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[2012] ZAKZPHC 46
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Currin v S (AR 499/10) [2012] ZAKZPHC 46 (1 August 2012)
IN THE HIGH COURT OF SOUTH AFRICA,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
AR 499/10
In the matter between:
DONAVAN CLIVE CURRIN
…...............................................................
APPELLANT
v
THE STATE
….....................................................................................
RESPONDENT
JUDGMENT
Date of Hearing: 29 May
2012
Date of Judgment: 01
August 2012
Edited: 7 August 2012
[1]
Two children, the complainant aged six years and his friend of seven
years, were the
only eyewitnesses who testified to the rape by the
appellant who was convicted and sentenced to life imprisonment.
This appeal
is against both conviction and sentence.
[2]
The state alleged that on 13 July 2009 near Empangeni in
KwaZulu-Natal, the appellant
was in his room with the complainant and
other children who were watching films on television. The
appellant was on the bed.
The children were sitting on the floor.
He grabbed the unsuspecting complainant and pulled him by his arm.
Crying out,
the complainant resisted. His friend, the second
state witness, and another child pulled the complainant’s legs
to
save him from the appellant. The appellant told them to
‘voetsek’. He pushed the complainant’s head
down to suck his penis. He asked the complainant whether he
liked that. The complainant replied that he did not.
He
went out to spit the thing that came out of the appellant’s
penis, which was ‘not visible’.
[3]
The second state witness reported the incident to family members.
Shortly thereafter,
the complainant’s mother heard another
parent calling the complainant. When the complainant returned
she asked him
why he had been called. From his response she
realised that something was wrong. She asked him whether he had
been
naughty. He denied this. She went outside to the tap
where she learnt of his encounter with the appellant from other
children. She summoned the complainant. In the presence
of the other children she asked him whether he had been sucking
the
appellant’s penis. When he denied doing so she asked why
the children would lie. Then he admitted that the
appellant had
forcefully pulled him. He demonstrated his experience by sucking up
and down on his finger. His mother, who was the
third state witness,
reported the matter to the police.
[4]
The appellant’s defence was a bare denial. He admitted
entertaining the
children in his room. He speculated that his
fiancée’s sister wanted him to vacate the room he shared
with his
fiancée because the sister had previously occupied
the room which she had given up for him and his fiancée.
[5]
On appeal, the appellant relied mainly on the contradictions between
the two child
witnesses. The trial court found that there were
contradictions but correctly discounted them as immaterial. The
contradictions
related amongst other things to what the appellant
wore, who was present and when the children left the room.
[6]
The variances could have been a natural consequence of the loss of
memory of the children
over nine months since the incident.
Another explanation could be that their evidence was not clarified.
However, as an appellate
court with the benefit of a transcript of
the evidence, what appeared as contradictions to the trial court
might not necessarily
be so. The children might have observed
different things at different stages of the incident. If they
had been questioned
further the apparent contradictions might have
been clarified.
[7]
With regard to what the appellant wore, the complainant testified
that the appellant
wore green and black sleeping shorts which did not
have a button and that the appellant took out his penis through the
‘holes
your feet go through’. His witness testified
that the appellant wore pants with a zip and a button and that his
penis
came out through the fly of the shorts. It appears from
the record that at this point the witness demonstrated how the
appellant
took out his penis from the sleep shorts and rubbed it up
and down. It is not clear whether the masturbation occurred on
that day or on another occasion; the second witness might have been
confusing the two occasions. The complainant did not testify
about the masturbation. Either he did not notice it if it
happened on the same occasion; he might have forgotten about it;
or,
it might have happened on another occasion. All of these
possibilities are reasonable alternatives to inferring that
the
difference in their evidence is a consequence of their mendacity.
[8]
Regarding the variances as to whether the second state witness saw
the appellant’s
penis and the complainant sucking it, the
complainant’s evidence was that the children left the room
after the appellant
told them to ‘voetsek’. The second
state witness’s evidence was that they remained in the room and
left with
the complainant. This does not necessarily suggest that the
state witnesses were mendacious. As the complainant was
traumatised by having his head forced downwards to suck the
appellant’s penis he could hardly be expected to observe what
everyone else in the room was doing at the time. He might have
assumed that the other children had left the room when they
were told
to ‘voetsek’.
[9]
As to the colour of the appellant’s shorts, it was put to the
second state witness
that the complainant testified that the shorts
had no zip or button. As unusual as it is for boxer shorts to have a
zip and button,
the second state witness insisted that the appellant
had sewn ‘it’ himself and that the complainant did not
see the
shorts clearly. Whether ‘it’ referred to the
button, the zip or the shorts is not clear. He also insisted
that
the shorts were blue with cartoon pictures on it, not striped
green and black. When alerted to this contradiction with the
complainant’s evidence, the second state witness responded that
the complainant who was younger than him did not know colours.
[10] In
this regard the isiZulu word for blue and green is ‘Luhlaza’.
Clarification
for what isiZulu word was used could have explained the
apparent contradiction about the colours. Further clarification as to
whether
the second state witness had in mind one or two separate
incidents could also have explained the differences in the
description
of the shorts.
[11] On
the material issues, the two children corroborated each other
perfectly. Both confirmed
that the appellant forcefully pulled
the complainant and made him suck his penis against the complainant’s
will; the complainant
cried, resisted and spat out something
outside.
[12] To
reject the state’s case and accept the appellant’s
version the court must find
as a reasonable possibility that the
adult members of the family of the appellant’s fiancée
manipulated the two children
in the neighbourhood, who were not even
members of that family, to lie that the appellant raped the
complainant for the purpose
of evicting the appellant from his
accommodation. That any child could be manipulated to lie about a
sensitive, embarrassing and
sexual complaint is hard enough. To
manipulate two children to corroborate each other would require
considerable tutoring and rehearsal.
No parents would allow their
children to participate in such a bizarre conspiracy. None of the
state witnesses, in particular the
mother, were cross-examined about
whether they had even discussed the evidence amongst themselves
before testifying, let alone
conspired to charge him falsely.
[13]
The alleged purpose of the conspiracy is farfetched. Although the
appellant bears no onus of
proving the conspiracy, he has to present
a credible defence to successfully resist a
prima
facie
case
against him. The appellant led no evidence to support his speculation
as to why the children might be willing to lie against
him when he
was kind enough to entertain them with his films. He failed to
cross-examine the state witnesses about whether
his fiancée’s
sister wanted to eject him. Although he put his speculation to
the state witnesses he did not
cross-examine them to test the
veracity of his version. His version was also tenuous. He
was unsure as to which of
the two sisters of his fiancée
wanted to eject him. His doubt emerged only when he was under
cross-examination.
It was then that he elaborated for the first
time that his suspicions were aroused when he saw the two sisters
talking to ‘these
kids’. He later changed his
version to the ‘one kid’, that is one of the three
children who came to court.
Incredulously, he could not recall
whether that child had testified. Other than ‘feeling’
that something was not right
about the sisters talking to the
children, he proffered no better explanation as to why the children
would implicate him falsely.
[14]
This is clearly a case which calls for a common sense approach to
assessing credibility. Trawling
through the state’s case to
nitpick contradictions in the evidence of two child witnesses is not
the way the cautionary rule
should apply to the evidence of child
witnesses. Victims of sexual offences, especially
young
children have difficulty speaking about their sensitive, humiliating
experiences. Consequently, the offences often never come
to light or
do so only many years later.
1
In fact, it is
remarkable that the two children remembered as much as they did to
testify eight months later about the complainant’s
ordeal.
That they were able to do so tends to support the finding that it
must have been a memorable event, unpleasant as
it was.
[15] In
the circumstances I find that the trial court correctly convicted the
appellant.
[16]
As for the sentence, the minimum sentence of life imprisonment was
applied once the trial court
found no substantial and compelling
circumstances. In mitigation, the court considered that the
appellant had no relevant
previous convictions. He was 37
years. He had adopted his fiancée’s daughter of nine
years. He was temporarily
employed as a panel beater. In
rejecting these considerations as substantial and compelling the
trial court applied the decisions
in
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 345C – D and
S
v E
1992
(2) SACR 625
(A). The age of the complainant counted as an
aggravating factor. So did the fact that the appellant
committed the
offence in the presence of other young children.
The trial court correctly inferred that given the seriousness of rape
on
a child it is unrealistic to suppose that there would be no
psychological harm. Quantifying this harm was not possible in
this case in the absence of evidence. Referring to the
constitutional rights of children in section 28 in the Bill of
Rights,
the trial court concluded that this was precisely the kind of
matter the legislature had in mind for the imposition of life
imprisonment.
[17]
Section 51 of Act 105 of 1997 (the Minimum Sentence legislation) came
into effect from 31 December
2007.
2
Section 53
expressed the
intention
of the legislature in enacting s 51 as increasing the severity of
sentences for specified offences, for an initial period
of two years,
extended if necessary by one year at a time.
3
Since then it has been
extended periodically
until the Amendment Act
4
rendered it permanent.
[18] The
purpose of the legislation was not only to control the disparity in
sentences which had been
imposed in the past
5
but also to bring down such crimes
sharply,
6
prevent them and protect their
victims.
7
In 2001 the
Supreme
Court of Appeal
(
SCA)
anticipated in
S
v Malgas
2001
(1) SACR 469
(SCA) at 481I that the crimes for which minimum
sentences were prescribed would elicit a ‘severe, standardised
and consistent
response from the courts’ unless there were
‘truly convincing reasons for a different response’.
8
Notwithstanding
this exhortation sentencing continued to vary widely.
[19] Two
months after
Malgas
,
Dodo
9
assured us that the
minimum sentence legislation is not unconstitutional. The
legislation does not deny the impartiality and
independence of the
judiciary
10
nor does it denude
the judiciary of its discretion. However, it does
anticipate
consistently
heavier sentences.
11
In September 2008,
12
the
SCA
described
the
impact
of
the legislation
thus:
'That
it has indeed not been ''business as usual'' is reflected in the
dramatic change in the profile of the prison population since
the Act
[the CLAA] took effect. Published figures indicate that the number
of prisoners serving sentences of imprisonment
between ten and
15 years increased almost three times from 1998 to 2008. Those
serving sentences of life imprisonment increased
over nine times.'
[20] In
2009, taking its cue from
Vilakazi
above, the CC reiterated
13
that the legislation has a weighting
effect leading to the imposition of consistently heavier sentences.
14
As to its effectiveness the CC
observed:
‘
One thing is
beyond question: the minimum sentences have bitten hard, both in the
courts' approach to sentencing, and in outcome.
More offenders have
been sent to jail for longer periods.’
15
[21]
Taking its cue from
Dodo
,
Vilakazi
and
Malgas
the
CC in
Centre for Child Law v
Minister of Justice and Constitutional Development and Others
16
emphasised that
‘
.
. . in its very essence the minimum sentencing regime makes for
tougher and longer sentences. While the hands of sentencing courts
are not bound, they are at least loosely fettered.’
[22]
More than 10 years after
Malgas
,
the SCA, now differently constituted in
S
v Matyityi,
17
reprimanded the
trial court in that case and others for being willing all too
frequently to deviate from the minimum sentences for
the flimsiest of
reasons.
18
Underlying its
exhortation for
‘
predictable
outcomes, not outcomes based on the whims of an individual judicial
officer (as) foundational to the rule of law’
was its lament that
‘
we
still do not have a clear strategy for dealing inclusively with (the
rights of victims of sexual crimes) either at a primary
preventive or
secondary protective level’
.
19
[23
]
Any strategy should acknowledge that rape is a world wide scourge.
That courts should respond effectively
to rape has been emphasised
throughout the world. After surveying international law and citing
several foreign cases the CC came
to this conclusion in
Bothma
v Els and Others
2010 (2)
SA 622
(CC). It referred to the Namibian High Court judgment
in
S v M
,
20
which
observed:
‘
What
once may have been unthinkable had now become a quotidian occurrence
- a fact which the learned magistrate, as he did, was
entitled to
take judicial notice of. These crimes against the vulnerable in
our society evoke a sense of helplessness in the
national
character.'
21
[24
]
Struggling with the same scourge, the Namibian High Court resolved in
S v Rudath
22
that the courts of that country should
impose deterrent sentences to discourage potential offenders.
The criminal justice
system should send out a clear message through
effective prosecution that no entitlement existed to perpetrate
rape
.
23
In a similar vein the Botswana Court
of Appeal lamented ‘the alarming increase in rape cases’
in
S v Montshwari.
24
[25]
What implications flow for the strategy for dealing with rape from
the survey above of the progression
of minimum sentence legislation?
Legislatively speaking, the end of the road has been reached with the
minimum sentence legislation
ensconced indefinitely in our statutes.
It imposes the highest sentence permissible under our Constitution,
namely life imprisonment.
Therefore in speaking of strategy, the
scope for intervening legislatively to toughen penal provisions is
limited. Standardised
sentencing imperatives also leave little room
for deviation from the minimum prescribed sentence. Even after
finding substantial
and compelling circumstances, the sentences
imposed remain high.
[26]
Notwithstanding the risk of long terms of imprisonment, there are no
signs that the scourge is
abating. Prison populations continue to
grow signalling that reporting of rape is increasing, and that
policing and prosecuting
of rape is also improving. However, the
numbers of rape cases passing through the courts have not decreased.
In most cases, offenders
proffer no explanation for committing rape,
not even when they plead guilty. Unless the strategy for eliminating
rape uncovers
the reasons why rape occurs and addresses itself to
those reasons, legislative and judicial interventions will continue
to treat
the symptoms not the causes of rape and other sexual
offences. Policy makers and other strategists might therefore turn to
socio-economic
factors to find sustainable solutions.
[27]
I considered referring this case back for evidence on the prospects
of rehabilitation of the appellant
but decided against this option
firstly because the appellant was legally represented at his trial.
When he pleaded he was aware
that the minimum sentence legislation
applied to him. He elected to plead not guilty as was his
constitutional right. However,
his choice is not without
consequences. Having pleaded not guilty and accordingly having denied
any culpability whatsoever, pleading
in mitigation would have
required him to make a tactical and psychological shift to humble
himself for a lenient sentence.
Making that shift without a
plea of guilty and genuine remorse is difficult. In any event
the appellant did not request a
referral of the matter back to the
trial court.
[28
]
The starting point for an appellate court considering sentence is to
determine whether the court
a
quo
misdirected itself. The
court might also interfere if the minimum sentence is clearly
disproportionate to the crime
,
the criminal and the legitimate needs of society
.
25
As recounted above, the starting
point for a sentencing court in a rape case is the minimum
sentence.
Section
51(1) read with Schedule 2 Part 1(b)(i) prescribes life imprisonment
for rape of a person under the age of 16 years, unless
a court is
satisfied that substantial and compelling circumstances exist to
justify a lesser sentence.
26
In this case
neither the defence nor the prosecution advanced any evidence in
mitigation or aggravation. The defence’s
approach was
astoundingly casual. Tendering nothing more than the everyday
factors
27
is now becoming
routine and typical in crimes attracting minimum sentences. With the
appellate courts narrowing down what constitutes
substantial and
compelling circumstances, in many cases there are none.
[29] I
agree with the trial court. None of the ‘everyday
factors’
28
submitted in mitigation is
sufficiently weighty, either on their own or collectively, to count
as substantial and compelling circumstances.
In fact, the
aggravating factors far outweigh any mitigation submitted for the
appellant. I accordingly find that the trial
court did not
misdirect itself.
[30] However, is the sentence of life
imprisonment proportionate
to
the crime, the criminal, the legitimate needs of society and the
interests of the complainant?
Uppermost
is the protection our constitution extends to children. Section
28(2) of the Constitution provides:
“
A
child’s best interests are of paramount importance in every
matter concerning the child”
[31] The
choice of words is strong and forceful, permitting few, if any,
exceptions to dilute its
efficacy.
Centre
for Child Law
29
interpreted this to mean that the
child's interests are ‘more important than anything else, but
not that everything else is
unimportant’. By enacting s 28(2)
the Bill of Rights recognises that ‘children embody society's
hope for, and its investment
in, its own future.’
30
This is why it requires the State to
afford
them special nurturance
and
protection
.
T
he
Constitution draws this sharp distinction between children and adults
not out of sentimental considerations, but for practical
reasons
relating to children's greater physical and psychological
vulnerability. Children's bodies are generally frailer, and their
ability to make choi
ces
generally more constricted
than
those of adults. They are less able to protect themselves, more
needful of protection, and less resourceful in self-maintenance
than
adults.
31
[32] A
constitutional right vested in both the children and the appellant is
freedom and security
of person. Section 12 states:
“
(i)
everyone has the right to freedom and
security of the person which includes the right …
to
be free from all forms of violence from either public or private
sources.
not
to be tortured in any way, and…
not
to be treated or punished in
a
cruel, inhuman or degrading way.
(ii)
Everyone has the right to bodily and psychological integrity which
includes the right
…
to
security in and control over their body”
[33]
S
v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
(SCA) obliges courts to impose sentences that are
consistent with the offender’s right guaranteed by section
12(1)(e) of
the Constitution.
32
However, the
doctrine of proportionality must also apply. In the context this
translates to not only the period of punishment being
proportionate
to the offence
33
but also that that
the rights of the appellant and the children being balanced against
each other. On the one hand the appellant
violated the s 12
rights of the children (that is, the appellant and his friends who
witnessed the rape) by raping the complainant.
On the other
hand, the appellant’s freedom should be limited only to the
extent that is justifiable. The correlativity
between the
rights of the appellant as a convict and the rights of the children
as victims is that the more reprehensible the appellant’s
conduct and the greater the harm to the children, the more punitive
must his sentence be.
[34
]
In
Masiya v Director of
Public Prosecutions, Pretoria
,
Nkabinde J classified rape as
'the most
reprehensible form of sexual assault . . . a humiliating, degrading
and brutal invasion of the dignity and the person
of the survivor',
34
Generally in the
case of rape, all forms of it, and specifically in the case of child
rape, it is hard to conceive of situations
that would ever justify
deviation from the prescribed minimum sentence without emasculating
the legislation.
35
Circumstances that
count as substantial and compelling are few. Conduct of the offender
that has a positive impact on the victim,
or prevents a negative
impact, such as a plea of guilty, counts as examples.
[35]
Oral rape is one of the vilest and most revolting forms of rape.
In this case the appellant
compounded the revulsion by ejaculating in
the complainant’s mouth. His conduct manifests a mindset
that rates the
dignity, bodily and psychological integrity of the
child as zero. Nothing can undo the horror of this indelible
imprint upon
the minds of the complainant and his companions who
witnessed his humiliation. By his conduct the appellant
diminished his
own worth and dignity as a human being. He
cannot expect to enjoy the respect that he deliberately denied to the
complainant
and his companions. The sentence the court imposes must
strive to restore that loss of dignity to them. To do so, the court
necessarily
denies to the appellant his right to equal treatment in
the way it applies s 12 to him.
[36] The
appellant violated the children’s rights and the right to
bodily integrity of the complainant.
At ages six and seven the
children were especially vulnerable. Children are absolute
no-go zones for sexual activity of any
kind. As an adult who
had a child under his care, the appellant had to know that sex in any
form with children is strictly
prohibited in law and morality.
Not only did the appellant blemish the childhood experience of the
complainant but also of
his friends who witnessed his trauma and
humiliation. This blemish is not only the dignity denying
sexual experience but
also the secondary trauma of having to testify
about it. No child should have to recount as one of their
childhood experiences
the misfortune of having to testify in a court
of law.
[37] In
the absence of substantial and compelling circumstances and the
existence of strong aggravating
factors the sentence of life
imprisonment must prevail. The sentence is also not disproportionate
in the face of the appellant
treading in the no-go zone of having sex
with a child.
I propose that the appeal be
dismissed, and the conviction and sentence be upheld.
_____________
D. Pillay J
_____________
Henriques
J
I agree with the result.
It is so ordered.
Counsel for the
Appellant:
Mr
J.H. Du Plessis
Instructed
by:
The Justice Centre
Pietermaritzburg
Counsel for the
Respondent:
Mrs I. Neyt
Instructed
by:
Director of Public
Prosecutions
Pietermaritzburg
1
R
v Smolinski
[2004] EWCA Crim 1270.
2
Criminal
Law (Sentencing) Amendment Act 38 of 2007 (commencement date 31
December 2007)
3
Section
53(1) &((2)
Criminal Law Amendment Act 105 of 1997
prior to its
deletion by
s 3
of
Criminal Law (Sentencing) Amendment Act 38 of
2007
;
S v
Zitha and
others
1999 (2) SACR 404
at 409
4
Criminal
Law (Sentencing Amendment Act 38 of 2007
5
S
v Mthembu and another
case 365/98 delivered on 22 October 1998
per Leveson J
(unreported) cited in
S
v Zitha and others
1999(2) SACR 404 at
408
6
S
v Zitha and others supra
at 409p7
7
S
v Matyityi
2011 (1) 40 (SCA) para 22G
8
Malgas
v S
[2001] 3 All SA 220
(A) para 25
9
Dodo
v S
[2001] ZACC 16
;
2001
(1) SACR 594
(CC) para
41, 43, 52(1)
10
Dodo
v S
supra
para 49
11
Dodo
v
S 2001
supra
Para 18
12
Vilakazi
v S
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA) para 51
13
In
[zRPz]Centre for Child Law v Minister of Justice and
Constitutional Development and Others
2009 (6) SA 632
(CC) para
19
14
Centre
for Child Law v Minister of Justice and Constitutional Development
supra Para 17
15
Centre
for Child Law v Minister of Justice and Constitutional Development
supra Para 19
16
Centre
for Child Law v Minister of Justice and Constitutional Development
supra para 45
17
S
v Matyityi
2011 (1) SACR 40
(SCA)
18
S
v Matyityi
supra para
19F-G, para 23C-D
19
S
v
Matyityi
supra
para 23F-G; para 22F-G
20
2007
(2) NR 434
(HC);
21
Bothma
v Els and others
2010 (2) SA 622
(CC)
para 57
22
[1999]
NAHC 13
23
Bothma
v Els and Others
supra para 46
24
[2008]
BWCA 67
S v Kaayuka
2005 NR 201
(HC) at 206F - I.
25
Malgas
v S
[2001] 3 All SA 220
(A) para 22, 25;
S v Karolia
[2004] 3 All SA 298
(SCA) para 26, 31-32;
S v Mahomotsa
2002
(2) SACR 435
(SCA) para 14, 17, 18, 19;
Rammoko v Director of
Public Prosecutions
[2002]
26
ss
51(3)(a)
Criminal Law Amendment Act 105 of 1997
27
S
v
Zitha and others supra
at
411D
28
S
v Zitha and Others supra
at 411D
29
Centre
for Child Law v Minister of Justice and Constitutional Development
supra
para 29
30
Centre
for Child Law v Minister of Justice and Constitutional Development
supra
para 37
31
Centre
for Child Law v Minister of Justice and Constitutional Development
supra at para 26
32
S
v Dodo
supra
para 40 E-F
33
S
v Dodo
supra
para 37 F-G
34
Masiya
v Director of Public Prosecutions, Pretoria and Another (Centre for
Applied Legal Studies and Another, Amici Curiae)
2007
(5) SA 30 (CC)
para 36.
35
S
v
Zitha
supra
at 410