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[2014] ZAWCHC 5
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F.A v S (A158/2013) [2014] ZAWCHC 5 (4 February 2014)
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THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
No: A158/2013
DATE:
04 FEBRUARY 2014
In
the matter between:
FA
............................................................................
APPELLANT
And
THE
STATE
.....................................................
RESPONDENT
Coram:
YEKISO, GAMBLE J & ROGERS JJ
Heard: 27
JANUARY 2014
Delivered: 4
FEBRUARY 2014
JUDGMENT
ROGERS
J:
Introduction
[1]
The appellant was charged in the Regional Court for Worcester on five
counts. The first three counts alleged that he had raped
his oldest
daughter S in 1995 (when she was eight or nine), in December 1998
(when she was 12) and on 17 January 2000 (she was
14). The fourth
count alleged that over the period 1998 to 3 August 2000 the
appellant had indecently assaulted his daughter F
(she was 11 as at 3
August 2000). The fifth count alleged that on 3 August 2000 the
appellant had indecently assaulted his youngest
daughter M (then aged
nine). The appellant pleaded not guilty but on 13 February 2002 was
convicted on all counts following a trial
at which he was legally
represented.
[2]
The regional court referred the appellant to the high court for
sentencing in accordance with
s 52(1)
of the
Criminal Law Amendment
Act 105 of 1997
as it then read. The matter served before Van Heerden
J (as she then was) on 23 May 2003. The appellant’s counsel did
not
contest the convictions and Van Heerden J was satisfied that the
convictions were in accordance with justice. The state led the
evidence of the social workers who had assessed the three
complainants. The appellant did not tender evidence though
submissions
were made on his behalf.
[3]
On 26 May 2003 Van Heerden J handed down judgment. On count 1 (to
which Act 105 of 1997 did not apply, since the said Act only
came
into force on 1 May 1998) Van Heerden J sentenced the appellant to 18
years’ imprisonment. On counts 2 and 3 (to which
Act 105 of
1997 did apply) Van Heerden J held that there were no substantial and
compelling circumstances not to impose the life
sentence required by
s 51(1)(b) of the Act read with Part I of Schedule 2 and thus
sentenced the appellant to life imprisonment
on both counts. On count
4 Van Heerden J sentenced the appellant to 8 years’
imprisonment. In regard to count 5, Van Heerden
J was persuaded by
the State’s counsel that the indecent assault on M involved the
‘infliction of bodily harm’
as contemplated in Part III
of Schedule 2 (as it then read) and that a minimum sentence of 10
years’ imprisonment thus had
to be imposed in terms of s
51(2)(b)(i) in the absence of substantial and compelling
circumstances, which she found to be absent.
On that count she thus
sentenced the appellant to 10 years’ imprisonment.
[4]
The appellant attempted on various occasions thereafter to pursue an
appeal and obtain legal aid. Owing in part to the fact
that he was
unrepresented and in part to administrative oversights and delays, a
formal application for condonation and for leave
to appeal was only
filed on 3 December 2012. Because Van Heerden J had in the meanwhile
been elevated to the Supreme Court of Appeal,
the application served
before another judge (me, as it happens) on 29 January 2013.
Condonation was granted, and the appellant
was given leave to appeal
to a Full Bench against the sentences imposed.
The
facts
[5]
The facts of the matter are set out in the judgment of the Regional
Magistrate and summarised in the judgment of Van Heerden
J. The
account which follows is taken largely from Van Heerden J’s
judgment. The dates of birth of the three complainants
were 3 July
1985 (S), 10 April 1989 (F) and 8 June 1991 (M). The appellant lived
in the family home together with his wife, who
sometimes worked night
shifts, the three daughters and three sons.
[6]
In regard to the first count, the appellant went into the room where
the three girls were sleeping. His wife was at work. The
appellant
vaginally raped S while the younger children slept. S said no and
cried but her father continued. Her vagina hurt and
she bled. S felt
dirty and degraded. She did not tell anyone because she was scared of
her father. He had said he would kill her
if should told anyone. He
had been violent with her in the past.
[7]
In regard to counts 2 and 3, similar rapes occurred in December 1998
and on 17 January 2000. On both occasions the appellant
forced
himself on S despite the fact that she was crying. He said she should
shut up. On both occasions the experience was painful
for her. After
the rape in December 1998 she confided in a friend but did not tell
her mother as she did not enjoy a good relationship
with her. At the
time of the rape on 17 January 2000 her mother was actually at home
but sleeping in the parents’ bedroom.
On this occasion she
confided in another friend, bursting into tears and saying she could
not stand it any longer. On the friend’s
advice S spoke with a
social worker and was then examined by a Dr Maria Reyneke. Dr
Reyneke, who testified at the trial, found
that S’s hymen was
no longer intact. She observed that S was very emotional during the
examination.
[8]
The appellant was arrested on 21 January 2000 but was released on
bail shortly thereafter.
[9]
In regard to count 4, the evidence was that the appellant sexually
molested F on about five occasions over the period 1998 to
August
2000 by lying on top of her and touching her private parts. This took
place in the parents’ bedroom while the mother
was at work.
Although it hurt, he told her to keep quiet. She kept things to
herself because she was frightened her father would
hit her.
Following the appellant’s sexual molestation of M (see below),
F, like M, was examined on 5 August 2000 by a Dr
Danie Theron. Dr
Theron had relocated to the United Kingdom by the time of the trial.
His reports in respect of F and M were identified
and explained by a
Dr Martinus de Klerk. Dr Theron noticed that S’s labia majora
were somewhat read, and no hymen was visible.
He also observed a
white discharge from the vaginal area. Although Dr Theron could not
find any evidence of current molestation,
he concluded that it could
possibly have occurred in the past.
[10]
In regard to count 5, M was at home on 3 August 2000 with F and two
of her brothers. Her father called her and said they should
have a
sleep. She went into her father’s bedroom, where her
six-year-old brother was also sleeping. Her father removed her
underpants and inserted his penis into her private parts. She found
this painful and bled. She was frightened of her father and
thought
he would hit her, so she did not tell anyone. Later that evening her
father again took her to his bedroom where he inserted
his penis into
her private parts, which again caused pain and bleeding. She was
taken for a medical examination on 5 August 2000
together with S. Dr
Theron’s examination provided clear indication of sexual
molestation. No hymen was visible. There was
an abrasion on the
right-hand side of the labia minora and redness around the vagina and
urethral opening. The doctor also observed
a white vaginal discharge.
[11]
At some stage after 5 August 2000 (and by not later than 27 November
2000) the appellant was re-arrested because of the further
incidents
involving F and M. He remained in custody until being sentenced by
Van Heerden J on 26 May 2003.
[12]
At his trial the appellant denied all the charges, claiming that they
were fabricated by his children because he was a strict
father.
Applicability
of Act 105 of 1997
[13]
It is common cause that the minimum sentencing regime in Act 105 of
1997 did not apply to the appellant’s convictions
on counts 1
and 4. In regard to counts 2, 3 and 5 (where Van Heerden J applied
the legislation), Mr Klopper for the appellant submitted
that the
appellant had not at his trial been properly warned of the potential
applicability of the legislation and that Van Heerden
J had thus
violated the appellant’s fair trial rights by sentencing him in
accordance with the legislation.
[14]
Insofar as counts 2 and 3 are concerned, the complaint in my view has
no merit. Counts 2 and 3 recorded, at the foot of the
charge sheet,
that the charge was one of rape as contemplated in Part I of Schedule
2 of Act 105 of 1997. The charge sheet alleged
that S was 12 and 14
years old respectively at the time of the rapes in question. The age
of the complainant was the only circumstance
which could have brought
the rapes within the ambit of Part I.
[15]
The appellant was legally represented at the trial. At the
commencement of the trial his attorney placed on record that the
defence had seen the charge sheet and that the appellant pleaded not
guilty to all the charges. Furthermore, at the commencement
of his
evidence in chief, the appellant, who said that he had prepared
something which he wished to share with the court, started
off by
saying that it was his life which was at stake and that it was he who
was staring s 51 of the Act in the face.
1
[16]
I am thus satisfied that the appellant was fully aware that because
of the minimum sentencing legislation he faced a potential
life
sentence if convicted on counts 2 and 3.
[17]
The position in regard to count 5 is different. The charge sheet in
respect of that count made no reference to Act 105 of 1997.
The
charge sheet did not allege that the indecent assault had involved
the infliction of bodily harm. At no stage during the hearing
before
the Magistrate was reference made to the minimum sentencing
legislation in regard to this particular count. Ms Cecil for
the
state did not seek to support Van Heerden J’s invocation of Act
105 of 1997 in relation to count 5. She was correct not
to do so. Of
course, the failure on the part of the State to make reference to Act
105 of 1997 in relation to count 5 almost certainly
did not affect
the appellant’s decision to testify. That decision was clearly
taken in the light of the risk he faced in
respect of counts 2 and 3.
However, it is quite possible that the conduct of his defence and the
cross-examination of witnesses,
particularly medical witnesses, would
have differed had the accused been squarely warned that the state
intended to argue that
the indecent assault was one involving the
infliction of bodily harm.
[18]
It follows that in relation to count 5 this Court is at large to
determine an appropriate sentence.
Count
1
[19]
Mr Klopper understandably focused his submissions on the life
sentences imposed on counts 2 and 3. Because of the delays which
have
occurred in this matter, the appellant would by now be eligible for
parole if his only sentence were the 18 years’ imprisonment
imposed in respect of count 1. For reasons which will be apparent
from what I say in relation to counts 2 and 3, a sentence of
18
years’ imprisonment on count 1 induces no sense of shock and
cannot be regarded as disturbingly inappropriate.
Counts
2 and 3
[20]
In respect of counts 2 and 3, Van Heerden J was obliged to impose
life imprisonment unless there were substantial and compelling
circumstances to deviate from that sentence. Van Heerden J directed
herself in accordance with the test laid down in S v Malgas
2001 (1)
SACR 469
(SCA), a test which remains applicable to this day.
[21]
Subsequent to the imposition of sentence in the present matter, there
have been many cases concerning the prescribed life sentence
for the
rape of persons under the age of 16. I had occasion in S v GK
2013
(2) SACR 502
(WCC), in a judgment concurred in by Gamble J, to review
most of the leading Supreme Court of Appeal cases on the topic. I do
not
find it necessary to repeat what I said in paras 5 to 14
regarding the test laid down by Malgas or the guidance to be obtained
from the subsequent decisions of the Supreme Court of Appeal. (In
para 8 of GK I made reference to two judgements of the Supreme
Court
of Appeal, both of which have been anonymised by the law reporters as
S v PB. They are reported respectively at
2011 (1) SACR 448
(SCA) and
2013 (2) SACR 533
(SCA). For convenience I shall refer to them as
PB(1) and PB(2).) In addition to the judgments reviewed in GK, there
are three
recent full bench judgements in other divisions dealing
with the rape of minors, namely S v FV
2014 (1) SACR 42
(GNP), S v AM
2014 (1) SACR 48
(FS) and S v SM
2014 (1) SACR 53
(GNP).
[22]
In PB(2) Bosielo JA stated that findings in prior cases cannot be
elevated to the status of binding precedents or benchmarks
or be
allowed to become a straitjacket (paras 16-19). One must thus
distinguish between the legal principles to be deduced from
authoritative judgments and the detailed application of those
principles to the facts of particular cases. Nevertheless, and as
I
observed in GK (para 9), if one examines the minutiae of the leading
cases it is difficult to discern why in some of them life
sentences
were upheld where in others, not apparently less heinous, substantial
and compelling circumstances were found to exist.
[23]
In the present case the appellant was a first offender. He was 40
when he began perpetrating sexual crimes against his daughters
(this
was in 1995). The appellant had apparently been in gainful employment
for a number of years as an electrician and was supporting
his
family.
[24]
However, and whereas s 51(2) draws a distinction between first,
second and multiple offenders in the case of offences referred
to in
Parts II, III and IV of Schedule 2, no such distinction is made in s
51(1) in regard to offences dealt with in Part I. This
does not mean
that the absence of prior convictions is irrelevant in assessing
whether a sentence of life imprisonment would result
in an injustice
or (to put it differently) be disproportionate to the crime, the
criminal and the legitimate needs of society,
but in answering that
question it is appropriate to have regard to the purpose of the
minimum sentencing legislation and the distinctions
drawn by the
lawmaker itself. Life sentences for first offenders were upheld in
PB(1) and also in the recent full bench judgments
of FV and AM
mentioned earlier.
[25]
There are various factors which go into the scales against the
appellant. The first is that he grossly abused the trust which
his
children were entitled to repose in him as a primary caregiver. The
sexual violation of a child is always a shocking crime,
the harmful
repercussions of which in future years are difficult to predict. But
the horror of the crime is made all the worse
when the perpetrator is
one from whom the child was entitled to expect love and kindness.
Abuse of this kind may be impossible
for the child to understand and
is likely to pervert and distort the child’s conception of
healthy family relations. One
is familiar with the phenomenon, in
family rapes, that the victim somehow imagines that she must have
been responsible for what
happened to her. The child in such cases
will be deprived of the support of at least one of her parents in
coping with the trauma,
and indeed it is not unusual for the child to
be unwilling even to confide in the other parent, through fear that
the one parent
will disbelieve her and side with the other.
[26]
Then there is the fact that the appellant abused or began abusing his
three daughters when they were each about eight or nine.
It is hardly
surprising that they gave evidence of the pain which the act of rape
or assault caused them.
[27]
There was also evidence from two social workers who had interviewed
and prepared impact reports in respect of the three complainants.
S
(she was 17 when assessed) told the social worker that she would
remember for the rest of her life the harm the appellant had
done to
her. She experienced nightmares until 2001. She felt depressed and
disheartened when she thought of the events. She also
felt less
worthy than her peers because they still had their virginity. She
said that she did not have any interest in heterosexual
relations
because it reminded her of her father’s behaviour. In her oral
evidence the social worker added that S, who was
living with her
maternal aunt, had told her that she had become a born-again
Christian. She wrote her father a letter and gave
it to him at the
prison. Her attitude was that as a Christian she forgave him but that
he also needed to be subject to secular
law and to face punishment
under that law.
[28]
F (who was 13 when assessed) told the social worker that she
initially felt dirty and unclean because of what her father had
done
to her. She had a facade of bravery but her sister told the social
worker that F was afraid of other children and of the possibility
that they might tease her. She had not received therapy and had thus
had to process the events internally. Her schoolwork had suffered
and
she failed her grade in 2001. The social worker opined that F had
unresolved emotions and that although her defence mechanisms
allowed
her currently to function well, the prognosis for her situation was
poor because the experience could influence her in
adult life. In
oral testimony she explained the concern that S could in later life
experience problems with other authority figures
and not properly
understand the role of a father in the home. The prognosis could
improve if the child underwent therapy.
[29]
M, who was 11 when assessed, told the social worker that she still
feared her father but felt safe because he was in prison
and could
thus not continue with his bad behaviour. She also said, however,
that she wanted her parents to continue functioning
as such and to
remain a couple. The social worker remarked, in her oral testimony,
that these contradictory views reflected that
M, the youngest of the
complainants, did not really understand life. She did not socialise
with boys because she regarded them
as undisciplined. The social
worker stated that the long-term consequences could not be determined
at that stage but felt that
M could benefit from therapy.
[30]
A further aggravating circumstance is that this was not an isolated
act. S was raped on three occasions over a six-year period
while F
was molested on about five occasions over a three-year period. By the
time the appellant perpetrated the two rapes for
which he faced
potential life sentences, he had already raped S once and had begun
sexually assaulting F. He must have had time
to reflect on his
conduct and yet persisted with it. Indeed, it is a remarkable feature
of this case that even after he was arrested
for the rapes
perpetrated on S, he made himself guilty of sexually assaulting F and
M, leading to his re-arrest. I note, in this
regard, that the social
worker who examined F also expressed the view that the appellant’s
own prognosis was not good. She
referred to a study which found that
sexual offenders’ prospects for reformation were poor and that
they needed to be constantly
monitored.
[31]
A further consideration is that the appellant, far from appreciating
the appalling nature of his conduct and frankly confessing
it,
falsely denied his children’s version and claimed that they had
fabricated stories against him. He expressed no remorse.
[32]
Mr Klopper submitted inter alia that we should have regard to the
fact that the appellant was in custody for a considerable
period
prior to being sentenced. The precise date of his re-arrest does not
appear from the record though by 27 November 2000 he
was back in
custody. He was sentenced on 26 May 2003, about two and a half years
later. Where a life sentence is otherwise appropriate,
it is
difficult to know quite how to account for time awaiting trial. I
accept that in an appropriate case it is a factor which
may go into
the mix in assessing whether substantial and compelling circumstances
are present to deviate from a life sentence.
In my view, however, the
time spent awaiting trial in the present case is not relevant. In
respect of counts 2 and 3, which are
the counts now under
consideration, the appellant was arrested on 21 January 2000 but
released shortly thereafter on bail. His
re-arrest after 3 August
2000 was the result of the charges preferred against him in respect
of counts 4 and 5. His bail was not
forfeited but returned to him at
his request. The time awaiting trial would thus more properly be
attributed to counts 4 and 5.
In any event, I do not think that the
period of about 30 months awaiting trial is sufficient in this case
to lead to a conclusion
that substantial and compelling circumstances
existed to depart from the ordained life sentences.
[33]
In my view, Van Heerden J cannot, in the light of all these
circumstances, be faulted for concluding that there were no
substantial
and compelling circumstances to deviate from the
prescribed life sentences. Applying the Malgas test, I cannot say
with conviction,
when all the circumstances relevant to an
appropriate sentence are carefully weighed, that life sentences on
counts 2 and 3 would
result in an injustice or that life sentences
would be disproportionate to the crime, the criminal and the
legitimate needs of
society.
[34]
Mr Klopper intimated from the bar that the appellant, during his
years in prison awaiting this appeal, had undergone a change.
Mr
Kloppers very properly did not seek to place specific information in
that regard before us though he indicated that further
evidence could
be adduced by affidavit if we thought it appropriate. I do not think
that this would be the right course to follow.
A sentencing court
always hopes that a convicted person will use the time in prison to
reflect on his conduct and to improve himself.
If that is what has
happened in the appellant’s case, he is to be commended.
[35]
However, and except perhaps for very exceptional cases, an appeal on
sentence must be decided with reference to the evidence
before the
sentencing court. Where evidence which could and should have been
placed before the sentencing court was not adduced,
an appellant
might be permitted to adduce that evidence on appeal if he properly
explains why it was not timeously adduced. Evidence
of subsequent
reformation and remorse, on the other hand, is more properly a matter
for consideration when parole is assessed.
[36]
I would thus dismiss the appeal against the life sentences imposed on
counts 2 and 3.
Count
4
[37]
On count 4 the appellant was sentenced to 8 years’
imprisonment. I did not understand Mr Klopper to contend that this
sentence was inappropriate. It certainly does not induce a sense of
shock.
Count
5
[38]
For the reasons I have already given, Van Heerden J erred in applying
the minimum sentencing legislation to count 5. We are
thus at large
to determine an appropriate sentence. The evidence led in respect of
count 5 tends to indicate that M was raped and
not only sexually
assaulted. However, the appellant was not charged with rape. I
consider that imprisonment of 8 years, as in the
case of count 4,
would be appropriate. For obvious reasons, the precise extent of the
sentence on count 5 is not of practical significance
to the
appellant.
Conclusion
[39]
I would thus dismiss the appeal in respect of counts 1, 2, 3 and 4.
In respect of count 5, I would set aside the sentence imposed
by Van
Heerden J and replace it with a sentence of 8 years’
imprisonment.
[40]
At the conclusion of her judgment, Van Heerden J recorded that in
terms of s 32(2)(a) of the Correctional Services Act 8 of
1959
2
the sentences on all five counts would automatically run
concurrently. The said Act was applicable as at May 2003, given that
the
Correctional Services Act 111 of 1998
only came into force on 31
July 2004. Although
s 32(2)(a)
of Act 8 of 1959 provided that any
determinate sentence of imprisonment to be served by a person was to
run concurrently with a
life sentence (a similar provision is now to
be found in s 39(2)(a)(i) of Act 111 of 1998), it is not entirely
clear whether, where
a convicted person who is sentenced to life
imprisonment is also sentenced to two or more periods of determinate
imprisonment,
those periods of determinate imprisonment themselves
run concurrently with each other, though this seems to have been the
view
of Stafford J in S v Van Wyk 1997 (1) SACR (T) at 362f-363i.
Ordinarily, determinate periods of imprisonment run successively
unless
there is a contrary direction. In the present case the
cumulative duration of the determinate periods of imprisonment is 34
years.
It is notionally possible for the cumulative duration of
determinate sentences to exceed the minimum period required to be
served
by a person who has been sentenced to life imprisonment. In
the present case, however, it is clear that Van Heerden J intended
all the sentences to run concurrently with each other and it would be
appropriate, for the avoidance of doubt, to make this clear
in our
order.
YEKISO
J:
[41]
I concur. The appellant’s appeal against the sentences imposed
on him in respect of counts 1, 2, 3 and 4 is dismissed.
The appeal
against the sentence imposed on him in respect of count 5 is upheld,
and the said sentence is replaced with one of 8
years’
imprisonment. It is further ordered that all the periods of
imprisonment shall run concurrently with each other.
GAMBLE
J:
[42]
I concur.
YEKISO
J
GAMBLE
J
ROGERS
J
APPEARANCES
For
Appellant: Adv KJ Kloppers
Cape Town Justice Centre
Reserve Bank Building
60 St George’s Mall
Cape Town
For
Respondent: Adv E Cecil
Office of the DPP
Cape Town
1
‘
Dit
is my lewe wat hier ter sprake is en dit is ek wat Artikel 51 van
die Strafreg Wysigingswet in die gesig staar..’.
2
The
judgment refers mistakenly to Act 8 of 1995.