KAMOCHA J: The appellant, who was aged 21 years, was charged with two
counts of aggravated indecent assault as defined in s 66(1)(a)(ii) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23] which he allegedly committed on 5 February 2009.
The allegations on count one were
that on 5 February 2009 the appellant with indecent intent inserted his penis
into the mouth and between the buttocks of the complainant – a boy aged 10
years – without his consent or realizing that there was a risk or possibility
that he might not have consented to it.
Secondly, on the same day at the
same place he, with indecent intent, inserted his penis between the buttocks of
another boy aged nine years, knowing that he had not consented to it or
realizing that there was a real risk or possibility that he might not have
consented to it.
The outline of the State case was as
follows:
“The
complainants and the accused person are not related but they live in the same
neighbourhood.
On 5
February 2009 at around 1000 hours the two complainants were playing in the
yard of Lotshe School hitting birds using catapults.
The
accused person Brian arrived, he was carrying canned drinks and offered to give
them if they accompanied him to Amakhosi.
They accompanied him and on their way back he led them to a bushy area
where he told them that he was going to have sexual intercourse with them and
threatened them with death if they told anybody.
He
took the first complainant 'M' and made him lie facing downwards with his
trousers at knee level and he inserted his penis between his buttocks, after
that he forced him to suck his penis.
When he refused he hit him until the young boy sucked it.
He
went to 'X, and told him to lie facing downwards with his trousers at knee
level. He then inserted his penis in
between his buttocks. He hit the two
boys if they looked at each other. The
accused had no right to act in the manner he did.” (Only the initials of the boys are quoted as
they are juveniles.)
The appellant tendered pleas of guilty to both counts. He agreed with the above State outline in toto.
He also admitted the essential elements of the offence of aggravated
indecent assault in respect of both counts and the trial court proceeded to
find him guilty as pleaded in respect of both counts.
He was sentenced to 12
years' imprisonment in respect of the first count and 10 years' imprisonment on
the second. Of the total, 5 years were suspended for a period of five years on
the customary conditions of future good behavior.
The accused then first filed this
appeal against sentence only on the following grounds:
“The
learned trial magistrate misdirected himself (sic) by imposing custodial sentence.
The
sentence imposed by the learned trial magistrate in the court a quo is wholly inappropriate in that:
The
learned trial magistrate just imposed a custodial sentence without giving due
weight to the mitigating factors;
The
learned trial magistrate erred in not considering the mitigating factors namely
that the accused pleaded guilty to the offence and that he is a first offender;
and
The
court a quo erred in not considering
the personal circumstances of the accused, in that he has a mental disability.”
A look at the trial magistrate's reasons for sentence leaves
one with the inescapable conclusion that the legal practitioner who drafted the
grounds of appeal merely did so without applying his mind to what he was
doing. It was, therefore, not surprising
that the grounds of appeal were abandoned by the advocate who was instructed to
argue the appeal.
Mr Nkiwane sought the court's indulgence to exercise its review powers
and grant an application for the late filing of an application for review
wherein the relief sought was against both conviction and sentence on the
grounds that:-
“Ad
Conviction
1.
The
court a quo erred in law in
convicting the appellant of contravening s 66 of the Criminal Law (Codification
and Reform) Act (hereinafter referred to as 'the Act'), in that the essential
elements of the offences were neither alleged by the State nor admitted by him,
more particularly, that penetration of the complainants body was neither
alleged nor proved in either counts, more so that the appellant was not legally
represented at the summary trial.
2.
The
facts established by the State in the outline of the State case and admitted by
the appellant only support verdicts of contravening s 67 of the Act, that is to
say, indecent assault simpliciter,
the penalty for which is set out in that appropriate section which is a
permissible verdict under s 275(a) of the Act as read with the Fourth Schedule
thereto.
Ad Sentence
1.
The
overall sentence imposed is so manifestly excessive so as to induce a sense of
shock.
2.
A
balance up of the aggravating and mitigating circumstances of his offences and
of the accused militate against the lengthy term of imprisonment imposed.
3.
Additionally,
or in the further alternative, a globular and shorter term of imprisonment is
called for in a case of the nature in issue and a failure to consider it
constitutes a gross misdirection on the part of the trial court below.”
The State had been served in advance with the purported
application to amend the grounds of appeal and had no objection to the
application being granted for the sake of finalization of the matter. In the result, counsel for the State prepared
his heads of argument on the basis of the amended grounds of appeal. This court eventually granted the application
on the basis that it was an application for the review and that court would
exercise its review powers to deal with the matter.
It was argued on behalf of the
appellant that his conviction under s 66 of the Act was irregular, in that
penetration of each complainant's body per
anum was neither alleged nor admitted.
It was further submitted that the State did not even alleged, let alone
establish, that the appellant went through sexual motions. The State had also allegedly failed to prove
that the appellant had completed his purpose by emitting semen into either of
the complainants' anuses or into the mouth of the first complainant. Finally, the appellant complained that it had
not been established whether or not the insertion into the buttocks was
vertical as it could well have been horizontal.
It was therefore contended that the
facts in the State outline quoted supra, which
the appellant agreed with without demur, did not support a conviction under s
66 of the Act but do support a conviction under s 67 of the Act, which is a
competent verdict.
Aggravated indecent assault relating
to male persons is defined in s 66(1)(a)(ii) as follows:
“Any person who being a male person … commits upon a male
person anal sexual intercourse or any
other act involving the penetration of any part of the other male person's body
or of his own body … with indecent intent and knowing that the other person has
not consented to it or realising that there is a real risk or possibility that
the other person may not have consented to it, shall be guilty of aggravated
indecent assault and liable to the same
penalty as is provided for rape” (emphasis added).
The record of proceedings shows that
the appellant accepted the State outline in which he is said to have led the
two complainants to a bushy area where he announced to them that he intended to
have sexual intercourse with them. That
seems to have been the whole reason why he had taken them to a bushy area. It must have been apparent to him that the
two boys were unwilling to indulge in what he proposed, hence his threats of
death to them if they reported the matter to anybody. The need to utter threats of death would not
have arisen had they been willing participants.
It therefore admits of no doubt that the appellant's intention to have
sexual intercourse with the two complainants was clearly established beyond any
doubt.
With that intention, the appellant
proceeded to insert his penis between the buttocks of each complainant. He did not end there but went on to force the
first complainant to suck his penis.
As is apparent from the provisions
of s 66(1)(a)(ii) of the Act, the offence of aggravated indecent assault is not
confined to non-consensual anal sexual intercourse with a male victim as
suggested by the appellant. The
provisions also cater for “any other act involving penetration of any part of
the other male person's body …”
In each case, the appellant inserted
his penis into the complainant's buttocks – thereby penetrating each
complainant's body. In the first count
he also penetrated the complainant's mouth.
The very fact that he inserted his penis into the complainant's buttocks
suffices to constitute the offence of aggravated indecent assault. It is immaterial whether or not he went
through sexual motions and completed his purpose. It is also irrelevant whether or not
penetration was vertical or horizontal.
Similarly, it is also immaterial whether or not he went through sexual
motions and completed his purpose when he penetrated the complainant's mouth.
There was no reason whatsoever why
the appellant sought to limit the offence of aggravated indecent assault to
non-consensual anal sexual intercourse when s 66(1)(a)(ii) of the Act caters
for any other act involving penetration of any part of body of the male
victim. Quite clearly the appeal against
conviction is devoid of any merit and must accordingly fail.
Turning to the appeal against
sentence, counsel for the appellant had no meaningful submissions to make,
rightly so, in my view. What the
appellant did was despicable and depraved.
The law provides that persons convicted of such conduct are liable to
imprisonment for life or any shorter period.
See s 66(1)(a)(ii), as read with s 65(1).
Depraved and despicable practices
must be condemned in the strongest possible terms. Miscreants of such practices should expect
nothing other than periods of incarceration which may well be lengthy.
That kind of conduct has always been
condemned since time immemorial. For
instance, an appellate court in R v S 1956 (1) 649 (T), when refusing to
interfere with the sentence imposed by the magistrate, held that: “persons who
have been guilty of depraved practices should not escape gaol sentences. The court should not encourage the belief
that depraved conduct can be embarked upon with no consequences other than that
of psychiatric treatment.”
The court a quo's approach to sentence is unassailable. It exercised its discretion properly. A total effective sentence of 17 years'
imprisonment in the circumstances of this case cannot be described as shocking.
It must be mentioned that the
appellant, through his legal representative, appears to be insensitive to the
boys' ordeal, when he stated that he was a young man of 21 years “while the
complainants are small boys of 9 and 10 years, not babies. The trauma on the victims is a matter of
conjecture.” The trauma cannot be a
matter of conjecture when the appellant threatened the complainants with death
and then proceeded to perform hideous acts on them. Children of such a tender age are unlikely to
be familiar with such depraved practices.
The foregoing were the reasons why
after hearing the appellant counsel's submissions we felt that there was no
need to hear the respondent's counsel and dismissed the appeal in its entirety
and indicated that our reason would follow in due course. These are they.
NDOU J
concurred.
Dube-Banda, Nzarayapenga & Partners, appellant's legal practitioners
Criminal Division of the Attorney-General's
Office, respondent's legal practitioners
