S v M

• Jurisdiction: South Africa
• Citation: 2007 (2) SACR 60 (W)

S v M
2007 (2) SACR 60 (W)

2007 (2) SACR p60

Citation	2007 (2) SACR 60 (W)
Case No	2SH98/2005
Court	Witwatersrand Local Division
Judge	Satchwell J
Heard	April 20, 2006; March 47, 2006
Judgment	May 23, 2006
Counsel	H van der Merwe for the State.; A J Jonker for the accused.

Flynote : Sleutelwoorde I

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Rape of child — Whether substantial and compelling circumstances existing — Fact that accused a first offender not in and of itself substantial and compelling circumstance — At most, one consideration to be taken into account — Accused's admission of guilt coming only after arrest and J

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prosecution — Plea of guilty therefore an insufficiently demonstrable sign of A remorse and not constituting substantial and compelling circumstance — Fact that no violence used and no grievous bodily harm sustained not mitigating in circumstances where rapist had not needed to exercise or threaten violence in order to achieve his aim — Since life sentence indeterminate, time spent in custody awaiting trial not capable of being B subtracted from sentence and thus not substantial and compelling circumstance — None of these factors, either individually or cumulatively, constituting substantial and compelling circumstances — Sentence of life imprisonment imposed.

Sentence — Prescribed sentences — Minimum sentences — Imposition of in C terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Rape of child — Act requiring existence of only one of specified jurisdictional factors set out in Part I of Schedule 2 for minimum-sentence provisions to be triggered — Not required that one jurisdictional fact (infliction of grievous bodily harm) be present before another jurisdictional fact (rape of girl under age of 16) renders minimum sentence applicable — Accordingly, D absence of grievous bodily harm not constituting substantial and compelling factor when determining appropriate punishment for rape of 14-year-old.

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Rape of E child — Life imprisonment prescribed for rape where, firstly, victim raped more than once by accused or by accomplice or co-perpetrator; and secondly, where rape committed by person who had been convicted of two or more rapes, but not yet sentenced in respect of such conviction — As long as rapes by same accused repeated, not mattering whether they were separated by hours, days, weeks or months — Accordingly, accused liable F to life imprisonment not only on grounds of complainant's age, but also because he had raped her more than once and because he had been convicted of two offences of rape and had not yet been sentenced.

Fundamental rights — Right to a fair trial — Section 35 of Constitution of the Republic of South Africa, 1996, affirming that every accused person G presumed innocent until proven guilty, entitled to enter plea of not guilty, and entitled to challenge and adduce evidence — Cause for concern if courts were to penalise persons who chose to exercise these rights and advantage those who elected not to do so — Accused's decision to exercise these rights by pleading not guilty not to be seen as aggravating factor for sentencing purposes — Conversely, if person's decision to plead guilty, thus H not exercising these rights, was considered mitigating factor, it would lead to his being advantaged in relation to person who did choose to exercise his rights — This surely vitiating value of these rights.

Rape — Sentence — Factors to be taken into account — Impact on complainant — Appearing that Courts expected to view rape as 'more serious' when I complainant could not sleep, feared men and sex, was unable to concentrate or complete schooling, or had career or relationships destroyed — If this so, then other complainants might question why their rapes were viewed as 'less serious' simply because they were fortunate enough to receive professional assistance, were endowed with different personalities, or exhibited fewer post-traumatic effects — Rapist not to be J

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considered less morally and legally blameworthy merely because complainant A continuing her life with comparatively less apparent trauma — Unfair to rapist that his fate should depend upon differences in opportunities, psyches, physical strength, age, and support available to different complainants, all of which might result in different manifestations of trauma.

Headnote : Kopnota

The accused was convicted of raping his stepdaughter on two occasions when B she was 14 and 15 years old. In terms of the provisions of ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997 he was referred to the High Court for sentencing. The State submitted that the accused was liable to be sentenced to life imprisonment on two grounds: firstly, because the complainant was under the age of 16, and secondly because the accused had raped her twice, once in December 2004 and once in March 2005.

Held, that among the categories of rape targeted for life imprisonment in Part I of Schedule 2 to the Act were those committed in circumstances where, firstly, the victim was raped more than once by the accused or by an accomplice or co-perpetrator; and secondly, where the rape was committed by a person who had been convicted of two or more rapes, but who had not yet been sentenced in respect of such convictions. The wording of these D descriptions and categorisations was clear and without ambiguity. What was proscribed was rape by the same rapist of the same victim on more than one occasion. As long as the rapes were repeated, it mattered little whether they were separated by hours, days, weeks or months. Accordingly, the accused was liable to life imprisonment not only on the grounds of the complainant's age, but also because of the fact that he had raped her more E than once and because he had been convicted of two offences of rape and had not yet been sentenced. (Paragraphs [20] - [s25] at 71c - 72g.)

Held, further, that the seriousness of the present instances of rape was compounded by the age of the victim, the relationship of the accused to the victim, and the fact that she had been raped in her own bedroom. The accused occupied a position of power in relation to his stepdaughter; she F was vulnerable to his seniority in age and familial standing, to his affinity with her mother, and to his role as paterfamilias. The family dynamics attendant upon the rapes and the prosecution of the stepfather were particularly disturbing. It appeared that the complainant's mother, who was also the wife of the accused, believed that the matter could have been handled within the family without criminal prosecution. In her view it was G the fault of the complainant's school and the social workers assigned to the case that her husband had been prosecuted. This attitude on the part of the mother explained the opinion of one of the social workers that the complainant now felt burdened with responsibility for the fate of her stepfather. It was inappropriate for the complainant to be asked to express a preference regarding the sentence to be imposed. However, the mother's H attitude raised the question of whether the Court should try to ensure that the complainant was not further penalised by her mother by imposing a sentence which would meet with the latter's approval. The answer was that the Court could not attempt to resolve the 'pathology' within the family by imposing a sentence which would please the mother, but which would fail to meet the requirements of the statute, do justice to the accused, I acknowledge the impact upon the complainant, and represent the views of broader society. (Paragraphs [31], [39], [42] and [49] - [56] at 73c - d, 75b - e, 76d and 77f - 79b.)

Held, further, as to the existence of substantial and compelling circumstances justifying a departure from the prescribed sentence, that it had been argued that such circumstances were indeed present: the accused was a first J

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offender; he had pleaded guilty; he had not inflicted any bodily injury on the A complainant; and he had spent nearly a year in custody awaiting sentence. Different sentences, depending on whether the accused was a first, second or third offender, were stipulated for rapes falling under Part III of Schedule 2 to the Act, but the same allowance was not made for offenders convicted of the particular types of rape set out in Part I of the Schedule. The intention of the Legislature was clear: for the first category, an accused's B criminal record was relevant for purposes of sentencing, and for the second it was not. However, the Courts had given consideration to a previously clean criminal record in determining the existence or otherwise of substantial and compelling circumstances; that approach was to be followed. Nevertheless, there was no authority for the proposition that such a clean record constituted, in and of itself, a substantial and compelling circumstance; C at most, it would be one consideration to be taken into account. (Paragraphs [62] - [69] at 80d - 82b.)

Held, further, that where a plea of guilty is sought to be interpreted as indicating remorse, a Court should be astute to inquire whether or not there was genuine remorse and, if so, whether it signified deep regret for the wrong done or simply the accused's distress at being caught and visited with the D consequences of his crime. In casu, all the Court had to go on was the plea itself, and this was an insufficiently demonstrable manifestation of genuine remorse; the admission of guilt had been made only after he had been arrested and prosecuted...