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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 2SH98/2005

In the matter between:

THE STATE

and

MULLER, IVAN ANDRIES Accused

JUDGMENT

SATCHWELL J:

INTRODUCTION

1. The accused has been convicted of the rape of his step daughter, N on two occasions when she was fourteen and fifteen years old ¹. This prosecution has been referred to the High Court for sentencing in accordance with the provisions of sections 51 and 52 of Act 105 of 1997.

2. This judgment is concerned with the extent to which a number of factors should be considered for purposes of determining the existence of ‘substantial and compelling’ circumstances as required by section 51 of the Act. Specifically, the factors which arise for consideration are that the accused is a first offender, that he tendered a plea of guilty, that no violence or threat thereof was inflicted upon the rape survivor and that he has spent nearly twelve months in custody as an awaiting trial prisoner. In addition, there is discussion of sexual abuse within the family, specifically rape by a stepfather of a stepdaughter, and the so-called ‘grooming process’ frequently utilized to achieve such ultimate abuse. The so-called ‘grading process’ of rapes into ‘worst’ or other cases of rape also merits attention.

BACKGROUND

3. Information as to the circumstances of these two offences are sparse and contained in evidential material which is accorded greater or lesser weight depending on the nature thereof. The plea statement tendered by the accused in terms of Section 112 of the Criminal Procedure Act and his evidence at the sentencing stage were accepted by the state. The report and testimony of a social worker, Mrs. Vergeer, who interviewed the accused, his wife and one stepdaughter were commissioned by the defence and not challenged in court. ² The report and testimony of a social worker, Mrs. Van Der Walt, who interviewed N and her mother was commissioned by the state and not disputed by the defence.

4. The circumstances giving rise to these convictions may be briefly summarized. Mrs Shaw was married and had two daughters, N and L. Her husband was physically abusive of her and their daughters and the marriage dissolved in divorce. N father is not a part of her life. However, her grandparents on the West Rand are apparently close to N and supportive of her.

5. Mrs Shaw married the accused in October 2002 when N was about twelve years old and her sister somewhat younger.. Initially the relationship between the stepfather and the stepdaughters was a friendly one.

6. N informed Mrs Vergeer that the accused engaged in sexually inappropriate behavior with L who rebuffed him and reported this to her mother. There were no further such incidents. There is no evidence that the mother of the children remonstrated with or threatened her husband or that she ever checked with N if she had been the victim of any inappropriate behaviour at the hands of her stepfather.

7. During 2005 N wrote an undated letter to her school teacher. Portion thereof states

“Ek het hulp nodig, en ek kan nie meer soos ’n harlekyn lewe nie. Ek wou dit al lankal met juffrou deel, maar was bang en het nie geweet hoe om dit met juffrou mee te deel nie......

Ek is bang daarvoor om in die aande by die huis te wees. Ek maak ook seker dat ek in die middae naskool met naskoolse aktiwiteite besig is, my huiswerk doen en boeke lees. Dit is nie genoeg nie en ek het ‘n begeerte om so veel moontlik van die huis weg te wees. Ek gaan draf met my hond en skryf stories, gaan na Elsa Venter se huis toe en help haar met haar werk, maar ek is steeds bang om huis toe te gaan. Alles wat ek doen om my gedagtes weg te kry van die probleem help nie.

Ek soek plekke om weg te kruip vir my stiefpa, maar hy kry dit altyd. Die gevolg is dat ek nie meer weg kruipplek het nie. Ek word al hoe banger vir hom en hardloop die heeltyd agter my suster of my ma aan sodat ek nie alleeen saam met hom in ‘n vertrek is nie. Hy kry egter altyd ‘n manier om my alleen te kry Daardeur dwing hy my om opstandig te word – wat absoluut nie in my geaardheid is nie – en my ma dink nou dat ek ‘n rebel word. Ek verloor deesdae my humeur maklik en raak gou geirriteerd.

Ek het al baie hieroor gebid en gehuil, selfs slapelose nagte gehad, maar niks het verander nie. My pa wou my nog nie uitlos nie. Ek wou met eimand daaroor praat, maar het nie die krag gehad nie omdat dit vir my gevoel het of niemand na my sal luister nie.

Ek het Chantelle Coetzee laat weet, maar nie reguit vir haar gesê dat hy met my lol nie. Ek het indirek daarop ingegaan met die hoop dat sy vir eimand sal se, maar dit het nie gehelp nie. Daaarom het ek besluit om maar te skryf . dit pla my al lank en weerhou my daarvan om my beste te gee op die vlakke waarop uit blink.

8. This resulted in intervention by the school and school social worker, an investigation by the SAPS, arrest of the accused and prosecution.

9. The accused entered a plea of ‘guilty’ and tendered a statement which admitted that

“Gedurende Desember, 2004 te Januarie 2005, en te Kempton Park,... was ek by my huis gewees. Die klaagster in die saak is my vyftienjarige stiefdogter N. Sy was saaam met my by my huis gewees. Op ‘n dag tussen die tydperk vermeld... was die klaagster in haar slaapkamer. Sy het op die bed gele en na musiek geluister. Ek het by haar op die bed gaan sit en met haar gesels. Na ‘n wyle het ek langs haar gaan le. Ek het haar begin soen en betas en het haar klere uitgetrek. Die het vir my voorgekom asof sy haar teensit maar sy het niks gesê nie. Ek het toe wederregtelik en opsetlik met N vleeslike gemeenskap gehad sonder haaar toestemming.

Op n dag in die tydperk Maart tot April ... was ek by my huis in Kempton Park. Die klaagster N ‘n vyftienjarige meisie het by ‘n tafel gesit en werk. Ek het agter haar gaan staan en in die nek begin soen. Ek het haar betas, het haaar na haar slaapkamer geneem waar ek haar ontklee het. Ek het hierop wederregtelik en opsetlik met genoemde N vleeslike gemeenskap gehad sonder haar toestemming.”

MINIMUM SENTENCE LEGISLATION

10. Act 105 of 1997 provides for the imposition of minimum sentences of imprisonment in respect of specified offences.³ The provisions of section 51 are peremptory.⁴ As stated by the Supreme Court of Appeal in S v Malgas 2001 ( 1) SACR 469 ( SCA) at page 481i “Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.”

11. The sentencing court is required to impose the sentences now prescribed for these particular offences which sentences are the benchmark or standard against which appropriate and just punishment is to be measured. “The legislature aimed at ensuring a severe, standardised and consistent response from the courts to the commission of such crimes, unless there were, and could be seen to be, truly convincing reasons for a different response” ⁵ . The courts should respect and “not merely pay lip service to, the legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed” ⁶. The provisions of the Act “create a legislative standard that weighs upon the exercise of the sentencing court's discretion.” ⁷

12. Parliamentary debates⁸ on the Bill confirm the understanding by the Supreme Court of Appeal that the intention of the Legislature is that what is required is a “severe” and “standardised” response to certain offences. In introducing the Bill the then Minister of Justice referred to

“ Firstly, there is a public demand for more stringent punishment for convicted offenders. Secondly the introduction of the minimum sentences will help to restore confidence in the ability of the criminal justice system to protect the public against crime. Thirdly, the introduction of a minimum sentence confirms the government’s policy - and I hope this is the view of the parliament – which aims to curb the increasing crime rate and to protect the community against criminals. …… Fifthly, and most importantly, these provisions relating minimum sentences are designed to ensure that our courts are able to deal effectively in terms of sentencing, with the kinds of serious crimes which we have witnessed in our country and which our people unfortunately will experience.”

10. The Bill received unanimous support from the House with speakers from all parties referring to the attempt to “send to various messages, is that we can and will no longer tolerate sentences that are lenient in regard to sexual offence” and

“We are doing this because we believe that it is essential to send a strong message to the rampant criminal community that crime will no longer pay in South Africa and that criminals will have to pay a heavier price for their beastly deeds, but not the ultimate price.”

10. That Parliament’s concern about the perceived leniency and varying responses of sentencing courts was not unfounded has been confirmed by a recent study of 66 reported judgments of the High Court and Supreme Court of Appeal spread over 58 years which indicates that rape, “as a unique form of deviant social behaviour” ⁹, met with varying approaches and different responses from the superior courts with sentences varying from entirely suspended sentences to fines to periods of imprisonment. ^{10 11}

11. Section 51 (3) of the Act empowers the sentencing court to enquire into the existence or otherwise of ‘substantial and compelling circumstances’ which would justify the imposition of a lesser sentence than that prescribed by Statute. The court is to measure “the ultimate impact of all the circumstances relative to sentencing “ and where they “cumulatively justify a departure from the standardised response that the legislature has ordained’ , then the sentencing court may so deviate.

“A court is required to spell out and enter on the record the circumstances which it considered justified a refusal to impose the specified sentence. …. Those circumstances had to be substantial and compelling. Whatever nuances may lurk in those words, their central thrust seems obvious. The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny.” ¹²

10. There is little concrete guidance regarding the interpretation of the term ‘substantial and compelling circumstances’. ¹³ The discretion to deviate from the prescribed sentence has been linked to an individual sentencing judge’s recognition of “an injustice”. Possibly it is this discretion that appears to be giving rise to a vague categorisation of the seriousness of the most serious crimes ¹⁴ .

11. In determining the presence or absence of ‘substantial and compelling circumstances’ the sentencing court is required to give due regard to those facts traditionally considered as ‘mitigating’ and ‘aggravating’.

“..I can see no warrant for deducing that the legislature intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders. The use of the epithets ‘substantial and compelling’ cannot be interpreted as excluding even from consideration any of those factors. … What they are apt to convey, is that the ultimate cumulative impact of those circumstances must be such as to justify a departure. It is axiomatic in the normal process of sentencing that, while each of a number of mitigating factors when viewed in isolation may have little persuasive force, their persuasive impact may be considerable.”¹⁵

10. A recent study has examined which of the factors which have been taken into account for these purposes ¹⁶. Aggravating factors are those which refer to circumstances which relate to the commission of the crime ¹⁷, the accused ¹⁸, society’s interests ¹⁹ and the interests of the child victim ^{20 21}. Mitigating factors are similarly circumstances related to the commission of the crime ²², the accused ²³, interests of the victim ²⁴.

11. At the end of the day, the import of the legislation is clear and has been stated in Abrahams supra

“The prescribed sentences the Act contains play a dual role in the sentencing process. Where factors of substance do not compel the conclusion that the application of the prescribed sentence would be unjust, that sentence must be imposed. However, even where such factors are present, the sentences the Act prescribes create a legislative standard that weighs upon the exercise of the sentencing court's discretion. This entails sentences for the scheduled crimes that are consistently heavier than before.” ²⁵

RAPE MORE THAN ONCE

10. Amongst the categories of rape targeted for life imprisonment in Part I of Schedule 2 are those “committed ... in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice” ²⁶ and where the rape is committed “by a person who has been convicted of two or more offences of rape, but has not yet been sentenced in respect of such convictions”.²⁷

11. The state submitted that this accused is liable to imposition of a life sentence of imprisonment on more than one ground. N was under the age of 16 years at the time she was raped and the accused has been convicted of raping her twice, once in December 2004 and once in March 2005.

12. There are few comments on these circumstances attendant upon such rapes in the reported authorities.

13. In R v Mahomotsa 2002(2) SACR 435 SCA the accused had raped his victim several times on each of the separate occasions that he had kidnapped her. The court commented that if he had not raped her more than once on the occasion of the first abduction and not raped her more than once on the occasion of the second abduction then “then the prescribed sentence of life imprisonment would not have come into the reckoning.” ²⁸ In S v Kimberley and another 2005(2) SACR 663 SCA, the court commented that

“ The 'mischief' which the Legislature sought to deal with, in my view, was the situation where a woman is subjected to multiple rapes either by one person or by any 'co-perpetrator or accomplice’. In any event, insofar as the wording of paras (a)(i) and (a)(ii) may not be clear, it is trite that a court will interpret the paragraphs so as to render an interpretation least harsh to the affected person (see, for example, A Principal Immigration Officer v Bhula 1931 AD 323 at 336 - 7). Similarly a statutory provision which is not clear and which changes the common law will also be restrictively interpreted (see, for example, Casserley v Stubbs 1916 TPD 310 at 312). More particularly statutes which prescribe minimum sentences, such as the statute here under consideration, thus eliminating the usual discretion of a court to impose a sentence which befits the peculiar circumstances of each individual case, will usually be construed in such a way that the penal discretion remains intact as far as possible (Du Plessis The Interpretation of Statutes para 23.3 at 75).” ²⁹

10. To my mind the wording of the descriptions and categorizations of the circumstances of these rapes is clear and without ambiguity or confusion. What is proscribed is rape by the same rapist of the same rape victim on more than one occasion. All that is required is that the rapes are repeated. It matters little whether the rapes are separated by hours or days or weeks or months.

11. This accused raped his stepdaughter more than once with an intervening period of approximately two to four months. This accused has been convicted of one rape committed in in December/January and another rape committed in March or April and is only now being sentenced therefore. Accordingly, I must conclude that this accused is liable to imposition of the sentence prescribed by the Statute not only on the grounds that N was, at all times, under the age of 16, but also that he raped her more than once and that he has been convicted of two offences of rape but has not yet been sentenced.

PERSONAL CIRCUMSTANCES OF THE ACCUSED

10. The accused was born on 22 October 1943. He completed grade 10 and was employed for many years in the private sector as a cabinet maker and thereafter by South African Railways. Immediately prior to his arrest he was employed as a manager in the private sector.

11. The accused’s first marriage produced two children and terminated in divorce. I note that these children were present in court.

12. The accused’s second marriage took place in 2002. The accused’s stepdaughters were approximately twelve and 9 years old when he married their mother. The accused testified that he occupied the role of a father to them, their own father being entirely absent from their lives. He stated that he considered this role to be one of providing love and support and protection.

13. The accused, his wife and stepdaughters all attended the Seventh Day Adventist Church. The Minister informed the social worker, Mrs Vergeer, that he had not suspected anything untoward was going on but that he would provide support to the family and counseling to the whole family.

14. The accused is a first offender. He has been in custody since 13^th June 2005.

SEXUAL ABUSE WITHIN THE FAMILY - RAPE OF A STEP-DAUGHTER

10. It is trite that rape is “a very serious offence constituting as it does a humiliating, degrading and brutal invasion of the privacy, dignity and the person of the victim” (S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 SCA), a “cancer in our society” (S v Swartz and another 1999(2) SACR 380 CPD) and “an appalling and outrageous crime” which violates a “woman’s body [which] is sacrosanct”( S v Ncheche 2005(2) 386 W ). The seriousness of the present instances of rape are compounded by the age of the victim, the relationship of the accused to the victim and the rape of the child in her own bedroom.

11. Child sexual abuse has been defined as “the involvement of dependant, developmentally immature children in sexual activities that they do not fully comprehend, or to which they are unable to give informed consent, and that violate social taboos concerning family roles.” ³⁰ In the international arena, age difference and the use of force are explicitly taken into account ³¹. Physical contact is not a prerequisite to sexual abuse and thus the process of grooming, which is inherent in the preparation of sexual crimes where the adult involved uses no physical force, is more and more being recognized ³².

12. The evidence of both social workers is that the relationship between the accused and his stepdaughters was initially a friendly one. These children and their mother had emerged from a physically abusive home and the accused offered safety and security.

13. In his plea statement, the accused said that it appeared that N was unwilling to have sexual intercourse with him but that she had not said anything. The accused testified that he did not know how he allowed the rapes of his stepdaughter to happen. He could only comment that his emotions ran away with him. He said that he did not think through what was happening or what he was doing.

14. Mrs Vergeer intimated that the accused promised or actually tendered rewards to N while Mrs van der Walt referred to the ‘grooming process’ which was apparently underway. Such ‘grooming’ is a psychological process used by the paedophile to access his victim(s). Neither of the experts diagnosed the accused as a paedophile and it would appear that this is not within their area of competency. Accordingly, I make no such assumption about this accused.

15. However, writings on research into the ‘grooming process’ assist in understanding how repeated physical or even sexual contact between the accused and one of his stepdaughters could culminate in rape. South African courts have interpreted the absence of evidence of undue influence, threats or promises to persuade the child to allow physical interaction as mitigating. ³³ Our courts have not always had the benefit of information on this grooming process and tend to look for violence in the normal sense of the word or undue influence on the part of the perpetrator to persuade victims to ‘allow’ him to start touching or fondling them. ³⁴ .

16. It has been explained that the sex offender tends to rely on befriending a child and gaining a hold over him or her, thus allowing the offender to control the victim³⁵. Grooming is difficult to define but it is explained as an ongoing process aimed at the child accepting sexual activities. “Grooming is a transient feature that is difficult to capture and virtually impossible to decide when it begins and ends. What is more certain is that grooming is neither new, nor restricted to online behaviour. It is generally seen as a cycle of abuse, and can include for example befriending a potential victim to allow the child the acquiesce to sexual activity” The grooming aspect involves an aspect of deceptive trust created by the offender and manipulation of the child by the adult. ³⁶ . It is the fact that one of the parties to the relationship is in such a position of power over the other that renders such sexual activity morally wrong and punishable within the realms of the criminal law ³⁷ .

17. It is notable that N’s first open cry for help to an adult referred to her “pa” and to her “stiefpa”. The accused, himself, acknowledged that his role was one of parent to the child he had raped. It is even more notable that her letter spent much time on her vulnerability at home and her inability to find places to hide from her stepfather.

18. The accused occupied a position of power in relation to his stepdaughter. She was vulnerable to his seniority in age and familial standing, his affinity with her mother who was the only other adult in the home, his role as paterfamilias in the home and family. This was appreciated in S v Jansen 1999(2) SACR 368 CPD where was said that “rape of a child is an appalling and perverse use of male power”; S v Swart 2000(2) SACR 566 SCA where reference made to how the rapist “ exploited to the full the position of power which he held over them”: in S v G 2004 (2) SACR 296 (W) where the court commented ““She was raped in the safety of her own home by a person towards whom she was affectionate, and from whom she was entitled to expect protection. The accused has violated the trust which the complainant and her mother placed in him”; in S v P 2000(2) SA 656 SCA where the court commented how a grandfather had “violated that love and abused that position of trust”.

19. In S v Abrahams 2002 (1) SACR 116 (SCA), the court was concerned with the rape of a pubescent child by her father. The court stated,

“Of all the grievous violations of the family bond the case manifests, this is the most complex, since a parent, including a father, is indeed in a position of authority and command over a daughter. But it is a position to be exercised with reverence, in a daughter's best interests, and for her flowering as a human being. For a father to abuse that position to obtain forced sexual access to his daughter's body constitutes a deflowering in the most grievous and brutal sense. That is what occurred here, and it constituted an egregious and aggravating feature of the accused's attack upon his daughter.”

The court referred to a number of features applicable to rape within the home.

“Firstly, and obviously, a family member is also a member of the wider public and equally obviously as deserving as the rest of the public of protection against rapists, including those within the home. Indeed, where a rapist's victim is within his family, she constitutes the part of the public closest to, and therefore most evidently at risk of, the rapist.

“Second, rape within the family has its own peculiarly reprehensible features, none of which subordinate it in the scale of abhorrence to other rapes. The present case illustrates them with acute force. The rapist may think the home offers him a safe haven for his crime, with an accessible victim, over whom he may feel (as the accused did) he can exercise a proprietary entitlement. Though not the case here, a family victim may moreover for reasons of loyalty or necessity feel she must conceal the crime. A woman or young girl may further internalise the guilt or blame associated with the crime, with lingeringly injurious effects. This is particularly so when the victim is the rapist's own daughter, and the more so when the daughter is of tender years.

“ Third and lastly, the fact that family rape generally also involves incest (I exclude foster and step-parents, and rapists further removed in family lineage from their victims) grievously complicates its damaging effects. At common law incest is still a crime. Deep social and religious inhibitions surround it and stigma attends it. What is grievous about incestuous rape is that it exploits and perverts the very bonds of love and trust that the family relation is meant to nurture.”

“ 'Love' thus expressed becomes the negation of love, and the violation of the trust that should sustain it extreme. Its effects may linger for longer than with an extra-familial rape.” ³⁸

10. These sentiments are equally apposite as regards the actions of this accused and the position in which he placed his stepdaughter.

FAMILY RESPONSE

10. A particularly disturbing feature of this case has been the family dynamics attendant upon the rapes of this child and the prosecution of the rapist stepfather. Information on these issues emerges from the testimony of both social workers.

11. It should be noted that Mrs Vergeer did not consult with N when conducting her investigation and preparing her report and only briefly before testifying at court. She explained that N had been seeing Mrs van der Walt and she, Mrs Vergeer, did not want to subject N to a repetition of exactly the same process with the same questions. N underwent both the Bender Gestalt and TAT tests with a colleague of Mrs van der Walt which results were incorporated into the report prepared by Mrs van der Walt after some 23 counselling sessions with N.

12. Both social workers were adamant that it would not be in N’s best interests for her to be called to testify in court. I accepted their expert opinions and advice in this regard.

13. Mrs Vergeer provided important insights into the family dynamics which confirm and explain the understanding and opinion of Mrs van der Walt with regard to N’s current anxieties. Not surprisingly, these centre upon the response of N’s mother (who is also the wife of the accused) to family relationships and the rapes of her daughter by her husband. Mrs Muller did not testify.

14. Mrs Vergeer commented that the particular family structure allowed relationships to develop and behaviour to emerge which facilitated these rapes. There is no evidence that N’s mother knew of what was going on but, in the absence of a strong and protective parent, these rapes were ‘allowed’. The family of a mother and two daughters had exchanged the physical abuse of a husband and father for the sexual abuse by a stepfather. This particular child found herself in a family paradigm with it’s own values and methodology and she found herself unable to struggle against and change it.

15. Mrs Vergeer’s report and her testimony was strongly suggestive that there is a most unpleasant history and background to the rapes of which the accused has been convicted. It would appear that this has not been fully investigated by the SAPS or, to the extent that this is their task, by either of the social workers. Absent evidence and absent the opportunity for the accused to challenge and test any such evidence I cannot assume that these rapes were prefaced or situate in a context of ongoing inappropriate behaviour or sexual abuse of N and her younger sister. I do not so assume and the accused is not viewed as man who preyed upon both his stepdaughters over any lengthy period of time. This court has evidence only of the two rapes and N’s response thereto.

16. Insofar as the revelation by N to her teacher of the life she had been living and the actions to which she had been subjected, it is noteworthy that she had not sought help or protection from her mother or from the Minister of the church attended by the family. On the one hand this is explained by her fear that she would not be believed by anyone while on the other hand it corroborates the understanding that she and her mother are unable to communicate on important issues. Mrs Vergeer told the court how N related there had been a previous incident involving N’s sister but I was never told that N’s mother had intervened to protect either of her daughters – by investigating the matter, remonstration with the accused or his eviction from the family. Mrs van der Walt testified that N had no trust in her mother, obviously having lost any trust in the accused.

17. Both Mrs Vergeer and Mrs van der Walt quite independently expressed concerns about the attitude of N’s mother, who is the wife of the accused, to the report by N of the rapes perpetrated upon her. Mrs Muller apparently believes that this situation could have been handled by the family without a criminal prosecution. She feels that the family has been disrupted by the so-called ‘professionals’ who have set N against her parents with the result that the mother feels totally excluded and the whole family has been traumatized. It is the fault of the school and the social worker that these events resulted in a criminal prosecution of her husband.

18. Specifically, Mrs Muller had now made a complaint to the professional council with which Mrs van der Walt is registered and had given instructions that N was not allowed any further counseling with Mrs van der Walt. As the upper guardian of N, I have already overruled this instruction. I have made an order that Mrs van der Walt is permitted to consult with and counsel N to the extent and as often as she deems necessary . I ordered that there must be at least two further sessions. At the first session Mrs van der Walt was to report back to N on what had happened at court and on her evidence. She was to relay to N from myself the message that she is a brave young woman who has acted as she should have done in making the report to her teachers; that not only has she ended the abuse of herself but perhaps protected others; that her values and sense that she is entitled to the privacy of her body is absolutely correct and that no one is to suggest otherwise; that she is not to feel degraded or ashamed in any respect; she remains as ‘virginal’ as anyone else in both body and soul; that she is entitled to feel proud of how she has tackled this very difficult issue. The second session is for Mrs van der Walt to explain and discuss the judgment of the court with N and to work through the implications thereof.

19. The response of the mother of the complainant and the wife of the accused has is cause for some concern. It explains Mrs van der Walt’s opinion that N now feels burdened with responsbility for the fate of her stepfather. Mrs van der Walt refers to the manipulation of N’s mother in this regard while Mrs Vergeer testified as to the emotional dependency of the mother who cannot function independently of her husband, her daughter’s rapist.

20. It is apparently Mrs Muller’s view that the Bible enjoins forgiveness and the corollary is that, with forgiveness, the accused should return home. Mrs Muller reported to Mrs Vergeer and the accused testified that N had visited him in prison and had forgiven him. Mrs van der Walt testified that N told her this was done at the instance of her mother (who obviously took her to the prison and was present throughout) and that the contact with her stepfather left her uncertain and anxious. Mrs van der Walt testified that N verbalized that she had forgiven her stepfather but this appeared to be an expression of an expected attitude and not necessarily her own freely expressed and genuine opinion.

53. The accused’s wife specifically reported to Mrs Vergeer that N merely wanted her stepfather to ‘stop’ and does not want the accused to be imprisoned. It was the fault of the school that this matter had escalated when it could have been resolved quietly within the family. Mrs van der Walt testified that she had not pressed N to express a view on possible sentence but that N had expressed the view that she considers her relationship with her stepfather to be totally broken. Apparently N had told Mrs van der Walt that she sees her stepfather’s return home as inevitable and merely a question of time because of her mother’s attitude towards what had happened.

54. It is my view that N should not be further burdened by being required to express any preference for the sentence to be imposed upon her stepfather. The law would not permit her to assume this responsibility which is mine alone. Common decency requires that this should not be asked of her.

55. The question is to what extent the repercussions upon N should play in determination of an appropriate sentence. Should the court ensure that N’s mother does not further penalise her by imposing a sentence which meets the needs of and the approval of the mother? Differently put, should the court fail to carry out the prescripts of the Statute in order to protect N from further victimization by her mother who does not want the prescribed sentence, or any sentence of imprisonment, to be imposed on her husband.?

56. The answer must be that this court cannot attempt to resolve what has been described as the ‘pathology’ within this family by imposing a sentence that pleases the mother and fails to meet the requirements of the Statute, do justice to the accused, acknowledge the impact upon the complainant and represent the views of broader society. This court cannot reinforce the existing pathology and pander to the failures already exhibited within the structures of this family. The sentencing court regrettably cannot protect N from the misguided beliefs and responses of her mother by abdicating it’s responsibilities as a sentencing court.

COMMUNITY RESPONSE

53. It may be that rape of children is now viewed more seriously than it was in the pre-Constitutional stage of our criminal legal process ³⁹. It is now recognized that a rape victim’s or rape survivor’s fundamental rights to dignity, privacy, security of the person and freedom of abuse are all infringed ⁴⁰. It may therefore be argued that the Constitution provides some impetus towards greater recognition of the interests of the victim in the sentencing stage.

54. South African courts do reflect the views of the broader community when stating “the courts must show no mercy who to those who seek to invade those rights” ⁴¹, “the community at large expects our courts to punish rapists very severely” ⁴² , “the sentence imposed is to shout out to society that rape was unacceptable” ⁴³ and “the courts in punishing, should ensure that sentences adequately reflect the censure which society should and does demand, as well as the retribution which it is entitled to extract” and “the community is entitled to demand that those who perform such perverse acts of terror be adequately punished” ⁴⁴ and “ a clear message is to be sent to society, both by parliament and the courts alike, that serious crime will be punished severely” ⁴⁵

55. The Legislature has responded to the perceived demands of the broader community when it identified all acts of rape as deserving of exemplary punishment. No act of rape is excluded from the minimum sentencing provisions.

56. Act 105 of 1997 encompasses all acts of rape in their multiplicity of horrors. Part I of schedule 2 categorizes rape according to the circumstances of the rape (namely rapes where the victim was raped more than once or by more than one person or by a person who has committed more than one rape or by a person who knows that he is HIV positive or has AIDS) or according to the vulnerability of the rape victim (namely where the victim is under 16 or physically or mentally disabled) or according to the results of the rape (namely where grievous bodily harm is inflicted). Such rapes are ordinarily to be punished with life imprisonment. Part III of Schedule 2 refers to all other acts of rape for which the Legislature has prescribed sentences of imprisonment dependant upon whether the rapist is a first offender (imprisonment for not less than 10 years), a second offender (imprisonment for not less than 15 years) or a third or subsequent offender (imprisonment for not less than 20 years). ⁴⁶

57. The Statute explicitly brings each and every act of rape within the purview of the minimum sentencing regime, clearly identifies which rapes are to be penalized by life sentences of imprisonment and which rapes are to be penalized by finite sentences of imprisonment of which the duration is dependant upon the absence or presence of previous convictions for such rapes.

SUBSTANTIAL AND COMPELLING CIRCUMSTANCES

53. It is has been submitted on behalf of the accused that the cumulative impact of certain factors justify a finding that ‘substantial and compelling circumstances’ exist which support a departure from the Statutorily prescribed minimum sentence of life imprisonment. These are firstly that the accused is a first offender, secondly that the tendered a plea of ‘guilty’, thirdly that he did not inflict serious or other bodily injury upon his victim and fourth, that he has spent nearly a year in custody awaiting sentence.

First Offender

53. The accused has no previous convictions. That an accused person is a first offender and has no previous criminal convictions or no convictions relevant to the offence under consideration, has traditionally been taken into account for the purpose of sentencing. ⁴⁷ This has been considered to be of particular significance where an accused person has reached mature years as has the accused in the present case .⁴⁸

54. Where the Statute provides, in section 51(2) (b), for different sentences of imprisonment dependant upon whether the rapist is a first, second, third or subsequent offender, it is clear that the Legislature has taken into account that there may be a lesser degree of moral blameworthiness on the part of first offenders. The Statute expressly permits the absence or the presence of previous offences to determine the parameters of the prescribed sentences. However, this differentiation is allowed only in respect of particular kinds of rapes – those set out in Part III of Schedule 2.

55. The Legislature has not made the same allowance for first offenders when it comes to the categories of rape dealt with under Part I and section 51(1). The Statute prescribes one sentence for all rapists convicted of rape or rapes which fall within the categories or circumstances described in Part I irrespective of the rapist’s previous clean or sullied criminal record. When one rapes a girl under the age of 16 years, the Statute does not provide for a sentence for first offenders which is different from those provided for second and subsequent offenders.

56. The Legislature has clearly expressed it’s intention in respect of both Part I and Part III categories of rape. ⁴⁹ For the one category, one’s previous criminal record is relevant for purposes of sentencing and for the other category it is not. The contrast between the sentencing regimes speaks for itself.

57. It seems to me that where the Legislature has so clearly and carefully distinguished between the penalties prescribed in sections 51 (1) and (2) for the categories of offences set out in Part I and Part III, that the maxim, expressio unius est exclusio alterius (sometimes expressed as expressio facit cessare tacitum – ‘that which is expressed puts an end to that which is silent’) would guide towards an interpretation that the express mention of first offenders in section 52 excludes consideration of first offender status in application of section 51. Of course, such implied exclusion can only be warranted if it is clearly shown by the context of the legislation to have been intentionally excluded and the exclusion does not lead to inconsistency or injustice. It is my view that the context does so indicate and inconsistency and injustice do not result from such a reading.

58. However, the courts have given consideration to a previously clean criminal record in determining the existence or otherwise of ‘substantial and compelling circumstances’ ⁵⁰. I do not propose to depart from that approach, endorsed by the highest courts.

59. I take into account that this accused has no previous convictions and that he is a man in his fifties. However, I must also take into account that there is no authority for the proposition that the previous clean record of an accused convicted of offences in Part I of Schedule 2 constitutes, in and of itself, a ‘substantial and compelling circumstance’. At most it would be one of the considerations taken into account for exploring the possibility that, in conjunction with other factors, it may persuade the sentencing court to make such a finding.

Tendering a plea of “guilty”

70. In the present case, the accused tendered a plea of ‘guilty’ and he testified that he did so because he did not want N to have to go through the trauma of a court case.

71. One must be mindful that this reasoning means no more than that the accused did not lie in court about that which he had done, the truth of N’s allegations against him were not disputed by the very person who knew her complaints to be true, the events to which N could have testified were not challenged by the person who knew they were unchallengeable. Further, one must not forget that the accused had already exposed N to the trauma of a rape in her own bedroom by her stepfather in December/January 2004 and again perpetuated the same trauma on N in March/April 2005. His concerns for N now ring a little hollow. Finally, in pleading guilty and tendering a plea statement in terms of section 112 of the Criminal Procedure Act, the accused determined the parameters of the evidence against him.

72. The tendering of a plea of guilty has frequently been taken into account by the sentencing court as a mitigating factor. The mitigation has been found in the fact that the accused has “not wasted the time of the court” or that it is an expression of remorse.

73. Tendering such a plea can, of course, indicate a multiplicity of realties and approaches thereto by an accused. It may simply mean that that the case against the accused is overwhelming and uncontestable and “The plea does not necessarily imply anything more than that the accused is realistic.” ⁵¹

74. Where such a plea is sought to be interpreted as indicating ‘remorse’, a court should be astute to inquire whether or not a plea of guilty really indicates remorse and, if so, for what ? Is there remorse in the sense of “deep regret or guilt” ⁵² for the wrong done? Is there distress that the accused has been caught and the consequences of criminal action are now to be visited upon him? As stated in S v Martin supra

“For the purposes of sentence, there is a chasm between regret and remorse. The former has no necessary implication of anything more than simply being sorry that you have committed the deed, perhaps with no deeper roots than the current adverse consequences to yourself. Remorse connotes repentance, an inner sorrow inspired by another's plight or by a feeling of guilt, eg because of breaking the commands of the higher authority.”

70. The court should investigate the “ intensity, longevity and foundation”⁵³ of the proclaimed remorse to determine if it is sincere ⁵⁴ and whether it is “regret at having been caught” ⁵⁵ or whether it is contrition for what was done and constitutes part of “an undertaking not to commit the offence again”. ⁵⁶

71. In the present instance, all the court has upon which it can judge the genuineness of otherwise of the accused’s so-called remorse is the guilty plea offered by him. By itself this is an insufficiently demonstrable manifestation of genuine remorse⁵⁷. After all this admission of guilt was only made after he had been arrested and prosecuted . ⁵⁸

72. This accused first raped his step-daughter during December 2004 or January 2005. If he had repented what he had done and wished to act upon that contrition, then a number of avenues were then and thereafter available to him. Inter alia he could have confessed to his wife or to the South African Police Services; he could have sought therapy or counselling; he could have sought guidance from the minister of the church attended by him and his family; he could have left home or town in order to avoid perpetrating further abuse upon his step-daughter. As it turned out he resorted to none of these solutions. His conscience failed to provoke any steps whatsoever to avoid further criminal action. During March 2005, the accused perpetrated another act of rape upon his step-daughter.

73. In the circumstances there are no facts upon which one could conclude that the accused experienced any regret for what he had done or that any feelings of self-reproach compelled him to take any action to expiate his guilt or avoid any further such acts of assault and violation. If this plea was an indication of remorse at time of trial then it was solely initiated by the allegations of the rape victim, his arrest and his prosecution. Regret and remorse did not emanate from the accused’s conscience but from outside agencies.

74. As was pointed out in S v Landau 2001 (2) SACR 673 W

“ From all the evidence it is clear that appellant's conscience did not unduly trouble him during the course of committing these frauds and that he never considered stopping the practice until he realised that Liberty Life had become aware of what he was doing and was on his tracks. This was not the conduct of a man who finds himself on a 'slippery slope' and who is unable to stop nor is it indicative of a person who showed any remorse or regret for the course of action upon which he had embarked.”( page 677 )

“Courts often see as significant the fact that an accused chooses to 'plead guilty'. This is sometimes regarded as an expression on the part of the accused of genuine co-operation, remorse, and a desire not to 'waste the time of the court' in defending the indefensible. In certain instances a plea of guilty may indeed be a factor which can and should be taken into account in favour of an accused in mitigation of sentence. However, where it is clear to an accused that the 'writing is on the wall' and that he has no viable defence, the mere fact that he then pleads guilty in the hope of being able to gain some advantage from that conduct should not receive much weight in mitigation of sentense unless accompanied by genuine and demonstrable expression of remorse, which was absent in casu” (Page 678)

70. Accordingly, I cannot find that the plea of ‘guilty’ tendered by the accused in these circumstances is a factor which assists in finding that ‘substantial and compelling circumstances’ should be found to exist.

71. There is a further consideration which deserves mention. The Constitution affirms that every accused person is presumed innocent until proven guilty, entitled to enter a plea of not guilty, to exercise the right to silence and to have a fair trial which includes the right to challenge and adduce evidence. ⁵⁹ It would be cause of some concern if the courts were to penalize persons who chose to exercise these Constitutional rights and advantage those who elected not to utilize their Constitutional rights.

72. On the one hand, a court should not see it as an aggravating factor for sentencing purposes that an accused, inter alia, elected to exercise his right to plead ‘not guilty’ and insist upon the prosecution proving it’s case against him. It can never be said that an accused is ‘wasting the court’s time’ since after all, it is the task of courts to spend as much time as is needed on every criminal case in an endeavour to ascertain the truth and do justice by society at large, the individual complainant and the accused person. Constitutional rights do not exist only for the innocent. Where a person is found guilty after having tendered a plea of ‘not guilty’ and received a fair trial, he or she should not be penalized for exercising his or her Constitutional rights. On the other hand, should an accused who elects to plead ‘guilty’ and not exercise certain of his or her Constitutional rights be advantaged by having such plea considered a mitigating factor when it comes to sentence ? To do so, immediately disadvantages the accused who did exercise his rights and pleaded ‘not guilty’. The one is the converse of the other. To reduce the sentence of a person, who has not chosen to rely on his Constitutional rights, is to increase the sentence of a person who has chosen to rely upon and insisted on exercising his Constitutional rights. Surely, this vitiates the value of those Constitutional rights ?

Absence of the use of violence or of bodily injury

70. It has been submitted that no violence was used and N did not sustain any grievous bodily harm in the course of either rapes perpetrated upon her by her stepfather.

71. It is difficult to comprehend how this could be relevant or mitigating in circumstances where no violence or threat of violence was needed by the rapist to achieve his deeds. As was pointed out by Borchers J in S v G 2004 (2) SACR 296 (W) “ a physically immature child of ten is no match for an adult man, and little violence was needed to achieve his purpose”. Similar considerations apply where the rape victim is a girl of 14 years old and the assailant has the additional power of paternal status in the family home where he simply enters her bedroom and lies on her bed or takes her from the table where she is doing her homework to the bedroom.⁶⁰

72. There have been judgments which have suggested that it is a mitigating factor that no weapon was used and no violence was threatened or enacted upon the rape victim.^{61 62} In S v E 1992 (2) SACR 625 A, the court held that that the absence of violence or coercion was not mitigating. ⁶³

70. However, th e courts have not explicitly indicated whether or in what manner this could or did constitute, alone or in combination, a ‘substantial and compelling factor’ sufficient to justify departure from the sentence prescribed by Statute.

71. A careful reading of the judgments gives no indication that the courts have been furnished with argument on or reference to the category of rape in subsection ( c) of Part I of Schedule 2 which provides that rape “involving the infliction of grievous bodily harm” attracts the prescribed minimum sentence of life imprisonment. This description of the circumstances attendant upon the perpetration of a rape constitutes an independent criterion which renders the rapist liable for the prescribed minimum sentence. ⁶⁴

72. Part I of Schedule 2 has identified separate, discrete and independent categories of rape, each of which result in the imposition of a life sentence of imprisonment. The Statute requires the existence of only one of the specified jurisdictional factors set out in Part I for the minimum sentence provisions to be triggered. The Legislature does not require that one jurisdictional fact (infliction of grievous bodily harm) is present before another jurisdictional fact ( rape of a girl under the age of 16) renders the minimum sentence provisions of application. Neither of these criteria are linked to or dependant upon any other criteria which categorise or describe the particular circumstances of the rape or rapes to be punished. Nor is any other criterion or categorization linked to “the infliction of grievous bodily harm”.

73. The Statute does not read that a sentencing court should only impose a life sentence of imprisonment where both jurisdictional facts are present. Accordingly, the absence of “grievous bodily harm’ (one jurisdictional fact) should not be able to constitute a ‘substantial and compelling factor” when determining the appropriate and just punishment in a case of rape where the rape victim is under the age of 16 years (another jurisdictional fact). The infliction of grievous bodily harm is a criterion which in and of itself renders the perpetrator liable to imposition of the prescribed minimum sentence It is not merely a discretionary factor, the absence of which is to be taken into account for purposes of sentencing where another criterion, such as the age of the victim, compels the prescribed sentence.

74. Accordingly, I do no more than note that the rapes of N were not accompanied by additional violence other than the violence inherent in the crimes themselves.

Impact on the victim

91. The social worker, Mrs Vergeer, was given to understand by the accused’s wife that N was not experiencing any problems and that she was not traumatized in any way by the rapes to which her stepfather subjected her.

92. The social worker, Mrs van der Walt, commenced her report on N by commenting that the effect of the rape was intensified by the close bond with the rapist, the length of the period over which the abuse continued, the degree of intimacy, her mother’s reaction of rejection which has placed a burden of guilt upon the child. ⁶⁵

93. According to Mrs van der Walt, N is in a form of denial which she is using as a defence mechanism to neutralize the impact of the rapes. Nevertheless, N either expresses or exhibits, more or less overtly or covertly, a number of attributes of distress or trauma. These include that she is somewhat timid and withdrawn presents as uncertain and cautious and has become isolated. She is left with feelings of dirtiness and unworthiness. She has been catapulted into premature adulthood but is not in control of the situation which has led to disruption in her life’s developments. N is experiencing strongly internalized anger, even rage, and aggression. Her sexual development has been negatively affected and she expresses a total aversion to her sexuality and feelings of intense anxiety about sexual activity, especially penetration. N feels betrayed and expresses emotions of depression, suspicion and lack of trust . This loss of trust is generally expressed but her relationship with her mother, whom she experiences as critical and rejecting, has been seriously damaged.

94. It is suggested by Mrs van der Walt that there is the possibility that N may eventually suffer from Post Traumatic Stress Syndrome since she has absorbed but not worked through the injury done and the damage caused to her. N is in the midst of a process of mourning as a result of the losses which she has suffered on so many levels

95. Both Mrs Vergeer and Mrs van der Walt recommend intensive and long term therapy for all involved in this tragic experience. Mrs Vergeer stressed the value of family therapy to provide an holistic approach while Mrs van der Walt stressed the need for therapeutic expertise in child abuse situations. Apparently the minister of the church attended by the family had offered to ensure therapy to the whole family with focus on the unity of the family. It is my view that it would appear that family unity should not be the current focus but rather professional intervention to enable N to work through these experiences and the impact which they have had on her as well as to enable Mrs Muller to support her daughter above all other loyalties.

96. This court is not in a position to recommend or require therapy for N’s mother but this does seem essential. It appears that Mrs Muller has prioritized her role as wife of the accused above her responsibilities as mother of N. I was informed of special arrangements that had been made for pro deo psycho-therapy to be availed to Mrs Muller after working hours to accommodate her but to which she had not been responsive. N is in the extremely awkward position that her recovery is, in part, dependant upon her relationship with the one person who appears least supportive of her. N’s grandparents are empathetic and helpful and have offered her a home but they live on the West Rand and all persons involved believe it to be in N’s best interests to remain at her present school.

97. Research indicates that this breach of trust and exploitation of vulnerability that is involved in sexual abuse of children could have long term effects in the child experiencing problems with relationships, intimacy and sexual adjustment in adult life.⁶⁶ Although Burchell and Milton concede that there may well be a considerable difference in the degree to which the abusive act affects the child, they acknowledge that the abuse of power or authority over the child (which is the ethical factor that renders the abuse abhorrent) is the source of emotional trauma and the fundamental reason for punishment. ⁶⁷

98. As enjoined to do by the Supreme Court of Appeal I have paid careful regard to the ‘impact’ of the rapes upon N.⁶⁸ However, I have some concern that it is not possible at the time of and in the course of a criminal trial to fully ascertain the after-effects of these experiences. After all the legal system appreciates that, in delictual cases, it is not always possible to ascertain and comprehend the full extent of damages suffered by the time of a trial some years after the delict was sustained and that this is especially the case where young people are involved.

99. Furthermore, the responses of rape survivors are surely as complex and multilayered as are the individuals who experience rape. We must therefore expect the manifestations of the impact of rape to be varied in every respect. Some responses will be publicly displayed and others privately endured. Some rape survivors will collapse while others will bravely soldier on. The comments of the social worker, Mrs van der Walt, on N’s current situation exemplifies these variables.

100. The impact of the rape or rapes may owe more to the availability of different avenues of survival to rape victims than to those factors traditionally taken into account for purposes of sentencing or the criteria used by the Legislature for categorization of offences in the Statute. Some concern may be expressed if there is no connection between the personal circumstances of the rapist, the circumstances of the rape and the future life experiences of the rape survivor?

101. It would seem that sentencing courts are expected to view rape as ‘more serious’ where a rape survivor cannot sleep, fears men and sex, is unable to concentrate and cannot complete school or has a career or relationships destroyed. If this is so then other rape survivors may question why their rapes are viewed as ‘less serious’ because they may have been fortunate or privileged enough to receive professional assistance, endowed with different personalities and psyches, exhibit fewer post traumatic effects and so on. The Legislature does not seem to have intended the rapist to be less morally and legally blameworthy because the rape survivor appears to or actually does survive or continues life with less apparent trauma?

102. A further concern is that the focus on impact may be ignoring the intention of the Legislature as expressed in the Statute. On the one hand, our law does not adjudge a murder more ‘serious’ and punish a man more severely because he killed a multi-millionaire mourned by a loving family and missed by the beneficiaries of his philanthropy than if he had killed a dirty unemployed hobo who lived on a park bench and was buried in a pauper’s grave. On the other hand, it may be unfair to the rapist that his fate should depend upon differences in opportunities, psyches, physical strength, age, family or other support available to different rape survivors and which result in different manifestations of trauma.

The Worst Case of Rape?

92. Some judicial pronouncements suggest that there is a judicial discretion to apply a ‘grading’ system as regards the seriousness of the rape which forms the subject matter of the sentencing process. This approach has arisen because the 1997 Statute has provided that imposition of the prescribed minimum sentences are not absolutely mandatory in the true sense of the word, since the sentencing court may deviate when satisfied that ‘substantial and compelling circumstances’ justify departure from the sentences prescribed. The Supreme Court of Appeal has provided guidance that the sentencing court may deviate from the prescribed sentence where it is deemed so “grossly disproportionate as to amount to an injustice”. ⁶⁹

93. It has been suggested that amongst the reasons for deviations from the minimum life sentences prescribed by Statute in cases where children under the age of 16 have been raped is an unofficial ‘grading’ of rape that may be found in some judgments of our courts. ⁷⁰ Accordingly one reads of phrases such as the ‘worst category of rape’ test ⁷¹ .

94. The difficulty which I have in even attempting to implement such a test or such a ‘grading’ is the absence of any concrete guidance in so doing. The test is very vague. I can find no assistance in reported judgments as to how I should determine the grading or seriousness of child rape in any manner other than that already set out by the Legislature in the Statute. I am also conscious that such testing or grading involves an extremely personal and complex value judgment on the part of myself as the sentencing judicial officer which militates against the ‘standardised and consistent’ test which the Supreme Court of Appeal enjoined judicial officers to uphold in applying the legislation ⁷² .

95. There is a further difficulty which I face as a Judge of the High Court. In most cases, including this present one, I have not been involved in the trial and the hearing of the evidence on the merits by reason of the divided-case or two-stage procedure provided for in section 52 of the Statute. This raises the question whether the ‘grading’ process may have been the same if the trial had taken place before me in the High Court.⁷³

96. These difficulties are resolved when I have regard to the legislation which has already performed the ‘grading’ of offences in the careful categorization found in Parts I and Part III of Schedule 2 of the Statute. Rape of a girls under the age of 16 is one of the ‘worst’ categories of rapes according the Legislature and the prescribed minimum sentence must be imposed “ in the absence of weighty justification” ⁷⁴.

97. Accordingly, I must, in all honesty , record that I am, for these reasons, unable to and decline to ‘grade’ the rape of this fourteen year old stepdaughter on more than one occasion by her stepfather as more or less worse than other acts of rape of which men have been convicted where I have been the sentencing judge.

98. The Supreme Court of Appeal has pointed out in Mahommotsa supra that

“.......Of course, one must guard against the notion that because still more serious cases than the one under consideration are imaginable, it must follow inexorably that something should be kept in reserve for such cases and therefore that the sentence imposed in the case at hand should be correspondingly lighter than the severer sentences that such hypothetical cases would merit. There is always an upper limit in all sentencing jurisdictions, be it death, life or some lengthy term of imprisonment, and there will always be cases which, although differing in their respective degrees of seriousness, nonetheless all call for the maximum penalty imposable. The fact that the crimes under consideration are not all equally horrendous may not matter if the least horrendous of them is horrendous enough to justify the imposition of the maximum penalty” ⁷⁵

Time spent in custody as an awaiting trial prisoner

110. Since every accused person is presumed innocent until proven guilty, it is accepted that the innocent should not be in custody unless there are good reasons for incarceration.

111. Traditionally, time spent in custody while awaiting trial is taken into account for purposes of sentencing ⁷⁶ Such time is usually deducted from the sentence of imprisonment which the sentencing judge or magistrate would have wished to have imposed on the grounds that a period of incarceration has already been endured notwithstanding that this ordeal took place prior to conviction and certainly prior to sentence.

112. A life sentence of imprisonment is meant to be a determinate period of imprisonment. Sentencing judges are not to meant to take into account the policy arrangements the Department of Correctional Supervision has introduced with regard to arrangements for the early release of prisoners by way of remission or parole⁷⁷. It is reasoned that a sentencing judge should not tailor the sentence deemed to be appropriate to take account of political, administrative or other considerations. Such matters are beyond the purview of the courts.

113. A life sentence of imprisonment is theoretically indeterminate. A far as the sentencing court is concerned the date when the sentence commences should have no impact on it’s duration since it theoretically endures for the remainder of the natural life of the person who is so sentenced. Obviously a person who is 25 years at the time of sentencing is more likely to serve a longer period of imprisonment than a person who is 60 years old at the time of sentencing. However, that should not in and of itself cause a sentencing judge to fail to impose a life sentence of imprisonment where it is statutorily required.

114. Accordingly, I note that this accused has spent a period of nearly twelve months in custody as an awaiting trial prisoner.

CONCLUSION

112. I have noted that the accused is a first offender, that he has spent nearly twelve months in custody, that he pleaded guilty and that no violence, other than that of the rapes themselves, were perpetrated by him upon his victim. For the reasons I have given I do not find that any of these factors individually constitute substantial and compelling circumstances. Nor do I find that, in combination, they constitute weighty consideration to justify departure from the prescribed sentence.

113. N was and is a child. Her mother married you and brought you into N’s life as her stepfather. You took advantage of your wife’s trust and N’s vulnerability as a child, a daughter and a stepdaughter. You preyed upon her like an animal stalking it’s victim. N could not escape you. You denied her even one room in her home where she could be safe from you.. You forced your experienced, aging, stepfather body into that of an inexperienced, young, subordinate and dependant stepdaughter. N had no one at home or in her immediate family who could protect her against you. You forced himself upon her again. N had to wait for this to happen. She feared she would be violated again. You must have known this. N stands alone in this terrible ordeal. She is scarred for life.

114. Mr Muller, the law requires me to sentence you to serve a term of life imprisonment for the rapes you have committed. You are sentenced to one term of life imprisonment in respect of both counts one and two of which you have been convicted.

Satchwell J

Johannesburg - 23^rd May 2006

Dates of Hearing - 20^th April, 15^th May 2006

For the State: Adv H van der Merwe

For the defence: Mr A J Jonker

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