S v RO and Another

• Jurisdiction: South Africa
• Judgment Date: 31 May 2010
• Citation: 2010 (2) SACR 248 (SCA)

S v RO and Another
2010 (2) SACR 248 (SCA)

2010 (2) SACR p248

Citation	2010 (2) SACR 248 (SCA)
Case No	643/09
Court	Supreme Court of Appeal
Judge	Lewis JA, Heher JA, Leach JA, Griesel AJA and Majiedt AJA
Heard	May 5, 2010
Judgment	May 31, 2010
Counsel	L Augustyn for the appellants, instructed by the Bloemfontein Justice Centre.; S Scheepers (DPP, Bloemfontein) for the State.

Flynote : Sleutelwoorde

B Rape — Sentence — Factors to be taken into account — Low intelligence and lack of insight of accused — Where accused's conduct explicable by psychological defects, consequences almost always mitigatory — Rape and indecent assault of young brother and sister by uncles — Appellants adult in body but anything but mature in mind — Nature of their defence indicating C low level of intellect — Telling factor in assessing moral blameworthiness — While knowledge of wrongfulness proved, not matched by insight into seriousness of offences or by ability to resist pull of their own lusts — Both appellants themselves, as well as other family members, indecently assaulted as children — Probably, having been abused in youth, appellants D less likely to regard socially deviant conduct as abnormal — Appellants not dangers to society — Probability of repetition remote — Seeking to deter other potential sexual offenders by increasing punishment meted out to appellants morally opprobrious, and far-fetched in prospect — As to rehabilitation, appellants already having served eight years in prison, and prolonging detention to 20 years or more conferring no additional benefit to themselves or society — Sentences of 25 and 20 years respectively E reduced on appeal to 15 years' imprisonment.

Sentence — Imposition of — Factors to be taken into account — Low intelligence and lack of insight of accused — Where accused's conduct explicable by psychological defects, consequences almost always mitigatory — Rape F and indecent assault of young brother and sister by uncles — Appellants adult in body but anything but mature in mind — Nature of their defence indicating low level of intellect — Telling factor in assessing moral blameworthiness — While knowledge of wrongfulness proved, not matched by insight into seriousness of offences or by ability to resist pull of their own lusts — Both appellants themselves, as well as other family members, indecently assaulted as children — Probably, having been abused in youth, G appellants less likely to regard socially deviant conduct as abnormal — Appellants not dangers to society — Probability of repetition remote — Seeking to deter other potential sexual offenders by increasing punishment meted out to appellants morally opprobrious, and far-fetched in prospect — As to rehabilitation, appellants already having served eight years in prison, and prolonging detention to 20 years or more conferring no H additional benefit to themselves or society — Sentences of 25 and 20 years respectively reduced on appeal to 15 years' imprisonment.

Sentence — Antedating of — On appeal, effective 15 years' imprisonment considered appropriate sentence — Appellants in custody as convicted prisoners since regional court imposing sentence in September 2002 — That I sentence set aside in February 2005, and replaced by High Court's sentence now being appealed against — February 2005 thus relevant date for purposes of s 282 of Criminal Procedure Act 51 of 1977 — By that date appellants already having served two years and five months — Therefore necessary to adapt terms of court's order to take account of both statute and true length of incarceration of appellants — Appellants sentenced to J twelve years and seven months' imprisonment.

2010 (2) SACR p249

Headnote : Kopnota

The appellants, twin brothers in their late twenties, were each convicted in a A regional court on two counts of indecent assault and one count of rape. The complainant in the indecent assault counts was their 6-year-old nephew, and, in the rape count, their 4-year-old niece. The matter having been referred to the High Court in terms of the Criminal Law Amendment Act 105 of 1997, the first appellant was sentenced to six years' imprisonment on each of the indecent assault counts, and to 25 years' imprisonment B on the rape count. The second appellant received the same sentences for indecent assault, but 20 years' imprisonment for the rape, the court having found that the first appellant had taken the leading role. The sentences were ordered to run concurrently. The appeal concerned sentence only, the focus being on the sentences imposed on the rape count.

Held (per Heher JA; Lewis JA and Leach JA concurring), that there was a need C for great sensitivity on the part of courts towards victims and abusers in cases that involved a combination of psychological problems, sexual assaults and young victims. Where an accused's conduct was explicable by psychological defects the consequences were almost always mitigatory. The appellants were adult in body, but anything but mature in mind. They still lived in the parental home, subsisting on scraps of diverse employment D supplemented by disability pensions. The nature of their defence indicated that they fell far short in intellect: they had apparently expected the trial court to believe that seriously improper behaviour of a deviant nature had been initiated by a 4-year-old girl and her 6-year-old brother; that neither of the appellants had been able to resist the girl's temptations; and that the two children had actually been seen in the act of having or attempting E sexual intercourse with each other. This aspect was the most telling factor in assessing their moral blameworthiness. The appellants had started with a material deficit and the gap had not narrowed by the time they gave evidence. While knowledge of wrongfulness had been proved, it was not matched by insight into the seriousness of their offences or by the ability to resist the pull of their own lusts. These were both qualities that might be F expected to be found in mature adults possessing even a limited perception of social norms. According to the social-welfare reports produced in evidence, both appellants had been indecently assaulted as children; so had all their siblings, and their parents. The mother of the complainants had been raped by her own brother. It was small wonder that the appellants showed neither remorse nor insight into their offences. Probably, having G been abused in youth, they were less likely to regard socially deviant conduct as abnormal. (Paragraphs [30]–[36] at 260d–261e.)

Held, further, that the appellants were not, as the trial court had found, dangers to society. Theirs was essentially a crime that arose in a specific domestic context, and the probability of repetition was remote. In a case of this H nature deterrence as an object of sentence was fanciful. Seeking to deter other potential sexual offenders by increasing the punishment meted out to the appellants was not only morally opprobrious, but far-fetched in its prospect. As to rehabilitation, the appellants had already served eight years in prison, and prolonging their detention to 20 years or more would hardly confer an additional benefit to themselves or to society. (Paragraphs [37]–[39] at 261f–h.) I

Held, further, that while the sentences must reflect the unmistakable disapproval of the legislature regarding sexual offences in which children were the victims, individualisation, and not collective responsibility for the prevalence of serious crime, remained the court's primary focus. Misplaced sympathy was to be avoided, but the determination of the appropriate punishment should never be divorced from the quality of the human J

2010 (2) SACR p250

A material, nor the reasons for its frailty. Mercy could find a place in almost all cases. An effective sentence not exceeding 15 years would meet legitimate societal demands and would not be unfair to the appellants. There was insufficient evidence on the record to justify a distinction between them on grounds of participation or moral turpitude. (Paragraphs [40]–[42] at 261h–262c.)

B Held, further, that s 282 of the Criminal Procedure Act 51 of 1977 provided that a sentence imposed on appeal could not be antedated to a point earlier than the date of the sentence imposed on conviction. In casu, the appellants had been held in custody as convicted prisoners since September 2002, when the regional court had imposed the initial 'sentence'. That sentence had C been set aside as invalid in February 2005, and replaced by the High Court's sentence now being appealed against. February 2005 was therefore the relevant date for purposes of s 282, and it was therefore necessary to adapt the terms of the court's order to take account of both the statute and the true length of incarceration of the appellants. (Paragraphs [43] and [44] at 262d–f and 262g–h.)

D Held (in a dissenting judgment per Majiedt AJA, in which Griesel AJA concurred), that the court a quo had taken into account the mitigating personal circumstances of the appellants, particularly their low levels of intellect and the fact that they had themselves been sexually abused as children. However, there were also a number of aggravating factors and the sentences imposed, while severe, were not shockingly inappropriate. There were no grounds warranting interference on appeal.

E Appeal upheld. Sentences set aside and appellants sentenced to twelve years and seven months' imprisonment.

Annotations:

Cases cited

Reported cases

Gordon v Tarnow 1947 (3) SA 525 (A): referred to F

S v Abrahams 2002 (1) SACR 116 (SCA): referred to

S v B 1980 (3) SA 846 (A): referred to

S v Chapman 1997 (2) SACR 3 (SCA) (1997 (3) SA 341; [1997] 3 All SA 277): referred to

S v Collett 1990 (1) SACR 465 (A): referred to...