No greater crime than to deprive a child of her innocence: judge on rape

Appeal court imposes life sentence for rapist, up from 22 years

16 March 2020 - 11:35 By ERNEST MABUZA
The Supreme Court of Appeal has increased the sentence of a man found guilty of raping a girl aged nine to life in prison, up from the 22 years imposed by the high court. Stock image.
The Supreme Court of Appeal has increased the sentence of a man found guilty of raping a girl aged nine to life in prison, up from the 22 years imposed by the high court. Stock image.
Image: 123RF/Thawornnurak

The Supreme Court of Appeal has set aside a 22-year sentence imposed on a man who raped a nine-year-old girl, and replaced it with life imprisonment.

The high court in Makhanda last year sentenced the man to 22 years, deviating  from the life sentence prescribed by the Criminal Law Amendment Act of 1997.

The law requires courts to impose minimum prescribed sentences for a category of offences — such as life imprisonment for the rape of a child under 16 — unless there exist substantial and compelling circumstances justifying a lesser sentence.

In this case, the child, who was nine, had been passed from one relative to another after the death of her mother.  She ended up living with her aunt and her aunt’s boyfriend.

In April 2017, the boyfriend and her aunt returned home drunk and went straight to bed.

However, the boyfriend went to where the child was sleeping and raped her. The child did not tell her aunt as she was afraid of the boyfriend.

The boyfriend raped her again on another occasion.

The discovery that the child had been molested happened when she visited another aunt, who noticed the child was limping. The police were informed and the doctor who examined her confirmed she had been penetrated.

The man’s version was a bare denial and he was convicted of rape as charged.

When sentencing the man to the lesser sentence, the high court accepted that the prescribed minimum sentence was life imprisonment. However, it imposed a lesser sentence as it had regard to the role played by alcohol.

The sentence imposed by the court would mean the man would have been eligible to be considered for parole after serving half of his sentence. If the court had sentenced him to life, he would have been considered for parole after serving 25 years.

The National Prosecuting Authority appealed against the sentence.

“The role of alcohol can hardly be used as a mitigating factor, let alone a substantial and compelling circumstance when, as here, it was used to facilitate the commission of the offences,” said judge of appeal Caroline Nicholls.

Nicholls said in imposing a lesser sentence, the high court failed to list the substantial and compelling circumstances as it was enjoined to do by the act.

“Instead, it relied on circumstances that were ordinary mitigating factors, if indeed they could even be described as such.”

Nicholls said lack of physical injury as constituting a substantial and compelling circumstance when imposing a sentence on a conviction of rape was specifically excluded in terms of the act.

She said there could be no greater crime, in her view, than to deprive a child of her innocence, especially a vulnerable child.

“This heinous act was not perpetrated by a stranger, but by a person who said he considered the child to be his own daughter.”

Nicholls said the reality was that SA has five times the global average of violence against women.

Despite severe underreporting, there are 51 cases of child sexual victimisation per day, Nicholls said.


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