A GAUTENG man who was convicted for the rape and sexual assault of his stepdaughter lost his appeal against life imprisonment sentences.
According to the judgment handed down recently in the Pretoria High Court, the man was found guilty on two counts of rape and one count of sexual assault in the Pretoria Regional Court in August 2023.
In June 2024, he was sentenced to life imprisonment on each count of rape and five years imprisonment for sexual assault.
According to the judgment's summary of facts, the girl testified that the man (appellant) was her stepfather, and he resided with them in the same house.
She said the offences took place at night when her mother was working and slept over at work.
The girl said her stepfather would come into her room and move her little brother from the bed and proceed to have sexual intercourse with her without her consent. The offences occurred from the time she was aged 11 to 13.
According to the court papers, she wrote down the encounters she had with her stepfather in her diary, which was later discovered by her mother who read through the contents. Her mother confronted her about her written diary entries detailing her encounters with her stepfather. Charges were brought against him and he was arrested.
According to the court papers, the man said the appeal against the sentence was brought on the basis that the court a quo (Pretoria Regional Court) misdirected itself in finding that there were no substantial and compelling circumstances to deviate from life imprisonment and further that the imposed sentence is “shockingly inappropriate and induces a sense of shock”.
He said the sentencing court erred in finding that the cumulative effect of various factors did not constitute substantial and compelling circumstances.
The factors included that he was a first-time offender, was taking care of the complainant and her family and that the offence in question did not fall within the worst category of offences where a victim is severely assaulted and suffers serious injuries whereby serious medical attention is required or the victim had to undergo an operation to mend the damages.
The man further said that the girl was not assaulted and/or did not suffer serious physical injuries during the commission of the offence and there was no evidence that she was infected with any sexually transmitted disease.
In addition, he submitted that there was a possibility of rehabilitation.
The man said the total time spent in custody prior to the finalisation of the trial was about five years and four months. He was arrested on January 1 in 2019 and was held in custody until sentencing on June 11 in 2024.
In handing down judgment, acting judge W Domingo (with judge A Millar), said the ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (substantial and compelling) and must be such as would cumulatively justify a departure from the standardised response that the legislature ordained.
“The appellant being a first offender and taking care of the complainant and her family as well as the appellant’s personal circumstances, as set out in the presentence report which forms part of the record, reveal nothing substantial and compelling that would justify a departure from the sentence imposed.”
Acting judge Domingo said the aggravating factors in the case far overshadow any mitigating factors presented by the appellant’s circumstances.
“The appellant was a father figure to the complainant. He was in a position of authority and command over the complainant. The complainant was left in his care by her mother, and he calculatingly sexually abused her and raped her more than once when her mother was at work.
“He threatened her with death if she told on him and threatened that if she did report him, he would kill her mother. The complainant was only 11 to 13 years old at the time she was exposed to the appellant’s deviant sexual behaviour,” he said.
Acting judge Domingo said the man had not shown any remorse or acknowledged the seriousness of his offences.
“He has persisted in his denial of the commission of the rapes and sexual assault therefore in my view the prospects of rehabilitation are substantially diminished.
“It is evident from the record of the proceedings that the complainant was extremely emotional during her testimony, and it can also be gleaned from the Victim Impact Report that the complainant suffered emotional and psychological trauma because of the rapes,” he said.
Acting judge Domingo added the crimes for which the man was convicted and sentenced were of an extremely serious and egregious nature.
He said it was argued on behalf of the man that the absence of physical injury and the absence of evidence of any sexually transmitted disease(s) should be factors to be included in “substantial and compelling circumstances”.
“Section 51(3)(a)(A) of the Criminal Law Amendment Act 105 of 1997 clearly precludes reliance on precisely such absence of injury as substantial and compelling circumstances. The Act clearly states that when imposing a sentence in respect of the offence of rape an apparent lack of physical injury to the complainant shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence.
“The appellant submits that the delay in the finalisation of the trial was not due to his doing, but due to the slow pace of the investigation, time it took to get the matter on the court-roll and the Covid-19 pandemic. The Covid-19 pandemic in my view is a neutral factor in the delay of the finalisation of the trial as the entire world was affected and its resultant consequences.
“It may be viewed by some as unfortunate that the appellant spent an inordinate amount of time in custody pending the finalisation of the trial. However, having considered the matter, I am of the view that a sentence of life imprisonment is proportionate to the crime committed and the sentence is a just one,” he said.
Acting Judge Domingo said given the serious nature of the offences and the aggravating circumstances under which the offences were committed the sentences imposed were just and cannot be said to be disturbingly inappropriate.
“Having considered the evidence adduced during the trial and the court a quo’s judgment in relation to whether the appellant ought to be convicted on the charges, there is nothing on the record that would justify a departure from the prescribed minimum sentence of life imprisonment. In the absence of any irregularity or misdirection of the court a quo, I am satisfied that the appeal against the sentence stands to be dismissed.”