A former Air Force Base sergeant found guilty of raping his 11-year-old stepdaughter may have to return to jail. The National Prosecuting Authority (NPA) successfully appealed against a previous ruling in the High Court that his three life sentences be reduced to a five-year sentence. His case has now been sent back to the High Court for him to be sentenced again.
The case dates back to 2009 when charges of rape, sexual assault, the possession of child pornography and the producing of child pornography were laid against a sergeant who, at that stage, was working at Air Force Base Louis Trichardt. Because the victim is still a minor, the man's identity may not be published because of the sexual nature of the offenses.
The man’s wife, whom he had married in 2006, made some very disturbing discoveries while scrolling through the family computer on 2 November 2009. She came across pornographic images, not only of adult women, but also of some of her (then) 10-year-old daughter engaging in sexual acts with her husband. Her daughter is from a previous relationship and not the daughter of the accused.
The details of the sexual offences and the grooming of the child were described in detail during the trial in the Regional Court. It was testified how the man had not only committed the acts, but had also taken photos of the sexual acts with his cellphone. He pleaded not guilty to the seven charges, but magistrate Marie Viljoen found him guilty on six counts.
The magistrate then sentenced him to life imprisonment on each of the three rape counts. This sentence is in line with the prescriptions of the Criminal Law Amendment Act, stating that a life sentence is mandatory for such a crime if no substantial and compelling circumstances are present. The man was also convicted on single counts of producing child pornography, displaying pornography to a minor and the possession of child pornography. He was, effectively, sentenced to 85 years' imprisonment, which he began serving in June 2011.
The man then appealed against his sentence and the Gauteng Division of the High Court had to review the case. Judge Preller and Acting Judge Kganyago came to a different conclusion and, on 27 January 2015, ruled that the man’s trial had, in more than one respect, been “blatantly unfair” and his sentence was too harsh.
The High Court did not totally find in favour of the man and agreed with the Regional Court that a number of the charges had been proven beyond reasonable doubt. The court pointed out that no medical evidence was produced to prove that the child had been anally or vaginally penetrated. The High Court subsequently found him guilty only on the charge of oral rape. The remaining two counts of rape convictions were replaced with convictions on lesser charges of sexual assault in terms of the Sexual Offences Act (Act 32 of 2007).
The question that the High Court then had to deal with was whether there were any mitigating circumstances, thereby removing the obligation of the court to impose a life sentence. The High Court looked at several aspects, one being the evidence of the girl. They came to the conclusion that the young victim had been “not an unwilling participant in the events.” The judges highlighted the fact that the consent of a 10-year-old girl was irrelevant as an element of the commission of the offence but said it must, however, “be an important factor in considering an appropriate sentence.”
In their ruling, the High Court stated:
“The personal circumstances of the appellant, the fact that he is a first offender who spent 18 months in custody awaiting trial, the nature of his offence and the limited effect that it had on the complainant and the serious consequences that his offence already had for himself, cumulatively constitute substantial and compelling circumstances that justify the imposition of a lesser sentence.”
The High Court replaced the man’s sentence of three life terms with 10 years’ imprisonment with a five-year effective prison sentence, backdated to June that year.
The NPA was dissatisfied with the sentence, believing that the punishment given by the court was disproportionate to the gravity of the crime committed. The main concern of the State was that the High Court had wrongly taken into account its own inferences that the complainant had consented to the sexual acts in question in imposing sentence.
In the Supreme Court of Appeal (SCA) the State argued that children under the age of 12 are incapable of consenting to a sexual act. It would thus be illogical to find that the victim’s supposed “willing participation” in the sexual acts could ever be a mitigating factor when it came to the question of sentence.
In the SCA’s ruling, Judge Xola Mlungisi Petse agreed with the State and said that the High Court had committed an error of law. “…I am constrained to say that the High Court appears to have overemphasized the respondent’s personal circumstances at the expense of the gravity of the crimes and the interest of society, including those of the complainant,” he said.
The SCA also pointed out that the use of children as objects of pornography should not be viewed as anywhere near acceptable. Quoting from a Constitutional Court ruling, the judge said: “Children’s dignity rights are of special importance. The degradation of children through child pornography is a serious harm which impairs their dignity and contributes to a culture which devaluates their worth.”
The five SCA judges ruled that the sentence imposed by the High Court be set aside and that the matter be referred back to the High Court. The High Court will now have to decide again on an appropriate sentence, taking into consideration the principles set out in the SCA judgment.
Date:18 June 2017 - By: Anton van Zyl
Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror for over 25 years. He graduated at the the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.