age is unlikely to know what the consenting age is, or understand
the relevancy thereof to consider
it important to inform the
Appellant that she is 16, which also by chance happens to be the age
of consent. Appellant alleges that
he believed her but his testimony
that he on numerous occasions asked her if she was telling the truth
and not lying gainsay that
assertion and instead confirms that he was
aware of her age and just fabricating the allegation about
complainant lying about her
age. Besides, he according to his
evidence in chief engaged himself in inappropriate behavior with the
child, kissing the child
right from the beginning, only after he was
confronted about it did Appellant then allege to have asked the
complainant her age.
[22] The court
further on its own observed that complainant's physical appearance on
the date she testified did not appear to be
that of a 16 year old
child, that she might have a demeanor of a child older than 11, but
certainly not of a person of 16 years
of age. It therefore noted that
there was no chance that the Appellant could have been deceived to
think that the complainant was
16 years old. Appellant, despite
showing some measure of doubt in believing her, did not try to find
out from other family members
what her exact age was, notwithstanding
that they were related. Appellant never told the mother that
complainant said to him she
was 16 when the mother complained that
complainant is a child.
[23] The
Appellant's argument, that the court's observation that complainant's
demeanor may have appeared to be slightly older
than 11 years old,
should have led the court to a finding that the charge of s 3 of the
Sexual Offences Act rape was not proven
beyond reasonable doubt, has
no merit, factually or legally. The Appellant's argument fails to
take into account that the court's
observation was made when
complainant testified in court and she was at the time actually 12
years old about to turn 13. She was
therefore slightly older than 11
years old as correctly observed by the court but not anything near 16
years. She would have looked
even younger, a year and a half ago. The
Appellant's argument is therefore ill-informed. In its assessment the
court a quo took
that observation together with the corroborated
evidence that Appellant was told that complainant was 11 years old
and his unreliable
allegations that he asked the complainant her age
and she alleged to be 16 into account and all the other evidence, to
arrive at
a conclusion regarding Appellant's conduct. The court then
found that the Appellant could not have been deceived to thinking
that
complainant was 16 years old.
[24]
The learned magistrate therefore correctly found Appellant to have
knowingly had sexual intercourse with an 11 year old complainant
without her consent as
per
s
3. Whether consent in the context of sexual offences will be
recognized in law is determined with reference to considerations
of
public policy. In S
v
SM
2013
(2) SACR 111
(SCA) Erasmus AJA recognized that in law, consent has
the following requirements:
(a) The consent must
be recognized in law;
(b) it must be real
consent; and
(c) it must be given
by a person capable of consent.
[25] Consent of an
11 year old is irrelevant as it is not recognized in law, age 12
being the minimum age below which any sexual
relations would be
illegal. A child under 12 years of age cannot, in terms of the law be
able to agree to having sexual intercourse;
see s 57 (1) of the
Sexual Offences Act. Therefore whether consensual or not, it is a
severe criminal offence to have sex with
a child under the age of 12
as she is in terms of the statute incapable of giving consent. The
reasoning behind that is as stated
by Dr Badenhorst that an 11 year
old child has not yet reached sexual maturity and therefore highly
unlikely that she would have
been able to make informed decisions
about a sexual activity or about entering into a sexual relationship,
being very young to
go into or even think about sexual relationships,
the nature and extent of which she does not fully comprehend. The law
has recognized
that as provided in s 1 (3) (d) (4).
[26] As a result
Appellant's argument that the court should have made a finding of a
consensual sexual penetration with a child
as envisioned by s 15 of
the Sexual Offences Act has no substance. Due to the prohibition of
any consensual sex to be performed
with a child that is younger than
12 years .The section is applicable to 12 year olds or older children
but under the age of 16.
[27] I am satisfied
that the conviction of the Appellant for the contravention of s 3 of
the Sexual Offences Act for having had
sexual intercourse with the
complainant without her consent was in order.
AD SENTENCE
[28] With regard to
sentence the Appellant alleges that the sentence of life imprisonment
is disproportionate given the circumstances
of the case, so a lesser
sentence ought to have been imposed. He criticizes the court that it
failed to attach sufficient weight
to the following factors:
(i) The lengthy
period of imprisonment that the Appellant spent in custody awaiting
the finalisation of the trial (almost 2 years);
(ii) The fact that
he was a first offender, and that no evidence was presented to
indicate that the Appellant cannot rehabilitate;
(iii) The finding of
the trial court that the complainant had consented;
(iv) The absence of
serious physical injuries;
(v) The evidence
that Captain Badenhorst had testified that the complainant had a case
history of neglect within then family; the
complainant was abandoned
by her biological father; she was experiencing a negative
relationship with her mother as well as her
step father; a friend who
had committed suicide and the complainant feeling responsible for her
death. The Appellant could not
be solely be held accountable for the
psychological trauma that the complainant was going through.
[29] He submitted
that all these factors considered cumulatively constitute substantial
and compelling circumstances justifying
the imposition of a sentence
less than life imprisonment.
[30]
It is trite that the sentence should reflect the severity of the
crime committed, the blameworthiness of the offender and serve
the
interest of society, as propagated by the
Zinn
triad
(5
v Zinn
1969
(2) SA 537
(A)). The courts are implored that when considering the
appropriate sentence they must have due regard to the purpose of
punishment,
that is deterrence, rehabilitation, retribution and
prevention. Where the Minimum Sentence Act is applicable, like in
casu,
that
the legislature had singled out the identified offences for severe
punishment due to their seriousness. The imposition of a
sentence
should then be approached by the courts conscious that those are the
sentences that should ordinarily be imposed and any
deviation
therefrom should occur if there are "substantial and compelling
circumstances that justifies the imposition of a
lesser sentence."
[31]
The legislature considered rape one of the worst crimes and ordained
life imprisonment as the sentence to be imposed as it
was highlighted
by the SCA in 5 v
SMM
2013
(2) SACR 292
(SCA) ([2010] ZASCA 56) at 297c) when it was held that:
'Rape is undeniably
a degrading, humiliating and brutal invasion of a person's most
intimate and private space. The very act itself,
even absent any
accompanying violent assault inflicted by the perpetrator, is a
violent and traumatic infringement... free from
all forms of violence
and not to be treated in a cruel, inhumane or degrading way.'
[32] The court a quo
therefore recognised that the provisions of s 51 of the Minimum
Sentence Act are peremptory, creating a benchmark
against which
appropriate sentence ought to be measured without compromising
justice. Also that it weighs on the discretion of
the court. It
therefore accepted that to incorporate the objectives of sentencing
it had to consider, besides the seriousness of
the offence, the
accused's personal circumstances, the interest of society which is to
be blended with an element of mercy without
overemphasising any one
to the exclusion of the others, decide each case upon its own facts
to determine if substantial and compelling
circumstances exist that
justify deviation from the ordained prescribed period.
[33]
The court a quo also recognised that when establishing the presence
or absence of substantial and compelling circumstances
the presiding
officer generally has due regard to those facts which are
traditionally considered as mitigating and aggravating
circumstances.
I support that sentiment; see
S
v Blaauw
1999
(2) SACR 295
(W), S
v
Dithotze
1999
(2) SACR 314
(W),
S
v van Wyk
2000
(1) SCAR 45
(C). It therefore considered that the Appellant was 22
years old at the time of the commission of the offence and 24 on
sentencing,
unemployed, unmarried with a 3 year old child. He is a
pastor at his church, has no previous convictions. He was brought up
by
his grandparents.
[34]
On the other hand the court considered as one of aggravating factors
Appellant's lack of remorse, persisting with his plea
of not guilty.
During the whole trial proceedings he did not show or express any
feelings of guilt even after he was convicted,
instead he exacerbated
the situation by blaming the complainant for what happened. Remorse
somehow suggests regret and willingness
to change, a feeling of
trauma or guilt stimulated by the vile that one has brought to bear
upon another; see S v
Martin
1996
(2) SCAR 378
(W) at 383
h.
However
the Appellant disassociates himself from the trauma that complainant
suffered after the whole ordeal of the rape and the
trial and alleges
in his appeal that the court did not put any weight on the fact that
the trauma was caused by her past history,
even though there was no
evidence that complainant ever tried to kill herself prior the rape.
[35] The
significance of the age of the victim and the psychological effect of
the incident on her was set out in the victim impact
report.
Subsequent to the conviction evidence was led confirming that she
tried to commit suicide and was hospitalised for two
and a half
months after the Appellant was convicted because she blames herself
for what happened. She twice broke down in tears
during her
testimony, which was indicative of the severity of her suffering,
whilst Appellant stood by and persisted with his plea
of not guilty.
Appellant caused the complainant's wretchedness and that can only
influence the court to stand by the harsher sentence.
[36] The seriousness
of the offence, its prevalence in our society as well made the court
a quo consider the views of the broader
community on rape and their
justified expectation that the courts will correctly punish the
offenders, severely punishing those
who commit serious crimes. It
also had an opportunity to weigh all these factors that were
highlighted by Appellant's counsel during
sentencing which Appellant
now alleges were overlooked by the court.
[37]
The court also dealt with the issue of absence of violence and
related that to what Borchers stated in
S
v G
2004
(2) SACR 296
(W) that:
"A physically
immature child of ten is no match for an adult man and little
violence is needed to achieve his purpose."
Therefore
that cannot be viewed for the benefit of the Appellant to get a
lesser sentence. Further that in
S
v E
1992
(2) SACR 625
AD the court held that the absence of violence or
coercion was, however, not mitigating. Physical force is often not
used by a
sex offender particularly where the perpetrator exerts an
emotional hold over his victim. Because of the trusting relationship
with an offender the use of physical force is rarely necessary to
engage a child in sexual activity. Appellant had an emotional
hold on
the complainant and exploited her vulnerability. He therefore did not
have to use force. Complainant was made to feel that
Appellant
deserved to be pleased and protected. We must not forget that the act
itself constitutes the violation of one's dignity
and amounts to
cruel and inhumane treatment of a child by an adult.
[38]
The view then in
S
v E supro
echoes
the present views of the SCA as enunciated in 5
v
SM supra
[24]
that 'the very act itself, even absent any accompanying violent
assault inflicted by the perpetrator, is a violent and traumatic
infringement... free from all forms of violence and not to be treated
in a cruel, inhumane or degrading way.' That is why there
is no
gradation of the offence and the legislature ensured that there is no
misapprehension of its intention by specially providing
that absence
of apparent physical injuries will not lessen the offender's moral
blameworthiness in s 51 (3)(aA)(ii) of the Minimum
Sentence Act.
Since the violence of inhumanity and wickedness of the act that has
been proven to have had devastating effects on
the self-worth of the
child, scarring her sense of dignity and causing her deep torment
cannot be measured by the existence or
non- existence of physical
wounds; see
S v M
at
[116]. The trial court's approach was therefore in one way correct.
Zondi J in 5
v
Uithaler
2015
(1) SACR 174
(WCC), still held that:
" the fact that
the victim of a sexual assault suffered no physical injury in the
course of the assault does not, in my view,
render the crime of rape
less reprehensible."
[39]
The contention by Appellant is brought, I guess in view of S v
Nkawu
2009
(2) SACR 402
(ECG) where Plasket J considered the subsection
unconstitutional if interpreted literally. The reason being that, it
would result
in the accused being deprived of his right to a fair
trial. Plasket J instead advocated that s 51 (3) (Aa) be interpreted
to mean
that any one of the factors therein mentioned, on their own
may not be regarded as a substantial and compelling circumstance
justifying
a departure from the prescribed sentence but that each one
of them may be considered along with other factors cumulatively to
amount
to substantial and compelling circumstances. The full bench in
S v
SMM
supra
at [26] agreed with that approach. I agree with the approach only if
the absence of a physical injury is weighed against the
impact the
offence has had to the life and emotional wellbeing of the victim.
Because It would be unjust to consider the absence
of physical
injuries a substantial and compelling reason to depart from the
prescribed sentence, even cumulatively, contrary to
s 51 (3) (Aa)
(ii) when the offence has had devastating consequence upon the
emotional wellbeing of the child victim. The absence
of physical
injuries therefore should be assessed against the psychological harm
caused to the victim to establish if it can be
considered
cumulatively with other factors to be a substantial and compelling
circumstance justifying a departure. In Du Toit,
De Jager, Paizes,
Skeen and Van der Merwe's
Commentary
on
Criminal Procedure Act
on
p 28-18D-12 it is stated that the psychological damage to a rape
complainant (and especially one of tender years ) calls for special
consideration in assessing the appropriate sentence.
[40]
The time that was spent in custody was considered by the trial court
from the point of view that the period of life imprisonment
is
indeterminable and presiding officers are not meant to interfere with
policies introduced by the correctional services for arrangements
regarding the early release of prisoners by way or remission or
parole. The court a quo was of the opinion that 'as far as the
sentencing court is concerned, the date when the sentence commences
should have no impact on its duration since theoretically it
endures
for the rest of the natural life of the person so sentenced/ How does
one anyway tie or fetter in the period that the offender
has already
spent in custody on such a sentence? The court regarded that to be
beyond the purview of a court. The general view
enunciated in
S
v Radebe & Another
2013
(2) SACR 165
(SCA) was that 'the period spent in prison cannot on its
own constitute substantial and compelling circumstances/ In
NDPP
North Gauteng: Pretoria v Gcwala
2014
(2) SACR 337
the Appeal Court had to deal with a similar question,
that is, how should the period spent in custody be dealt with
generally in
cases where a life sentence is appropriate?, the accused
had spent 4 years in custody (in this case 2 years). Its answer was
that
the sentencing court should consider in all cases whether the
period of imprisonment proposed is proportionate to the crime
committed,
taking into account, for that purposes, the period spent
in custody awaiting trial. It resolved that the trial court should
have
determined whether, all the circumstances shown to have existed,
including the period spent in custody awaiting trial, justified
imposing a sentence less than that prescribed by the legislature. If
life imprisonment as a sentence becomes inappropriate, still
the
court will still have to consider that the period of life
imprisonment is indeterminable. So does one accommodate the period
spent in custody awaiting trial by guessing the period that he might
have had to stay under a life sentence until parole and deduct
the
period he awaited trial? The
NDPP
North Gauteng: Pretoria v Gcwaia
matter
supra
did
not provide a solution.
[41]
With regard to the Appellant being a first offender, I have pointed
out in all cases that I hear where the issue is raised
that the
legislature has already taken into account that the accused is a
first offender for the purpose of sentence and fettered
that into the
prescribed sentence to be imposed. Such factor was within the
contemplation of the legislature when enacting the
Minimum Sentence
Act; see
S vlitha
&
Others
1999 (2) SCAR 404
(W).The absence of previous convictions is also
used by the legislature to determine the parameters within which the
sentences
can be differentiated. The allowance of a lesser sentence
is only used in categories of rape dealt with under part 3 of
schedule
2 of the Minimum Sentence Act. For the crimes under part 1
and s 51(1) of the said Act, the same penalty is to be imposed to
all.
Therefore for the rape of a child under 16 years the sentence is
the same to all and is one of the worst categories of rape according
to the legislature. The court a quo recognized that the legislature
identified all acts of rape as deserving exemplary punishments,
with
non-excluded from the minimum sentence legislation to indicate how
serious it regarded the situation. I fully understand that
approach
as in
S v Solomon
& Another
2008
(2) SACR 149
( E ) the full bench agreed that where a person can be a
suitable candidate for rehabilitation, this potential for
rehabilitation
does not in itself mean that life imprisonment cannot
be imposed. However the court did not rule out consideration thereof
with
other factors if they can be substantial and compelling to
justify deviation. I am thinking of the age of the Appellant, 24
years
old at the time of sentencing.
[42]
In
S v Tcoeib
1996
(1) SACR 390
(Nm) at p397 it has been stated that life imprisonment
has been described as a punishment of distressing severity. If
permitted,
it is only resorted to in extreme cases either because
society legitimately needs to be protected against the risk of
repetition
of such conduct by the offender in future. Which means the
potential to be rehabilitated plays an important role. However
in
casu
where
the Appellant had failed to acknowledge his flaws and does not see
anything wrong with his action but blames the victim for
his
wrongdoing such potential to rehabilitate does not exist. It would
therefore be reasonable to believe that there is a great
risk of
Appellant repeating his conduct in future; see 5
v
Qamata
1997
(1) SACR 479
(E). It is also not all dark and gloom as there is still
a possibility of parole.
[43] Lastly,
Appellant submitted that the fact that the complainant consented to
the sexual intercourse should be considered mitigating.
The
circumstances under which the complainant acquiesced to the sexual
intercourse was explained adequately and extensively by
Dr Badernhost
which occurred because she was vulnerable and immature, with
Appellant exploiting her state of helplessness. Although
the
Appellant alleges that she initiated the whole thing, an adult is
supposed to know better. The Minimum Sentence Act made the
child's
consent irrelevant for the sake of conviction and sentence. It is not
by chance that the legislature had deliberately taken
away from
children under 12 years of age, the responsibility of their actions
and imposed the harshest punishment to those who
seek to exploit
their immaturity. Besides with her consent the legislature ordained a
life imprisonment sentence, rejecting the
issue of consent
influencing the sentence to be imposed.
[44] Under the
circumstances, after considerations of all the related factors
individually or accumulatively I find that the Appellant
has not
shown that there is justification to interfere with the court's
jurisdictional discretion. There is no evidence of the
court a quo's
findings on facts or law that merits either a reassessment or
justifies the upholding of the appeal.
I therefore make the
following order:
The appeal against
conviction and sentence is dismissed.
N V KHUMALO
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION:
PRETORIA
I concur and it
is so ordered
D S FOURIE
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION:
PRETORIA
For Appellant: Adv
LA VAN WYK
Instructed by: LEGAL
AID SA
PRETORIA
For Respondent: Adv
M M Sono
Instructed by: The
Director of Public Prosecutions
North Gauteng:
Pretoria