IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN)

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1 1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN) In the matter between CASE NO: CA335/2017 Date heard: 3 September 2018 Date delivered: 11 September 2018 T H Appellant Vs THE STATE Respondent JUDGMENT PICKERING J: [1] Appellant was charged in the High Court, Grahamstown, with several offences relating, inter alia, to the sexual molestation of a young girl, under the age of 16 years. It is only necessary to deal with counts 2, 3 and 4 in respect of which appellant was convicted as charged of having performed three separate acts of sexual penetration upon the complainant on 18 June 2014, by having sexual intercourse per vaginam with her. [2] Hartle J took counts 2, 3 and 4 together for purposes of sentence and sentenced appellant to undergo life imprisonment. With the leave of the learned judge a quo appellant appeals against this sentence. [3] Complainant, who was born on [ ] 1998 and was thus approximately 15 years and 7 months of age at the time of the incidents which occurred on 18 June, lived with her mother, appellant and her brother. The house in which they resided consists of a dining room, kitchen and two bedrooms. Appellant and complainant s mother shared

2 2 one bedroom whilst complainant and her brother shared the second bedroom which had an en suite bathroom leading off it. [4] On the night of 18 June 2014 complainant was asleep in bed with her brother. At approximately 1 am she was awoken by appellant who dragged her by the jersey which she was wearing to the toilet. Once in the toilet he undressed complainant completely. He took down his trousers, sat on the toilet, and forced her to sit astride his thighs whilst facing him. He then proceeded to have sexual intercourse per vaginam with her. [5] Complainant screamed and her mother woke up and came to the toilet to investigate what was happening. She asked appellant what he was doing to complainant. Appellant, who was busy making up and down movements and who persisted in doing so despite the presence of complainant s mother, merely responded that he was supporting complainant s mother financially. She replied that even if he was supporting them that did not give him a reason to do what he was doing. [6] Appellant then got up and assaulted complainant s mother in the bedroom and again in the mother s bedroom, hitting her with clenched fists. Complainant took the opportunity to dress herself in her bedroom but appellant returned to her bedroom. He again undressed her, made her lie on her back on her bed, and again had sexual intercourse per vaginam with her whilst her brother was lying alongside her with his head covered by a blanket. [7] Complainant s mother again intervened and appellant once again assaulted her, ordering her to go and sleep. She left the bedroom whereupon appellant took complainant to the lounge, made her lie on her back on the couch, and again raped her. [8] Complainant s mother then tried to get out of the house through the kitchen door but appellant pulled her away and assaulted her again in the course of which assault he stabbed her with a knife in the armpit.

3 3 [9] Appellant s initial denial of these events gave way under cross-examination to admissions that he had in fact sexually assaulted complainant as alleged. As was stated by Hartle J he was an appalling witness who literally adjusted his evidence as he went along. [10] It is trite that a court of appeal has no general power to interfere with the sentence imposed by the trial court. It may only do so if the trial court has not exercised its discretion on sentence properly in a judicial manner either because of a material misdirection of law or fact or because the sentence is out of proportion to the facts and circumstances of the case to the point that no reasonable court would have imposed it. [11] It was submitted on appeal that the sentence imposed by Hartle J was indeed disproportionate to the gravity of the offence and that it was disturbingly inappropriate and induced a sense of shock. It was also submitted that Hartle J had over-emphasized the seriousness of the offences and the interests of the community at the expense of the personal circumstances of appellant [12] In my view there is no merit whatsoever in these submissions. It is clear from her judgment on sentence that Hartle J took appellant s personal circumstances into account and weighed these against the gravity of the offence and the interests of the community. As stated by her with regard to appellant s personal circumstances, they were not of extraordinary significance. Appellant was 31 years of age, working at Pick and Pay earning a salary of R2500,00 per month. He was unmarried but was the father of a daughter aged 5 years. He was a first offender. [13] The evidence of a clinical psychologist, Ms. Andrews, was also adduced. It appears from her report and evidence that the complainant is a child in psychological pain and emotional turmoil and is clinically depressed. According to Ms. Andrews complainant participates in life but is not psychologically present. Her scholastic functioning has been significantly impaired and her psyche has been indelibly scarred.

4 4 Her self-image is permanently tarnished. She is, according to Ms. Andrews, at high risk of psychiatric complaints relating to depression and suicidal ideation into adulthood. [14] It is also clear that appellant has shown no genuine remorse for his actions whatsoever. The concessions made by him were in effect forced upon him in consequence of his appalling calibre as a witness. [15] This is a particularly serious case. The appellant, by his actions, plumbed the depths of depravity. His actions on the night in question and his evinced attitude that because he supported the family financially he could in effect treat complainant as he wished, render his future prospects of rehabilitation negligible. [16] In my view Hartle J was clearly correct in her finding that no substantial and compelling circumstances existed such as would justify a lesser sentence than life imprisonment. [17] Accordingly the appeal against sentence on counts 2, 3 and 4 is dismissed. J.D. PICKERING JUDGE OF THE HIGH COURT I agree, M.S JOLWANA JUDGE OF THE HIGH COURT

5 5 I agree, H.S. TONI ACTING JUDGE OF THE HIGH COURT Appearing on behalf of Appellant: Adv. Erasmus Instructed by: Legal Aid, South Africa, Grahamstown Appearing on behalf of Respondent: Adv. Mgenge Instructed by: Director of Public Prosecutions, Grahamstown