South Africa: High Courts - Gauteng

NOT REPORTABLE

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO:SS29/07

DATE:31/05/2007

In the matter between

THE STATE

and

MUSSA CASSIM.............................................................................................ACCUSED

Sentence – rape of girl aged 6½ years old – factors affecting sentence –

substantial and compelling circumstances justifying lesser sentence than life imprisonment – 25 year’s imprisonment imposed.

S E N T E N C E

VAN OOSTEN J:The accused has been convicted of the rape of a young little girl of only six and a half years of age. She was obviously in the initial development stages of her life when she was subjected to the ordeal of losing her virginity and being raped. The incident will no doubt remain etched in her deepest inner being for the rest of her life.

The accused shared a flat with the complainant, where she lived with her stepfather and her mother. The complainant, naïve as only a young child of her age could be, trusted the accused in sleeping with him in the same room, even on occasions under the same blanket. The accused, as an adult person, seriously abused his position of trust and opportunistically seized the occasion to selfishly satisfy his own sexual desires, at a time when her mother was absent. That particular morning, so the reports indicate, he decided to go to work later because the complainant was alone in the flat. The complainant, as correctly pointed out by Ms Futshane, who appeared for the State, sustained serious injuries to her private parts: bruises were observed as well as swelling with bleeding.

There are, however, two positive aspects, that need to be considered. The first is the absence of bodily injuries and the second concerns the complainant’s ability to recover after the incident. The after-effects of the rape are dealt with in a victim impact report, which has been admitted by consent. From the report it is apparent that the complainant is coping well in her present situation, that she is emotionally strong, and that she is expected, according to the probation officer, to make positive progress in the healing process that now lies ahead. It is mentioned in the report that the complainant was advised to attend long term counselling but that she has regrettably decided not to persist in it. At the time the probation officer consulted with her, she appeared neat and well presented, and showed noticeable signs of recovery.

Against this background it is necessary to consider the personal circumstances of the accused. Those have been set forth in a pre-sentence report in respect of the accused, which serves before me by consent. The accused is presently 29 years of age. He was born in Zimbabwe where he lived until the age of ten years. The family then relocated to Malawi, and the accused later came to South Africa. The accused has no commitments except for a seven year old child which currently stays with his unemployed biological mother. The accused has shown no signs of remorse. He still maintains his innocence in the face of the overwhelming evidence against him. No previous convictions have been proved against the accused and I will take into account that he has been in prison for two and a half years since the date of his arrest, which is 3 December 2004.

It is not without hesitation that I have come to the conclusion that there are in fact substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum sentence of life imprisonment. The only reason for the finding is the complainant’s positive recovery after the incident. Had this not been so no sentence less than life imprisonment would have been appropriate.

In the consideration of the term of imprisonment to be imposed, I have taken into account the seriousness of the offence as well as the interests of society demanding the imposition of heavy sentences where young children are sexually abused. On the other hand the accused has already spent a considerable time in prison awaiting trial. I can only express the hope that the accused will avail himself of the opportunity now afforded to him by the sentence I intend to impose, to rehabilitate himself.

Having considered all the circumstances the accused is sentenced to 25 years' imprisonment.