S v AR 2017 (2) SACR 402 (WCC)
Sexual offences — Child pornography — Sentence — Accused guilty of numerous counts relating to child pornography, sexual assault and using children for pornography — Accused 36-year-old engineer who photographed friends’ and neighbours’ children whilst sleeping, after partially undressing them — Seriousness of offence requiring custodial sentence— Sentenced to 10 years’ imprisonment of which two were suspended.
The respondent was convicted in a regional magistrates’ court after having pleaded guilty to 2130 counts relating to child pornography and sexual exploitation of children. The counts included contraventions of s 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (sexual assault); s 20(1) of Act 32 of 2007 (the use of a child for child pornography); and of s 24B(1)(a), (b) and (c) of the Films and Publications Act 65 of 1996 (possession, creation and importation of child pornography). Fourteen of the counts attracted a minimum sentence of10 years’ imprisonment under part III of sch 2 to Act 105 of 1997, but the magistrate found that there were substantial and compelling circumstances justifying a lesser sentence; and imposed a term of eight years’ imprisonment, wholly suspended for five years (all the counts were taken together).
The state appealed against the sentence on the basis that it was too lenient, inappropriate and disproportionate to the crimes committed, the interests of society and the respondent’s personal circumstances.
The offences came to light when the respondent went on holiday and asked his friend and neighbour to look after his house. The neighbour obtained access to the respondent’s computer where he found images of his 8-year-old son, as well as a 6- and 9-year-old girl, the daughters of another friend, which depicted the children with their private parts exposed. There were also images of the respondent’s sister-in-law, who lived with the respondent and his wife, and at the time was between 13 and 15 years old. According to the respondent, she was not shy to expose her naked body to him. The photographs of the other children had been done without their knowledge or whilst asleep. There were also videos taken of the respondent’s son whilst in the bath with a friend, and the pictures concentrated on the private parts of the young friend. A number of video recordings were made of the respondent’s sister-in-law and in one she was encouraged to manually stimulate herself. The respondent’s psychologist testified that the respondent, who was a 36-year-old engineer, was not a paedophile as there was no evidence of grooming or any sexual encounters with his victims. According to the state’s expert witness, a professor of psychology, the most recent Diagnostic and Statistical Manual of Mental Disorders’ classification of a paedophilic disorder did not require physical sexual contact between the offender and victim.
Held, that the magistrate had misdirected herself in a number of respects, inter alia, in regarding it as mitigating that the complainants were unaware of the nature of the sexual assaults because they were asleep. This could hardly be regarded as a factor that diminished the seriousness of the offence, and the respondent had in fact touched his victims. Similarly, that the magistrate had found that the respondent’s sister-in-law was a willing participant and the pictures and videos taken of her had no negative impact on her as a victim, was clearly wrong. The videos and pictures of her could not be regarded as harmless or less serious since she was at the time pre-pubescent, fully trusted the respondent and could hardly have appreciated the full psychological impact of her actions at the time. Common sense dictated that the respondent must have, over a period of time, created a false sense of security and trust with her (see  – ).
Held, further, that the magistrate had erred in finding that the state had failed to prove any kind of propensity on the part of the respondent to commit offences of that nature. On the established facts there was no doubt that he had such a propensity. He had physically abused some of his victims whilst they were asleep and had exploited his victims when they were at their most vulnerable. To suggest that he was not a danger to society was simply misguided (see ).
Held, further, that a non-custodial sentence would not achieve an appropriate balance between the seriousness of the offences and the interests of society but would rather focus unduly on the rehabilitation of the respondent. An appropriate sentence would be one of 10 years’ imprisonment of which two years were suspended (see  – ). Sentence altered accordingly.