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[2013] ZAWCHC 77
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GK v S (Dissenting) (A05/2013) [2013] ZAWCHC 77; 2013 (2) SACR 505 (WCC) (24 May 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO. : A05/2013
In the matter between
GK
..............................................................................................................
APPELLANT
And
THE STATE
.............................................................................................
RESPONDENT
Gamble J, Rogers
J & Matthee AJ
Heard: 15
th
March 2013
Date Delivered: 24
th
May 2013
JUDGMENT
(Dissenting)
MATTHEE AJ
:
Arriving at an appropriate sentence for a crime often is the most
difficult part of a criminal trial. If one has regard to the
host of
reported and unreported cases dealing with the sentencing of rapists,
it is clear that arriving at an appropriate sentence
for such persons
is perhaps the most difficult of all matters, especially where the
victims are children.
Whilst a court obviously must have regard to such reported and
unreported matters, at the end of the day it must be mindful of
Majiedt
JA’s words in the
matter of
Samson Mawela Mudua and The State
with case number 764/12 in a
judgment handed down on 9 May 2013:
“
[13]…. I hasten to add that it is trite that each
case must be decided on its own merits. It is also self-evident that
sentence
must always be individualised, for punishment must always
fit the crime, the criminal and the circumstances of the case.”
Appellant was convicted on the 11
th
October 2012 of one count of contravening section
3 read with sections 1, 56(1), 57, 58, 59, 60 and 61 of Act 32 of
2007 and further
read with the provisions of section 256 and 261 of
Act 51 of 1977, Rape. The rape was committed on 1
st
October 2011.
The trial court found there were no substantial
and compelling circumstances to justify a departure from the
prescribed minimum
sentence and Appellant was sentenced to life
imprisonment on 7
th
November 2012. The minimum sentence provisions
applied as the victim of the rape was a person under the age of 16
years.
Leave To Appeal against sentence was granted on the 22
nd
November 2012.
The complainant was seven years old when the crime was committed by
Appellant. The trial court accepted the version of the complainant.
In essence the complainant testified that on the day she and friends
had been playing in the vicinity of Appellant’s house.
He had
asked her to go and buy cigarettes for him. On her return from
purchasing the cigarettes Appellant had forcibly pulled her
into his
house and locked the door. Thereafter he pulled her into his bedroom
where he forced her mouth open and forcibly placed
his penis into her
mouth. This hurt her. Despite her attempts to resist and screams he
persisted and compelled her to move her
head to and fro with his
penis in her mouth. When he had finished he removed his penis from
her mouth, gave her R5 – 00 and
told her to tell nobody.
Appellant vacillated in the nature of his defence but at the end of
the day testified that he was drunk on the day and could not
really
remember what happened. The nature of his defence compelled the
complainant to relive her ordeal by telling the trial court
what
happened and being cross examined about it.
After the conviction of Appellant an “Impact Report” of
the rape on the complainant was compiled by a Social Worker
and
submitted to the trial court.
In her summary, the Social Worker’s first conclusion was that
the complainant was so traumatised by the rape that she needed
therapy for six months thereafter. In this regard she indicated the
possible need for further counselling.
Secondly, as a result of the rape the complainant had experienced
vulgar ridicule from children in her community and “het
in die
proses haar spontaniteit en ‘kindwees’ prys gegee.”
Thirdly, the entire family of the complainant had been emotionally
gravely affected by the rape and had been humiliated by members
of
the community who had supported Appellant.
Elsewhere in the report the Social Worker
inter alia
testified
that her investigations revealed marked changes in the behaviour of
the complainant after the rape. This included ill
discipline, less
open communication with family members, guilt feelings about the
rape, a loss of trust in people, a fear of men,
more prone to crying,
nightmares, bed wetting, fear of the dark, loss of self image and a
self and community imposed stigma.
Dealing with the approach adopted by our courts in applying the
minimum sentencing legislation, in
S v PB
2011(1) SACR 448
(SCA) at page 450 Tshiqi JA stated:
“
[9] The approach to an enquiry such as
the present appears in paras 7 , 8 and 9 at 476e-477b of the judgment
[
S v Malgas
2001
(SACR) 469 SCA]
and the legislation has
been followed consistently by the courts in applying the minimum
sentence legislation. The learned judge
of appeal stated at 476f –
477f:
‘
It was of course open to the High Courts
even prior to the enactment of the amending legislation to impose
life imprisonment in
the free exercise of their discretion. 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.
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…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.’...
[10] In
S v
Matyityi
,
approximately nine years after
Malgas
this court noted that criminality is still on
the rise in our country despite the imposition of minimum sentences
and has again
stressed the relevance of the legislation as follows
(para 23):
‘
Despite certain limited successes there
has been no real let-up in the crime pandemic that engulfs our
country. The situation continues
to be alarming. It follows that, to
borrow from
Malgas,
it
still is “no longer business as usual”. And yet one
notices all too frequently a willingness on the part of sentencing
courts to deviate from the minimum sentences prescribed by the
legislature for the flimsiest of reasons – reasons, as here,
that do not survive scrutiny. As
Malgas
makes plain courts have a duty,
despite any personal doubts about the efficacy of the policy or
personal aversion to it, to implement
those sentences. Our courts
derive their power from the Constitution and like other arms of state
owe their fealty to it. Our constitutional
order can hardly survive
if courts fail to properly patrol the boundaries of their own power
by showing due deference to the legitimate
domains of power of the
other arms of state. Here parliament has spoken. It has ordained
minimum sentences for certain specified
offences. Courts are obliged
to impose those sentences unless there are truly convincing reasons
for departing from them. Courts
are not free to subvert the will of
the legislature by resort to vague, ill-defined
concepts such as “relative youthfulness” or other equally
vague and
ill-founded hypotheses that appear to fit the particular
sentencing officer’s personal notion of fairness. Predictable
outcomes,
not outcomes based on the whim of an individual judicial
officer, is foundational to the rule of law which lies at the heart
of
our constitutional order.’”
In the matter of
Bailey
and The State
with case number 454/2011
[2012] ZASCA 154
at page 12 Bosielo JA stated:
“
[19] The minority judgment in the court below appears to
reflect the misunderstanding that the refusal by this court to
endorse
the life imprisonment imposed in the three cases of
Abrahams,
Sephika
and
Nkomo
constitutes a
benchmark or a precedent binding other courts. That is a
misconception. Such an approach or trend can never be elevated
to a
benchmark or binding precedent. Those cases remain guidelines.
Suffice to state that it remains an established principle of
our
criminal law that sentencing discretion lies pre-eminently in the
sentencing court and must be exercised judiciously and in
line with
established and valid principles governing sentencing as enunciated
in a long line of cases which includes
S v Zinn
1969 (2) SA 537
(A) which espoused a proper consideration and
balancing of the well-known triad;
S v Rabie
1975
(4) SA 855
(A) at 862; and
S v de Jager and another
1965
(2) SA 616
(A) at 628-9. This salutary approach has recently been
endorsed by Marais JA in
S v Malgas
para 12.
[20] What then is the correct approach by an appellate court on
appeal against a sentence imposed in terms of the Act? Can the
appellate
court interfere with such a sentence imposed by the trial
court after exercising its discretion properly simply because it is
not
the sentence which it would have imposed or that it finds it
shocking? The approach to an appeal on sentence imposed in terms of
the Act, should in my view, be different to an approach to other
sentences imposed under the ordinary sentencing regime. This in
my
view is so because the minimum sentences to be imposed are ordained
by the Act. They cannot be departed from lightly or for
flimsy
reasons. It follows therefore that a proper enquiry on appeal is
whether the facts which were considered by the sentencing
court are
substantial and compelling or not.
[21] The most difficult question to answer is always: what are
substantial and compelling circumstances? The term is so elastic that
it can accommodate even the ordinary mitigating circumstances. All I
am prepared to say is that it involves a value judgment on
the part
the sentencing court. I have, however, found the following definition
in
S v Malgas
(above) para 22 to be both
illuminating and helpful:
‘
The greater the sense of unease a court feels about the
imposition of a prescribed sentence, the greater its anxiety will be
that
it may be perpetrating an injustice. Once a court reaches the
point where unease has hastened into a conviction that an injustice
will be done, that can only be because it is satisfied that the
circumstances of the particular case render the prescribed sentence
unjust, or as some might prefer to put it, disproportionate to the
crime, the criminal and the legitimate needs of society. If
it is the
result of a consideration of circumstances the court is entitled to
characterise them as substantial and compelling and
such as to
justify the imposition of a lesser sentence.’ ”
Fundamental to the quoted authority, is that at all times regard must
be had to the starting point in all these matters, with respect
succinctly summed up in
S v Matyityi
2011 (1) SACR 40
(SCA) at page 50 where Ponnan JA stated:
“
[18] The trial judge appeared not to
fully appreciate that the starting point in respect of … the
murder and rape convictions
was not a clean slate upon which he was
free to inscribe whatever sentence he thought appropriate, but
imprisonment for life.”
In the present matter I am unpersuaded that the
trial court erred when arriving at the decision that there were no
substantial and
compelling circumstances present to justify a
departure from the prescribed minimum sentence. There is no “
sense
of unease”
in me as I reflect on the sentence imposed.
I do not agree with Ms Adams, who appeared for
Appellant, that the trial court “misdirected itself by merely
reciting the
well-established principles that ought to be taken into
account when determining an appropriate sentence, but failed properly
to
apply these principles to the circumstances of this case…”.
The court
a quo
in
its judgment on sentence assessed all the evidence before it and did
have regard to the traditional triad of the crime, the offender
and
the interests of society. Throughout this process it is clear that
the trial court took as its point of departure the imposition
of a
life sentence, unless substantial and compelling reasons were shown
to exist.
Furthermore, particularly if one has regard to the far reaching
consequences of the rape on the complainant, who was only seven
years
old when she was raped, and the absence of remorse on the part of
Appellant which amongst other things forced the complainant
to relive
the traumatic assault on her, I cannot agree with Ms Adams that “the
sentence of life imprisonment (is) disproportionate
to the offence
(committed).”
When determining whether substantial and compelling circumstances
were present, the trial court made reference to a recent decision
by
this court where life imprisonment was imposed for the same offence
as the present one and where the victim was fourteen years
old.
Ms Allchin, who appeared for the State, was requested by the court to
obtain the details of this matter from the trial magistrate.
The
magistrate has furnished the court with a copy of the unreported
matter of
Ebrahim Tofie and The State
with case number
A75/2012. Although the complainant in that matter was below sixteen
years old (fifteen years old) and life imprisonment
was imposed, the
facts of it clearly are of no assistance in the present matter and it
would have been an error by the trial court
to rely on it when making
its decision.
On reading the trial court’s judgment on sentence, I am
unpersuaded that the magistrate relied in any material way on
Tofie
supra
when concluding that there were no substantial and
compelling circumstances present. However, even if I accept that she
did rely
on it, at the end of the day the issue remains whether or
not notwithstanding this error the trial court was correct when it
found
that there were no substantial and compelling circumstances
present.
In the matter of
S v Mahomotsa
2002 (2) SACR 435
(SCA) at page
444 Mpati JA (as he then was) stated:
“
[19] Of course, one must guard against
the notion that because still more serious cases than the one under
consideration are imaginable,
it must follow inexorably that
something should be kept in reserve for such cases and therefore that
the sentence imposed in the
case at hand should be correspondingly
lighter than the severer sentences that such hypothetical cases would
merit. There is always
an upper limit in all sentencing
jurisdictions, be it death, life or some lengthy term of
imprisonment, and there will always be
cases which, although
differing in their respective degrees of seriousness, nonetheless all
call for the maximum penalty imposable.
The fact that the crimes
under consideration are not all equally horrendous may not matter if
the least horrendous of them is horrendous
enough to justify the
imposition of the maximum penalty.”
The victim in the present matter was seven years old when she was
raped by Appellant. The mere fact that I can imagine a worse
rape
than the present one, does not assist Appellant. A crucial
consideration is the age of the victim. The minimum sentencing
provision germane to the present matter stipulates the age of the
victim as needing to be younger than sixteen years old. The victim
in
the present matter was less than half that age. In my opinion that in
itself makes it “
horrendous enough to justify the imposition
of the maximum penalty.”
I recognise the danger of a degree of arbitrariness when drawing a
line at one age as opposed to another age – for example
fifteen
years old as opposed to eleven or twelve years old. In this regard a
reading of
The Child Justice Act 75 of 2008
(hereafter “the
Act”) is instructive.
Dating back to Roman Law the age when a child was deemed to be
doli
incapax
was set at children below seven years old. Between seven
years old and fourteen years old a child was deemed to be
doli
capax
– in other words there was a rebuttable presumption
that the child lacked criminal capacity. The Act has retained this
distinction
between
doli incapax
and
doli capax
.
However it has increased the age from seven years old to ten
years old of children deemed to be
doli incapax
.
Quite clearly the legislature was of the view that children less than
ten years old need to be distinguished from children older
than ten
years old and needed added special protection as a result of their
age. Similarly the Act provides children between ten
years old and
fourteen years old with more protection than children older than
fourteen years old.
No doubt underpinning these distinctions
inter alia
are the
different developmental stages of children at different ages.
Although in the present matter the legislature has not drawn
a
distinction between a fifteen year old child and a seven year old
child, it would fly in the face of the rationale of the said
distinctions in the Act, and indeed in the common law before the Act,
not to draw a distinction between such children when assessing
the
gravity of a rape and the need to give protection to them against
rapists.
In my view where the victim is seven years old, there is no doubt
that raping her is “horrendous enough to justify the imposition
of the maximum penalty.” A reading of the record reveals a
young girl in effect devoid of any means, physical or intellectual,
to protect herself against Appellant. Furthermore, as elaborated on
later in this judgment, her tender years also would compromise
her
ability to give meaningful evidence pertinent to the issue of long
term damage to herself. Accordingly I am of the view that
just as the
Act would provide her with special added protection as opposed to a
twelve year old or a fifteen year old, so this
court needs to give
her and other children of seven years old special added protection.
(Thus for example the present matter is
distinguishable from the
various matters discussed in Mudua
supra
where the victims’
ages ranged from twelve years old to sixteen years old.)
Added to this is the evidence that Appellant is a 58 year old man,
old enough to be the victim’s grandfather, was known to
the
complainant and in effect lured her to his house before forcibly
dragging her into his house. Appellant also persisted with
his
actions notwithstanding the complainant’s screams. He then
cynically gave her money to buy her silence.
In addition to this is Appellant’s previous conviction in 2002
for attempted rape. This has direct bearing on the responsibility
of
the court going forward to protect girls against rapists such as
Appellant. The absence of remorse is also indicative of Appellant
having no insight into his reprehensible conduct. This suggests that
the chances of the rehabilitation of Appellant are remote
and that he
always will be a threat to girls.
In the present matter, although there is no evidence of physical
injuries to the complainant, the evidence of the Social Worker
is
clear as regards the emotional and psychological effects on the
complainant. The rape by Appellant has forever changed the life
of
the complainant. In effect she has been given a life sentence by
Appellant.
I would note that as regards the need for courts to have regard to
the consequences of a rape on a victim when it comes to sentencing,
I
am in respectful agreement with the sentiments expressed by Satchwell
J in the matter of
S v M
2007(2) SACLR 60 (WLD), more
specifically at page 88 paragraph 98 through to paragraph 102.
Inter
alia
in paragraphs 98 she stated:
“
As enjoined to do by the Supreme Court
of Appeal I have paid careful regard to the ‘impact’ of
the rapes upon N. However,
I have some concern that it is not
possible at the time of and in the course of a criminal trial to
fully ascertain the after-
effects of these experiences.”
The learned Judge continued at paragraph 99:
“
Furthermore, the responses of rape
survivors are surely as complex and multi - layered as are the
individuals who experience rape.
We must therefore expect the
manifestations of the impact of rape to be varied in every respect.
Some responses will be publicly
displayed and others privately
endured. Some rape survivors will collapse while others will bravely
soldier on.”
And then finally at paragraph 101:
“
It would seem that sentencing courts are
expected to view rape as ‘more serious’ where a rape
survivor cannot sleep,
fears men and sex, is unable to concentrate
and cannot complete school, or has a career or relationships
destroyed. If this is
so, then other rape survivors may question why
their rapes are viewed as ‘less serious’ because they may
have been
fortunate or privileged enough to receive professional
assistance, be endowed with different personalities and psyches,
exhibit
fewer post-traumatic effects, and so on. The Legislature does
not seem to have intended the rapist to be less morally and legally
blameworthy because the rape survivor appears to or actually does
survive, or continues life with less apparent trauma.”
The reality is that in the present matter only in 30 to 40 years time
will the full emotional consequences of the rape on the complainant
be known. It is profoundly unfair on the victim to give her rapist
any benefit because the court does not know now what the full
long
term consequences of the rape will be on the seven year old victim.
In any event, in this regard no matter what evidence is led on
possible long term emotional consequences, such evidence inevitably
will involve speculation, not least of all given that the victim was
only seven years old when she was raped. Such a young person
would be
unable adequately to discern and articulate the indicators of long
term damage to her psyche.
Furthermore, if one has regard to the minimum sentencing provisions
for the offence of rape, they presuppose that there will be
devastating long term effects on the rape victim – which is
clearly one of the reasons for the legislature prescribing the
maximum sentence. A court must be careful of in effect undermining
this presupposition by in effect placing an onus on victims
to show
that the rape will have devastating long term consequences on her. If
anything, it should be the rapist who should have
to lead evidence to
rebut this presupposition in a particular matter where the court is
trying to decide whether or not substantial
and compelling
circumstances exist. This would be particularly important in matters
where the victims are as young as the victim
in the present matter,
especially given the inability of a seven year old child to lay an
adequate evidential foundation for speculation
by an expert.
In any event, in the present matter I am of the view that the
evidence before the court does not support speculation in favour
of
Appellant that there will not be far reaching adverse affects on the
victim.
I also am mindful of the present community outrage concerning the
high prevalence of the crime of rape within our community,
particularly
the rape of girl children.
In a judgment of this division in 2000,
S v Van Wyk
2000(1)
SACR 45 (C) at pages 46 – 47, Davis J stated:
“
Mr Bouwer, who appeared on behalf of the State,… ,
referred to the horrific statistics with respect to rape in this part
of the country, namely the Western Cape.
Incidence of rape
According to the statistics presented by Mr Bouwer, in the last
six months of 1998 in the Western Metropole, Boland and South Cape,
there were 2 783 reported rapes. Of these, 372 occurred where
the victim was under 12 years old. In the first six months of
1999
there were 2535 reported rapes, of which 340 involved victims under
the age of 12. Ms Friedman, who testified on behalf of
the State, and
who is a clinical psychologist with considerable experience in the
area of rape counseling, informed the Court that
most rape counsel
agencies consider that the statistic of one reported rape to every 20
unreported rapes reflects the present picture
of the sheer cancer of
rape which has ravaged South Africa.”
In 2007 I presided in the unreported matter of
The State v
Mlandeli Dayimani
(ECD) with Case No.:
CC12/2007 DATE: 26 SEPTEMBER 2007. In my judgment I included certain
rape statistics (although the statistics
quoted are mostly from the
Eastern Cape, if one has regard for example to the statistics in
van
Wyk
supra,
there
is no reason to believe that they did not reflect the situation in
the rest of the country as well). I also made certain observations
which I am of the view are as relevant today as they were in 2007.
The extract begins at page 10 of the judgment:
“
At the request of the Court the evidence
of Senior Superintendent Krause from the Criminal Crime Information
Analysis Centre was
placed before the Court.
From this Court’s own experience of presiding at rape trials
I was of the opinion that rape, not least of all the rape of girls,
had become a problem in our community. Superintendent Krause’s
evidence conclusively revealed that this Court’s opinion
that
rape had become a problem was a grave understatement of the situation
and that a more appropriate word would be a plague.
I will now highlight some of this evidence. Between 2001 and 2006
there were 269 491 rape complaints submitted to the South African
Police Services. This is an average of about 54 000 per year. This
figure represents only the cases where reports have actually
been
made to the South African Police Services. The national percentage
increase of official reports to the South African Police
Services
from 2001 / 2002 year to the 2005 / 2006 year was 1.2 %. That is
close on two more alleged rapes per day in 2005/2006
than in
2001/2002.
More disturbing and indeed frightening for the community and
particularly for the women of the Eastern Cape, and might I add also
for all the fathers in the Eastern Cape, was that the increase in the
same period in the Eastern Cape was 32.6 % as compared to
the
national increase of 1.2 %.
I now turn to the Eastern Cape, more particularly the Grahamstown
Policing area. The Grahamstown Policing area does not include the
two
biggest centres, population wise, in the Eastern Cape, namely the
Nelson Mandela Metropole and the East London/Mdantsane/KWT/Zwelitsha
area. The Grahamstown Policing area consists of Grahamstown and a
number of surrounding towns.
In this Grahamstown Policing area during the period January 2005
to June 2007 there were 1 277 reports of rape. That is approaching
two such reports a day on average. Of these 308 involved girls
younger than 15, nearly a quarter of the overall figure for the
Grahamstown Policing area. Of these 308, 182 were girls between 11
and 15. 72 were girls between 6 and 10 and 54 were girls younger
than
5.
Thus on average about every third day during the past 2 and a half
years in the Grahamstown Policing area there has been a report
to the
South African Police Services of the rape of a girl 15 and younger.
Another frightening conclusion is that on average every
about 16 days
in this period there has been such a rape report involving a girl of
5 years and younger.
And here it must be emphasised that these figures only represent
matters which were in fact reported to the South African Police
Services. I accept that there would be a certain lie factor in these
statistics but have no doubt that such lie factor would be
outweighed
by the many matters of rape which never are reported.
In this regard a truly frightening piece of evidence given by
Superintendent Krause was that in 2005 / 2006 in the Eastern Cape
only 36 % of these reported matters reached the Courts and of those
there was only a conviction rate of 5.9 %. These figures were
even
worse for the period January through to June 2007 in that only just
over 28 % of these matters came to Court and there was
only a 3.6 %
conviction rate.
Given such statistics, it is easy to see why some women would not
want to put themselves through the ordeal of reporting their rape
and
the ensuing trial.
I have an aversion for adjectives and exaggeration, but in the
light of the statistics highlighted above I can without fear of
contradiction
state that our Province and indeed our Country faces an
evil of gigantic proportions especially when it comes to the barbaric
dehumanisation
and brutalisation of girl children by means of rape.
Children and in the present case particularly girls, are one of
the few groups of individuals targeted specifically for protection
in
the Bill of Rights. In assuming office as a Judge I have taken an
oath to uphold this Bill of Rights. I thus have an obligation
before
God to protect all girls in this country and to play my role in
making sure they are safe.
Furthermore, if the courts are not seen by the community to be
saying so far and no further as regards rape, particularly the rape
of young girls, the Rule of Law itself will be brought into jeopardy
as in such a scenario outraged communities will be tempted
to take
the law into their own hands.
This obviously is not to say that at the end of the day the
various considerations applicable to sentencing must not be balanced
before a final decision is taken about an appropriate sentence.”
Tragically very little seems to have changed since 2000 and 2007 when
it comes to rape, especially the rape of girl children. For
example
on the same day as this appeal was originally set down for, I am
aware of at least one other appeal in this court which
dealt with the
rape of a six year old child (
Andre Lewis and The State
with
case number A37/2013 – in that matter there was penetration of
the vagina by means of the rapist’s finger and
a sentence of
life imprisonment was confirmed by Dlodlo J and Mantame J). Various
current publications are also replete with references
to the scourge.
In this respect Majiedt JA states in
Mudau
supra
“
[14] Our country is plainly facing a crisis of epidemic
proportions in respect of rape, particularly of young children. The
rape
statistics induce a sense of shock and disbelief. The
concomitant violence in many rape incidents engenders resentment,
anger and
outrage. Government has introduced various programmes to
stem the tide, but the sexual abuse of particularly women and
children
continue unabated. In
S v RO
, I
referred to this extremely worrying social malaise, to the latest
statistics at that time in respect of the sexual abuse of
children
and also to the disturbingly increasing phenomenon of sexual abuse
within a family context.
1
If anything, the picture looks even gloomier now, three years down
the line.”
Consequently in the sentences imposed on the rapists of girl
children, especially those as young as the complainant in the present
matter, I am of the view that the courts of this land must send out a
clear message that such heinous crimes will not be tolerated.
No doubt some will argue that all these statistics prove is that long
sentences are not helping the situation. This might be so,
but, as
already alluded to, in assessing an appropriate sentence for such
crimes there must be no compromise in the need to impose
sentences
which would help protect future possible victims against the jailed
rapist, in this case Appellant. Thus part of the
process of
“individualising” the sentence in the present matter is
to look at the future threat Appellant might pose
to other young
girls.
In this regard in the matter of
S
v Swart
2004 (2) SACR 370
at [12]
Nugent JA stated:
“
In our law retribution and deterrence
are proper purposes of punishment and they must be accorded due
weight in any sentence that
is imposed. Each of the elements of
punishment is not required to be accorded equal weight, but instead
proper weight must be accorded
to each according to the
circumstances. Serious crimes will usually require that retribution
and deterrence should come to the
fore and that the rehabilitation of
the offender will consequently play a relatively smaller role.”
Thus I am of the view that when it comes to
sentencing rapists, especially of children as young as seven years
old, it cannot be
“
business as
usual”
and the protection of
possible future victims must be central to any decision on an
appropriate sentence. As already alluded to,
in this decision the
remorse or absence of remorse in the rapist is critical.
I must emphasize that in the present matter it weighs particularly
heavily with me that there was not a shred of remorse or insight
by
Appellant as regards his monstrous treatment of the victim. In effect
he forcibly used the complainant’s mouth to masturbate
and then
cynically dismissed her. To him this seven year old girl, no doubt
filled with the dreams of future wonders in her life,
was no more
than a thing which he could use to satisfy himself. In that moment he
changed her life for ever.
The failure by Appellant in any way to grasp the
evil of what he has done, militates against the possibility of his
future rehabilitation.
I am mindful of there being different reasons
for an accused to deny a crime and that such denial does not
necessarily of itself
indicate no remorse whatsoever. However for me
to find that there might be some remorse in the present matter I need
to have regard
to Ponnan JA’s words at paragraph [13] in
S v
Matyityi
supra
:
“
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.”
In the present matter Appellant meets none of these requirements.
As already stated, his previous conviction for attempted rape also is
a significant factor to be taken into consideration when
making a
decision about whether or not there are substantial and compelling
factors present justifying a lesser sentence than life
imprisonment.
As alluded to above, his previous conviction further calls into
question the possibility of Appellant’s rehabilitation.
Simply stated, on the evidence before me I am not prepared to risk
allowing Appellant back into a community where he has access
to young
girls. Central to my oath as a judge, and as the upper guardian of
children, is that I must do whatever I can do to give
content to
section 28 of the Bill of Rights.
I am mindful of the dangers of lapsing into
speculation, succumbing to the temptation of merely wanting to exact
revenge and imposing
the court’s subjective considerations on a
sentencing decision. As Majiedt JA warns in
Mudau
supra:
“
[13] …. It is equally important to remind ourselves
that sentencing should always be considered and passed
dispassionately,
objectively and upon a careful consideration of all
relevant factors. Public sentiment cannot be ignored, but it can
never be permitted
to displace the careful judgment and fine
balancing that is involved at arriving at an appropriate sentence. ”
In this regard I make the following observations.
Firstly, as already alluded to, given the large number of decisions
on the issue, it is clear that our courts find the sentencing
of
rapists a particularly vexing balancing act. The present matter is no
different.
Secondly, when it comes to sentencing for rape, particularly the rape
of children as young as seven years old, protection of possible
future victims against the actual rapist must be a significant
consideration. As I already have stated, remorse and insight into
the
nature of his crime by the rapist should be an important
consideration in this regard.
Thirdly, in such matters a measure of subjectivity
when it comes to sentencing is inevitable. As Marais JA stated in
paragraph [25]
at page 481 of
Malgas
supra
“
A. Section 51 has limited but not
eliminated the courts’ discretion in imposing sentence…
.”
Furthermore, Marais JA’s previously quoted
words at paragraph [22] of
Malgas
supra
that
“
The greater the sense of unease a court feels about the
imposition of a prescribed sentence, the greater its anxiety will be
that
it may be perpetrating an injustice.”
involves a
measure of subjectivity.
In this respect I am deeply aware of the fact that I am a man and
thus by definition unable fully to place myself in the shoes
of the
victim, who in this case is a girl, and indeed in most cases, are
women and girls. I also am aware that unlike the trial
court I did
not experience the victim and perpetrator giving their testimony.
This leads me to my final observation which deals with subjectivity
and speculation. As I have considered the nature of the crime
in the
present matter and its effect on the victim, it has become clear to
me that a measure of speculation is inevitable, no matter
what
decision one arrives at.
Thus for example, is oral rape less repulsive to a woman than vaginal
or anal rape? To a woman is virginity merely a matter of
whether or
not her hymen has been penetrated? Does it make any difference to a
woman if there was actual ejaculation or not? (In
any event, as
regards the latter, in the present matter where there is no evidence
of ejaculation, it needs to be asked whether
a seven year old girl
who has an adult’s penis in her mouth and who is screaming at
the time, would know whether or not there
has been ejaculation.)
It is when I apply my mind to such questions that the thinking
underlying the approach of Satchwell J makes most sense. Her approach
reduces the role speculation and subjectivity will play in such
matters. Furthermore for example if I merely accept that the
legislature
draws no distinction between vaginal, anal and oral rape
and that only penetration, and not ejaculation as well, is required
to
constitute rape, speculation and subjectivity can be further
reduced. There is a real danger that judges as men or women, wives
and husbands, mothers and fathers, products of different cultural
upbringings
et al
wittingly or unwittingly unduly impose their
worldview when arriving at a sentence on such a deeply personal issue
as rape.
Thus while the ideal is “
to remind ourselves that sentencing
should always be considered and passed dispassionately, objectively
and upon a careful consideration
of all relevant factors
.”,
the reality is that judges are not
blank canvasses when it
comes to sentencing. It is for this reason that I am of the view that
when it comes to rape, especially
of children as young as seven years
old, it is important for a court as far as possible to adopt an
approach which best ensures
“…
Predictable
outcomes, not outcomes based on the whim of an individual judicial
officer,....”(S v PB
supra
).
Thus even if for whatever reason I was at large to
consider sentencing afresh, given that the starting point for the
present offence
is life imprisonment and that “
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.”(Malgas
supra)
,
I am unpersuaded that there are any substantial and compelling
reasons present in this matter which permit me not to impose life
imprisonment.
I might add that even if I was not faced with a minimum sentencing
provision, in the present matter exercising my discretion I
would
also have imposed the maximum sentence on Appellant.
Accordingly I would dismiss the appeal, and confirm the sentence of
life imprisonment.
K MATTHEE
ACTING JUDGE OF THE HIGH COURT
1
S
v RO
2010 (2) SACR 248
(SCA) para 1.