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[2024] ZAECQBHC 47
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S v T.R.L (CC26/23) [2024] ZAECQBHC 47 (28 June 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No. CC26/23
In
the matter between:-
THE
STATE
and
T[…]
R[…] L[…]
Accused
JUDGMENT
ON SENTENCE
BANDS
J:
[1]
On 17 May
2024, I convicted the accused on two counts of rape (per vaginum) of
his stepdaughter in contravention of
section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
.
[1]
The charges arose from two incidents
which took place on 30 October 2018 and 30 June 2020 respectively, on
which dates the complainant was 15 and 18 years of age.
[2]
The circumstances in which the offences were committed are described
in detail in the main judgment and accordingly bear no
repetition.
This judgment concerns the sentence proceedings in respect of the
accused.
[3]
Having been convicted of the rape of a child under the age of 16, and
having raped the complainant on more than one occasion,
the accused’s
respective convictions, pursuant to the provisions of
section 51(1)
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 32 of 2007
, attract mandatory minimum sentences of life
imprisonment unless the court is satisfied that there are substantial
and compelling
circumstances which militate against the imposition
thereof.
The
approach to the minimum sentencing legislation
[4] In approaching the
sentencing of the accused, I am to impose sentences that will strike
an appropriate balance between the seriousness
of the crimes of which
he has been convicted; the personal circumstances of the accused; and
the legitimate expectations and legal
interests of the community. The
decision whether or not substantial and compelling circumstances are
present involves the exercise
of a value judgment. It is necessary to
have regard to all factors relevant to both aggravation and
mitigation, and to assess,
upon a consideration of all the
circumstances relevant to the matter, whether the prescribed
sentences are proportionate to the
particular offences.
[5]
The court
in
S v
Malgas
[2]
emphasised
the correct approach in establishing whether or not substantial and
compelling circumstances exist as follows:
“
[7] The very
fact that this amending legislation has been enacted indicates that
parliament was not content with that and that it
was no longer to be
“business as usual” when sentencing for the commission of
the specified crimes.
[8]
In
what respects was it no longer to be business as usual? First, a
court was not to be given a clean slate on which to inscribe
whatever
sentence it thought fit. Instead, it was required to approach that
question conscious of the fact that the legislature
has ordained life
imprisonment or the particular prescribed period of imprisonment as
the sentence which should ordinarily be imposed
for the commission of
the listed crimes in the specified circumstances. In short, the
legislature aimed at ensuring a severe, standardised,
and consistent
response from the courts to the commission of such crimes unless
there were, and could be seen to be, truly convincing
reasons for a
different response. When considering sentence the emphasis was to be
shifted to the objective gravity of the type
of crime and the
public’s need for effective sanctions against it. But that did
not mean that all other considerations were
to be ignored. The
residual discretion to decline to pass the sentence which the
commission of such an offence would ordinarily
attract plainly was
given to the courts in recognition of the easily foreseeable
injustices which could result from obliging them
to pass the
specified sentences come what may.
[9]
Secondly,
a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to
impose the
specified sentence.
As was observed in
Flannery v Halifax Estate Agencies Ltd
5
by
the Court of Appeal,
“
a requirement
to give reasons concentrates the mind, if it is fulfilled the
resulting decision is much more likely to be soundly
based --- than
if it is not”. Moreover, those circumstances had to be
substantial and compelling. Whatever nuances of meaning
may
lurk in those words, their central thrust seems obvious. The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion
to
imprisoning first offenders, personal doubts as to the efficacy of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences
in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have justified
differentiating
between them. But for the rest I can see no warrant
for deducing that the legislature intended a court to exclude from
consideration,
ante omnia as it were, any or all of the many factors
traditionally and rightly taken into account by courts when
sentencing offenders.
The use of the epithets “substantial”
and “compelling” cannot be interpreted as excluding even
from consideration
any of those factors. They are neither notionally
nor linguistically appropriate to achieve that. What they are apt to
convey,
is that the ultimate cumulative impact of those circumstances
must be such as to justify a departure. It is axiomatic in the normal
process of sentencing that, while each of a number of mitigating
factors when viewed in isolation may have little persuasive force,
their combined impact may be considerable. Parliament cannot have
been ignorant of that. There is no indication in the language
it has
employed that it intended the enquiry into the possible existence of
substantial and compelling circumstances justifying
a departure, to
proceed in a radically different way, namely, by eliminating at the
very threshold of the enquiry one or more factors
traditionally and
rightly taken into consideration when assessing sentence. None of
those factors have been singled out either
expressly or
impliedly for exclusion from consideration.
[10]
To
the extent therefore that there are dicta in the previously decided
cases that suggest that there are such factors which fall
to be
eliminated entirely either at the outset of the enquiry or at any
subsequent stage (eg age or the absence of previous convictions),
I
consider them to be erroneous. Equally erroneous, so it seems to me,
are dicta which suggest that for circumstances to qualify
as
substantial and compelling they must be “exceptional” in
the sense of seldom encountered or rare. The frequency
or infrequency
of the existence of a set of circumstances is logically irrelevant to
the question of whether or not they are substantial
and compelling.
”
[6]
The
Constitutional Court in
S
v Dodo
[3]
approved
the approach to sentencing as laid down in
Malgas
.
With reference to the aspect of proportionality, the court held that
what had to be considered in determining whether the length
of a
sentence was proportionate to the offence, was the offence in its
broader context. This, Ackermann J described at paragraph
[37] as
consisting of “
all
factors relevant to the nature and seriousness of the criminal act
itself, as well as all relevant personal and other circumstances
relating to the offender which could have a bearing on the
seriousness of the offence and the culpability of the offender.
”
Ackermann J went on further to state at paragraph [38] that even when
the legislature has prescribed the sentence ordinarily
to be imposed
in respect of an offence, the value of human dignity lies at the
heart of the requirement that sentences must be
proportionate to the
offence.
[7]
The Supreme
Court of Appeal
S
v Vilikazi
,
[4]
in endorsing the approach set out in
Malgas
,
stated that it is only by approaching sentencing under the Act in
such manner that it is possible to avoid incongruous and
disproportionate
sentences. A prescribed minimum sentence cannot be
assumed
a
priori
to be proportionate in a particular case simply because a crime falls
within a particular category. Disproportionate sentences,
said Nugent
JA, are not to be imposed. Courts are not vehicles for injustice.
[8]
Mindful of the aforesaid, I turn to an examination of the case at
hand.
The
circumstances of the present case
[9]
The rape of
young girls by their fathers was described by Bosielo JA in
S
v
Bailey
[5]
as
“
scandalous
”
and “
morally
repugnant
”.
It is “
a
malignant cancer seriously threatening the well-being and proper
growth and development of young girls
”
and it qualifies to be described as “
a
most serious threat to our social and moral fabric
.”
[10]
Cameron JA,
in dealing with the rape of a minor by her father stated as follows
at paragraph [17] in
S
v Abrahams
:
[6]
“
Of all the
grievous violations of the family bond the case manifests, this is
the most complex, since a parent, including a father,
is indeed in a
position of authority and command over a daughter. But it is a
position to be exercised with reverence in the daughter’s
best
interest, and for her flowering as a human being. For a father to
abuse the position to obtain forced sexual access to his
daughter’s
body, constitutes deflowering in the most grievous and brutal sense.”
[11]
Common
sense dictates that these comments are of equal application in
circumstances involving rape within the family unit
perpetrated by a
stepparent,
[7]
who, for all intents and purposes, fills the role of a parental
figure, such as in the present matter. The rape of a minor child
is
an abhorrent crime. It is for this reason that the legislature has
elected to include this type of rape in the category of crimes
which
attract a life sentence in the absence of substantial and compelling
circumstances.
[8]
[12]
This
notwithstanding, the decisions of our courts, including the Supreme
Court of Appeal, frequently depart from imposing life imprisonment
because of substantial and compelling circumstances being found to be
present.
S
v Abrahams
(supra);
[9]
S v
Sikhipha
;
[10]
and
S v
Nkomo
[11]
all
involved rapes falling within the ambit of
section 51(1)
of the Act.
The respective courts, after having considered the relevant facts,
departed from the prescribed minimum sentence on
the basis that life
imprisonment
was disturbingly disproportionate to the point where it could be
described as unjust. Such decisions, of course, remain guidelines,
and do not constitute a benchmark or a precedent binding on other
courts.
[13]
I now turn to the question of whether substantial and compelling
circumstances are present in this case.
[14]
In
mitigation of sentence, it was advanced on behalf of the accused that
he is currently 40 years old. He was 34 and 36 years old
at the time
of the commission of the respective offences and has no prior
convictions. He has known the complainant since she was
three years
of age, at which time he entered into a romantic relationship with
her mother, which later led to their marriage in
2010. He supported
the family unit financially and was described by the complainant as
having played his role as a father “
very
well
”
prior to the date of the first incident. That the accused was the
victim’s father figure since the age of three and
breached the
trust relationship between them is an aggravating factor. The accused
and the complainant’s mother are currently
still married,
albeit that they have been separated since 2022.
[12]
He is the father of two children. A daughter born from the marriage
between him and the complainant’s mother, who is currently
12
years of age and in grade 8; and a 19-year-old son who is unemployed.
The accused was gainfully employed as a merchandiser earning
between
R4,800 and R5,200 per month. But for a period of two weeks during his
initial incarceration, he maintained his employment
up until the time
of his conviction, fulfilling his maintenance obligations in respect
of his daughter by the payment of all
school related expenses. He was, accordingly, a contributing member
of society, which is a mitigating factor. Notwithstanding that
he
failed to impress as a witness, for the reasons set out in the
judgment on conviction, he came across as a well-spoken, intelligent
individual – these too are mitigating factors in favour of the
accused.
[15]
On the other hand, the complainant was 15 and 18 years of age at the
time of the incidents. From the age of three years old
up until the
first incident, she viewed the accused as her father figure. The
rapes were perpetrated on her during her grade 10
and grade 12 years
of schooling, during which years she failed to meet the minimum
requirements to successfully complete the respective
academic years.
From the content of The Victim Impact Report, which was handed in by
consent, it is apparent that she has suffered
grave and ongoing
emotional and psychological suffering. She describes herself prior to
the incidents as having been a happy, emotionally
stable young girl,
who loved reading. She excelled academically. Describing how the
incidents have changed her life, the complainant
stated that:
“
My heart is
very sore. I cry every day when I think about this thing. My life has
drastically changed. My future is finished. My
dreams are destroyed
.”
[16]
She: (i)
suffers from anger issues; (ii) isolates herself; (iii) has turned to
alcohol abuse as a coping mechanism; (iv) suffers
from depression;
(v) cries daily; and (vi) experiences flashbacks. The complainant
describes her life as being in “
a
mess
”.
The impact of the offences on the complainant was further confirmed
through an impact statement admitted into evidence
on behalf of the
complainant’s mother, which included a detailed statement on
the impact that the incidents have had on the
complainant
[13]
as
well as the impact that the incidents have had on her as the
complainant’s biological mother; as the biological mother
of
the child born from the marriage between her and the accused; and as
the wife of the accused.
[14]
[17]
Whilst no evidence was placed before me, through a social worker or
psychologist, as to the complainant’s long-term prognosis,
that
the impact on her is devastating and far-reaching is manifest. This
is an aggravating factor.
[18]
I must
mention that the accused, in the face of the evidence at trial
regarding the complainant’s state of mind and change
in
behaviour following the first incident, including her depression;
continuous crying; isolation and failure to pass grade 10,
which he
acknowledged, attempted, opportunistically, to lay blame on other
aspects of the complainant’s life for such phenomena.
[15]
Perhaps more importantly, the accused being undeterred by the visible
impact that the first incident had on the complainant, again
proceeded to rape her in June 2020.
[19]
In argument before me, Mr Van der Spuy who appeared on behalf of the
accused, implored upon me to find that the facts as set
out in
paragraph [14] of this judgment, taken cumulatively, amount to
substantial and compelling circumstances, justifying a lesser
sentence than life imprisonment.
[20]
He further
argued, whilst acknowledging the severity of the offences, that life
imprisonment would be disproportionate in the circumstances
of this
case. He cited the fact that the accused, at the conclusion of his
cross-examination at trial, became visibly, yet quietly
emotional, as
noted by me in the judgment on conviction. He further argued that
this factor, together with the factors to which
I have set out above,
all point to good prospects of rehabilitation. Having no insight as
to the cause of the accused’s display
of emotion, this factor
cannot be elevated to be anything other than what it was, nor can I
infer remorse therefrom.
[16]
Whilst the accused is of a relatively young age and was
gainfully
employed, that he showed no remorse and again elected to rape the
complainant, having noted the devastating effect that
the fist
incident had on her emotional and psychological wellbeing, to my
mind, militates against rehabilitation and is an aggravating
factor.
[21]
Ms Grootboom, who appeared on behalf of the State, submitted that the
facts placed before the court by the accused did not
amount to
substantial and compelling circumstances, justifying the imposition
of a lesser sentence. On the aspect of proportionality,
and in
responding to questions posed as to whether or not life imprisonment
in this case was not disharmonious with the lesser
sentences imposed
in the cases referred to, Ms Grootboom stressed that the facts of
this matter, given the serious psychological
and emotional impact
that the offences have had on the complainant (coupled with the two
acts of rape), distinguished it from such
cases and called for the
minimum sentence as prescribed by the legislature. The argument so
advanced was not far removed from that
advanced in
S v Bailey,
in which the Supreme Court of Appeal, in an appeal against a sentence
of life imprisonment imposed on a father for the rape of
his
12-year-old daughter was dismissed, with heavy reliance being placed
on the dramatic effect which the rape had on the victim
as evidenced
in the Victim Impact Report.
[22]
Ms Grootboom also highlighted, as an aggravating factor, the threats
made to the complainant by the accused, which emerged
at trial. Not
only did he threaten to kill her should she tell anyone about what
had happened, but he further stated that in any
event, no one would
believe her should she report the incident – not even her
mother. This latter aspect was illustrated
at trial with reference to
a deeply regrettable exchange between mother and daughter when the
complainant first attempted to approach
her mother regarding the
incidents and their impact on her. This led to a delay in reporting
and accordingly a lack of medical
evidence, which was a neutral
factor.
[23]
She further argued that the accused, being the complainant’s
father figure, abused his position of trust, and continued
to profess
his innocence throughout the proceedings. This is so. The abuse of
trust by the accused, in circumstances where he was
the complainant’s
father figure since a tender age is an aggravating feature of the
matter.
[24]
In considering what sentence to impose, I have given due
consideration to the approach to sentencing as set out above. I have
further had regard to all factors relevant to both aggravation and
mitigation, and considered whether the prescribed sentence is
proportionate to the offences. Having done so, I am not persuaded
that the accused’s circumstances given the facts of this
case
meet the threshold of substantial and compelling circumstances. The
sentences are appropriate and proportionate to the particular
offences in the circumstances at hand.
[25]
In the result, the accused is sentenced as follows:
1.
Count one (rape):
Life imprisonment.
2.
Count two (rape):
Life imprisonment.
It
is ordered that the sentences imposed on each of the counts are to
run concurrently.
I
BANDS
JUDGE
OF THE HIGH COURT
Coram:
Bands
J
Date
heard:
24
June 2024
Date
of judgment:
28
June 2024
Appearances:
For
the state:
Adv
Grootboom, NDPP
For
the accused:
Adv
Van der Spuy, Legal Aid South Africa
[1]
Act 32 of 2007.
[2]
[2001] 3 All SA 220 (A).
[3]
[2001] ZACC 16
;
2001 (3) SA 382
(CC).
[4]
2009 (1) SACR 552 (SCA).
[5]
[2012] ZASCA 154
at paragraph
[13]
.
[6]
2002 (1) SACR 116 (SCA).
[7]
Albeit that the act of rape in such circumstances does not amount to
incest.
[8]
GK v S
2013
(2) SACR 505 (WCC).
[9]
The court set aside a sentence of 7 years’ imprisonment
imposed on a father for raping his 14-year-old daughter and
increased
it on appeal to a sentence of 12 years.
It
was found that the accused’s age (53) was not itself a
mitigating factor, but that he had reached his middle years without
a criminal conviction was. The court further took into account that
the accused’s son’s suicide less than two years
prior to
the rape, adversely influenced his conduct within the family and led
to a diminution in the judgement that he brought
to bear as a
father. It was further found that the rape in question was not one
of the worst cases of rape. These factors are
distinguishable from
the facts of the present matter. Moreover, the court in considering
sentence was faced with a single act
of rape. Whilst there was
evidence as to the psychological impact of the rape on the victim,
which was not insignificant, the
features of complete and utter
hopelessness which emerged in the facts of the present case, surpass
those in
Abrahams
.
[10]
2006 (2) SACR 439
(SCA).
The
court set aside a sentence of life imprisonment where the appellant
had raped a 13-year-old girl and replaced it with a term
of 20 years
imprisonment. It regarded as substantial and compelling
circumstances, the fact that the appellant was a first offender;
that he had a wife and children dependent upon him; that he has a
trade (he is a bricklayer) and makes a living from his work;
that he
was 31 years old at the time of the trial, and that he is capable of
rehabilitation. However, distinguishable from the
facts of the
present matter, the court was faced with a single act of rape and
had no evidence before it as to the psychological
impact on the
victim.
[11]
2007 (2) SACR 198
(SCA).
The
court set aside a sentence of life imprisonment and replaced it with
a term of 16 years imprisonment in circumstances in which
the
appellant’s victim was kidnapped and raped several times in
one night. Distinguishable from the facts of the present
matter, the
victim was not a minor; the appellant was not a father figure to the
victim; and no evidence was led as to the psychological
trauma
suffered by the victim.
[12]
It being common cause that there is an existing domestic violence
interdict in operation against the accused.
[13]
Inclusive of suicidal ideation.
[14]
Including the fears that she lives with.
[15]
Such as usual teenage behaviour.
[16]
The accused showed no signs of remorse, nor was it contended by Mr
Van der Spuy in argument, that any such remorse was present.
As
stated in paragraph [14] of
2011 (1) SACR 40
(SCA);
[2010] 2 All SA
424
(SCA).
“
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely
remorseful and
not simply feeling sorry for himself or herself at having been
caught is a factual question. It is to the surrounding
actions of
the accused rather than what he says in court that one should rather
look. In order for the remorse to be a valid
consideration, the
penitence must be sincere and the accused must take the court fully
into his or her confidence. Until and
unless that happens the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find
that an accused person is
genuinely remorseful, it needs to have a proper appreciation of
inter alia: what motivated the accused
to commit the deed; what has
since provoked his or her change of heart; and whether he or she
does indeed have a true appreciation
of the consequences of those
actions. There is no indication that any of this, all of which was
peculiarly within the respondent's
knowledge, was explored in this
case
.”