About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 340
|
|
S v van Deventer (A292/2012) [2012] ZAGPPHC 340; 2014 (1) SACR 42 (GNP) (18 December 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
Case
number A292/2012
DATE:18/12/2012
In
the matter between : -
FREDERIK
FRANZOOIS VAN
DEVENTER
..................................................
Appellant
and
THE
STATE
........................................................................................................
Respondent
JUDGEMENT
Introduction
[1]
This appeal is against the imposition of a life sentence on the
appellant by Raulinga J on 6 December 2002 in the Circuit Local
Division for the Eastern Circuit District (High Court of South
Africa) held at Evander.
[2]
The sentence is in respect of a charge of rape on which the appellant
was convicted on 5 October 2000 in the Regional Court
for the Region
of Mpumalanga held at Evander.
FACTS
(3)
The appellant is the father of three children all of whom were minors
at the time of the commissioning of the offence relevant
to this
appeal
(4)
The charge of rape is in respect of the eldest daughter. B, who was
born on 20 February 1986. The charge reads as follows :
“
Dat
die beskuldigde oor ‘n tydperk synde 1996-2000 en te of naby
SECUNDA in die distrink van die HOEVELDRIF wederregtelik
en
geweldadig en teen haar sin en wil met B TVD 'n meisie van tussen
9-14 jaar oud, vleeshke gemeenskap gehou het;”
[4]
B was therefore raped by the appellant, her father, from the tender
age of 10 years for a period of four years According to
the evidence,
she was on some occasions raped three times a week.
APPLICABLE
STATUTORY PROVISIONS
[5]
In the circumstances, section 51 (1) of the Criminal Law Amendment
Act, 105 of 1997 ('the Act”), is applicable, which
section
reads as follows
‘
Notwithstanding any other
law, but subject to subsections (3) and (6). a regional court or a
High Court shall sentence a person
it has convicted of an offence
referred to in Part I of Schedule 2 to imprisonment for life.'
[6]
Part I of Schedule 2 was substituted by section 1 of Act 38 of 2007.
Prior to the amendment and at the the the appellant was
sentenced,
the relevant portion of the schedule read as follows:
'Rape:
•
(a)
when committed: -
(i)
in circumstances where the victim was raped mere than once whether by
the accused or by any other co-perpetrator or accomplice:
(ii)
by more than one person, where such persons acted m the execution or
furtherance of a common purpose or conspiracy.
(iii)
by a person who has been convicted of two or more offences of rape,
but has not yet been sentenced in respect of such convictions,
or
(iv)
by a person knowing that he has the acquired immune deficiency
syndrome or the human immunodeficiency virus;
(b)
where the victim -
(i)
is a girl under the age of 16 years
(ii)
is a physically disabled woman who due to her physical disability, is
rendered particularly vulnerable; or (Hi) is a mentally
ill woman as
contemplated in section 1 of the Mental Health Act. l973(Act No. 18
of 1973). or (c) involving the infliction of grievous
bodily harm ’
[7]
Section 51(1) is subject to the provisions of section 51(3) which
reads as follows:
"(3)(a)lf
any court referred to m subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which
justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections it shall enter those circumstances
on the record of the
proceedings and must thereupon impose such lesser sentence Provided
that if a regional court imposes such
a lesser sentence in respect of
an offence referred to Part 1 of Schedule 2 it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years ’
[8]
The Act does not define 'substantial and compelling circumstances'
The courts have similarly not given a clear and definitive
answer as
to the ambit and meaning of ‘substantial and compelling
circumstances" Reported cases provide a mere guideline
as to
what a court considers to be substantial and compelling
circumstances” in a specific set of
circumstances.
[See: S v Malgas
2001 (1) SACR 469
SCA: S v Mahomotso
2002 (1) SACR
116
SCA. S v Abrahams 2002 (1) SACR 116 SCA S v Nkomo
2007 (2) SACR
198
SCA; S v Vilakazi
2009 (1) SACR 552
SCA]
[9]
The yet unreported decision in Bailey v The Slate (454/11)
[2012]
ZASCA 154
(01 October 2012). :s specialty apposite to the principle
that each case should be adjudicated on the specific facts of the
case.
[10]
Bosielo JA in considering the value of decisions in previous cases,
held as follows in paragraph [19]
'Those
cases remain guidelines Suffice to state that it remains an
established principle of our criminal law that sentencing discretion
lies pre-eminently in the sentencing court and must be exercised
judiciously and in line with established and valid principles
governing sentencing as enunciated in a long line of cases which
includes S v Zinn
1969 (2) SA 537
(A) which espoused a proper
consideration and balancing of the well- known triad. S v Rabie
1975
(4) SA 855
(A) at 862; and S v de Jager and another’
1965 (2)
SA 616
(A) at 628-9 This salutary approach has recently been endorsed
by Marais JA in S v Malgas para 12.”
GROUNDS
OF APPEAL
[11]
In order for this Court to interfere with the sentence imposed by
Rauling J in terms of the Act. the Court need to consider
whether the
facts which were considered by him are substantial and compelling or
not. [See Bailey v The State, supra at para 20]
[12]
On behalf of the appellant. Ms Henzen-Du Toit. argued that the court
a quo erred in not finding that following factors constitute
substantial and compelling circumstances:
(a)
The personal circumstances of the appellant:
(i)
he was 41 years of age at the time of the sentence,
(ii)
he is a first offender;
(b)
Both the complainants still love their father irrespective of the
crimes committed against them;
(c)
The appellant was sexually abused himself as a child;
(d)
The family depends on the appellant financially;
(e)
The appellant pleaded guilty and took responsibility for his actions;
(f)
The appellant alleged that his wife was sexually distant as she was
raped before:
(g)
No evidence was led to prove any physical injuries the complainants
sustained
(h)
The appellant is not a threat to society;
(I)
The appellant is remorseful of his actions
(j)
The appellant ts willing to share his pension money with his family
[13]
ln submitting that the circumstances set out supra constitute
substantial and compelling circumstances. Ms Henzen-Du Toit,
did not
have regard to the provisions of section 5l(3)(aA) of the Act which
reads as follows:
"When
imposing a sentence in respect cl the offence of rape the following
shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence
(i)
The complainant s previous sexual history.
(ii)
an apparent lack of physical injury to the complainant;
(iii)
an accused person's cultural or religious beliefs about rape; or
(iv)
any relationship between the accused person and the complainant prior
to the offence being committed '
[14]
in view of the provisions supra, this Court may not take cognisance
of the fact that no evidence was led to prove that B had
suffered
physical injuries. in considering whether substantial and compelling
circumstances exist.
[15]
Mr Geyser, who appeared for the State, in well-prepared heads of
argument, pointed out that the following factors are not
automatically considered by the courts to be mitigating factors
(i)
the appellant's age [See: S v Beyi
2011 (2) SACR 23
ECG];
(ii)
the fact that the appellant pleaded guilty [See: Bailey v The State.
supra, at para [7] ];
[16]
As stated supra, the appellant raped B over a period of four years.
This is not a case where the appellant committed the offence
only
once and thereafter ceased his abhorrent conduct To the contrary, the
fact that the appellant committed the offence for a
continuous period
of four years and continued to do so even after his wife intervened.
Is an aggravating factor.
[17]
The fact that B still loves her father, having regard to her
vulnerable age and the conflict she experiences because her father,
the one person that was supposed to protect and adore her, took the
most precious part of her youth away in a very cruel manner,
is not a
factor that counts in the appellant's favour. To the contrary, it is
indeed very sad that the father B loves deprived
her of the privilege
to lead a normal and fulfilled life.
[18]
The fact that the appellant failed dismally in his responsibilities
as a father, is further borne out by the fact that, due
to his
conduct, he has left his family financially destitute Financial
dependence on the appellant is not a substantial and compelling
circumstance justifying a lesser sentence.
[19]
The appellant might have pleaded guilty, but he did not take
responsibility for his actions neither can this court, in view
of the
evidence, find that the appellant is -emorseful of his actions The
appellant chose not to testify, but relied solely on
a report by Ms
van Dyk. a social worker, in mitigation of sentence.
[20]
Ms van Dyk's testimony that B should share responsibility with the
appellant for the fact that the appellant raped her, is
astounding
and not in line with the evidence of Ms van Niekerk, a qualified
Educational Psychologist. To the contrary Ms van Niekerk
was shocked
by this perception of Ms Van Dyk and gave the following testimony in
respect thereof
'Dit
was vir my skokkend dal die kmders as medeverontwoordeltk of
medeaanspreeklik gehou kon word n Kind is nooit 'n verantwoordehke
party wanneer daar seksuele misdryf plaasvind nie. 'n Minderjarige
kind is nooit in 'n posisie om tc kan nee se, want daar is 'n
onregverdige magsposisie daar op grond van ouderdomsverskil, verskil
aan gesag, verskil aan kennis ..."
[21]
The evidence of Ms van Niekerk on this topic is accepted and that of
Ms van Dyk rejected
[22]
Remorse should at least include insight into the seriousness of the
offence committed Remorse should also be borne out by the
appellant's
subsequent conduct This is sadly not the case in the present matter.
Two extracts from the evidence will suffice in
this regard
(i)
Upon a question as to the effect the appellant's conduct had on the
children subsequent to him being "found out', Ms van
Niekerk
testified as follows.
'Ek
dink hy plaas geweldig bate skuldgevoelens by die binders want hy
verplaas die skuld na hulle toe met ander ivoorde as ek trortk
toe
gaan is dit me oor wat ek gedoen het me, maar omdat julle gepraat
het. As julle me praat nie sal ek me tronk toe gaan me Hy
verplaas
die skuld direk na hulle toe", and
(ii)
Ms van Dyk stated the following in her report
"Die
beskuldigde (appellant) is verward en ambivalent oor sy eie gedrag en
verstaan self nie hoo hy seksueol by sy dogters
kon betrokke raak
nie.”
[23]
I am of the view that the remaining factors, to wit the sexual
distance of the appellant's wife after she was raped that the
appellant is not a threat to society and the fact that he is willing
to share his pension money with his family, do not constitute
substantial and compelling circumstances that justify a lesser
sentence.
[24]
In the premises, I suggest that the following order be made:
The
appeal is dismissed
N.
JANSE VAN NIEUWENHUIZEN
ACTING
JUDGE OF THE HIGH COURT
I
agree
A.A.
LOUW
JUDGE
OF THE HIGH COURT
I
agree
N.
RANCHOD
JUDGE
OF THE HIGH COURT