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[2020] ZASCA 14
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Venter v S (945/2018) [2020] ZASCA 14; 2021 (1) SACR 454 (SCA) (24 March 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Not
Reportable
Case
No: 945/2018
In
the matter between:
TYRONE
VENTER
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Tyrone Venter v The State
(Case no 945/2018)
[2020] ZASCA 14
(24
March 2020)
Coram:
SALDULKER, SWAIN, ZONDI, VAN DER MERWE and
MOKGOHLOA JJA
Heard
:
18 February 2020
Delivered
:
24 March 2020
Summary:
Criminal Procedure – sentence of
four years’ imprisonment in terms of
s 276(1)
(i)
of the
Criminal Procedure Act 51 of 1977
for contravention of
s
15(1)
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
and
s 17(a)
of the
Domestic Violence Act 116
of 1998
taken together – sentence not disturbingly
inappropriate – no misdirection – appeal dismissed.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Khumalo J and Swanepoel AJ sitting as court of
appeal):
The
appeal is dismissed.
JUDGMENT
Mokgohloa
JA (Saldulker, Swain, Zondi and Van der Merwe JJA concurring)
[1]
The appellant was convicted in the Regional Court for the Regional
Division of Gauteng, Pretoria on a contravention of s 15(1)
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (the Act) as well as a contravention of s 17
(a) of the
Domestic Violence Act 116 of 1998 (the
Domestic Violence Act). Both
counts were taken together for the purposes of sentence. He was
sentenced to four years’ imprisonment in terms of s
276(1)
(i)
of the Criminal Procedure Act 51 of
1977 (the CPA). He appealed to the Gauteng Division of the High
Court, Pretoria against his
sentence, but it was dismissed. The
appeal against sentence is with the special leave of this Court. The
issue in the appeal is
whether the trial court properly exercised its
discretion in respect of sentence.
[2]
Before turning to consider whether the sentence imposed on the
appellant was appropriate, a brief consideration of the background
facts is necessary. During 2006 the appellant, who was 19 years old
at the time, was employed as a sports coach for swimming and
cricket
at Cornwall Hill College, the school attended by the complainant. The
complainant was 12 years old and in grade seven.
Like the appellant,
the complainant was a swimmer and they were members of the University
of Pretoria Sports Institute and would
sometimes train together at
the university’s swimming pool.
[3]
Although their friendship started off as being purely platonic, it
progressed into an intimate one which included sexual intercourse.
They regularly communicated with each other by text messages and
through social networks like Mxit. The appellant would invite
her to
come and visit him at his residence at the University of Pretoria. He
would also ask her to come and watch him while he
was coaching other
swimmers. There they would engage in physical contact that included
‘high fives’, hugging and holding
hands.
[4]
The complainant’s parents did not approve of this relationship,
given the age difference of seven years between the complainant
and
the appellant. The parents made various efforts to end
this relationship but their efforts failed. The complainant’s
father took away the complainant’s cell phone but this did not
deter her as the pair continued to communicate and see each
other.
They did so by using the complainant’s friends’ cell
phones and by writing letters to each other. At some stage
the
complainant’s father phoned the appellant and requested him to
stay away from the complainant, to no avail. In June 2007
the
complainant’s parents obtained an interim domestic violence
protection order in terms of the
Domestic Violence Act against
the
appellant, which prohibited him from having any contact with the
complainant. The interim protection order did not serve its
purpose,
as the appellant simply ignored it and they continued to have
contact, with each other.
[5]
During 2007 the complainant invited the appellant to attend a
carnival at her school so that they could spent some time together.
The appellant honoured the invitation and attended the carnival. At
some stage, the appellant and the complainant moved away from
the
crowd and walked to a parking lot near the swimming pool. They
started hugging and kissing each other. At that time, the
complainant’s
mother arrived at the school and witnessed the
kissing.
[6]
In December 2007 the domestic violence protection order was made a
final order. Again, the appellant ignored its provisions
and
they continued communicating with each other. In April 2008 the
complainant and the appellant attended the national swimming
championships in Durban. They would meet to hug and kiss each other.
[7]
The complainant attained the age of 15 years in May 2008. Around this
time, the pair discussed having sexual intercourse. The
complainant
informed the appellant that because of her religious beliefs, she
could not have sexual intercourse before marriage.
The appellant then
started pushing the boundaries sexually, by stating that it would
take a lot of self-control for him not to
be tempted by the
complainant and he would push his pelvic area into her when kissing
her, or put his hand under her shirt. The
appellant then decided to
give her a ring as a symbol that they would be together forever. On 2
June 2008 they had sexual intercourse
in the changing room of the
squash court near the swimming pool where the complainant and the
appellant trained. They continued
to have sexual intercourse
regularly at different places.
[8]
During 2010 the complainant’s parents hired the services of a
private investigator. They discovered that the appellant
had
continued to have contact with the complainant in spite of the
protection order. The complainant’s parents also discovered
that the appellant and the complainant had had sexual intercourse.
The complainant’s father confronted the appellant in the
presence of the complainant about his relationship with the
complainant. He asked the appellant if the complainant had ever been
to his place and whether he and the complainant had ever had sexual
intercourse. The appellant denied this. The complainant’s
parents then opened a criminal case against the appellant. The
appellant persisted in his denial, of having had sexual intercourse
with the complainant, including during the trial.
[9]
In sentencing the appellant, the trial court took into consideration
his personal circumstances, the interest of society, the
nature of
the offences and the fact that the appellant had committed separate
offences in terms of the Act and the
Domestic Violence Act. In
order
to ameliorate the effect of the sentence, the trial court decided to
take both offences together for the purposes of sentence.
[10]
Before us, counsel for the appellant submitted that the trial court
misdirected itself by over-emphasising the seriousness
and prevalence
of the offence without having proper regard to the appellant’s
personal circumstances. Counsel submitted that
the trial court had
failed to take proper consideration of the nature of the relationship
between the appellant and the complainant,
which had according to him
gradually developed into a love relationship. It was only after two
years that their relationship had
become sexual when the complainant
had turned 15. Counsel also submitted that if the appellant’s
intentions were purely sexual,
he would have insisted on sexual
intercourse sooner. He submitted that the appellant had no malicious
intent, but rather inappropriately
fell in love with a girl, much too
young for him.
[11]
In
S v Bogaards
,
it was held that an appellate court’s power to interfere with
sentences imposed by lower courts was as follows;
‘
It
can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself
to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable
court could have
imposed it.’
[1]
[12]
The question is whether the trial court misdirected itself to such an
extent by imposing a sentence of four years’ imprisonment
in
terms of
s 276(1)
(i)
of
the CPA, that the sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable court could have
imposed it. In my view, the trial court did not misdirect itself as
suggested by counsel. The submissions have no factual foundation
as
the appellant consistently denied that a genuine love relationship
between him and the complainant gradually led to sexual intercourse.
For the following reasons, I regard the sentence as appropriate. The
complainant was 12 years old and appellant was 19 years old,
and the
complainant looked up to the appellant as her swimming role model.
Aside from their age difference, the appellant
was employed by her
school to coach swimming. The appellant was in a position of
authority and trust with regard to the complainant.
In spite of
this, the appellant began grooming the complainant when she was still
young, and when she was 15 years old, he began
a sexual relationship
with her.
[13]
On numerous occasions, the complainant’s parents begged him to
stop any contact with the complainant to the extent that
they
obtained a domestic violence protection order against the appellant.
The appellant ignored the court order and continued to
engage with
the complainant. The appellant knew that the complainant believed in
abstaining from sex until marriage, however, he
seduced her into
acceding to his requests for sexual intercourse, by giving her a ring
to assure her that this was no fleeting
relationship.
[14]
When the complainant’s father confronted the appellant about
him having had sexual intercourse with the complainant,
the appellant
denied it and persisted with this denial throughout the trial. The
first time he admitted that he had had sexual
intercourse with the
complainant was when he applied for special leave to appeal to this
Court. In my view, this was done to persuade
this Court to grant him
special leave. In the circumstances, the appellant does not take
responsibility for his actions, which
have not only affected him, and
his swimming career, but also the complainant and her swimming
career.
[15]
Central to the argument of the appellant was that correctional
supervision was a suitable sentence in the present case.
The
probation officer viewed correctional supervision as a suitable
sentence, together with a suspended sentence, for the contravention
of the protection order. The appellant submitted that in terms of
s
276
(3) (a) of the CPA, specific provision is made for the imposition
of a suspended term of imprisonment, in addition to correctional
supervision. The probation officer however agreed, that the appellant
did not take responsibility for the sexual intercourse, because
he
still denied that he had had sexual intercourse with the complaint,
as at the time the probation officer gave evidence.
The
appellant did however accept that he had caused harm to the family of
the complainant. The probation officer also stated that
the
appellant, because he did not take responsibility for his actions,
did not have real regret and remorse for what had happened.
[16]
The State therefore correctly submitted, that the appellant displayed
no real remorse for what he had done and that nothing
in the evidence
showed that he had accepted the seriousness of his conduct and
intended to make such amends, as lay within his
power. The State
submitted that there was no remorse, no regret and therefore no hope
of rehabilitation on the part of the appellant
and pointed to the age
gap of seven years between the complainant and the appellant, as an
aggravating factor. The complainant
was only 12 years old and the
appellant 19 years old, when the relationship started. In addition,
the complainant was only 15 years
old and the appellant 22 years old,
when sexual intercourse first took place. A further aggravating
feature was that the
appellant disregarded, over a period of time,
the consequences of the contravention of the protection order that
was in place.
In addition, it was the appellant and not the
complainant who pursued the sexual interaction and from the letters
exchanged between
them, the complainant was not ready for sexual
intercourse. The State submitted that the appellant used the
complainant’s
youthfulness in order to manipulate her
discreetly into submission. The State accordingly disputed that the
Magistrate overemphasised
the interest of the community, at the
expense of the personal circumstances of the appellant. The
Magistrate had considered all
of the circumstances of the case, in
deciding that the sentence was proportionate to the offences, of
which the appellant had been
convicted.
[17]
There is, accordingly, in my view, no basis to find that the trial
court misdirected itself in imposing the sentence of four
years’
imprisonment in terms of
s 276(1)
(i)
of
the CPA, in terms of which the appellant may be placed under
correctional supervision in his discretion by the Commissioner of
Correctional Services. As decided in
S
v Scheepers
2006 (1) SACR 72
(SCA) para
10, this section is appropriate where it is decided that a custodial
sentence is essential, but the nature of the offence,
suggests that
an extended period of incarceration is inappropriate. It achieves the
object of a sentence unavoidably entailing
imprisonment, but
mitigates it substantially, by creating the prospect of early release
on appropriate conditions, under a correctional
supervision program.
In terms of
s 73
(7) of the
Correctional Services Act 111 of 1998
,
the appellant must serve at least one sixth of his sentence ie 8
months, before being considered for placement under correctional
supervision. There is accordingly no basis upon which to find, that
the sentence imposed by the trial court is so disproportionate
or
shocking, that no other court would have imposed such a sentence.
This Court is therefore not entitled to interfere with the
sentence
imposed by the trial court. The appeal must accordingly fail.
[18]
In the result, the following order is made:
The
appeal is dismissed.
__________________
F
E Mokgohloa
Judge
of Appeal
APPEARANCES
For
appellant: P Pistorius
Instructed
by: Emile Viviers Attorneys, Pretoria
Symington
& De Kok Attorneys, Bloemfontein
For
respondent: S Scheepers
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Bogaards
v S
[2012] ZACC 23
(CC);
2013 (1) SACR 1
(CC);
2012 (12) BCLR 1261
(CC)
para 41