S v JR AND ANOTHER 2015 (2) SACR 162 (GP)
Child — Offences against — Deliberate neglect of a child — Ambit of section in respect of persons who may commit offence — Legislature having cast net wide and section covers any person who may even temporarily or partially and voluntarily be caring for the child — Children’s Act 38 of 2005, s 305(3)(a).
Child — Offences against — Deliberate neglect of a child — Sentence — Biological mother of child treated more severely than actual abuser as she F had greater responsibility to child — Children’s Act 38 of 2005, s 305(3)(a).
Rape — Sentence — Rape of minor — Mother convicted as accessory after fact — Sentenced to seven years’ imprisonment on this count — Mother’s boyfriend, convicted of having raped child, sentenced to life imprisonment.
The two appellants were convicted in a regional magistrates’ court of assault with intent to do grievous bodily harm (count 1); deliberately neglecting to attend to the injuries of the 13-month-old child (D) in contravention of s 305(3)(a) of the Children’s Act 38 of 2005 (count 2); and a contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 by raping (count 3). The first appellant, the biological mother of the child, was sentenced to ten years’ imprisonment in respect of count 1; eight years’ imprisonment for count 2; and seven years’ imprisonment as an accessory to rape in respect of count 3. Five years of the sentence for count 2 was ordered to run concurrently with the sentence on count 1. The second appellant, the first appellant’s boyfriend, was sentenced to 10 years’ imprisonment for the first count, five years’ imprisonment for count 2; and to life imprisonment in respect of count 3. After considering the evidence the court upheld the findings of the court a quo that both appellants were guilty on all three counts. In coming to this conclusion the court had to inter alia consider a submission by the second appellant that he was not in any way responsible for D and that therefore the conviction brought out against him on count 2 was wrong in law as s 305(3)(a) did not apply to him. As regards sentence, the first appellant contended that the magistrate had erred in not taking counts 1 and 2 together for the purpose of sentence as the offence of abuse stemmed directly from the assault. She also submitted that the disparity between the sentence of eight years’ imprisonment imposed on her for count 2, as compared to the sentence of five years’ imprisonment imposed on the second appellant, was unfair. She furthermore contended that the sentence of seven years’ imprisonment imposed on her for being an accessory to rape was excessive. It was contended for the second appellant, with respect to the appeals against the sentences imposed, that there was no evidence that the child had suffered any psychological trauma; that the appellant showed remorse; and that he had limited intellectual capacity; and that these factors cumulatively justified a sentence less than the minimum sentence of life imprisonment.
Held, as to the application of s 305(3)(a) to the second appellant, that the provisions of the section were clear and that even a person who voluntarily cared for a child, whether temporarily or partially, may be guilty of the offence of deliberately neglecting a child. It was clear that the legislature had sought to spread the net cast by the subsection as widely as possible in relation to who was deemed to be a caregiver. It seemed that even if a person were a guest at the house of another who had a small child and the guest voluntarily cared for the child for a few minutes while the parent absented him- or herself, that guest fell within the ambit of the section and this was not strange if one had regard to the constitutional imperative in s 28(2) of the Constitution, which provided that a child’s best interests were of paramount importance in every matter concerning the child.
Held, further, as to the sentence imposed on the first appellant for counts 1 and 2, that the magistrate had taken into consideration the fact that the convictions on those counts stemmed from one continuous criminal transaction, and that was reflected in the order that those sentences be served, in part, concurrently. In doing so, the magistrate had not erred in any way.
Held, further, as to the disparity in sentences for count 2, that the magistrate had correctly taken into account the different positions held by the respective appellants over the child, in that she was the biological mother of the child whereas the second appellant was not D’s father, and that she had a greater responsibility towards the child.
Held, further, as to the first appellant’s argument that the sentence on count 3 was excessive, given that her liability was only that of an accessory, that the crime of being an accessory after the fact was one that was entirely sui generis and its seriousness did not depend on the nature of the crime which the main perpetrator committed, but on the manner in which an attempt was made to enable the perpetrator to escape liability. The sentence imposed was appropriate.
Held, further, that the child could not express herself verbally so no psychological profile could be drawn, but it appeared from the victim impact report that the child still experienced nightmares from time to time and that this could be a consequence of the abuse she had suffered. The court a quo had correctly rejected the submission that the second appellant showed remorse, and the suggestion that he had limited intellectual capacity was not his defence, nor did he tender it in mitigation as an explanation for poor judgment, which may have been a substantial and compelling circumstance, but instead he refused to take responsibility and showed no remorse. The second appellant’s personal circumstances were outweighed by the seriousness of the offence and the need to protect society from any possible repetition of this kind of abuse. The appeal against the sentence was accordingly dismissed.