E N v S (A95/2020) [2020] ZAFSHC 202 (22 October 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: A95/2020

In the matter between:

E N Appellant

and

THE STATE Respondent

HEARD ON: 12 October 2020

CORAM: Musi JP, et Nekosie AJ

JUDGMENT BY: Nekosie AJ

DELIVERED ON: 22 October 2020

[1] The appellant was convicted on 9 September 2016 of contravening the provisions of section 5(1) of the Criminal Law Amendment Act (Sexual offences and Related Matters) 32 of 2007, sexual assault, by the Bloemfontein Regional Court. He was sentenced to fifteen years' imprisonment on 30 September 2016. He was granted leave to appeal against the sentence on 15 June 2017.

[2] The salient facts are that the complainant was a 7-year-old boy at the time of the incidents and 8 when he testified in court. The appellant was an employee of the complainant's uncle and resided in a flat on his employer's small holding.

[3] During March 2015, whilst the complainant was visiting his cousins on the small holding, the appellant on several occasions lured him to the flat, where he resided, with promises of sweets and/or money. There he sexually violated the complainant by touching

his penis and putting it in his (appellant's) mouth.

[4] In sentencing the appellant the trial court, with reference to S v Banda and others[1], reminded himself of the need to balance the appellant's personal circumstances with the seriousness of the offence and the interest of society.

[5] The trial court took into consideration that the accused was 25 years old. He was unmarried and the father of an 8-year-old son,

who resided with his aunt and uncle in Vryburg. The mother of his son, as well as his own parents are deceased. The appellant passed

matric and is a qualified boiler maker, plumber and mechanic. He previously had his own business where his income

varied. At the time of his arrest he was employed by the complainant's uncle.

[6] The trial court considered the appellant's previous convictions and how he responded to the sentences imposed on him in the past and rightly found them to be aggravating factors in the consideration of an appropriate sentence.

[7] On 30 May 2003 the appellant was convicted of indecent assault on a 14 year old boy and sentenced to 12 months correctional supervision. On 29 June 2004 he was convicted of indecent assault on a 6-year-old boy and sentenced to 5 years imprisonment. A further conviction of sexual assault on a 14-year-old boy followed on 1 September 2011 and he was sentenced to 10 years imprisonment of which 4 years was suspended. At the time of the commission of the offence in question he was out on parole. The trial court rightly found that

the sentences previously imposed on the appellant was ineffective in rehabilitating him.

[8] In aggravation, the court considered that the victim and his family is still suffering because of the conduct of the appellant. The child is experiencing difficulties at school. He emphasised that the offence was a serious one, committed upon a child and which

occurred frequently in the court's jurisdiction.

[9] Ms Kruger, acting on behalf of the appellant, conceded that considering the appellant's previous convictions and the nature of the crime, there are no mitigating circumstances that would warrant a lesser sentence.

[10] It is trite law that a court on appeal may only interfere with a sentence if the sentencing court materially misdirected itself or the disparity between its sentence and the one which this court would have imposed had it been the trial court, is 'shocking', 'startling' or 'disturbingly inappropriate[2].

[11] The appellant's previous convictions is indicative of the fact that he has paedophilic tendencies, in particular towards young boys. He showed no remorse for his conduct. Instead he was observed laughing and smiling during the witness' evidence as if it were a trivial matter.

[12] The trial court correctly observed that, apparent from his past conduct, the appellant cannot be rehabilitated. The relatively short intervals between the commission of his previous convictions and the fact that he committed the current offence whilst on parole is confirmation that he is unlikely to be rehabilitated.

[13] I cannot find that the trial court misdirected himself on any aspect in his consideration of the sentence nor can it be said that the sentence is shockingly inappropriate in the present circumstances.

ORDER

The appeal is dismissed

______

C NEKOSIE, AJ

I concur.

_____

CJ MUSI, JP

On behalf of the appellant: Adv. S Kruger

Instructed by: Legal Aid SA

BLOEMFONTEIN

On behalf of the respondent: Adv. T Sekhonyana

Instructed by: State Attorney

[1] 1991 (2) SA 352 (BGD).

[2] S v Pieters 1987 (3) SA 717 (A), S v L 1998(1) SACR 464