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[2015] ZAFSHC 34
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Botha v S (A163/2014) [2015] ZAFSHC 34 (26 February 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A163/2014
DATE:
26 FEBRUARY 2015
In
the matter between:-
ANDRé
STEVEN
BOTHA
.......................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
MOCUMIE, J
et
SJ REINDERS, AJ
HEARD
ON:
02 FEBRUARY 2015
DELIVERED
ON
:
26 FEBRUARY
2015
MOCUMIE,J
[1]
This is an appeal directed against sentence only. The appellant, a
project manager at a construction company and an ex-police
officer
appeared in the regional court, Welkom, (Ms Ramdeyal) on several
contraventions of the Films and Publication Amendment
Act 3 of 2009,
the Sexual Offences Amendment Act 32 of 2007 and one count of attempt
to defeat the ends of justice. He pleaded
guilty to all charges
preferred against him and was convicted as charged on all. He was
sentenced as follows:
(a)
Count 1: Creation or Production of Child
Pornography- Section 24B(1)(a) of the Films and Publication Amendment
Act, 3 of 2009: Sentenced
to a term of 5 years imprisonment;
(b)
Count 2: Attempt to Commit a Sexual
Offence- Section 55(a) of the Criminal Law (Sexual Offences and
Related matters) Amendment Act,
32 of 2007: sentences to a term of 5
years imprisonment;
(c)
Count 3: Importation of Procuring
Child Pornography- section 24(1)(a) of Act 3 of 2009: sentenced to
term of 8 years imprisonment;
(d)
Count 4: Exposure of Display of or
Causing Exposure or Display of Child Pornography to Person 18 years
or older: sentenced
to a term of 8 years imprisonment;
(e)
Count 5: Possession of Child Pornography-
Section 24b(1)(a) and (c) of Act 3 of 2009: sentenced to term of 10
years imprisonment;
(f)
Count 6: Possession of Child Pornography-
section 24B(1)(a) and (c) of Act 3 of 2009: sentenced to a term of 10
years imprisonment;
(g)
Count 7: Attempt to defeat the
administration of justice: sentenced to a term of 3 years
imprisonment.
Furthermore,
in terms of section 280(2) of the Criminal Procedure Act 51 of 1977
(the CPA) the regional magistrate ordered that
the sentences in
respect of counts 1,2 and 7 run concurrently and the sentences in
respect of counts 3,4 and 6 run concurrently.
Thus the appellant was
sentenced to an effective 15 years. The appeal is with leave of this
court.
[2]
The appellant’s main attack on the sentence is that the
cumulative effect of the sentence of forty five years imprisonment
imposed on him although reduced to an effective term of fifteen years
imprisonment is disturbingly inappropriate and induced a
sense of
shock. The sentence is out of proportion with sentences that have
been imposed or confirmed in various similar cases which
have come
before the courts.
[1]
[3]
The State verily conceded, without diminishing the seriousness and
gravity of the offences committed, that the sentence was
harsh and
inappropriate and not at all balanced and justified.
[4]
Child pornography is condemned universally for a good reason. It
strikes
et
the dignity of children, is harmful to those children 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]
.It
is a violation of the right to equality ,the right to privacy, the
right to dignity, the right to freedom and security of the
person
which incorporates the right to be free from all forms of violence
and the right of children and other vulnerable persons
to have their
best interests considered to be of paramount importance.
[3]
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 several international
legal instruments including the United
Nations Convention of the
Elimination of All Forms of Discrimination Against Women, 1979 and
the United Nations Convention on the
Rights of the Child, 1989.
[5]
Having said that, what needs to be borne in mind, however, is that
while a court must inform itself sufficiently to be alive
to the
array of possibilities that present themselves in such cases
ultimately it must assess the particular individual that is
before it
and not a statistical sample.
[4]
[6]
The appellant is thirty nine years of age and divorced with two
children aged between 22 and 6 years of age from his previous
marriages. Although he is not staying with them. He is maintaining
the youngest child. At the time of his arrest he was gainfully
employed as a project manager for a construction company but has
since lost his employment subsequent to his arrest. He was prior
to
this position a police officer for several years. He was arrested on
15 August 2011 and had been incarcerated for four hundred
and sixty
five days when he was sentenced on 28 November 2014.
[7]
Where the accused is being considered for sentence the spotlight must
fall fully on the person in its entirety with all its
facts. He is
not regarded with a primitive desire of revenge but with humane
compassion.
[5]
[8]
The main object of sentence should be to strike a balance between his
or her punishment and the possible rehabilitation. The
latter being
not only in his own interest, but in the interests of young children
with whom (s)he might come into contact. The
expert that testified on
behalf of the appellant as well as the expert for the State although
to varying degrees emphasised rehabilitation
when dealing with this
type of offenders. In other words they were equivocal that in
appropriate cases of this nature, rehabilitation
as an object of
punishment should come more to the fore than retribution.
[9]
When viewed as a whole a term of imprisonment of forty five years
although part thereof has been suspended to an effective term
of
imprisonment of fifteen years is extremely harsh; not balanced and is
disproportionate that this court is entitled to interfere
and
substitute its discretion for that of the trial court. Crucially, the
fact that the appellant had spent more than three years
in
custody while awaiting trial is also a factor that should have been
taken into account in determining the appropriate sentence.
[6]
[10]
A case which comes close to the facts of this is
S
v Kleinhans
[7]
.
In
Kleinhans
the accused was convicted of ninety five counts of contravening the
Criminal Law Amendment Act 32 of 2007 arising principally out
of the
manufacture of child pornography as well as two related counts. He
was sentenced to fifteen years imprisonment. Bozalek
J (Pillay AJ
concurring) made the following order:
“
(a)
Count 5-89, 94 and 95 taken together for purposes of sentence- 5
years imprisonment.
(b)
Counts 1-4 & 90-93 are taken as one for purposes of sentence-3
years imprisonment
(c)
2 years of each of the above sentences are suspended for a period of
5 years conditionally.”
[11]
The court on appeal considered that the cumulative effect of the
sentences imposed were so inappropriate that it was permitted
to
substitute its discretion for that of the trial court.
[12]
In this case, the only material feature that the evidence discloses
as having aggravated what are inherently serious offences
is the fact
that these are directly or indirectly targeting children. However,
forty five years is excessively longer than the
appellant could
reasonably be expected to survive. That is why in
S
v Bull; Chavulla
[8]
the court was prompted to repeat its warning against the imposition
of excessively long sentences. Another repetition was subsequently
required in
Nkosi
[9]
,
where the Supreme Court of Appeal stated:
“
Thus
under the law as it presently stands, when what one may call a
Methusaleh sentence is imposed (ie a sentence in respect of
which the
prisoner would require something approximating to the longevity of
Methuselah if it is to be served in full) the prisoner
will have no
chance of being released on the expiry of the sentence and also no
chance of being released on the expiry of the sentence
and also no
chance of being released on parole after serving one half the
sentence. Such a sentence will amount to cruel, inhuman
and degrading
punishment which is proscribed by s12 (1) (e) of the Constitution of
the Republic of South Africa Act 108 of 1996…”
[13]
I however agree with the regional magistrate, although not stated
categorically, that neither correctional supervision in terms
of s276
(1) (h) or imprisonment in terms of s276 (1) (i) would have been
appropriate considering the seriousness of the offences
the appellant
has been convicted of and the pervasive nature of the offences
against the most vulnerable of our society, children,
through the
internet which is without boundaries. The appellant’s
favourable personal circumstances should never be overemphasised
to
the point where extensive expert police work as well prosecution of
cases of this nature is made to seem negligible.
[14]
One last aspect that must be mentioned, in convicting the appellant
on count 2:
attempt to commit a sexual
offence- section 55(a) of the Criminal Law (Sexual Offences and
Related matters) Amendment Act, 32 of
2007 and sentencing him to a
term of five years imprisonment, the regional magistrate made no
reference to the applicability of
the Criminal Law Amendment Act 105
of 1997 (the
Criminal Law Amendment Act). She
consequently did not
enquire into whether compelling and substantial circumstances existed
which justified the imposition of a
lesser sentence than the
prescribed. This irregularity on its own vitiates these proceedings.
[15]
It is now settled that in terms of section 103(1) of the Firearms
Control Act 60 of 2000 (the
Firearms Control Act) an
accused can be
declared unfit to possess a firearm in the event that (s)he is
convicted of crimes of violence in which a firearm
was used sexual
abuse, dishonesty and others listed in the section.
[10]
In
S
v Phuroe
[11]
the
court held that the following factors must be considered in an
enquiry of a convicted person possessing a firearm: (a) the accused’s
age and personal circumstances;(b) the nature of previous convictions
or absence thereof;(c) the nature and seriousness of the
crime of
which the accused is found guilty of and any connection such crimes
has with the use of a firearm;(d) whether any background
suggests
that the accused may make use of his or her licensed firearm(s) for
the purposes of committing offences; and (e) whether
it is in the
interests of the community that the accused be declared unfit to
possess a firearm because of the fact that (s)he
may pose a potential
danger to the community.
[16]
First, the offences for which the appellant has been convicted of, do
not warrant this declaration, as the State correctly
conceded.
Second, the regional magistrate did not even hold an enquiry to make
the relevant determination based on the factors
highlighted in
Phuroe
[12]
suffice to state that these are serious offences and all are related
to children. The section makes no reference to offences committed
against children as a special category. The section prescribes a
declaration only in respect of the listed offences.
[17]
Having weighed up all
relevant facts and in particular the appellant’s clean record,
non-use of a firearm in the commission
of the offences he has been
convicted of ,against the incidents of possession of pornographic
material, I am persuaded that the
appellant is not unfit to possess a
firearm. I am accordingly satisfied that
this
means the declaration in this case is irregular and cannot stand.
[18]
It will be remiss of me if I do not state that it was not befitting
of the regional magistrate to display the disgust she felt
in this
case which justifiably gave the appellant the impression of bias on
her part. As both counsel contended her conduct gave
the impression
that she lost her objectivity as well as the importance of balancing
all factors in order to arrive at an appropriate
sentence. This
conduct should be discouraged in the strongest terms possible, lest
it be repeated.
[19]
In the result, I make the following order.
ORDER
1.
The appeal against sentence is upheld.
2.
The sentence imposed on the appellant is
set aside and the following sentence is substituted:
‘
(a)
For purposes of sentence counts 1,3-6 are taken as one and the
accused is sentenced to seven (7) years imprisonment.
(b)
Count 2, the accused is sentenced to five (5) years imprisonment
which term of imprisonment is to run concurrently with the
sentence
imposed in respect of counts 1, 3-6 as set out under paragraph (a)
above.
(c)
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, the
sentences imposed under paragraph (a) read with paragraph (b) above
shall be deemed to have been imposed on 28 November 2014.
(d)
Count 7, the accused is sentenced to one (1) year imprisonment which
is wholly suspended for five (5) years on condition that
the accused
is not convicted of defeating the administration of justice or
attempt to defeat the administration of justice committed
during the
period of suspension.’
3.
In terms of
section 120
of the Children’s
Act 35 of 2008, the accused is automatically declared unsuitable to
work with children.
4.
In terms of section 50(2) (a) of the Sexual
Offences Amendment Act 32 of 2007 the accused’s name is to be
included in the
Register for Sexual Offenders.
5.
The
decision
by the regional magistrate to declare the appellant not fit to
possess a firearm in terms of
section
103(1)
of the
Firearms
Control Act
is
set
aside and replaced by a decision that the court determines otherwise
for the purposes of
section
103(1)
of the
Firearms
Control Act 60 of 2000
.
B.
C. MOCUMIE, J
I
concur
S.
J. REINDERS, AJ
On
behalf of appellant: Adv A Coetzee
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. Steyn
Instructed
by:
Director:
Public Prosecution
BLOEMFONTEIN
[1]
S
v Stevens
2007 JDR 0637 (E).
S
v de Klerk
2010 (2) SACR 40
(KZP).
S
v E
1992 (2) SACR 625
(A).
S
v Gerber
2001 (1) SACR 621
(W).
S
v McMillan
2003 (1) SACR 27
(SCA).
S
v Kleinhans
2014 (2) SACR 575
(WC).
S
v Mugridg
e
(657/2012)
2013 ZASCA 43
(28 March 2013).
2.
De Reuck v DPP (Witwatersrand Local
Division) and Others
2003 (12) BCLR
(CC) para 61.
3.
Section 28 of the Constitution of SA provides that the best
interests of the child shall be of paramount importance.
[4]
S
v Vilakazi
2009 (1) SACR 552
(SCA) at para 56.
[5]
Compare
with
S
v Maseola
2010
(2) SALR 311
(SCA) 315
a-b.
See
also
S
v Du Toit
1979
(3) SA 846
(A) 857
H
-858
A
.
[6]
S
v Kruger
2012
(1) SACR 369
(SCA) para 12.
[7]
S
v Kleinhans
2014 (2) SACR 575
(WC).
[8]
S
v
Bull;
Chavulla
2001 (2) SACR 681
(SCA) para 22.
[9]
Nkosi
v
S
2003 (1) SACR 91
(SCA) para 9.
[10]
Offences
of violence in which a firearm was used,sexual abuse,dishonesty
.
[11]
S
v Phuroe and 8 Others Similar Cases
1991 (2) SACR 384
(NC) 387 para B.
[12]
S
v Phuroe and 8 Others Similar Cases
above