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[2012] ZAKZPHC 48
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S v Pillay (AR 115/10) [2012] ZAKZPHC 48 (8 August 2012)
IN THE HIGH COURT OF SOUTH AFRICA,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
AR 115/10
In the matter between:
RONSON PILLAY
…..............................................................................
APPELLANT
v
THE STATE
….....................................................................................
RESPONDENT
JUDGMENT ON SENTENCE
Date of hearing: 28 June
2012
Date of judgment: 08
August 2012
D. PILLAY J
[1] The full court hearing the appeal
on both conviction and sentence confirmed the conviction of the
appellant on 28 June 2012.
It postponed its decision on sentence for
further deliberation with a view to reaching agreement on sentence
and, failing that,
for hearing before a full bench on a date to be
arranged on 07 August 2012. It has since come to our attention that
unless the
full court is unanimous on sentence its judgment on
upholding the conviction has to be vacated and the entire appeal be
referred
to the Judge President for assigning the matter to a full
bench. We have since agreed on the sentence. Here follow our reasons.
[2] Counsel for the defence, Mr
L
Barnard
, submitted that as the appellant was charged and
convicted of only one count of indecent assault under the common law
and not the
additional incidents to which the complainant testified,
the sentence of four years imprisonment was excessive. Furthermore,
the
trial court should have contemplated a non custodial sentence.
Accordingly this court should refer the matter back to the trial
court to request a pre-sentencing report.
[3]
Turning first to the term of four years imprisonment for one count of
sexual assault committed on an 11 year old girl,
Coetzee
v S
2010
(2) ALL SA 1
(SCA) at para 18-25 helpfully summarises cases on
indecent assault and contraventions of s 14(1) (b) of the Sexual
Offences Act
23 of 1957 (SOA) post 1993. In all the cases cited
imprisonment was consistently imposed as the appropriate sentence.
The period
of imprisonment varied depending on the nature of the
assault, the number of counts, the relationship of the offenders to
the complainant
and to society and whether the offenders suffered
from some psychological personality defect. Of the eight cases
1
surveyed
an effective term of three years imprisonment or more was imposed in
five of them.
2
In a
case where six months imprisonment were imposed for each of the two
counts of indecent assault, the assault took the form of
touching the
breasts of one of the complainants and rubbing the leg and stomach of
the other.
3
On a
conviction of three counts of indecent assault and one attempted
indecent assault of boys between the ages of 10 to 12 years,
the
trial court imposed eight and a half years imprisonment. On appeal
all four charges were taken together and his sentence was
reduced to
four years imprisonment of which three years was suspended on
conditions, one of which was that he subjected himself
to programmes
for treatment of sexual offenders.
4
That
case was decided in 2003; since then our appellate courts have
observed that there are no signs of sexual offences abating.
5
Although
this is not a sexual offence in which the minimum sentence applies,
to be sufficiently deterrent, the sentences for indecent
assault
should be progressively higher than the sentences imposed in similar
cases 12 years ago.
[4]
Coetzee,
on appeal to this
division, came before Koen J who with Gorven J concurring that a
non-custodial sentence would be a mere slap on
the wrist, reduced the
sentence of 6 years imprisonment by treating all counts as 1 and
suspending 2 years for 4 years. The offender
was convicted on four
counts of indecent assault. He was a pastor who had assaulted young
women. His conduct consisted of touching
his victims in intimate
parts of their bodies. The victims had come to him for counselling.
The trial court had rejected two pre-sentencing
reports, holding that
the offender was not a suitable candidate for correctional
supervision. The SCA found the custodial sentence
of 4 years
‘excessively severe’ and reduced the sentence on the
basis that it was ‘disturbingly inappropriate’.
It took
into account that the appellant in that case was a first offender and
that the complainants were not young and immature
(even though they
were between the ages of 16 and 21 years); they were already sexually
active; they did not suffer permanent psychological
trauma.
6
Preferring to leave
the matter of that offender’s incarceration in the hands of the
commissioner of correctional services,
it replaced the High Court’s
sentence with 4 year’s imprisonment in terms of s 267(1)(i) of
the CPA.
[5]
Coetzee
also reminds that
the matter of sentencing falls ‘pre-eminently’ within the
judicial discretion of the trial court.
The test for interference by
an appeal court is whether the sentence imposed by the trial court is
vitiated by irregularity or
misdirection or is disturbingly
inappropriate.
7
[8]
Having regard to the
sentence,
the learned magistrate failed to amend the charge sheet when the
defects were brought to her attention before judgment.
The first hint
that she intended to amend the charge appears at the beginning of her
judgment on conviction where she read the
charge with s 94 of the
CPA, probably because the charge sheet alleged that the offence was
committed from June 2006 to May 2007.
However, she did not state
specifically that she amended the charge sheet. Furthermore, the acts
for which the appellant was charged
related to one incident only. The
acts in the further incidents which escalated in seriousness should
have been stated in the charge
sheet if the state intended the charge
to be read with s 94. Notwithstanding the purported amendment, she
convicted him ‘as
charged’.
She
purported to effect the amendment expressly after her judgment on
conviction and during the delivery of her judgment on sentence.
Section 88 of the Criminal Procedure Act 51 of 1977 (CPA) permits the
court to amend the charge sheet after a defect is brought
to its
attention but before judgment.
8
Consequently, her finding
that the defects were cured by the evidence is inconsistent with s
88.
However, the practical
purpose of requiring the court to amend the charges before judgment
is to allow the parties an opportunity
to address the court on the
amendment and, if possible, to cure any prejudice the defence might
consequently endure. Generally,
it is inadvisable to assume that it
makes no difference that the amendment is effected after judgment and
that it is a mere procedural
flaw. In this case, however, having
regard to the appellant’s bizarre defence of conspiracy and the
failure to put his version
to the witnesses, he would not have
materially altered the proceedings to his advantage if the magistrate
had effected the amendment
before convicting him. The probabilities
are that his situation might have worsened because she might have
convicted him on all
counts. The misdirection about not effecting the
amendment before the conviction was therefore not fatal as far as the
conviction
went.
Although not fatal for
the purposes of the conviction, the failure to amend the charges
misled the appellant as far as sentence
went. In the midst of
delivering her judgment on sentence, the learned magistrate ‘regarded
the charge sheet as having been
automatically amended’. That
she sentenced him for all the incidents and not merely the one count
is confirmed by her treating
as aggravation the oral sex the
appellant asked the complainant to perform on him. To be convicted of
one count and sentenced on
three counts is manifestly unfair.
[8] However, is the
sentence of four years imprisonment in terms of s 276(1)(i) of the
CPA excessive for one count of indecent assault?
Subsection (i)
mitigates direct imprisonment by allowing the appellant to be placed
under correctional supervision in the discretion
of the Commissioner
or a parole board. Subsection 73 (7) of the Correctional Services Act
111 of 1998 (CSA) requires the appellant
to serve only one sixth of
his sentence before being considered for placement under correctional
supervision, and the court did
not direct otherwise. In fact, the
learned magistrate specifically had in mind ‘a short spell in
prison’ to satisfy
the punitive aspect of punishment.
Effectively, the learned magistrate left the duration of his
imprisonment partly in his own
hands and those of the correctional
officer, as the SCA did in
Coetzee
. Imprisonment under sub-sec
267(1)(i) of the CPA read with sub-sec 73(7) of the CSA is the
preferred sentencing option for first
offenders convicted of indecent
assault.
Turning to the facts, the
appellant was a police officer and a trusted friend of the
complainant’s family. They brought him
into their home at a
time when he was in need of shelter. They looked upon him as a family
member. In return, he reciprocated their
kindness by violating their
security at their most vulnerable state. Additionally, his arrogance
in assuming that he was entitled
to live rent free in the
complainant’s family home suggests that he is a long way from
rehabilitation. As for the interests
of the community, sexual
offences show no signs of abating. The impact of the assault on the
complainant is also a compelling consideration.
Although
Coetzee
is relevant to this case in setting a recent (2009) standard for
sentencing, it is distinguishable on the facts. On the one hand,
in
contrast to
Coetzee
, the complainant was an impressionable
school girl of 13 years when the assault occurred. She suffered the
trauma not only of the
assault but also of having to make statements
to the police and testify in court, all of which spanned 3,5 years.
On the other
hand, this case involves 1 count as opposed to the 4
counts in
Coetzee.
Furthermore, the learned magistrate did
misdirect herself by convicting the appellant on 1 count but
sentencing him on three counts.
Accordingly, the sentence falls to be
reduced.
[6] As to the
suggestion that the appellant might suffer from some psychological or
other impairment no evidence was led to lay
the basis for such a
finding. The proposition is entirely speculative. No court can
readily draw such an inference without evidence.
To do so in this
case would set an untenable precedent encouraging sexual offenders to
dredge up speculative defences in the many
cases that pass through
these courts for which no explanation exist whatsoever.
Coetzee
specifically
spurned such special treatment.
9
[7] As for remitting the matter for a
pre-sentencing report, to the trial court the defence specifically
enquired whether the prosecution
would call for such a report. The
learned magistrate pointed out that pre-sentencing reports were
usually done with juveniles.
She invited the defence to explain how
it would assist the court and enquired whether he was asking for such
a report. The defence
attorney replied ‘no, just a suggestion,
your worship’. The magistrate concurred that it was not
necessary. Before
adjourning the matter for sentencing the learned
magistrate urged the defence to adduce information to assist her to
arrive at
an appropriate, just and fair sentence. In the
circumstances I am satisfied that a pre-sentencing report was
considered and disposed
of in the trial court. In the absence of any
evidence as to his medical condition no basis exists for this court
to call for a
pre-sentencing report. Accordingly, the defence had
more than a week from conviction to prepare and adduce relevant
evidence in
mitigation.
In the circumstances, I
propose the following order:
The appeal succeeds.
The sentence imposed by
the trial court is set aside and replaced with the following:
‘
The
accused is sentenced to 2 years imprisonment in terms of
s 267(1)(i)
of the
Criminal Procedure Act, 51 of 1977
.’
________
D. Pillay J
__________
Y. Mbatha J I agree.
It is so ordered.
Counsel for the Appellant: Mr L.
Barnard
Instructed by: Manilall, KwaDukuza
Counsel for the Respondent: Ms R A
Ramouthar
Instructed by: Director of Public
Prosecutions
Durban
1
S
v R
1993 (1) SACR 209
(A);
S v V
1994 (1) SACR 598
(A);
S
v D
1995 (1) SACR 259
(A);
S v K
1995 (2) SACR 555
(O);
S
v R
1995 (2) SACR 590
(A);
S v McMillan
20032 (1) SACR 27
(SCA);
S v O
2003 (SCAR 147 (C);
S v Egglestone
[2008] ZASCA 77
;
2009
(1) SACR 244
(SCA).
2
S
v V
1994 (1) SACR 598
(A);
S v D
1995 (1) SACR259 (A);
S
v R
1995 (2) SACR 590
(A);
S v K
1995 (2) SACR 555
(O);
S
v McMillan
2003 (1) SACR 27
(SCA)
3
S
v Eggleston
[2008] ZASCA 77
;
2009 (1) SACR 244
(SCA)
4
S
v O
supra (n1) 165D-E & 165G-166D.
5
S
v Malgas
2001
(2) SA 1222
(SCA);
S
v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
(CC);
S
v Matyityi
2011 (2) SACR
40 (SCA)
6
Coetzee
para 15, 26
7
DPP,
KwaZulu-Natal v P
2006 (1) SACR 243
;
2006 (1) ALL SA 446
(SCA);
S v Coetzee
[2010] 2 All SA 1
(SCA) para 13.
8
S
v Gaba
1981 (3) SA 745
(O) at 752D; Hiemstra’s Criminal Procedure Online
9
Coetzee
para 16