Prescribed minimum sentence

14 November 2022 12:00 by Merilyn Kader

In S v SN [2022] 3 All SA 497 (ECG), rape of a minor – circumstances justifying a lesser sentence than the prescribed minimum sentence of life imprisonment imposed in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Criminal law and procedure - Rape of minor – applicability of prescribed minimum sentence: Alleging that between 11 and 13 October 2021 the accused unlawfully and intentionally committed acts of sexual penetration with a ten-year-old girl, the Director of Public Prosecutions (DPP) for the Eastern Cape Division, prosecuting for and in the name of the state, preferred a rape charge against the accused. As the complainant in S v SN [2022] 3 All SA 497 (ECG) was under the age of 16 and had been raped more than once, the DPP sought to have the prescribed minimum sentence of life imprisonment imposed in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The accused pleaded guilty to the charge and signed a statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, admitting the facts surrounding the rape of the complainant.

The court (per Norman J) having satisfied itself that the accused understood the importance of his statement, convicted him as charged.

On the issue of sentence, the accused testified in mitigation of sentence and requested a sentence of 20 years’ imprisonment instead of life imprisonment. Seeking the court’s mercy, he expressed remorse and apologised for his actions. On the other hand, the state advanced aggravating factors including the age of the complainant, and the breach of the trust she had placed in the accused.

Section 51 of the Criminal Law Amendment Act 105 of 1997 provides for discretionary minimum sentences for certain serious offences. In terms of s 51(3)(aA), the complainant’s previous sexual history; an apparent lack of physical injury to the complainant; the accused’s cultural or religious beliefs about rape; and any relationship between the accused person and the complainant prior to the offence being committed shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence. The court also referred to the constitutional protection offered to children, which is echoed in the Children’s Act 38 of 2005.

Finding that the accused had displayed genuine remorse, the court held that substantial and compelling circumstances existed, which warranted deviation from the imposition of life imprisonment. One of the factors undergirding that conclusion was the fact that the accused had been stabbed by his brother and assaulted by the community on his crime being discovered.

As the accused had a clean criminal record for the previous 15 years, he was found to be a candidate for rehabilitation.

The court made an order facilitating the complainant receiving therapy for her trauma and sentenced the accused to 25 years’ imprisonment.

Merilyn Rowena Kader
Legal Editor at LexisNexis