CHILD – DUTIES OF LEGAL REPRESENTATIVE

S v DW 2017 (1) SACR 336 (NCK)

 

Child — Trial — Child under age of 18 years at commission of offence — Application of Child Justice Act 75 of 2008 — Duties of legal practitioner representing child offender — Required to make extra effort in ensuring best interests of child paramount.

 

The accused was convicted in a magistrates’ court of housebreaking with intent to commit an offence unknown to the state. He was sentenced to a fine of R1500 or five months’ imprisonment, suspended for five years on certain conditions. He was 17 years and 11 months old at the time of the commission of the offence. The provisions of the Child Justice Act 75 of 2008were not applied in respect of his trial. On special review,

Held, that the accused was deprived of a compulsory preliminary enquiry in terms of s 5(3) of the Child Justice Act after he was assessed, and the possibility of a diversion in terms of s 5(4). (Paragraph [9] at 339g.)

Held, further, that the accused’s legal representative failed him by not establishing during consultation how old he was at the commission of the offence. It was crucial for a practitioner to go the extra mile where child offenders were involved since the best interests of the child should have been regarded as of paramount importance.

Held, further, on the facts, that although the irregularity had not brought about a failure of justice, the sentence had to be altered to one of a caution and discharge.

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AIDING AND ABBETTING AT RAPE

S v MD AND ANOTHER 2017 (1) SACR 268 (ECB)

Sexual offences — Causing child to witness sexual act — Contravention of s 21(2)(a) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 — What constitutes — Mere presence of child insufficient — Perpetrator must have consciously and deliberately created circumstances conducive to child witnessing sexual act and been aware that child watching.

Rape — Aiding and abetting rapist — What constitutes — Defence of necessity — Mother of child victim alleging that she was compelled to assist her husband in raping their child — Failure to call for assistance of neighbours and mother’s obvious ability to resist her husband constituting commission of offence.

 

The two accused, the biological father and mother respectively of the complainant, their 10-year-old daughter, were charged in the High Court as follows: count 1 (against accused 1) rape; count 2 (against accused 2) aiding and abetting accused 1 to rape the complainant; and count 3, causing the complainant to witness or be in their presence while engaging in a sexual act (contravention of s 21(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007).

As to the second count, the court was required to determine whether the defence of necessity was available to the second accused in circumstances where she alleged that she had been forced to assist the first accused in committing the rape.

Held, that her inability to raise an alarm or to resist the first accused had to be rejected, as she had in the past sought assistance from her neighbours and also demonstrated the ability to resist him: she had — despite her physical disability — on a previous occasion severely assaulted him. In those circumstances, she could not have believed her life to be in imminent danger and was guilty of aiding and abetting the first accused to rape the complainant by putting a cloth into her mouth. (Paragraphs [60] – [63] at 281b – f.)

As to what constituted a contravention of s 21(2)(a),

Held, that the mere presence of a child, when the perpetrators were engaged in a sexual act, did not constitute a contravention of the relevant section. Otherwise, the multitude of people who lived in abject poverty, occupying single-roomed shacks together with their children, would always run the risk of contravening the section. The persons concerned must have consciously and deliberately created circumstances conducive to a child witnessing the sexual activity being engaged in. Furthermore, such persons must have been conscious of the fact that the child was watching them engage in said activity. The circumstances in the present matter, where the accused might have thought that the complainant was asleep, whereas she was not, did not render them guilty of the offence.

CHILD JUSTICE ACT – REQUIREMENTS AS TO SENTENCE

S v NTETA AND OTHERS 2016 (2) SACR 641 (WCC)

 

Child — Sentence — Generally — When accused to be treated as child for purposes of Child Justice Act 75 of 2008 — Required to have been under age of 18 at time of commission of offence as well as at time of arrest.

 

Accused 4 was one of three accused who were convicted of the murder and rape of the deceased, whom they had brutally attacked and assaulted before throwing his body off the side of a bridge. At the time of committing the offence accused 4 was under the age of 18, but hours before his arrest the following day he turned 18. It was contended on his behalf that, since he was under the age of 18 at the time of the offence, the provisions of the Child Justice Act 75 of 2008 (the CJA) were applicable during the sentencing proceedings.

Held, that there was a perfectly logical and rational reason why the legislature required that the child offender should have been under the age of 18 years when he was alleged to have committed the offence and also when he was arrested, in order for the CJA to find application. The very purpose of the Act was to establish criminal justice for children, and children only, who were in conflict with the law and accused of committing offences. It was tailor-made to suit the needs of the child offender, and not that of an adult offender.

Held, accordingly, that accused 4 was to be treated as an adult for the purposes of the sentencing proceedings. However, as he was under the age of 18 years when he committed the offence, in terms of s 51(6) of the Criminal Law Amendment Act 105 of 1997, the prescribed sentencing provisions of that Act did not apply to him. The court therefore had to exercise its ordinary jurisdiction in respect of sentence as far as he was concerned.Accused 4 was sentenced to an effective 15 years’ imprisonment in respect of both counts.

SENTENCE FOR SEXUAL INTERCOURSE WITH CHILD

S v SHELDON-LAKEY 2016 (2) SACR 632 (NWM)

 

Sexual offences — Sexual intercourse with boy child under age of 16 years — Contravention of s 15(1) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 — Sentence — Thirty-nine-year-old married woman in educator – learner relationship with boy whom she was supposed to be counselling — Sexual intercourse occurring on more than one occasion — Sentence of four years’ imprisonment confirmed on appeal.

 

The appellant had been employed as a temporary educator at a school and was convicted in a regional magistrates’ court on a charge of having committed an act of consensual sexual penetration with a boy child under the age of 16 years to whom she had offered counselling sessions at the school. She was sentenced to four years’ imprisonment. On appeal it was contended on her behalf that the court a quo had erred inter alia in rejecting the probation officer’s recommendation that she be sentenced to correctional supervision. The court on appeal rejected, on the evidence, her defence relating to knowledge of the age of the boy and proceeded to consider the merits of the appeal against sentence.

Held, that, while due weight had to be given to the appellant’s personal circumstances, the offence she had committed remained a serious one. Right-thinking members of society expected adults to protect children and not to abuse them. The exploitation of emotionally immature children and the risks of sexually transmitted diseases were cause for serious concern.

Held, further, that in the present instance the offence pertained to an instance of consensual intercourse between a 39-year-old married woman and a schoolboy under the age of 16. The fact that the appellant was in a educator – learner relationship with the boy aggravated the matter, which was compounded further by the fact that the sexual encounters occurred more than once, even after the appellant received the victim’s birth certificate. The offence was committed by a person who also clearly knew what the law and the Scripture had to say about morality.

Held, further, that the correctional-supervision sentence suggested by the probation officer and by the appellant’s counsel would be wholly inappropriate in the circumstances of the case. The sentence imposed had to clearly indicate that sexual intercourse by an adult with a child would not be tolerated. In the circumstances the appeal was dismissed in its entirety.

CHILD’S EVIDENCE

Mpontshane v S [2016] 4 All SA 145 (KZP)

Criminal law – Rape – Conviction and sentence – Appeal – Where evidence not establishing guilt of appellant as perpetrator of offences, and where prescribed minimum sentence was irregularly imposed, appeal upheld.

Criminal procedure – Child complainants – Testimony in court – When children testify, they should be afforded the assistance of intermediaries.

Criminal procedure – Forensic DNA evidence – When the prosecution rests on the evidence of children, the State must obtain DNA evidence when samples are taken from such complainants.

Criminal procedure – Rape – Prescribed minimum sentence – Appellant not informed that he faced a term of life imprisonment as prescribed in Schedule 2, Part 1(c)(i) read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 – Imposition of prescribed minimum sentence in such circumstances amounting to irregularity.

 

Convicted on two counts of rape and one count of theft, the appellant was sentenced to life imprisonment on each count of rape and to a term of four years’ imprisonment for housebreaking with intention to steal and theft. He appealed against the convictions and sentences on the rape counts.

The victims of the rape were two young girls who were in the home into which the appellant had broken.

The appeal against conviction was based on whether the trial court did not ascertain that the child complainants understood the difference between truth and falsehood and did not administer the oath and warn the complainants properly; that the court failed to warn itself sufficiently or at all to exercise caution when dealing with the evidence of young children especially when identification was at issue; and that the State had failed to prove recent possession by the appellant of a t-shirt and radio belonging to the complainants.

Held – The record showed that the magistrate had in fact enquired into whether the complainants knew and understood the importance of taking the oath. He ascertained that they understood the difference between truth and lies. The approach that the trial court adopted in that regard was unassailable, and the first ground of appeal was dismissed.

As far as identification was concerned, the State’s case was that the complainants were able to identify the appellant when the electric light was switched on, and in the light of a candle. There was also light from the street. The State witnesses knew the appellant. However, having regard to the accounts given by the two complainants, the present Court found their evidence of the identification of the appellant to be fraught with contradictions and inconsistencies. On its own, such evidence could not be relied upon. The Court therefore turned to the remaining issue of the possession by the appellant of the t-shirt and radio belonging to the complainants. The fact that the t-shirt was found in his possession did not prove his guilt on the rape counts because the State failed to prove when and how he came to possess it. Although the appellant was not a credible witness, he bore no onus to prove his innocence. The State had failed to discharge its burden of proving the identity of the assailant beyond reasonable doubt.

It being common cause that the complainants had been raped, two issues were raised by the Court. The first related to the fact that the child complainants testified without the assistance of an intermediary, and the second was that forensic DNA evidence was not produced. The Court confirmed that when children testify, they should be afforded the assistance of intermediaries. Secondly, when the prosecution rests on the evidence of children, the State must obtain DNA evidence when samples are taken from such complainants. At the very least, the State must account to the complainants and the Court whether samples were tested and what the results were.

Finally, the Court found that the appeal against sentence was well-founded. Although the charge sheet informed the appellant that he was being prosecuted in terms of Schedule 2 of Part III of the Criminal Law Amendment Act 105 of 1997, he was not informed that he faced a term of life imprisonment as prescribed in Schedule 2, Part 1(c)(i) read with section 51(1). To impose a term of life imprisonment in those circumstances amounted to an irregularity that had to be set aside.

The appeal was accordingly upheld, and the appellant acquitted on both counts of rape.

SEXUAL OFFENCE – COMPLAINT AFTER CHILD THREATENED BY MOTHER

S v GANGA 2016 (1) SACR 600 (WCC)

Sexual offences — Proof of — Admissibility of complaint made by complainant — Complaint made only after child victim threatened by mother — Rule that evidence of complaint inadmissible where not made voluntarily should not be applied inflexibly — Careful examination of all facts and circumstances required.

Sentence — Life imprisonment — When appropriate — Life sentence reserved for cases devoid of substantial factors — In casu, accused convicted of three sexual offences involving young girls — No expert evidence presented of emotional and psychological harm — Cumulative effect of accused’s personal circumstances not considered — Sentence replaced with sentence of 15 years’ imprisonment.

On appeal against both the convictions and sentences the appellant contended inter alia that the evidence of the complainant on the third count was unreliable as she had only implicated him after her mother had threatened her. Therefore, her report about the sexual assault had not been made voluntarily. It was contended further that the trial court had misdirected itself as regards sentence in that it failed to take into account that he was 43 years of age at the time of the offences; had been gainfully employed prior to his arrest; was a first offender; had three minor children whom he supported; and had been in custody for 18 months prior to sentence being imposed.

Held, as regards the reliability of the evidence of the child witness on the third count, that the terms of a complaint made by a complainant in a sexual offence is admissible for two purposes, namely to show the consistency of the complainant’s evidence and to negative consent. Although the complaint would not be admissible if it were made as a result of intimidation, suggestion or conduct towards the complainant which negated the element of voluntariness, courts should be cautious in not rushing into a strict application of this rule. A careful examination of the facts and circumstances of the particular case was required before coming to the conclusion that the statement of a victim in a rape or sexual assault was inadmissible because said victim had been threatened to make it.

On the facts of the present matter the evidence of the child ought not to be excluded and was not inadmissible on the basis that it had been coerced or obtained by intimidation or suggestion. The answers that she gave to her mother, on being confronted in the way that she was, did not have to be considered as proof of her story or of the incidents that she testified about. Although her evidence was simplistic, it was clear and absent of fantasy and suggestion. Moreover her evidence about the appellant’s modus operandi, ie playing games with the girls before engaging in his sexual conduct with them, was substantially corroborated by the evidence of the complainant on the second count. The appeal against the convictions was dismissed.

As to sentence, it was regrettable that the state had not presented expert evidence about the emotional and psychological harm that the respective victims suffered. The court a quo had further failed in the circumstances to give proper consideration to the approach adopted by the courts in similar matters, namely that the life sentence ordained by the legislature should be reserved only for cases devoid of substantial factors. It was this court’s impression that the trial magistrate had decided to impose the prescribed sentence of life imprisonment as a matter of course unless the personal circumstances of the appellant disclosed it to be exceptional. Such an approach was not permitted and the nature and degree of the misdirection enabled the court to interfere and reconsider sentence.

Although the incidents were closely connected in time, place and circumstances, it was not necessarily appropriate for them to be taken together for the purpose of sentence, since they were subject to their own statutory sentencing structure. In all the circumstances the court imposed a sentence of 15 years’ imprisonment on the first count and terms of two and three years’ imprisonment on the second and third counts, respectively. It was ordered that those sentences would run concurrently with the sentence on the first count.

PRISON SENTENCE FOR CHILD

S v CS 2016 (1) SACR 584 (WCC)

Child — Sentence — Imprisonment — Fifteen-year-old accused, convicted of cold-blooded murder, not showing any remorse and refusing to take responsibility for actions — Conduct during detention in child and youth care centre awaiting trial militating against sentence of compulsory residence in such centre — Sentence of eight years’ imprisonment imposed.

The appellant was 15 years old when he was convicted in a regional court of murder; possession of a 9 millimetre semi-automatic firearm; and possession of nine rounds of 9 millimetre ammunition. The evidence at the trial was to the effect that he had shot the deceased at point-blank range with the firearm. He showed no remorse, maintained his innocence and refused to take responsibility for his actions. Whilst detained in a place of safety awaiting trial, he often failed to attend school. The court sentenced him to 10 years’ imprisonment.

On appeal it was contended that the court had erred in failing to give consideration to a sentence of compulsory residence in a child and youth care centre.

Held, that in terms of s 77(5) of the Child Justice Act 75 of 2008 (CJA) a child justice court had to take into consideration the number of days that the child had spent in prison or a child and youth care centre prior to the sentence being imposed. As the magistrate had failed to take this into account (amounting to almost 10 months), the sentence was not in accordance with the provisions of the CJA and stood to be interfered with on appeal.

Held, further, that the appellant’s past experience at a child and youth care centre, coupled with the seriousness of the offence and his lack of remorse and accountability, militated strongly against a sentence of compulsory residence in such a centre. Additionally, given that in terms of s 76(2) a child could only be so sentenced for a period not exceeding five years, or for a period not exceeding the date on which the child offender in question turned 21, such a sentence would be too lenient.

Held, further, that in the present circumstances a sentence of direct imprisonment ought only be imposed as a measure of last resort, and a sentence of 10 years’ imprisonment was not the shortest appropriate sentence, considering that the court a quo had not taken into account the period that the appellant was in custody awaiting trial. In the circumstances a sentence of eight years’ imprisonment was appropriate.