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[2015] ZAWCHC 69
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CC v S (A595/14) [2015] ZAWCHC 69 (27 May 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Appeal Case No: A595/14
DPP Reference:
9/2/5/-343/14
DATE: 27 MAY 2015
In the matter between:
CC
........................................................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: VELLDHUIZEN &
ROGERS JJ
Heard: 22 MAY 2015
Delivered: 27 MAY 2015
JUDGMENT
ROGERS
J
(VELDHUIZEN
concurring):
[1]
The appellant was
charged in the court quo on two counts of raping children. The first
count alleged that during July 2013 the appellant
raped [X], a
three-year-old boy, by inserting his penis in the child’s
mouth. The second count alleged that during 2013 the
appellant raped
[Y], an eight-year-old girl, by inserting his finger in her vagina.
[2]
The appellant, who was
legally represented, pleaded guilty on both counts. His signed
statement in terms of
s 112(2)
of the
Criminal Procedure Act 51
of 1977
admitted the following. (i) As to the first count:
During 2013 he called X to the toilet and asked him to open his mouth
so
that he could insert his penis. Once he had done so, he told the
child to suck his penis. X was the child of his sister-in-law.
X’s
cousin happened to see the incident and reported it to his father who
confronted the appellant. (ii) As to the second
count: During
2013 he inserted his finger into Y’s vagina while she was
standing in front of him.
[3]
The State accepted the
plea and the appellant was convicted on both counts. The matter was
adjourned to obtain a correctional supervision
report in respect of
the appellant and victim impact reports in respect of the children.
These reports were handed in by agreement.
The appellant testified in
mitigation. The magistrate imposed two sentences of life
imprisonment, finding that there were no substantial
and compelling
circumstances to depart from the minimum sentence prescribed by
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[4]
The appellant now
appeals against the sentences, exercising his automatic right of
appeal in terms of the proviso to
s 309(1)(a)
of the
Criminal
Procedure Act. Mr
GW Fourie appears for the appellant and Ms Ajam for
the State.
[5]
The victim impact
reports can be summarised thus. In X’s case, he had been too
young to understand what was happening to him.
He had not become less
playful since the incident and was observed to be very playful during
the interview with the social worker.
The literature nevertheless
indicated that there might be a negative outcome, cognitively,
mentally and in regard to his social
development.
[6]
In Y’s case, she
was functioning normally for her age. There were no signs of
inappropriate sexual behaviour. During the interview
she was observed
to be anxious, tense and tearful when asked about the incident. She
felt shame. There were indications of day-dreaming
or loss of focus,
which can be a symptom of
Post
Traumatic
Stress
Syndrome. Even small sounds sometimes frightened her. She avoided
contact with males. She experienced headaches and stomach
pain
following the incident.
[7]
There is no evidence
that either child suffered physical injuries ancillary to the rapes.
[8]
The appellant’s
circumstances can be gleaned from the correctional service report and
the evidence he gave in mitigation.
He was 41/42 at the time of the
rapes. He was the oldest of his mother’s four children (from
different fathers). His father
did not feature in his upbringing. His
mother provided a loving home environment though they were poor. From
as early as he could
remember he was blind in his left eye. He was
bullied at school which, he thought, had affected his scholastic
performance. He
only got as far as standard three.
[9]
The appellant testified
that from the age of about eight until 14 he was made to perform oral
sex on a friend of his who was slightly
older than him and who came
from a wealthy family where the appellant often went to play. When he
was about 13 or 14 this friend’s
brother-in-law anally raped
him. The appellant kept all of this to himself until 2014.
[10]
In October 2003 the
appellant, who was then 31 years old, was sentenced to 10 years’
imprisonment on two charges of indecent
assault. The victims were
girls aged four and five respectively. The one was a member of the
family, the other a family friend.
In each case he had inserted his
finger into their vaginas. (In terms of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
this conduct
now amounts to rape.)
[11]
Shortly after his
incarceration the appellant was assaulted by a fellow prisoner. This
prisoner had forced the appellant to perform
menial tasks for him.
The appellant grew weary of this. One day this prisoner and his
associates told the appellant to hand over
his toiletries and phone
card. He refused and was assaulted. A dagga cigarette was inserted
into his right eye. He was only taken
to see an eye specialist two
years later. The specialist gave him spectacles but after about five
months the sight in his right
eye began to deteriorate. By the time
he was seen again at Groote Schuur Hospital it was too late; he had
lost the sight in his
right eye and was completely blind.
[12]
The appellant was
released on parole during November 2008. On an unspecified date he
was recommitted to prison for violating his
parole conditions by
changing address without informing his parole officer. He was again
released on parole during November 2010,
the parole period expiring
during April 2013.
[13]
During May 2011 the
appellant married his present wife, […]. The latter’s
sister, […], is the mother of the
complainants in the present
case. The appellant and his wife have a two-year-old son.
[14]
The appellant’s
maternal aunt and sister reported to the social worker that he is
generally passive in nature, non-violent,
honest and kind-hearted. He
maintains a sober lifestyle. He is liked by neighbours who urged the
mother not to report the rapes
to the police, believing that it
should rather be resolved as a family matter. The mother quite
rightly did not follow this advice.
[15]
The appellant
acknowledged having a sexual problem. He said that the two rapes in
the present case occurred on the spur of the moment.
He has a strong
sexual drive. He told the magistrate that he would like to get help
from the State. Under cross-examination he
was given ample
opportunity to admit that his problem was more specifically the
inappropriate urge to molest children but he was
not prepared to
concede this. He admitted that he had not sought help for his sexual
problems in prison or subsequent to his release.
[16]
The appellant testified
that he had found prison life particularly hard after having lost all
sight. Unlike other inmates, he could
not pass the time by reading
books or watching television. He needed assistance getting food and
making telephone calls. He was
often robbed.
[17]
The appellant, who was
not granted bail, spent about a year awaiting trial and sentence.
[18]
I turn now to consider
whether the magistrate was right to conclude that there were no
substantial and compelling circumstances
to depart from the
prescribed life sentences. I had occasion in
S
v GK
2013 (2) SACR
505
(WCC) to consider the test for interfering with a lower court’s
determination on the absence of substantial and compelling
circumstances (paras 4-7), concluding that the appellate court is
entitled to make its own value judgment on this question. I also
reviewed the leading cases on the application of the minimum
sentencing legislation in relation to rape (paras 8-14). In what
follows I substantially repeat the latter paragraphs.
[19]
I naturally accept that
the rape of a child under the age of 16 is a heinous and abhorrent
crime, which is why the lawmaker has
placed this type of rape in the
category of crimes attracting a life sentence in the absence of
substantial and compelling circumstances.
However, the decisions of
our courts, including the Supreme Court of Appeal, reflect that not
infrequently perpetrators of this
type of rape are
not
sentenced to life imprisonment because substantial and compelling
circumstances are found to be present. If one examines the minutiae
of leading cases it may be 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. In
S v PB
2013 (2) SACR 533
(SCA) 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. It is the legal
principles
with which lower courts should mainly concern themselves.
[20]
In terms of
S
v Malgas
2001 (1)
SACR 469
(SCA) the factors which are to be considered in determining
whether substantial and compelling circumstances exist are all the
factors traditionally taken into account in assessing an appropriate
sentence, bearing in mind, however, that it is no longer ‘business
as usual’ and that the emphasis has shifted to the objective
gravity of the type of crime and the need for effective sanctions.
If, after considering all the relevant factors, the court has not
merely a sense of unease but a conviction that injustice will
be done
if the prescribed sentence is imposed or (to put it differently) that
the prescribed sentence would be disproportionate
to the crime, the
criminal and the legitimate needs of society, there will be
substantial and compelling circumstances requiring
the court to
depart from the prescribed sentence and to impose a lesser sentence.
[21]
The statement in
Malgas
that no factors
conventionally relevant to sentencing are excluded from consideration
must now be qualified because of the insertion
into
s 51(3)
of
the Act of para (aA). This occurred when
s51
was substituted in terms
of
s 1
of Act 58 of 2007. Paragraph (aA) sets out certain
circumstances which, in the case of rape, shall
not
constitute substantial and compelling circumstances. The exclusionary
effect of this paragraph has been held to convey that any
such
circumstance on its own will not amount to substantial and compelling
circumstances but that such factors may be taken into
account
together with others in reaching a conclusion that there are
substantial and compelling circumstances: see
S
v Nkawu
2009 (2)
SACR 402
(ECG) para 15. This view was approved by the Supreme Court
of Appeal in
S v SMM
2013 (2) SACR 292
(SCA) para 26.
[22]
In
S
v Abrahams
2002 (1)
SACR 116
(SCA) Cameron JA, after observing that the rape in that case
was ‘not one of the worst cases of rape’, said that
‘
[s]ome
rapes are worse than others’
and that ‘the life sentence ordained by the Legislature should
be reserved for cases devoid
of substantial factors compelling the
conclusion that such a sentence is inappropriate or unjust’
(para 29). A similar sentiment
was expressed in
S
v Mahomotsa
2002
(2) SACR 435
(SCA) paras 17-19).
[23]
This view was further
developed by Nugent JA in
S
v Vilikazi
2009 (1)
SACR 552
(SCA), where he remarked upon the fact that there was no
gradation in the Act from the category of rapes by first offenders
which
attracted a sentence of 10 years in terms of s 51(2)(b)(i)
read with Part 3 of Schedule 2 and those which attracted a life
sentence in terms of s51(1) read with Part 1. A single circumstance
may shift the offence from the one category to the other (para
13).
It is only by approaching sentencing under the Act in accordance with
Malgas
that
it is possible to avoid incongruous and disproportionate sentences
(para 14). This means that it is the sentencing court’s
duty to
assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence is proportionate
to
the particular offence (para 15).
Malgas
rejected the view
that the prescribed sentence could be departed from only if the
circumstances were ‘exceptional’.
It is wrong, said
Nugent JA, for the sentencing court to assume
a
priori
that a life
sentence is proportionate for a crime falling into a particular
category. Indeed, when the matter is correctly approached
it might
turn out that the prescribed life sentence is seldom imposed in cases
that fall into a specified category. If that occurs
‘it will be
because the prescribed sentence is seldom proportionate to the
offence’ (paras 16-18). Nugent JA also said
that if (as is the
case) the presence of only one of the prescribed circumstances may
place a rape in Part 1 rather than Part 3
(for example, because the
rape victim was 15 rather than 16), the absence of any of the other
prescribed circumstances is capable
of lessening the culpability of
the offender (para 54). This does not mean that life sentences are
only to be imposed when all
the prescribed aggravating circumstances
are present. There comes a point when a life sentence is
proportionate to the offence,
even though a greater horror can be
imagined (para 54).
[24]
In
SMM
supra Majiedt JA
reviewed the Supreme Court of Appeal’s decisions on rape
sentencing. Majiedt JA, while recognising that the
country was facing
a ‘crisis of epidemic proportions in respect of rape,
particularly of young children’ (para 14)
and while emphasising
that rape is by its nature a ‘degrading, humiliating and brutal
invasion of a person’s most intimate,
private space’ even
when unaccompanied by violent assault (para 17), repeated the
injunction contained in earlier case law
that one should not approach
punishment ‘in a spirit of anger’ and that sentencing
must be assessed ‘dispassionately,
objectively and upon a
careful consideration of all relevant factors’ (para 13). While
the public is rightly outraged by
the scourge of rape and while there
is increasing pressure on the courts to impose harsher sentences, one
cannot sentence only
to satisfy public demand for revenge –
other sentencing objectives, including rehabilitation, cannot be
discarded altogether
in order to attain a balanced, effective
sentence (para 14). The learned judge of appeal approved the
recognition in cases such
as
Abrahams
and
Vilikazi
that there are categories of severity of rape (para 18).
[25]
While I do not think it
is helpful for present purposes to analyse the detailed application
of general principles to the facts of
specific leading cases, I note
that in
Mudau
the
Supreme Court of Appeal was called upon to assess the appropriateness
of a life sentence imposed on the appellant for the rape
of a child.
The appellant, who was 47 at the time of sentencing, raped his
13-year old niece. He first penetrated her vagina with
two fingers
and shortly thereafter penetrated her vagina with his penis in an
episode lasting about five minutes. Semen was subsequently
found on
the child’s underwear. He gave her R5,00 to buy her silence. He
denied the rape and apparently expressed no remorse.
There was the
aggravating feature of an abuse of trust in a family setting. As
against this, the rape itself occasioned no serious
injury to the
victim and there was no additional violence. There was no victim
impact report so the psychological trauma could
not be assessed.
Having weighed the mitigating and aggravating features, the court
held that the trial court’s imposition
of a life sentence was
‘grossly disproportionate to the offence’. The life
sentence was set aside and replaced with
one of 15 years’
imprisonment. See also
S v EN
2014
(1) SACR 198
where the appellant, a 46-year-old first offender, had
raped his 15-year-old stepdaughter. The complainant suffered no
serious
physical injuries and had submitted to intercourse without
threats of violence but after having accepted gifts and money. The
appellant
had been drinking. The court held that life imprisonment
was disproportionate to the crime and substituted a sentence of 15
years’
imprisonment.
In
GK
itself this court (Mathee AJ dissenting) set
aside a sentence of life imprisonment for the oral rape of a
seven-year-old girl and
substituted a sentence of 17 years’
imprisonment.
[26]
The court thus must not
approach the present appeal with a mind that a life sentence is
a
priori
a just
punishment for the appellant. Instead, I must examine all the
circumstances of the case and then ask myself whether I am
not merely
uneasy at the imposition of a life sentence but have a conviction
that such a sentence would be unjust, ie disproportionate
to the
crime, the offence, and the legitimate needs of the community.
Inevitably that entails forming a view as to what a just
sentence
would be in all the circumstances of the case, bearing in mind
however that even discretionary sentences for crimes dealt
with in
the Act (ie once substantial and compelling circumstances have been
found to be present) can be expected to be more severe
than before.
In this regard Cameron JA stated in
Abrahams
supra
that the Act
‘creates a legislative standard that weighs upon the exercise
of the sentencing court’s discretion’
(para 25). If the
just sentence, approached in this manner, falls materially below the
prescribed sentence there will be substantial
and compelling
circumstances to depart from the prescribed sentence. As was held in
Malgas
(para
23), substantial and compelling circumstances are not confined to
circumstances where the prescribed sentence would, in relation
to the
sentence the court would have imposed, be ‘disturbingly’
inappropriate or ‘induce a sense of shock’.
In other
words, a discrepancy falling short of the latter test (which applies
when an appellate court considers whether it may
interfere with a
trial court’s discretionary sentence) may justify a finding
that substantial and compelling circumstances
exist to depart from
the sentence prescribed by the Act.
[27]
I consider first the
life sentence for X’s rape. The rape cannot be considered as
falling at the most heinous end of the scale
of child rape. The form
of the rape was such that the child suffered no physical injuries.
There was no evidence that the appellant
ejaculated in the child’s
mouth.
[1]
Because of the boy’s tender age, he mercifully did not
understand what was happening to him and thus did not experience the
horror and disgust that an older child might have felt. No
ill-effects were observed in the boy’s subsequent behaviour. He
seemed to be as happy and playful as before. This is not to say that
psychological harm will not manifest itself later. However,
he has
received counselling and the incident may well leave him largely
unscathed.
[28]
The appellant’s
two prior convictions for indecently assaulting children are
undoubtedly an aggravating circumstance. He raped
X shortly after the
expiry of his 10-year sentence. His apparent inability to acknowledge
that his inappropriate sexual desires
are specifically directed at
children is a further cause of concern. However, the appellant
realises that in general he has a sexual
problem and wishes to
receive help for it. Part of the process of treatment would involve
bringing him to a realisation of the
true nature of his problem. The
appellant pleaded guilty and expressed what I regard as genuine shame
and remorse for what he had
done. His blindness must inevitably limit
his opportunities for sexual predation.
[29]
I do not think one can
reject as untrue the appellant’s evidence that he himself was
abused as a child. He also grew up with
a visual disability which in
his perception hampered his schooling and led to his being bullied.
These circumstances, coupled with
the absence of a father figure in
the home, are likely to have played their part in producing an adult
exhibiting deviant sexual
behaviour.
[30]
The prison system,
which the appellant first encountered following his previous
convictions, seems to have failed him badly. Part
of the object of
imprisonment is rehabilitation. Instead the appellant, already
suffering a partial visual disability, was terrorised
and assaulted
by a fellow prisoner, as a result of which he became completely
blind. He feels that he did not receive sufficiently
prompt medical
attention. When asked why he did not seek psychological help for his
sexual problem while in prison, he said that
he was absorbed in
coping with blindness. I can readily accept this. There is no doubt
that, for the appellant as a 42-year-old
blind man, prison will be a
far more lonely, dismal and vulnerable place than for a sighted
person. Prior to sentencing he had
to endure incarceration for about
a year.
[31]
These circumstances
leave me in no doubt that life imprisonment for X’s rape is an
unjust sentence, ie one which is disproportionate
to the crime, the
offence and the legitimate needs of the community. Unfortunately for
the appellant, the gravity of the crime
and his previous convictions
do not allow him to escape a significant period of imprisonment. I
thus reject Mr Fourie’s submission
that s 276(1)(i) is an
appropriate sentencing option, a submission which he did not press in
oral argument. In my view, a significant
period of direct
imprisonment is required. Part of the sentence, should, however be
suspended to provide a strong inducement to
the appellant to refrain
from similar wrongdoing in the future. All things considered, I
regard as just a sentence of 15 years’
imprisonment, of which
five years should be suspended on appropriate conditions. I sincerely
hope that during the appellant’s
incarceration he will receive
psychological assistance with his sexual problem. If and when he is
released on parole, the relevant
authorities will no doubt give
consideration to conditions aimed at minimising the risk of his
coming into contact with children
on an unsupervised basis.
[32]
I turn now to consider
the life sentence in respect of Y’s rape. The s 112(2)
statement which the State accepted said
no more concerning the
incident than that the appellant inserted his finger into her vagina
while she was standing in front of
him. According to the child’s
description to the social worker in the victim impact report, the
appellant ‘touched
her vagina and then she ran away’.
There is nothing to show that it was anything more than a fleeting
incident. He did not
undress her.
[33]
As against this, Y as
an eight-year-old girl would have had a greater sense of the invasion
of her body. The incident, though brief,
has had a material impact on
her emotional state. She, too, has received and will in the future
receive counselling.
[34]
I have already
mentioned the other circumstances relevant to sentencing in dealing
with X’s case. The aggravating effect of
the previous
convictions is perhaps greater in Y’s case because the earlier
indecent assaults were also instances of vaginal
penetration with the
finger.
[35]
I am, once again,
convinced that a life sentence for Y’s rape is unjust. An
appropriate sentence would be 12 years’
imprisonment, of which
three years should be suspended on appropriate conditions.
[36]
The remaining question
is whether the unsuspended periods of imprisonment or any part
thereof should run concurrently. In my opinion,
an effective period
of imprisonment of 19 years would be too crushing a punishment (cf
S
v Muller & Another
2012
(2) SACR 545
(SCA) paras 9-13). Taking into account in particular the
harsh effects which blindness will have on the appellant’s
prison
life and the period he spent in prison awaiting trial, I
consider that an effective period of 13 years’ imprisonment
strikes
the right balance.
[37]
The following order is
therefore made: The appeal against the sentences imposed by the trial
court on 16 October 2014 succeeds.
The said sentences are set aside
and replaced with sentences as follows, antedated to 16 October 2014:
(a) On count 1 the appellant is sentenced to 15 years’
imprisonment, of which five years are suspended on condition that the
appellant is not convicted of any crime in terms of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
committed during the period of suspension.
(b) On count 2 the appellant is sentenced to 12 years’
imprisonment, of which three years are suspended on condition that
the appellant is not convicted of any crime in terms of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
committed during the period of suspension.
(c)
Six of the nine years’ unsuspended imprisonment imposed in
respect of count 2 shall run concurrently with the 10 years’
unsuspended imprisonment imposed in respect of count 1, so that the
effective period of unsuspended imprisonment in respect of
both
counts shall be 13 years.
VELDHUIZEN
J
ROGERS
J
APPEARANCES
For
Appellant : Adv GW Fourie
For
Respondent : Ms N Ajam
Office
of the Director of Public Prosecutions
[1]
In the victim impact report the social worker
stated that the child had told her that the appellant 'had pee in
his mouth’.
The social worker was not called to testify to
explain what the child meant by this. The appellant's
s 112(2)
did not include an admission of ejaculation.