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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION )

Case No. A1065/040

JAN VAALTYN Appellant

and

THE STATE Respondent

JUDGMENT:

DAVIS J:

Introduction:

Appellant pleaded guilty on 4 August 2000 in the Regional Court, Cape Town to a charge of the rape of a 12 year old girl. He was found guilty and, in terms of section 52 of Act 105 of 1997 (‘the Act’), the matter was referred to the court a quo for sentence.

On 18 May 2001 H J Erasmus AJ (as he then was) confirmed the sentence and, after hearing evidence presented by the State and the appellant, he sentenced appellant to life imprisonment.

With the leave of the court a quo in respect of an appeal with regard to sentence, the matter has now come before this Court.

Material Facts.

Appellant’s plea explanation in terms of section 112(2) of Act 51 of 1977 provides the broad framework of the events relating to the crime committed. He stated:

‘Ek het op 20/2/99 vir die klaagster, K K, toe twaalf jaar oud, ontmoet naby die Slagpale, Clanwilliam.

Ek erken dat ek geslagsgemeenskap met haar gehad het en penetrasie het plaasgevind.

Terwyl ek geslagsgemeenskap met haar gehad het, het sy twee maal gevra dat ek moet ophou om geslagsgemeenskap met haar te hê. Ek het egter steeds voortgegaan om geslagsgemeenskap te hê teen haar wil en eers later begin sleg voel en opgehou’.

The evidence led by the State before Erasmus AJ provides graphic details of the nature of the rape committed by the appellant. The complainant, her sister and two nephews were accosted by the appellant whilst they were riding their bicycles. According to the complainant the appellant demanded that they must catch a frog and a snake in the bushes alongside the path on which they had been riding. He threatened that, if they failed to obey his command, he would kill them. To enforce the nature of his threat, appellant informed them that he had previously killed three people. He told the four children that his name was Killer Apools.

The appellant then demanded that the complainant lie down. He then removed her panties and proceeded to have sexual intercourse with her. The complainant testified that the appellant also demanded that the two nephews should have sex with the complainant’s sister. Frightened out of their wits by appellant’s conduct ,the three children complied. The complainant’s sister removed her panties and the two nephews proceeded to engage in sexual intercourse with complainant’s sister. By now all the children were crying, out of fear which was compounded by the fact that the appellant was possessed of both a firearm and a knife. This version of events was confirmed by one of the complainant’s nephews, HO, who was 9 years old. He confirmed the description provided by the complainant of the events that had occurred and testified that the appellant had threatened them with death, were they not to have complied with his perverse demands.

The Court a quo also had the benefit of reports from Ms Pass, a social worker and from the probation officer, Mr Freddie Wagener who also testified before the Court.

In her report Ms Pass provides the following analysis of the effect of the rape upon the complainant:

‘Die voorval het ‘n beduidende effek op die slagoffer se algehele funksionering gehad. Aldus die biologiese ouers was hul kind vroeër, dit wil sê voor die gebeurtenis ‘n spontane dogter, wat graag saam met haar maats buite met hul fietse rondgery het, gewone kinderspeletjies gespeel het en vryelik rondbeweeg het. Sy was ook baie goed op sportgebied. Die beskuldige was nie bekend aan die slagoffer nie.

Na die gebeurtenis het sy baie huisvas geword en wil ook selde uit. Sy het ook half doof geword van die skok. Verder eet betrokkene baie swak inteenstelling van vroeër toe sy ‘n goeie eetlus gehad het. Betrokkene het ook vroeër baie lig geslaap. Na die gebeurtenis slaap sy baie vas en Mev. K noem dat sy soms haar kind moet wakker skud.

Betrokkene kry ook nagmerries oor die voorval. Sy het nog geen sielkundige behandeling ontvang nie. Haar biologiese ouers ondersteun en onderskraag hul kind baie goed deur die hele trauma. Betrokkene se skoolwerk het egter nie ‘n agteruitgang getoon nie, en wil sy ook graag nog haar ideale bereik’

In a subsequent report, done some 2 years later, however, Ms Pass stated: ‘Die klaagster se skoolloopbaan is ook gestaak weens die voorval’.

Mr Wagener confirmed this conclusion: ‘Die impak van die misdaad op haar (slagoffer) is skrikwekkend’.

In his assessment of the appellant, Mr Wagener referred to his unfortunate background, in particular the manner in which his mother had left him to be cared for by his grandparents. He became an abuser of alcohol as well as a regular dagga smoker. From the record, it appeared that he was under the influence at the time of the commission of the crime. Mr Wagener also testified about the remorse shown by the appellant and his attempt to reconstruct his life. Nonetheless in the report Mr Wagener made the following evaluation:

‘Die beskuldigde was volgens hom glo bedwelmd wat hom aangedryf het om die daad te pleeg. Wat stof tot nadenke is, is dat ‘n jong onskuldige dogter moes boet vir sy kortsigtigheid. Hy ken die pyn en leiding van gedepriveerdheid en die slagoffer se sosio-ekonomiese opset met ook sonder infrastruktuur is eie aan syne. In plaas van om hom sinvol daarmee te identifiseer, misbruik hy haar onskuld en jeugdigheid op ‘n wrede manier.’

The accused testified before the court. He professed to feel great regret for his crime and told the Court:

‘Om die waarheid te sê…. ek voel in my hart – soos wat ek gesê het daar op Clanwilliam streekhof – ek het gevoel dat ek moet skuldig pleit, dat ek kan nie onskuldig pleit as ek weet in my hart ek het ‘n verkeerde ding gedoen. Dan gaan ek dit mos nou moeilik maak vir my en soos wat die daad wat ek gepleeg het, dit – ek het ook besef, ge-ervaar dit maak my seer. Ek weet nie somtyds hoe ek dit het nie, want as ek dink daaraan dan sien ek dit voor my afspeel en ek kry seer vir die meisiekind. Ek vra self die vraag vir my af hoekom het ek dit aan ‘n onskuldigde meisiekindjie gedoen.:..’

In its decision to determine the proper sentence, the court a quo was faced with the provisions of the Act; in particular the minimum sentence prescribed in terms of Part I of Schedule 2 of the Act, being life imprisonment.

In terms of s51(3)(a) of the Act: ‘if any court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those sub-sections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.’

Erasmus AJ considered whether, in terms of section 51(3)(a) of the Act, ‘substantial and compelling circumstances’ were shown to exist which would have justified the court a quo exercising a discretion to impose a term of imprisonment other than that provided for in Part 1 of Schedule 2 of the Act.

After evaluating the evidence of the complainant, the appellant and the probation officer, Erasmus AJ formulated the key question thus: would injustice be committed towards the appellant in the event that the prescribed sentence was imposed. He referred in this context to the test as formulated by Marais JA in S v Malgas 2001(2) SA 1222 (SCA) at 1234 H-J.

In dealing with the answer to this question he concluded that there were a number of aggravating circumstances of which account had to be taken. These included:

1. Complainant was but 12 years old at the time of the rape. She was a defenseless victim who had been threatened by the appellant;

2. There appeared to be an element of planning in the manner in which the appellant had committed the crime.

3. There was a strong element of sexual perversion in the manner in which the other young children had been forced to engage in indecent acts while the appellant was raping the complainant

4. The complainant had been injured, although not seriously.

5. The life of the complainant had been significantly altered as a result of long term psychological damage and, even two years later, she was in need of psychological help.

On balance, Erasmus AJ held that there were no substantial and compelling circumstances which would justify a sentence lighter than that prescribed in terms of the Act. Accordingly he sentenced the appellant to life imprisonment.

Evaluation.

The starting point in this appeal must be the proposition that a court of appeal cannot simply replace the sentence which was imposed by the trial court with its own sentence. In S v Pillay 1977 (4) SA 531 (A) at 535 it was held that an appeal court may not interfere with a sentence which has been imposed by the court a quo unless it is convinced that the latter court exercised its discretion in imposing sentence in an improper or unreasonable manner.. Trollip JA said the following at 535 E-G: ‘[a] mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with a sentence; it must be of such a nature, or degree of seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreasonably. Such a misdirection is usually and conveniently termed one that vitiates the Court’s decision on sentence.’ See also S v Pieters 1987(3) SA 717 at 727.

In the present case, the question arises as to whether the trial judge exercised his discretion improperly or unreasonably. In other words, did Erasmus AJ commit a misdirection as defined by the Court in Pillay’s case supra in the manner in which he sought to apply the provisions of section 51 (3)(a)?

The meaning and scope of the phrase ‘substantial and compelling circumstances’ has been carefully and definitively analyzed by the Court in S v Malgas supra In his judgment, Marais JA observed that, with the introduction of the Act, ‘a court was not to be given a clean slate on which to inscribe whatever sentence it thought fit…..In short, the Legislature aimed at ensuring a severe, standardized, 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. When considering sentence the emphasis was to be shifted to the objective gravity of the type of crime and the public’s need for effective sanctions against it’ (at para 8).

Marais JA noted that the introduction of minimum sentence legislation did not mean that the principles of sentencing which had been built up over decades should simply be jettisoned pursuant to the introduction of the Act. ‘[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 or rightly taken into account by courts when sentencing offenders’ (at para 9). The introduction of the phrase ‘substantial and compelling circumstances’ meant that a Court had to take careful account of the weight of the traditional factors employed in arriving at a sentence. As Marais JA held, ‘[t]he ultimate cumulative impact of those circumstances must be such as to justify a departure [from the prescribed sentence]’ (at para 9).

The determination of the weight of the traditional factors which are required to justify a finding of substantial and compelling circumstances is an enigmatic enquiry. Marais JA sought to capture the essence of the inquiry thus: ‘The greater the sense of unease the court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice’ (at para 22).

Amplifying upon this approach, Mpati JA (as he then was) held in Rammoko v Director of Public Prosecution 2003(1) SACR 200(SCA) at para 13:

‘Life imprisonment is the heaviest sentence a person can be legally obliged to serve. Accordingly, where S 51(1) applies, an accused must not be subjected to a risk that substantial and compelling circumstances are, on inadequate evidence, held to be absent. At the same time the community is entitled to expect that an offender will not escape life imprisonment – which has been prescribed for a very specific reason – simply because such circumstances are, unwarrantedly, held to be present’.

Turning to the present case, Mr Solomon, who appeared on behalf of the appellant, submitted that Erasmus AJ had failed to attach due weight to the fact that the appellant had been deeply remorseful of having committed the rape. Remorse and a plea of guilty are mitigating factors. See S v Martin 1996(2) SACR 378(W) at 383. There were also other mitigating factors. Appellant was a first offender. He had suffered a most unfortunate upbringing. He was also the father of a small girl who was born on 28 September 1998. In addition, he had been an awaiting trial prisoner for almost two years.

Mr Solomon was thus correct to contend that mitigating factors exist which need to be considered carefully in the ultimate evaluation as to whether there were ‘substantial and compelling circumstances’ . But, as Erasmus AJ noted, there are a number of aggravating circumstances which must also be taken into account. These factors relate directly to the additional three fundamental considerations (the fourth being the interests of the victim) of which account must be taken in the determination of sentence, being the offender, the nature of the crime, and the interests of society.

In the present case, there is clear evidence from both the social worker , Ms Pass and the probation officer, Mr Wagener that the complainant’s personality and overall life was significantly affected by the rape and will continue to be affected in future. See the emphasis place upon these factors in Rammoko, supra at para 12.

Turning to the nature of the crime, the Supreme Court of Appeal has held that the nature of the rape is a factor of which account must be taken. As the Court said in S v Boesman Mahomotsa 2002 (2) SACR 435(SCA) at para 17: ‘The rapes that we are concerned with here, though very serious, cannot be classified as falling within the worst category of rape’ .See also Rammoko supra at para 12.

To summarise: The victim has been gravely affected by the commission of the crime In my view, this was a rape of a most serious gravity. The accused was armed with a firearm and a knife when he raped a 12 year old child. Not only did he rape her but, under threat of death he compelled complainant’s two young nephews to engage in an act of sexual intercourse with another small girl. There was, as Erasmus AJ correctly said ‘’n sterk element van seksuele perversiteit in die manier waarop die ander jong kinders geforseer is om onsedelike dade met mekaar te pleeg’. This is not a ‘borderline’ case of rape , but rather one which falls inside ‘the worst category of rape’.

Turning to the interests of the community , by passing the Act the legislature provided a clear signal that the interests of the community are to be served by the imposition of heavy sentences for these most serious criminal acts . The Act makes it clear that a court should refuse to impose a prescribed sentence only when there was a substantial and compelling justification based upon an evaluation of all those considerations traditionally relevant to sentence. See S v Cunningham 2004(2) SACR 16(E) at 20j.

Clearly upon a careful consideration of these interests , the appellant must be given a very heavy sentence. But that is only a secondary question . The primary question which arises within the context of the Act and the facts of this case is whether Erasmus AJ exercised his discretion unreasonably or improperly in holding that there was an absence of substantial and compelling circumstances and hence that life imprisonment should be imposed.

In my view, the gravity of the crime perpetrated by the appellant and the significant impact of appellant’s actions upon the life of the complainant are factors of key import. Erasmus AJ properly and correctly took careful account of these interests in coming to his decision. In his judgment he held that these factors outweighed the mitigating factors to which I have already made reference.

In my view, the approach adopted by the trial court can in no way be considered to be unreasonable or unfair. The aggravating circumstances considered by the trial court are of sufficient weight to sustain the conclusion that the mitigating factors raised by Mr Solomon are more than counterbalanced . In turn , this conclusion affords clear reason to conclude that substantial and compelling circumstances do not exist in this case. There is thus no justification for interfering with the decision of the court a quo.

For these reasons the appeal is dismissed and the sentence imposed upon the appellant is confirmed.

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DAVIS J

I agree ______________

GRIESEL J

I agree _____________

MOOSA J

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