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[2007] ZAWCHC 101
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S v Willemse (SS64/2007) [2007] ZAWCHC 101 (7 November 2007)
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
: SS64/2007
DATE
: 7
NOVEMBER 2007
in
the matter between
THE
STATE
and
JONATHAN
WILLEMSE
SENTENCE
HLOPHE.
JP
:
Mr
Wiliemse yesterday this court unanimously convicted you on four
counts. The first three were indecent assault and the last count
which was Count 4 was rape. At the end of yesterday’s
proceedings the court was addressed by Miss Allie who appears for the
state as well as your Advocate, Mr Buntting.
As
far as Miss Allie's address was concerned she firstly handed up what
was later marked Exhibit D, this being the record of your
previous
convictions. This record of previous convictions, SAP69 was marked
Exhibit D and it is clear there from that you have
two relevant
previous convictions for assault GBH. One of the th ings as you wiII
soon find out, one of the things of factors which
any court will take
into account for purposes of deciding on an appropriate sentence
would obviously be the personal interest of
the accused person.
Once
we are still busy with your personal circumstances it is important to
highlight that you are by no means a first offender.
I will take that
into account for purposes of sen^ tence. Also relevant with regard to
your personal circumstances is obviously
the fact that you have
minor dependants, children who are stiil dependant on you as minors.
Also your age, the fact that you are
now about 46 or 47. I think also
important in this regard is the fact that you have been behind bars
since 16 April 2006 for a
period of about eighteen months now.
A
number of other factors were outlined by Mr Buntting in the course of
his address. In addition of course to taking into account
the accused
personal circumstances the court looks at the crime as the second
factor. Here you have been found guilty on four counts,
the first
three relating to indecent assault and the last one, count number 4
which is rape, is a very serious count or charge.
What
makes the forth count even more serious is the fact that the
complainant in this case was just nine years old at the: time
of
these incidents. Even more so it is also serious, what makes it even
more serious as well in addition to that is the fact that,
it is
because of the relationship that existed between yourself, Mr
Willemse and the complainant, Nicole Titus. You were a Stepfather
tp
her. At all material times she regarded you or treated you as a
father and therefore you abused the relationship of trust which
existed between the father and the child.
For
example on the day when the child was raped by yourself in
Wellington, the child would have felt quite comfortable in
accompanying
you for shopping purposes, because she regarded you not
as a stranger, but as her father. I regard such an abuse of the
relationship
of trust in a very serious light.
The
third factor which any court would take into account for purposes of
sentencing is the need to protect the interest of the community.
Rape
is a serious matter and I have no doubt that parliament in its
wisdom, when it enacted the minimum sentence legislation was
responding to the endemic crime of rape in our societies,
communities. Sadly, rape, particularly of young children within their
families is becoming a serious problem in our communities and clearly
in this case it also had an impact on Nicole Titus.
It
emerged in cross-examination for example that she failed grade four
last year and she had to change schools and she is now repeating
the
same grade at another school. There is no doubt in my mind that
Nicole Titus was . traumatised by the incident. It may well
be that
of course she will soon outgrow the trauma, but the fact of the
matter remains that she was traumatised by this unwarranted
incident.
She was a young girl and what a way to deprive her of her virginity.
The incident I have no doubt destroyed her virginity
and it destroyed
her as a woman.
The
law is very clear Mr WiMemse, once an accused person has been found
guilty of raping a child under the age of 16, that person
must be
sentenced to life imprisonment. The court has no discretion, it can
only deviate from the sentence of life imprisonment
if it finds that
there were substantial and compelling factors dictating otherwise.
Both
council, that is your defence council, Mr Buntting as well as the
state Advocate, the state council Miss Allie, were
ad
idem
that this is not the kind of a case which calls for life
imprisonment. I agree with the submissions made by the learned
council
in this regard. I find therefore on the authority of
S
v Malqas
that indeed there are substantia! and compelling factors which
dictate to me that I should not impose life sentence in this case.
This
is largely because of the cumulative effect of your personal
circumstances, namely your age, you are now about 47 years, you
have
been in custody for a period of just over 18 months, to be more
precise, he has been in custody since 16 April 2006, the date
when he
was arrested. Also your family upbringing, the fact that you have no
formal schooling and the fact that you are from a
dysfunctional
family, it is a combination of these factors, if you look at them
cumulatively which leads to the conclusion that
life imprisonment
would be totally inappropriate in this particular case.
Nevertheless
you have a bad criminal record, this is not your first time to appear
in court. Apart from, obviously there are other
convictions which are
not relevant, but for purposes of these proceedings you have two
relevant previous convic-tions for assault
GBH. Rape is a crime of
violence, so clearly the two previous convictions for assault GBH are
directly relevant.
Mr
Willemse, can I warn you, you are still in court and you are being
sentenced by me. I just want to warn you in very strong terms,
and
this is not the first time you do this in court, you did it as well a
couple of days, I want to warn you for the Iast time.Let
me carry on.
I
was still saying those two previous convictions are directly relevant
in as much as rape is a crime of violence itself. There
is no doubt
to my mind that the previous relatively short sentences imposed with
regard to those two previous convictions for assault
GBH have not had
the desired effect.
I
am convinced therefore that after considering various sentencing
options, that a long term jail sentence is called for. The sentence
which I have in mind is such that it will send: a clear message to
people who have a propensity to commit such serious crimes of
violence, the message being that these crimes will not be tolerated
by our courts. But at the same time the sentence which I have
in mind
will give you an opportunity to rehabilitate yourself and when you
come out of prison, be a better citizen of the country.
After
considering various sentencing options, I am satisfied that the
following sentence must be meated out to you:
COUNT
1. THREE YEARS IMPRISONMENT. COUNT 2. THREE
YEARS
IMPRISONMENT. COUNT 3. THREE YEARS
IMPRISONMENT.
COUNT FOUR WHICH IS RAPE. 18 YEARS IMPRISONMENT. IT IS ORDERED THAT
THE SENTENCES
SHALL
RUN CONCURRENTLY.
HLOPHE,
JP