---

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE TOWN)

CASE NUMBER: SS40/2005

DATE: 26 APRIL 2005

In the matter between:

THE STATE

and

WILLIAM FORTUNE

SENTENCE

MEER. J:

The Accused was charged in the regional court of Wynberg with the rape of a girl under the age of 16 years, A T, aged seven at the time and the daughter of his friends. He pleaded not guilty, but was ultimately convicted as charged by the regional court. The rape of a girl under the age of 16 falls within the ambit of Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997. This being so, the regional court was obliged, in terms of section 52(1) of the Act, to stop the proceedings and to commit the Accused for sentence to the High Court.

After carefully considering the record of the proceedings, I pronounced myself satisfied that they were in accordance with justice and I confirmed that the judgment of the regional court. Section 51(1 )(b) of the Act provides that where a matter is referred to the High Court for sentence, after the person concerned has been convicted of an offence, referred to in Part 1 of Schedule 2, the High Court must sentence the Accused to life imprisonment. The Court may, however, impose a lesser sentence than life imprisonment, if the Court is satisfied that substantial and compelling circumstances exist that would justify the imposition of a lesser sentence than the sentence prescribed.

The Accused, therefore, faces life imprisonment unless there are substantial and compelling circumstances that justify the imposition of a lesser sentence. Against the backdrop of the legislation, I set out to consider the factual background of the crime and the circumstances of the Accused. The rape is particularly disturbing, given the relationship of trust that existed between the Accused and the Complainant and her family. The Accused was a frequent and welcome visitor at her aunt's home, which was on the same property as hers. He was her uncle's friend and well known to her.

On 15 October 2001, the Complainant came home from school, was a little tired and went to have a nap on a mattress outside the Wendy house in which she and her family lived. The Accused was visiting her Uncle and Aunt in their house directly in front. He had been there for much of the afternoon, drinking with her Uncle. Whilst the Complainant was asleep, she was rudely awakened by the Accused. He had come out of the main house, found her on the mattress, removed her underclothes and his, lay on top of her and raped her. She

experienced pain. The accused was caught red-handed as it were by the Complainant's young cousin and the rest of the family was alerted. The Accused was subsequently arrested.

The findings of the medical report were consistent with rape. Dr Theron, who examined the Complainant, testified to there being no serious injuries to her genitals, but was satisfied from his examination of the Complainant and signs of semen in her vagina, that she had been raped.

The Complainant, the fourth of five children, has been severely traumatised by the rape. Her mother, Yolanda Thomas, testified that the event has transformed her daughter. Three years after the rape, she continues to have nightmares, to be scared of the opposite sex and indeed of people generally. The little counselling that she has had does not seem to have helped her and her mother is in the process of pursuing other avenues of counselling for her daughter.

The Complainant is currently in Grade 6. She has managed to progress at school The complainant comes from a severely disadvantaged background. Her mother, as a single parent, has the responsibility of looking after five children on her own and is also the recipient of a disability grant. A social welfare report confirms the devastating effect that the rape has had on the Complainant. The report states that the Complainant suffers from a sense of helplessness and finds it difficult to form healthy relationships, is withdrawn and insecure. It is not only the complainant, but her entire family who have been traumatised by the rape, so says the social welfare report.

Personal circumstances of the Accused:

The Accused is 40 years old. He has three previous convictions, the last of which was in April 2003 for housebreaking. The former two were in 1990 and 1992 for using a vehicle without the consent of the owner and theft respectively. The Accused committed this offence whilst he was out on bail on the housebreaking charge for which he was sentenced on 20 June 2003. He served that sentence until 19 December 2004. He has been in custody on the current offence since 20 December 2004, a period of four months.

The Accused chose not to testify in mitigation of sentence. From the evidence of a probation officer, who prepared a social welfare report, I was able to get a profile of the Accused. The Accused comes from an impoverished and disadvantaged background and indeed an unstable one. Both his parents abused alcohol and they separated while the Accused was still a young child. The Accused left school at the age of 15 whilst in Standard 3. He appears to have worked since in the building industry for various subcontractors. At the time of the commission of this offence, he was employed. The Accused is a widower. He has a son, who is being brought up by his deceased wife's parents in Moorreesburg. The Accused does not have much contact with his son. The social welfare report indicates that according to family members, the Accused abuses alcohol and drugs. According to the social welfare report, the Accused persists in his innocence and denies having committed the rape.

Argument:

Arguing in mitigation of sentence, Mr Badenhorst for the State called for the imposition of the minimum sentence. He emphasised the serious nature of the crime, and the fact that it had been committed by a family friend on a young and innocent girl. The fact that the Accused abused his position of trust, has shown no remorse continues to deny the rape, were an aggravating factors, argued Mr Badenhorst. Mr Carnow for the Accused, submitted that the fact that there were no serious injuries to the Complainant, that no weapons were used, that the rape was not planned and that the Accused was drunk at the time, were substantial and compelling circumstances.

Sentence:

Accused, rape is a horrendous crime. The rape of a child is particularly abhorrent and is tragically an illness that is pervasive in our society. It has assumed the proportions of a pandemic. A violation such as this offence goes against every right of the child enshrined in our constitution and must be punished severely so that a clear message is sent that outrages of this kind will not be tolerated. At the very least children have a right to feel safe in their homes and the vicinity thereof. You have taken this away from the child you have raped. The fact that you enjoyed a position of trust within her family, exacerbates your crime.

You have heard evidence in detail about the damage you have done to this child and it is my fervent hope that you are able to reflect thereon. Your young victim no doubt will suffer the effects thereof for a long time to come. A rape such as the one you have committed, as you know, can carry a life sentence. I have carefully considered all the circumstances and you are extremely fortunate in that I have decided not to impose the life sentence. The absence of violence, the minimal physical injury to the complainant, your disadvantaged and disturbing background and the fact that there is no evidence to indicate you cannot be rehabilitated are factors, compelling circumstances which militate against the imposition of the minimum sentence.

As was said in the case of S v Abrahams, this is not one of the worst cases of rape. This is not to say that rape can ever be condoned, but some rapes are worse than others and the life sentence ordained by the legislature, should be reserved for cases devoid of substantial factors, compelling the conclusion that such a sentence is inappropriate an unjust. As Davis. J stated in the case of S v Swartz:

"As controversial a proposition as this is bound to be, as not all murders carry the same moral blameworthiness, so too not all rapes deserve equal punishment. That is in no way to diminish the horror of rape. It is, however, to say that there is a difference, even in the heart of darkness."

In view of all of the above, I have come to the conclusion that in order to strike the proper balance between the interest of society, the interests of the victim and the interests of yourself, the Accused, an appropriate sentence would be as follows.

Accused you are sentenced to SIXTEEN (16) YEARS IMPRISONMENT.

MEER, J

---