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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CC70/2011

Date Heard: 27 September 2012

Date Delivered: 28 September 2012

In the matter between:

THE STATE

and

IAIN CAMERON McLAGGAN ............................................................................Accused

___________________________________________________________________

SENTENCE

___________________________________________________________________

GOOSEN, J:

1. At the commencement of sentence proceedings the State applied for leave to present the evidence of Ms Smit, a Neuro-Psychologist attached to the University College, London Hospital by way of video link in terms of section 158 of the Criminal Procedure Act. The application was motivated on the basis that Smit could give relevant evidence as to the psychological impact of the rape upon the complainant having assessed her and treated her as part of the team involved in her treatment as a young survivor of a brain tumour. Following conviction the State had requested Ms Smit to prepare and submit an updated report to be used in the sentence proceedings. Despite a request that Smit travel to South Africa to testify it was not possible for her to do so because of her schedule of work commitments and, having regard to the requirement that a sentencing court should adopt a victim orientated approach receive evidence which enables it to consider the impact of the offence upon the victim, it was argued that the presentation of the evidence via video link would be permitted.

2. The defence objected on grounds similar to those raised in relation to an earlier similar application during the trial. I ruled, after considering the arguments, that the evidence could be lead by way of video link.

3. In my view the nature of the evidence was clearly relevant and ought to be received. A sentencing court is concerned with formulating an appropriate and just sentence and is required to give consideration to a wide range of interests and factors. Evidence relating to the impact of the offence upon the victim is necessary. This matter involves a foreign national who is outside of the court’s jurisdiction and it is therefore not easy to ensure the attendance of witnesses. Failure to receive the evidence by way of video link would not only result in an unnecessary and potentially lengthy delay to the prejudice of the accused but may also have had the effect that such evidence is ultimately not available to the court. In the light of these circumstances I considered that the use of the video link technology would not prejudice the accused having regard to the nature of the evidence. I shall deal hereunder with the impact of the evidence so received.

4. The accused has been convicted of the rape of an 18 year old woman who was visiting the country to participate in a youth program run by a company with whom the accused was then temporarily employed. The accused is a 30 year old South African male who has no previous criminal convictions.

5. The crime of rape is all too prevalent in our society. It has rightly been described as a scourge and as a cancer which has infested our society and which is destructive of the very values upon which our society is founded. It is a very serious offence which, in the words of Mohamed CJ in S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at 344J is a “humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim”. It is by its nature a violent crime which causes long-term trauma and suffering for the victim. It is a crime which is rightly regarded as abhorrent and meriting the imposition of severe penalties upon the perpetrators. The interests of society demand that the sentences imposed should reflect the determination of courts to protect the dignity, integrity and freedom of the victims of such crimes, particularly women and children and those who are most vulnerable to such offences. The sentences imposed should not only seek to deter the commission of such an offense but should also reflect the court’s concern to give meaningful content to the right to human dignity and freedom which is violated in the commission of such an offence (S v Matyityi 2011 (1) SACR 40 (SCA)).

6. It is with these considerations in mind that the Legislature has seen fit to guide the courts in the exercise of the sentencing discretion which they enjoy by providing for the imposition of certain minimum sentences in appropriate cases. In this instance the provisions of section 51 (2) of the Criminal Law Amendment Act, 105 of 1997 (as amended) are of application. That section provides that, subject to a finding that there are no substantial and compelling circumstances which warrant the imposition of a lesser sentence, a first offender convicted of rape shall be sentenced to a minimum period of 10 years’ imprisonment.

7. In determining an appropriate sentence therefore it is necessary to consider whether there are substantial and compelling circumstances present which call for the imposition of a sentence less severe than that prescribed. What constitutes substantial and compelling circumstances is not defined by the legislation. It is however now well settled that a sentencing court must consider all of the factors ordinarily taken into account in mitigation of sentence. Those mitigating factors found to be present must be considered in their totality. So too must those factors which are aggravating in the particular circumstances of the crime. In the assessment of these factors the sentencing court continues to consider the interests of society, the interests and circumstances of the offender and the crime for which appropriate punishment is to be imposed. The court seeks to balance these interests and to individualise the sentence in a manner appropriate to meet the overall purpose and objective of punishment. If in the exercise of its judgment a court considers that the imposition of the minimum sentence would be disproportionate to the crime and would bring about an injustice then substantial and compelling circumstances exist which justify a departure from the envisaged minimum sentence (see S v Malgas 2001 (1) SACR 469 (SCA); S v Nkomo [2007] 3 All SA 569 (SCA); S v Abrahams 2002 (1) SACR 116 (SCA)).

8. In giving expression to the interests of society in seeking harsh punishment for offenders care must be taken not to sacrifice the accused “on the altar of deterrence” (see S v Sobandla 1992 (2) SACR 613 (A) at 617 g – h). Regard must also be had to the particular impact that a period of imprisonment, which is undoubtedly warranted in this matter, will have on the accused and care should be taken to avoid the negative consequences of imprisonment which arise from conditions which pertain in prisons. The interests of society are not confined to seeking retribution for criminal conduct. The interests of society also require that as far as reasonably possible offenders should be reintegrated into the society, having endured the punishment of imprisonment, as rapidly as possible so that they may contribute positively and valuably to the society. The sentence must nevertheless clearly and unambiguously show that punishment will be meted out for serious offences of this nature.

9. I have before me a 30 year old man who has not before been convicted of any offence. He is a well educated young man whose family and social circumstances are good. He is a high achiever who excelled throughout his school career academically and in sport and cultural activities. He displayed leadership ability and won numerous awards and accolades as a scholar. He is a very talented musician and has performed in school and other orchestras. He was until recently employed by the Philharmonic Society in Port Elizabeth and has been involved in teaching music in underprivileged communities. He attended university where he obtained a Bachelors degree in Media Studies. Since leaving university he has been employed in various capacities and has demonstrated an ability to contribute positively to the community. He is presently married although that relationship has founded and he is in the process of a divorce. He enjoys the support of a caring family and a community of friends.

10. These social and personal circumstances suggest a person who has a capacity to function in society and to live a life which enhances rather than destroys the values of the society. Although he has maintained that the sexual intercourse with the complainant was with her consent he has nevertheless expressed his regret and remorse for the manifest failure of judgement he accepts is evidenced by his conduct. Although this does not equate to an expression of remorse for his criminal conduct I accept that he has at least come to the realisation that he is responsible for the circumstance he now finds himself in.

11. The victim of the offence is a young woman who came to this country filled with the hope of developing her independence and to improve her prospects of pursuing a chosen career path as a veterinary surgeon. She placed herself in the care of an enterprise specialising in youth travel experiences. The accused was employed by the enterprise in a position of a student co-ordinator and was in a position of trust relative to the complainant. On the night before the rape the complainant became intoxicated due in part to a particular pathology arising from the life threatening brain tumour from which she suffers. Her state of intoxication rendered her incapable of looking after herself. Later she suffered from seizures which rendered her unconscious for a period of time. The accused was aware of her condition and indeed provided assistance to her during this period. In the early hours of the morning the accused raped the complainant when she was asleep. She was vulnerable and defenceless and incapacitated. These circumstances are, in my view, aggravating.

12. The consequences of the rape have been profound for the complainant. Ms Smit, a Clinical Neuro-Psychologist with the University College, London Hospitals, who has assessed the complainant, testified that the rape will have both short and long-term impacts on the complainant’s functioning. She is, according to Ms Smit, using repression of her emotional responses as well as denial as coping techniques in order to protect herself from the full impact of the rape upon her. These coping techniques enable her to function with apparent ease in her day to day life but they are negatively affecting her in her ability to process the effect of the rape. Her emotional symptoms which she experiences are repressed in favour of self-critical and negative thoughts about herself. These negative thoughts, so Ms Smit indicates, are consistent with a cognitive response to the trauma but while they may enable the victim to cope with day to day life they are destructive and can have serious long-term consequences. The complainant experiences the rape as a significant setback having survived a life threatening illness and having begun to build an independent life. She will require long-term psychotherapy to ameliorate the impact of the rape. Ms Smit indicated that victims of rape do not recover in the sense that they are restored to the state of mind that they may have been in prior to the rape. Therapy and counselling may ameliorate the effects but the very nature of the trauma is that it cannot be undone. In the case of the complainant the rape has had and will continue to have long-term traumatic consequences.

13. It is in the light of all of these circumstances that I am required to consider firstly whether there are substantial and compelling circumstances present justifying the imposition of a lesser sentence than that prescribed and secondly what an appropriate sentence will be.

14. Section 51 (2) calls for the imposition of a sentence of no less than 10 years in the case of a first offender. In my view, upon a proper reading of the section, the fact that the accused is a first offender cannot on its own constitute substantial and compelling circumstances which would justify the imposition of a lesser sentence. The mitigatory effect of being a first offender must however necessarily be weighed together with such other mitigating factors found to be present and these cumulatively considered may constitute substantial and compelling circumstances.

15. In this matter the accused is demonstrably a person with the capacity to contribute valuably and positively to society and one who until now has displayed qualities which do him great credit as a person. Substantive weight must be given to these. Although the circumstances in which the offence was committed rightly evoke feelings of disgust, the reprehensible conduct does not indicate that the accused is a particular danger to society in the sense that it indicates a propensity for conduct of this nature. The rape was not accompanied by additional violence. Although no violence or force was necessary to overcome resistance given the circumstances in which the rape was perpetrated, there was no evidence of threatened violence or aggression during the course of the rape and thereafter. The circumstances of the rape suggest an extraordinary and shameful conduct which one would not expect from a person of the character and background of the accused. In my view these mitigating factors when weighed cumulatively, compel me to conclude that a sentence of 10 years’ imprisonment is disproportionate and would bring about an injustice. The accused is entitled to a measure of mercy. Imposition of the minimum sentence upon him would be unduly destructive of him and it would, in my view, not serve the overriding interest that society has in seeking to correct aberrant behaviour and to rehabilitate offenders back into the society.

16. The accused must undoubtedly be made to suffer the consequences of his criminal conduct. That requires that he should serve a period of imprisonment which will drive home to him the realisation that he has profoundly failed himself, his family and his community and that he has squandered a promising future. It must drive home to him also the fact that he has devastated the life of another by inflicting upon her a trauma that will remain with her throughout her life. It is to be hoped that his punishment will teach him that dignity, safety, privacy and freedom are values, the breach of which society will not tolerate.

17. The accused is sentenced to 8 years’ imprisonment.

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GG GOOSEN

JUDGE OF THE HIGH COURT

APPEARANCES:

FOR THE STATE: Mrs N Turner, instructed by the

Director of Public Prosecutions

FOR THE ACCUSED: Mr T Price, instructed by

Roelofse Meyer Inc

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