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[2014] ZAWCHC 68
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Kleinhans v S (A232/2013) [2014] ZAWCHC 68; 2014 (2) SACR 575 (WCC) (13 May 2014)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO:A232/2013
DATE:
13 MAY 2014
REPORTABLE
In
the matter between:
JOHANNES
ADOLPH KLEINHANS
.................................
Appellant
Versus
THE
STATE
.................................................................
Respondent
JUDGMENT: 13 MAY
2014
BOZALEK, J:
[1]
The appellant, then a 74 year old
businessman, was convicted in the Regional Court Bellville on 93
charges of contravening the Criminal
Law (Sexual Offences and Related
Matters) Amendment Act, 32 of 2007 (‘
the
Act’
), arising principally out of
the manufacture of child pornography, as well as two related counts,
and sentenced, on 29 January
2013, to 15 years imprisonment. With the
leave of the magistrate he now appeals against sentence only.
[2]
The appellant, who was legally represented
throughout the trial, pleaded guilty to the charges and made detailed
admissions in a
statement in terms of s112(2) of Act 51 of 1977 (‘
the
Code’
). In the course of the
appellant’s evidence in mitigation of sentence, however, the
magistrate expressed doubt as to whether
the appellant in fact
admitted all the elements of the offences and, acting in terms of
s113(1) of the Code, recorded a plea of
not guilty thus requiring the
prosecutor to proceed with the prosecution. The State then led
the evidence of two of the complainants
and a number of other
material witnesses. At the conclusion of this evidence the appellant
was convicted on all 95 counts which
were comprised as follows:
Count
1:
contravening s5(1) of the Act
– sexual assault;
Counts
2 & 3:
contravening s7(b) of the Act – compelled sexual assault
i.e.
engaging in an act having the effect of sexually arousing or sexually
degrading another;
Count
4:
contravening s18(2)(a) of the Act – relating to the sexual
grooming of children by supplying, exposing or displaying to a
child
complainant articles with the intention to encourage the child to
perform a sexual act;
Counts
5 – 89: contravening
s20(1) of the Act – using children for or benefitting
from
child pornography i.e. using a child complainant for the purposes of
producing images of child pornography;
Count
90:
indecent assault – i.e.
the touching of the complainant’s
vagina;
Count
91:
contravening
s24B(1)(b)
of the
Films and Publications Act, 65 of 1996
by producing child pornography in the form of naked photos of a child
complainant;
Count
92:
contravening s5(1) of the Act
– sexually assaulting the child
complainant by touching her breasts;
Count
93:
contravening s18(2)(a) –
relating to the sexual grooming of
children by supplying, exposing or displaying to the child
complainant vibrators and articles
intended for sexual satisfaction
or intercourse and pornographic DVDs;
Count
94:
contravening s20(1) of the Act
– relating to the use of
children for or benefitting from child pornography by taking a
photograph of the child complainant’s
naked breasts;
Count
95:
a contravention similar to
the last mentioned in all respects.
[3]
The bulk of the charges, counts 5 –
89, involved the taking of photographs of a complainant whom I shall
refer to as
B
,
a young girl aged between 13 and 14 years, whilst she was either
naked or only partially clothed. The child is in a variety of
poses
in these photographs, many of them highly suggestive, exposing at
different times her breasts, vagina, buttocks and also
at times the
inner portions of her vagina and anus. In certain photographs
vibrators were placed on or in her vagina. Of the total
of 86
photographs involved in the charges, 83 were of complainant
B,
two of complainant C and one of
complainant
A,
B’s older sister. In this last instance the appellant was
charged with contravening
section 24(B)
(1)(b) of the
Films and
Publications Act, 65 of 1996
, presumably because its equivalent
provision in Act 32 of 2007 was not in existence between 2004 and
2006 when the offence was
committed.
[4]
In terms of the provisions of Act 105 of
1997 the appellant qualified for a minimum sentence of 10 years
imprisonment on each of
the 86 counts involving a contravention of
section 20(1)(b) of the Act. The magistrate found the existence of
substantial and compelling
circumstances, however, and, taking the
counts together for the purposes of sentence, imposed a sentence of
10 years imprisonment.
[5]
The remaining 8 counts i.e. those of sexual
assault, compelled sexual assault, sexual grooming of children,
indecent assault and
contravening the Films and Publication Act,
involved the same three children, namely, complainants
A
and
B
and a third child,
C
,
who was also aged 13 or 14 years of age when the offence was
committed. The magistrate took these counts together for the purposes
of sentencing and imposed an additional term of 5 years imprisonment
in respect thereof.
[6]
The evidence led by the State, and for all
intents and purposes not disputed by the appellant, was that he
befriended the complainants
over a period of some five years either
directly or through their families. This he accomplished in no small
part by financially
assisting the complainants’ families or the
complainants directly with various expenses such as school fees,
groceries, clothing
expenses, tuition and by supplying them with
gifts, in one case even going so far as to purchase a motor vehicle
for one of the
complainants when she was older. The appellant, a well
to do businessman with a number of established companies in the
tourism
business, fitted out an unoccupied house which he owned with
gymnasium equipment, ostensibly for use by himself and the
complainants
in the evenings. Although the appellant may well have
used the gym equipment, in truth this was just a cover for the
appellant’s
illegal activities and to assist him in procuring
the complainants to pose for the pornographic pictures. The house was
fitted
out with a fridge stocked with liquor which was offered to the
complainants, photographic equipment and the necessary equipment
to
view the pornographic images and other pornographic DVDs.
[7]
The evidence of a neighbour called by the
State was that she had become suspicious of the regular arrival of
the appellant in a
motor vehicle at the house in the afternoon and
evening accompanied by one or more young girls sometimes dressed in
school uniform.
According to the neighbour these girls frequently
looked nervous. On the first occasion when she notified the police
and they tried
to gain entry to the house the appellant sent them
away with a profanity after opening the door. On the second occasion
the police
gained entry through a warrant and conducted a thorough
search. They found numerous pornographic DVD’s, risqué
magazines,
vibrators, condoms and other articles of a sexual nature
on the premises. The appellant was found in the house with
complainant
B
who
eventually told a policewoman that there were pictures of her on a
memory stick. The memory stick could not be found and the
appellant
denied any knowledge of its whereabouts. When he was searched it was
found hidden on his person and contained the images
which form the
subject matter of most of the charges.
[8]
The appellant was granted bail pending the
outcome of his trial,
inter alia,
on condition that he did not directly or indirectly communicate with
state witnesses including the child complainants. His bail
was
withdrawn, however, after an enquiry in terms of section 66 of the
Code during which it emerged that the appellant had attempted
to send
gifts to certain of the complainants. The result was that the
appellant spent 13 months in custody before his trial was
concluded.
[9]
Apart from his own evidence in mitigation
of sentence the appellant presented the evidence of Dr Marcelle
Londt, a social worker
with extensive experience of working with
juvenile sex offenders. She testified that she ran a community-based
sex offender treatment
program at a psychiatric clinic which offered
long term assessment and intervention to court-mandated participants
convicted of
sexual offences. She had consulted with the appellant at
some length and presented a report concluding that the appellant
could
be treated effectively within a community-based program for sex
offenders provided that there were comprehensive conditions attached
to his sentence. The conditions which she suggested related largely
to the appellant’s access to any minors and his engaging
in
internet-based social networking sites.
[10]
The appellant presented evidence that he
had a tendency to develop malignant skin cancer which required
regular treatment from a
dermatologist and, on occasion, a plastic
surgeon, and that he suffered from a leaking heart valve. He also
presented the evidence
of a pastoral therapist who had counselled him
for a period of six months between his arrest and the cancellation of
his bail.
The therapist, Dr Bruwer, reported that the appellant had
attended 12 sessions during the course of which he had expressed an
appreciation
of the seriousness of his offences and expressed intense
remorse. Dr Bruwer recommended that the appellant remain in such
therapy.
A probation officer filed a report in terms of s276A(1)(a)
of the Code advising that the appellant was a suitable candidate for
a sentence of correctional supervision in terms of s276(1)(h) and
suggesting appropriate conditions should such a sentence be imposed.
[11]
For its part the State presented evidence
in aggravation of sentence in the form of victim impact statements
from complainant A,
from the mother of the complainant sisters A and
B and from the mother of complainant C. The contents of these
statements were
admitted on behalf of the appellant. From them it
emerged that the older complainant, A, who was 21 years of age at the
time she
testified, had ultimately dealt better with the
psychological consequences of her experience. Amongst the statements
she made were
that when she posed for the pornographic images she had
felt embarrassment and shock and burdened by a secret that she could
not
share with her girlfriends. She described herself as ‘
almost
over it’
but stated that she
would never forgive the appellant or forget what he had done. She
added, however, that her younger sister, complainant
B, continued to
‘
hurt herself’
as a result of what had happened, and had made several suicide
attempts. The mother of complainants A and B also reported at least
two suicide attempts by her younger daughter, B as well as the fact
that she now suffered from depression and her schoolwork had
also
suffered badly. The mother of complainant C noted that her daughter
had become withdrawn and quick to anger.
[12]
In short these victim impact statements, as
well as the evidence of the complainants A and B, clearly established
that the effects
of the activities into which the appellant had lured
his young victims had caused them psychological trauma and scarring,
most
particularly in the case of complainant B, the most recent and
youngest victim of the appellant. The State also presented a
pre-sentencing
report compiled by Dr Marina Genis, a clinical
psychologist in the employ of the South African Police Services,
based on her perusal
of the case docket, including the statements and
charge sheet, the appellant’s detailed guilty plea, the record
of the extensive
bail application and the report of the appellant’s
pastoral therapist. The appellant refused to allow Dr Genis to
interview
him but the contents of her report were admitted on his
behalf.
[13]
Dr Genis described the process of the
sexual grooming of children in general and, in particular, how the
appellant had groomed his
victims and in this way built the
children’s trust. He had started with what could be perceived
as a non-sexual touching
when helping them on the gym equipment. She
detailed how he had used gifts, both to the victims and to their
families, as a form
of psychological manipulation. This included the
appellant’s use of a very expensive gold chain and diamond
which one or
more of the children had used as a prop in the
photographs and which he had promised such child or children could
have at some
later stage. Dr Genis concluded that the appellant could
be diagnosed with traits of paedophilia and that he was well aware of
the wrongfulness of his behaviour but that this had not deterred him
from creating opportunities to engage and interact with his
child
victims in a sexual manner. Based on this and other information it
was Captain Genis’ conclusion that the appellant
remained at
risk for sexual re-offending. She recommended that as part of his
sentence the appellant be referred for a treatment
program
specifically designed for sex offenders who target children.
[14]
In sentencing the appellant the magistrate
described his offences as ‘
despicable,
disgraceful and disgusting’
adding
that he had severely exploited these young women, degraded them and
stripped them of all dignity. The magistrate found further
that the
appellant had ‘
destroyed the
lives’
of the three young women
in question and had taken away their youth and the future that they
may have had. She noted that the appellant
had commenced his offences
with complainant
A
when she was 13 years old but that after she had rejected him as she
grew older he had turned to her younger sister. She observed
that the
bail enquiry had revealed that there were other young girls involved.
The appellant had given their names to the magistrate
but explained
that they would not testify in court because their parents did not
want to put them through that process. She noted
that the appellant’s
own witness, Dr Londt, had testified that he experienced difficulties
with perceiving his offences as
harmful compared with other sexual
offences. She stated, furthermore, that Dr Londt testified that there
were no guarantees for
the appellant’s recovery even if he
attended her extensive rehabilitation program and also that it was
not possible for him
to be monitored 24 hours a day. The magistrate
quoted from the report of Captain Genis who expressed the view that,
in general,
the prospects of rehabilitation of sexual offenders are
poor or even non-existent and that the main aim of treatment in such
cases
was to prevent further abuse against children rather than
changing the offenders sexual orientation towards children. The
magistrate
stated that although the appellant needed to attend a
sexual offences program such programs existed in prison.
[15]
The magistrate also expressed her
reservations about the remorse which the appellant had articulated
and her doubt as to whether
the complainants would ever be able to
recover, live normal lives or raise children in a normal environment.
She found that substantial
and compelling circumstances were present
which justified a deviation from the minimum sentence applicable on
each count. The magistrate
concluded, however, that a sentence of
correctional supervision was not appropriate because the chances of
the appellant being
rehabilitated as a sexual offender were not good
and that there were as a result no guarantees the appellant, even if
he attended
an appropriate community-based program, would not
re-offend.
[16]
Besides the effective sentence of 15 years
imprisonment the magistrate ordered that the appellant’s name
be recorded in the
Sexual Offences Register. Finally, after a
perfunctory enquiry, she declared the appellant unfit to possess a
firearm
GROUNDS OF APPEAL
[17]
On appeal it was contended that the
magistrate had committed a variety of misdirections; principally,
that she had overemphasized
the seriousness of the offences and the
community’s disapproval thereof and had failed to find a
balance between these interests
and the appellant’s personal
circumstances. It was further contended that the magistrate had
misdirected herself in various
respects including the following: in
failing to give sufficient weight to the rehabilitative aspect of
sentence, in failing to
accept the evidence of Dr Londt that the
appellant was a suitable candidate for a community-orientated program
for sexual offenders,
in taking into account that there were more
victims of the appellant’s sexual predations than merely the
complainants before
the court and in regarding this as an aggravating
factor for sentence purposes, in not approaching the content of the
victim impact
reports with greater caution given the lack of medical
expert or independent evidence in this regard, in finding that
long-term
imprisonment as opposed to a sentence in terms of
s276(1)(h) or (i) of the Code was the appropriate sentence for the
appellant
and finally, in the absence of any reasons, finding that
the appellant was unfit to possess a firearm.
[18]
Overall it was contended that the sentence
fell to be set aside by virtue of one or more of these misdirections
and, in any event,
on the basis that it induced a sense of shock.
DISCUSSION
[19]
As
appears from earlier references, some of the observations in the
magistrate’s judgment on sentence were expressed in exaggerated
terms. Given the stark nature of many of the pornographic images and
the youthfulness of the victims strong feelings of outrage
are
understandable but even in such circumstances presiding officers must
take care not to sentence in high emotion or anger lest
this cloud
their judgment
[1]
.
Although the victim impact reports revealed some very disturbing
consequences for the complainants, particularly complainant
B, they
were too sketchy to justify a finding that the appellant had
‘
destroyed
the lives’
of the complainants or ‘
taken
away the future they may have had’
.
The testimony of complainant A alone, given six or seven years after
her involvement with the appellant ended, suggested that
these
predictions would not necessarily eventuate.
[20]
It is also evident that although the
magistrate purported to take into account various personal
circumstances in favour of the appellant
she appeared to
simultaneously discount a number of them. Thus, for example, she
noted that although the appellant had already
been in custody for 13
months this had been of his own making in that he had interfered with
state witnesses and had his bail revoked.
Noting that the appellant
had various medical problems and still needed regular medical
attention, the magistrate remarked that
it was not uncommon that
someone of the appellant’s age would need medical attention.
[21]
Notwithstanding the seriousness of the
appellant’s offences, a subject to which I shall return, as
well as their sheer number,
there were several weighty mitigating
factors in favour of the appellant. These included the fact that he
pleaded guilty and made
wide-ranging admissions, the period he had
spent in prison awaiting trial, his age and health problems, his
prior unblemished record,
his apparent remorse and the public shaming
he had undergone as a result of his arrest, imprisonment and
conviction on these charges.
Of these factors perhaps the weightiest
was the fact that the appellant was, at the time that he was
sentenced, 74 years of age.
Having regard to all these factors
including, most notably, his age, the sentence of 15 years direct
imprisonment undoubtedly induces
a sense of shock and, for this
reason alone, falls to be set aside. Leaving aside the possibility of
parole, the sentence imposed
envisages a man in his late eighties
being incarcerated for sexual offences none of which involve any
significant element of physical
violence or injury. On whatever view
one takes of the seriousness of the appellant’s offences, this
would be neither a realistic
nor a humane sentence.
[22]
In
short, the disparity between the sentence which the magistrate
imposed and the sentence this Court would have imposed had it
been
the trial court is so marked that it can properly be described as
‘
shocking’
or ‘
disturbingly
inappropriate’
.
[2]
In the circumstances we are at large to sentence afresh and there is
no need to consider whether the various misdirections for
which the
appellant contends serve to vitiate the magistrate’s exercise
of her sentencing discretion.
AN APPROPRIATE
SENTENCE
[23]
The question which arises is what
would be an appropriate sentence for the appellant. Mr Grobbelaar,
for the appellant, argued,
in the first place, for a non-custodial
sentence of correctional supervision in terms of s276(1)(h) of
the Code or, alternatively,
a sentence in terms of s276(1)(i) which
would take into account the period of imprisonment already served by
the appellant. He
argued that any non-custodial sentence could be
made conditional on the appellant attending the community-based
program for sexual
offenders run by Dr Londt coupled with other
mechanisms to ensure that the appellant would not relapse into the
commission of similar
offences. He argued further that certain of the
offences could be appropriately sentenced by way of a suspended
sentence. Ms Kortje,
on behalf of the State, supported the existing
sentence unreservedly but contended that, should the Court interfere
with sentence,
a non-custodial sentence would be entirely
inappropriate.
[24]
In
pressing for a non-custodial sentence appellant’s counsel
relied principally on
S
v De Klerk
[3]
and the unreported decision of this Court in
S
v Appleton
[4]
.
It needs first be said that the circumstances in those two matters
were quite different from those in the present not least in
that they
concerned mainly instances of indecent assault and did not deal with
contraventions of Act 32 of 2007 for which minimum
penalties were
laid down. Furthermore, whilst consistency in sentencing is clearly
an ideal which should be striven after, there
is a limit to the value
that can be gained from the exercise of trying to match the facts of
one case to another in order to find
an appropriate sentence. As was
stated by Nicholas AJA in
S
v Fraser
[5]
:
‘
Decided
cases dealing with sentence may be of value also as providing
guidelines for the trial court’s exercise of discretion
…
and they sometimes provide useful guidance where they show a
succession of punishments imposed for a particular type of
crime …
but it is an idle exercise to match the colours of the case at hand
and the colours of other cases with the object
of arriving at an
appropriate sentence. “Each case should be dealt with on its
own facts, connected with the crime and the
criminal”
.’
[25]
In
S
v De Klerk
(supra),
the Court imposed a sentence of three years correctional supervision
on the appellant who had been convicted of three counts
of indecent
assault on sisters aged 6, 7 and 11 years old. In arriving at an
appropriate sentence the Court conducted a thorough
and useful review
of sentences in similar matters. What emerges from these and other
cases such as
S
v Coetzee
[6]
,
is that although the courts will look favourably at non-custodial
sentences in cases of indecent assault involving juvenile victims,
where the circumstances are sufficiently serious they will not
hesitate to impose a custodial sentence.
[26]
More
relevant to the present matter, by reason of the similar facts is the
unreported case of S v Stevens
[7]
in which the appellant was convicted of two counts of indecently
assaulting two 5 year old girls and 8 counts of contravening section
27(1)(a)(i) and (ii) of the
Films and Publications Act 65 of 1996
i.e. creating and possession of child pornography. The appellant
removed the undergarments of the children while they slept in
order
to take photographs. He took some other photographs with more active
participation on their part, in certain instances placing
his finger
on the vagina of the young girls. Some 71 photographs were taken but
used by the appellant only for his own sexual gratification.
There
was no evidence that the girls suffered any physical harm nor had
they showed any serious signs of psychological harm by
the time of
trial. The regional magistrate sentenced the appellant to a total of
eight years imprisonment of which three years
were suspended. On
appeal Froneman J (Liebenberg J concurring) altered the sentence to
one of six years imprisonment, two years
of which were suspended.
[27]
In
S v De
Klerk
it was found that the appellant
was a regressed as opposed to a fixated offender i.e. he did not have
a persistent continual and
compulsive attraction to children. It was
also found that the appellant fell into the category of an
opportunistic rather than
a predatory sexual offender. By contrast,
in the present matter the appellant’s activities were of a
predatory and systematic
nature. The offences of which he was
convicted took place over a number of years and once complainant A
had, after some years,
refused to continue posing for pornographic
pictures, the appellant turned his attention to her younger sister,
grooming her and
eventually commencing a similar process with her.
[28]
The first enquiry must be whether a
non-custodial sentence is appropriate for the present matter.
This
question can only be answered by having regard to, and balancing, the
three main interests at stake, namely, the accused’s
personal
circumstances, the seriousness of the offences and the interests of
the community, as well as by having appropriate regard
to the
purposes of punishment, namely, prevention, retribution, deterrence
and rehabilitation.
[29]
Counsel for the appellant placed much
emphasis on the aspect of rehabilitation, indeed directing most of
his argument to this subject.
In this regard he relied on the report
and recommendations of Dr Londt. The primary focus of her assessment
was directed at what
she saw were the following key aspects: the
appellant’s dangerousness and risk to society, an analysis of
the recidivism
and risk factor and the appellant’s prognosis or
amenability to treatment. Ultimately her conclusion, although
apparently
in favour of a non-custodial sentence, was cautious. She
stated as follows:
‘
The
results of the risk assessment instruments strongly suggests that
(the appellant) can be treated effectively within a community
based
program for sex-offenders provided that there are comprehensive
conditions attached to his sentence.’
[30]
Dr Londt proposed a wide range of
conditions, many of them stringent, stating that it was possible to
effectively manage specific
sex-offenders in the community provided
that a comprehensive and integrated management protocol was applied.
As regards the appellant’s
prognosis or treatment amenability
she assessed him as being in the ‘
medium’
category of risk for re-offending. In this regard she identified the
number of the appellant’s victims, the duration of his
inappropriate responses to the complainants as well as his violation
of the bail conditions as matters of concern. She described
the
prognosis for the appellant as ‘
guarded’
stating that if intervention management was tailored to the
identified risks, which I take to be a reference to the conditions
which she proposed, then it would be possible to achieve a
‘
successful outcome’
.
[31]
Captain Genis, the clinical psychologist
who furnished a sentencing report at the instance of the State was
less sanguine, concluding
on the basis of the information which she
had reviewed that the appellant remained at risk of sexual
re-offending against children.
She recommended that the appellant be
referred to a treatment program specifically designed for sex
offenders who target children
but only as one component of his
sentence. In her report she emphasised that research indicated that
the rehabilitation of sexual
offenders had a poor prognosis and that
the main aim of treatment of sexual offenders is to prevent further
abuse against children
rather than changing the offender’s
sexual orientation toward them.
[32]
What must not be lost sight of in regard to
Dr Londt’s report is that its primary focus related to the
rehabilitation and
monitoring of the appellant. As I understood the
report it did not purport to opine on what, overall, was an
appropriate sentence
for the appellant and, indeed, it could not
since this is the duty of the court after taking into account all
relevant sentencing
material. A further important point is that the
sentencing process is, of course, not solely directed at establishing
whether the
offender can be rehabilitated through a non-custodial
sentence. That is only one of the purposes of sentences, albeit an
important
one. In
S v Stevens
(supra) the principal argument on behalf of the appellant was that a
non-custodial sentence should be imposed to allow him to receive
private treatment for his sexual affliction under the supervision of
his family, such facilities not being available in prison.
In
rejecting this argument Froneman J stated as follows:
‘
What
is offered instead is a spurious argument that a convicted sexual
offender, who is admittedly a danger to society, should have
the
benefit of private treatment for his sexual affliction under
supervision of his family simply because he might not get adequate
treatment in prison. In my judgment that would disregard almost
totally the seriousness of the offences he has committed and the
community expectations in that regard. It is true that offences of
this kind evoke strong passions and that the courts must,
dispassionately,
weigh up those concerns against, amongst other
factors, the appellant's personal circumstances. But due regard for
personal circumstances
cannot mean that the nature of the offences
and the community expectations in regard thereto should be
disregarded. In my view
the magistrate was correct in finding that a
custodial sentence was appropriate in the circumstances of this
matter.’
[8]
I
find myself in respectful agreement both with the sentiments
expressed by the learned judges in that matter and the approach
adopted.
[33]
Reverting
to the appellant’s personal circumstances, as mentioned he was
74 years old at the time of sentencing and is a first
offender. His
curriculum vitae indicates that he obtained tertiary education and
has enjoyed a very successful career spanning
more than 50 years in
the transport and tourism industry. He is as a result, a wealthy man,
one of his hobbies being the breeding
of racehorses. The appellant
has been married for more than 50 years and has 4 adult children and
10 grandchildren. As a result
of his incarceration he was no longer
able to run his various businesses and resigned at least one major
directorship. The appellant
spent 13 months in custody awaiting trial
after his bail was withdrawn. This period of incarceration cannot be
written off or discounted
even if it were the appellant’s
breaches of his bail condition which led to the revoking of his
bail
[9]
. The fact remains that
as at the date of sentencing he had already spent a substantial
period in custody.
[34]
A further factor to be taken into account
is the public shaming and fall from grace which the appellant
suffered. Notwithstanding
his plea of guilty the appellant’s
trial was drawn out and involved numerous appearances. The attendant
publicity and its
consequences for his family clearly took their toll
on the appellant. Additional factors counting in his favour were the
appellant’s
plea of guilty, his extensive admissions and his
frequent expressions of remorse. It must be said, however, that this
last factor
was weakened by the appellant’s persistent tendency
to cast himself as led astray by the complainants and his attempts to
put a favourable gloss on his actions by stressing his charitable
motives in giving gifts and making payments to the complainants
and
their families. It is clear, in my view, that the appellant has an
inability to fully grasp the seriousness of his actions
and their
consequences for the victims.
[35]
Turning to the seriousness of the offences,
this can hardly be overemphasised. Many of the photographs taken by
the appellant of
the complainants are starkly pornographic and
exploitative. An aggravating feature was the appellant’s modus
operandi of
befriending the young girls through gifts to them and
their parents, by offering them access to a gym, liquor and, in
general,
a lifestyle which they did not ordinarily enjoy. He clearly
used his money as an on-going lure. In essence, the appellant
embarked
upon an elaborate and sustained process of grooming his
victims and then exploiting them to satisfy his sexual fantasies. The
appellant
displayed his arrogance when the police first visited his
premises and he contemptuously sent them packing. It was only through
the persistent efforts of the neighbour whose suspicions were aroused
by the appellant’s frequent comings and goings with
young girls
that the police eventually obtained the search warrant which led to
his arrest. The appellant’s immediate reaction
was to lie
concerning the whereabouts of the memory stick containing the images
which form the subject matter of the charges. Notwithstanding
the
appellant’s claims that he was conscience-stricken by his
activities and was on the point of calling a halt thereto,
I have
little doubt that, but for the police action, this would still be
continuing. However, the factor which weighs the most
heavily as
regards the seriousness of the offences is the evidence of its
consequences for the victims. This emerged from the three
victim
impact reports to which I have already briefly alluded but which
deserve further consideration.
[36]
Complainant A, by then an adult, reported
also that at the time she had posed for the appellant’s
pictures she had become
very self-conscious and an introvert, feeling
that she had the burden of a secret that she could not share with
others. After the
appellant’s arrest, she had to identify her
younger sister in the photographs on the memory stick and had
nightmares of the
images for a week. She described her feelings for
the appellant as rage and pity and how she felt the appellant had
made her dependent
on his money but then had taken it away. Both
complainant A and her mother reported that complainant B had
attempted suicide. Her
mother reported further that after B’s
first attempt at suicide she had been hospitalised for two weeks but
had attempted
suicide again by taking an overdose. The mother
described this daughter as feeling very bitter and suffering from
major depression.
As was to be expected all this had a negative
effect upon her schoolwork. The mother of a third complainant
reported that her daughter
suffered from mood swings, closed herself
off in her room and did not want to communicate with people.
[37]
Whilst it is correct that there were no
reports from psychologists on the effect of the appellant’s
actions on the complainants,
a reading of the victim impact reports
and the evidence of complainants A and B makes it quite clear that
these were far-reaching,
serious and possibly of long duration.
[38]
As
an indication of the seriousness with which the Legislature views
offences relating to the production of child pornography, a
contravention of s20(1) of the Act qualifies for a minimum sentence
of 10 years imprisonment by reason of its inclusion in Part
III,
Schedule 2, of Act 105 of 1997. As was said by Heher JA in S v RO
[10]
‘…
the
legislature has set its face against sexual offences in which
children are victims, with unmistakable disapproval and draconian
sanctions. The appropriate sentences must reflect that intention.’
[39]
The magistrate correctly found that there
were substantial and compelling circumstances present which justified
a deviation from
the minimum sentence applicable on each of these
counts. However, as was stated in
S v
Malgas
[supra] at page 482, although
the courts are entitled in appropriate cases to impose a sentence
less than the prescribed minimum
sentence ‘…
in
so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the benchmark which
the Legislature
has provided’
.
[40]
Apart from the indications provided by the
minimum sentence legislation, there can be no doubt that the
protection of society’s
interests require that offences such as
those committed by the appellant are dealt with firmly by the courts
in order to protect
the interests of children who are by definition
vulnerable to exploitation of this nature. One need look no further
than the Bill
of Rights in determining the value which our
Constitution places on the interests of children. Section 28 of the
Bill of Rights
provides that every child has the right to be
protected from abuse or degradation whilst sub-section 28(2) provides
that a child’s
best interests are of paramount importance in
every matter concerning the child.
[41]
In the final analysis, notwithstanding the
presence of considerable mitigating factors, principally in the form
of the appellant’s
personal circumstances, I consider that a
non-custodial sentence would not achieve an appropriate balance
between the other interests
at play, namely, the seriousness of the
offences and the interests of society. A non-custodial sentence
would, in my view, be unduly
focussed on the rehabilitation of the
appellant and would lose sight of the other purposes of sentencing,
most notably retribution
and prevention. However, in the light of the
appellant’s age, his health problems and the fact that he spent
more than a
year in custody awaiting trial, I consider that a much
shorter period of imprisonment than that initially imposed, part of
which
is suspended, would be appropriate. The suspension of a portion
of the sentence should have the salutary effect of reinforcing those
conditions of suspension designed to ensure that the appellant
refrains from similar activity in future. One such condition must
entail the appellant attending the community-based sex offender
program as advocated by Dr Londt, at his own expense.
[42]
At the conclusion of argument counsel were
invited to file a supplementary head setting out proposed conditions
for a partially
suspended sentence of imprisonment. This opportunity
was granted in the light of the conditions contained in the various
reports
which served before Court and which appeared to be overly
stringent. They included that the appellant could have only
supervised
access to his own grandchildren and would not be permitted
to drive a motor vehicle. In my view these conditions are unduly
punitive
and would serve only to unnecessarily hinder or humiliate
the appellant for the duration of the suspended sentence. In the
result
the conditions ultimately imposed draw heavily on those
proposed by the appellant’s counsel particularly those relating
to
the appellant’s attendance in the sex offender program.
[43]
Appellant’s counsel submitted that
all the convictions should be taken together for the purposes of
sentence. The magistrate
saw fit to draw a distinction between the
sundry counts of sexual assault, indecent assault, grooming etc and
those dealing with
the manufacture of child pornography which were by
far the most numerous and potentially attract the heavier sentence,
and to sentence
them separately. Rather than lumping all the
disparate convictions together, I consider it appropriate to maintain
the distinction
but to suspend portion of the sentences imposed.
[44]
Finally, there is the magistrate’s
order declaring the appellant incompetent to possess a firearm. The
offences of which the
appellant were convicted rendered it necessary
for the magistrate to enquire, in terms of
s103(1)
of the
Firearms
Control Act, 60 of 2000
, whether the appellant was unfit to possess a
firearm. The appellant’s attorney pointed out to the magistrate
that his client
was the owner of four firearms, including a hunting
rifle, and was winding up his late father’s estate which also
included
firearms. He submitted that since no firearm had been used
in the offences under consideration and that there had been no overt
violence in the offences, the State had not laid a basis for the
court to exercise its discretion against the appellant and declare
him unfit to possess a weapon. The magistrate made such an order,
however, without furnishing any reasons. Although the sexual
assaults
of which the appellant was convicted by definition contained an
element of violence, this was minimal and no firearm was
used.
[45]
In
S
v Phuroe and 8 Other Similar Cases
[11]
it
was held that amongst the important issues that should be considered
in an enquiry relating to the possible disqualification
of a
convicted person from possessing a firearm are: a) the accused’s
age and personal circumstances; b) the nature of any
previous
convictions or any absence thereof; c) the nature and seriousness of
the crime of which he is found guilty and any connection
that such
crime has with the use of a firearm; d) whether there is any
background which suggests that the accused may make
use of his/her
licenced firearm/s for the purpose of committing offences and e)
whether it is in the interest of the community
that the accused be
declared unfit to possess a firearm because of the fact that he/she
poses a potential danger to the community.
[46]
When regard is had to these factors I can
see no justification for the magistrate’s declaration of the
appellant as unfit
to possess a firearm and this part of the order
must be set aside. The declaration that the appellant’s name is
to be recorded
in the Register of Sexual Offenders must, of course,
stand.
[47]
Taking all relevant factors into account I
consider that the sentence of 15 years imprisonment must be set aside
and be replaced
with an effective sentence of four years imprisonment
with a further four years imprisonment conditionally suspended. Those
conditions
will include requiring the appellant to attend an extended
sex offender treatment program, circumscribe his unsupervised access
to female minors and generally set limits to his opportunity to
engage in activities conducive to his re-offending during the period
of suspension.
[48]
In the result the following order is made:
1.
The appeal against sentence is
upheld.
2.
The sentence of 15 years
imprisonment and the declaration that the appellant is unfit to
possess a firearm are set aside and replaced
with the following
sentence:
“
(a)
Counts 5 – 89, 94 and 95 are taken together for the purposes of
sentence and the appellant is sentenced
to a period of five years
imprisonment.
(b)
Counts 1- 4 and 90 – 93 are taken
together for the purposes of sentence and the appellant is
sentenced
to a period of three years imprisonment.
(c)
Two years of each of the above sentences are suspended for a period
of five years on the following
conditions:
i)
the appellant is not found guilty
during the period of suspension of contravening any provision of Act
32 of 2007 which involves
a minor;
ii)
upon his release from a correctional
centre the appellant shall participate for a period of at least 36
months in a sexual offenders
program of a group therapy nature
offered by the Child Abuse Treatment and Training Services
(‘CATTS’) program
in Kenilworth, Cape Town or, in the
event that such course is no longer offered, an equivalent course;
iii)
the appellant shall attend all
consultations, therapy, work and program sessions, including
consultations and psychotherapy with
any other professional third
party providers that the director of CATTS may determine from time to
time appropriate to assess and
effectively manage the treatment of
the appellant in preventing unlawful sexual recidivism against any
adult or minor person;
iv)
the director of CATTS, or his/her
designated facilitator(s), must compile and deliver to the Senior
Prosecutor; Regional Court
Bellville, a written report at
intervals not exceeding three months during the initial 12 months of
the appellant’s enrolment
at CATTS and thereafter at intervals
not exceeding six months for the duration of the appellant’s
attendance, that sets out
the dates and particulars of the sessions
attended by the appellant and the co-operation, compliance, risk
assessment, prognoses
and any other information that the director or
facilitator of CATTS may find relevant in assessing the co-operation,
compliance
and the response to treatment of the appellant;
v)
the Senior Prosecutor, Regional
Court Bellville shall consider the written report presented to
him/her as provided for in (iv) above
and in the event of the
appellant failing to attend the CATTS program or not complying with
the conditions imposed in respect of
the appellant’s attendance
and participation in the sex offender program without just
cause, the matter shall be referred
to the Regional Court:
Bellville to reassess, in the presence of the appellant and the
director of CATTS, the appellant’s
continued participation in
the community-based program and/or to make any other order in terms
of the
Criminal Procedure Act, 51 of 1977
and/or
Correctional
Services Act, 111 of 1998
with regard to the balance of the sentence
imposed on the appellant that the Court may regard appropriate in the
circumstances;
vi)
the appellant shall bear the costs
of his participation in the CATTS program;
vii)
during the appellant’s
participation in the CATTS program, he will not:
a)
misuse alcohol or any other drug or
substance having a narcotic effect;
b)
engage in, download, distribute or
use pornography, whether adult or child pornography, in any form;
c)
engage in social networking sites
(internet based) where there is a likelihood of contact with minors;
d)
engage with any of the complainants,
their parents or caregivers;
e)
have unsupervised contact with
female minors under the age of 18 years, excluding his own
grandchildren; and
f)
engage in any activity that will
place him in unsupervised authority over minors.
(c)
The appellant’s name will be recorded in the Register of Sex
Offenders”
3.
The sentence set out in para (2) of
this order is antedated to 29 January 2013.
L
J
BOZALEK
JUDGE
OF THE HIGH COURT
I
agree.
K
PILLAY
ACTING
JUDGE OF THE HIGH COURT
[1]
As
Schreiner JA stated in R v Karg 1961 (1) 231 (AD), albeit in the
context of the role of retribution in sentence: ‘Naturally,
righteous anger should not becloud judgment’ at 236 (B)
[2]
See
in this regard the restatement by Marais JA of the test for an
appeal court’s interference in the sentence of a trial
court
in
S
v Malgas
2001 (1) SACR 469
(SCA) at 478 D – G.
[3]
2010
(2) SACR 40
(KZP)
[4]
Case
no A360/2011, 20 December 2011
[5]
1
987
(2) 859 (AD) at 863 C – D
[6]
2010
(1) SACR 176
(SCA)
[7]
2007
JDR 0637 (E)
[8]
at
para [5]
[9]
See
S v Kruger
2012 (1) SACR 369
(SCA) at para [11]
[10]
2010
(2) SACR 248
(SCA) at para [40]
[11]
1991
(2) SACR 384
(NC)