A woman sentenced to life imprisonment for raping a nine-year-old boy will be resentenced after a judge ruled the magistrate hearing the matter should have directed that she undergo psychological evaluation.
The “unusual” matter came before acting judges Adrian Collingwood and Nonkcubeko Nako in the Pietermaritzburg High Court this week in which the 38-year-old woman — who cannot be identified to protect the victim — appealed against the sentence.
She pleaded guilty in the Pietermaritzburg regional court to three counts of raping the child.
In that detailed plea, she admitted she had committed the acts of “sexual penetration” by inserting the child’s penis into her vagina. She said the child was her uncle’s son who stayed with her.
She had an altercation with her uncle and raped the child out of revenge.
The child had reported the incidents to his teacher and she was arrested in May 2018.
“I am truly remorseful for my actions and beg the court’s mercy when imposing sentence,” she said in her plea.
Collingwood said he could find no reported cases in South Africa that had dealt with instances of rape by a woman of a young boy (save where women were accused as being accomplices to men).
He said the magistrate had been correct in finding there were no substantial or compelling circumstances to deviate from the prescribed minimum sentence of life imprisonment.
I am gravely concerned that an injustice might result should the appellant not be assessed to establish whether she suffers from some or other mental incapacity which might, in itself, comprise substantial and compelling circumstances warranting a sentence other than life imprisonment
— Acting judgesAdrian Collingwood
“But there is something truly extraordinary about the facts in this matter,” he said, noting the woman’s counsel had not addressed the novel facts in submissions on sentence.
He said the woman was entitled to a fair trial and that included effective representation.
Collingwood said while it was clear from her plea explanation she was conscious of what she was doing and that she knew it was wrong, her criminal capacity may have been compromised to some measure.
And it was possible substantial and compelling circumstances might have been found to exist.
“Such are the extraordinary unusual facts of this matter that the magistrate ought to have taken the initiative and directed that a clinical psychologist or a psychiatrist (preferably both) examine her.”
He said magistrates were empowered by the Criminal Procedure Act to exercise this discretion.
“I am gravely concerned that an injustice might result should the appellant not be assessed to establish whether she suffers from some or other mental incapacity which might, in itself, comprise substantial and compelling circumstances warranting a sentence other than life imprisonment,” he said.
Collingwood declined to make a final determination on the appeal but directed the sentence be set aside and the matter be sent back to the regional court.
He also directed she be psychologically examined, that evidence be led in this regard and that the magistrate then reimpose sentence after considering this.
The woman is to remain in custody pending the outcome of further proceedings.
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