Summary of Judgment

Introduction

The proceedings were an appeal to the Supreme Court of Appeal against sentence, brought by the Director of Public Prosecutions, Eastern Cape Division, Grahamstown (the appellant) with the leave of the High Court, Eastern Cape Division, Grahamstown. The respondent was Willie Themba Yoyo, who had been convicted in the High Court.

The matter arose from criminal charges of rape, alternatively attempted rape, brought against the respondent. The respondent pleaded guilty to the alternative charge of attempted rape, which plea was accepted by the State, and he was convicted on that basis.

After conviction, the High Court (Tshiki J) imposed a sentence of six years’ imprisonment, with half of the sentence suspended for three years on condition that the respondent did not commit a sexual offence during the period of suspension. The DPP appealed on the basis that the sentence was inappropriately lenient. The general subject-matter of the dispute on appeal was whether the sentencing court exercised its discretion properly and whether the sentence should be increased due to the seriousness and aggravating features of the offence.

Material Facts

The material facts were largely undisputed, as they were admitted by the respondent in a plea explanation under section 212 of the Criminal Procedure Act 51 of 1977 and accepted by the prosecution when the guilty plea to attempted rape was tendered.

On the morning of 23 December 2015, the respondent was at his residence at Grootvlakte Farm, Graaff-Reinet, where he was employed. He admitted that he had consumed alcohol that morning, but he also admitted that at the time of the offence he was not under the influence and knew what he was doing.

The complainant, a young child (described in the court’s summary as 4 years old), was with her mother in a bedroom. The mother was the respondent’s girlfriend. The respondent was asleep on a mattress in the kitchen, and the complainant came to lie on the mattress with him. The respondent decided to have sexual intercourse with the complainant, removed her panties, climbed on top of her, and attempted to penetrate her. The complainant screamed, which caused her mother to come from the bedroom and inquire what was happening. The mother pulled the complainant from the mattress while the child was still lying on her back.

A medical examination later recorded (in a J88) a 0.5 cm laceration on the upper part of the anus (outside), with swelling around the entire anus, darkish in colour, and no injury to the vulva or vagina. The J88 recorded that specimens were taken for forensic analysis, and the findings were described as not conclusive of sexual assault.

A psychological assessment recorded that the incident caused the complainant an intense fear of the dark, which she later overcame, and there was no evidence of impact on school performance. The High Court accepted that the psychological impact was minimal.

In mitigation, it was placed before the sentencing court that the respondent was 52 years old at the time of the offence, a farm worker, with Grade 3 schooling, and had an unrelated prior conviction from 1984 for using property without the owner’s consent.

Legal Issues

The central question for determination was whether the High Court’s sentence of six years’ imprisonment, half suspended, for attempted rape of a very young child reflected a proper exercise of the sentencing discretion, or whether it was vitiated by misdirection and/or was disturbingly disproportionate so as to justify appellate interference.

The dispute on appeal primarily concerned the application of established sentencing principles to the facts, together with an evaluative judgment about proportionality and whether the sentence induced a sense of shock. It also raised the appellate standard for interference with sentence: whether the sentencing court failed to exercise its discretion reasonably and properly, thereby permitting substitution.

Court’s Reasoning

The Supreme Court of Appeal approached the matter from the premise that sentencing ordinarily falls within the discretion of the trial court. It reiterated the established principle that a court of appeal will interfere with sentence only if the sentencing court did not exercise its discretion reasonably and properly, which includes instances of material misdirection.

On the seriousness of the offence, the court emphasised the prevalence and gravity of violence and sexual abuse perpetrated against children in South Africa, noting that lenient sentences imposed by some courts fail to deter would-be offenders and that the appellate court has previously remarked on the increasing incidence of such offences.

In applying these considerations to the present facts, the court placed particular weight on the aggravating features arising from the circumstances of the offence. It held that the respondent abused a position of authority and trust in relation to the complainant, and that the complainant was entitled to feel safe in her home environment and under parental protection. The court treated the abuse of trust as aggravating and referred to comparable reasoning in Director of Public Prosecutions, Gauteng v MG 2017 (2) SACR 132 (SCA).

The court scrutinised the sentence imposed by the High Court and found the approach unexplained and troubling. It noted that the sentencing court itself had recognised the seriousness of unlawful sexual offences, particularly against young children by adults, but nonetheless imposed a sentence of six years and, for reasons not accounted for, suspended half of it. In the appellate court’s view, this resulted in a sentence that was disturbingly disproportionate to the seriousness of the offence, constituting a misdirection warranting intervention.

The court illustrated the misdirection by reference to S v Ncanywa 2017 JDR 0458 (ECG), an appeal within the same division involving similar charges, in which a sentence of ten years was imposed for attempted rape. The court regarded this as demonstrating the extent to which the sentence under appeal diverged from sentences imposed in comparable circumstances.

The court also observed that the suspension condition formulated by the High Court was ambiguous in its wording (although the sentence itself was ultimately set aside), and it clarified the ordinary formulation of such conditions (namely, that suspension is typically on condition of not being convicted of a specified offence during the period of suspension).

Finally, the court recorded that counsel for the respondent conceded that the offence was serious and that a sentence of ten years’ imprisonment would be proportionate and appropriate. The court accepted that this concession was properly made and aligned with the appellate court’s assessment of proportionality.

Outcome and Relief

The appeal was upheld.

The sentence of six years’ imprisonment, half of which was suspended for three years, was set aside and replaced with a sentence of ten years’ imprisonment. The substituted sentence was ordered to be antedated to 18 May 2017.

The judgment did not record any separate costs order.

Cases Cited

The judgment cited The State v RO and Another 2010 (2) SACR 248 (SCA) and Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) in support of the proposition that this category of offending is prevalent and increasing and has been repeatedly lamented by the appellate court.

The judgment cited Director of Public Prosecutions, Gauteng v MG 2017 (2) SACR 132 (SCA) in relation to the aggravating feature of an accused abusing a position of authority and trust in respect of the complainant.

The judgment cited S v Ncanywa 2017 JDR 0458 (ECG) as a comparative sentencing reference, noting that it was a recent decision from the same division dealing with similar offending and indicating the seriousness with which such conduct has been treated.

The judgment cited S v Kgosimore 1999 (2) SACR 238 (SCA) at 24 for the principle that sentencing is a matter for the trial court’s discretion and that a court of appeal interferes only where the discretion was not exercised properly.

Legislation Cited

The charge was framed with reference to section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The matter referred to section 261 of the Criminal Procedure Act 51 of 1977 in relation to how the charge was read with the relevant procedural provisions.

The respondent’s plea explanation was made in terms of section 212 of the Criminal Procedure Act 51 of 1977.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the High Court’s sentence of six years’ imprisonment with half suspended for attempted rape of a very young child was disturbingly disproportionate to the seriousness of the offence and reflected a misdirection warranting appellate interference.

It held further that, in light of the seriousness of the offence and the aggravating circumstance that the respondent abused a position of trust in a home environment where the child was entitled to safety and protection, an effective custodial sentence was required and a sentence of ten years’ imprisonment was appropriate.

LEGAL PRINCIPLES

Sentencing is primarily within the discretion of the trial court, and an appellate court will not interfere merely because it would have imposed a different sentence; interference is justified only where the sentencing court failed to exercise its discretion reasonably and properly, including where there is a material misdirection.

In sentencing for sexual offences against children, the seriousness of the offence, the societal prevalence of such crimes, and the need for deterrence are weighty considerations, and unduly lenient sentences may justify appellate correction where they result in a punishment that is disproportionate to the offence.

An accused’s abuse of a position of authority and trust in relation to a child complainant, particularly where the child is entitled to safety within a home environment, constitutes a significant aggravating factor that bears directly on the appropriate severity of sentence.