THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case No: 454/2011

In the matter between

PATRICK CLIVE BAILEY

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Bailey v The State (454/11) [2012] ZASCA 154
(01 October 2012)

Coram:
Brand, Heher, Malan, Bosielo and Pillay JJA

Heard:
18 September 2012

Delivered: 01 October 2012

Summary: Criminal
Law
–
appeal
against
a
sentence
of
imprisonment for life on a charge of rape under the provisions of
ss 51(1) read with Part 1 of Schedule 2 and 51(3)(a) of the Criminal
Law Amendment Act 105 of 1997 – whether substantial and
compelling circumstances exist justifying a deviation from the
minimum sentence of imprisonment for life prescribed by the Act.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from:  Eastern Cape High Court, Grahamstown (Schoeman,
Roberson JJ and Grogan AJ sitting as a court of appeal)

The appeal against the sentence of imprisonment for life is dismissed.

___________________________________________________________

JUDGMENT
___________________________________________________________

BOSIELO JA (Brand, Heher, Malan and Pillay JJA concurring):

[1] The appellant was convicted on his plea of guilty of the rape his
twelve year old daughter in the Regional Court, Port Elizabeth on 29
October 2009. Having found no substantial and compelling circumstances
as envisaged by s 51(3)(a) of the Criminal Law Amendment Act 105 of
1997 (the Act) the appellant was sentenced to imprisonment for life in
terms of s 51(1) of the Act. The appellant appealed to the Eastern Cape
High Court, Grahamstown (Schoeman, Roberson JJ and Grogan AJ)
which dismissed the appeal on 20 December 2010 by a majority of two to
one. The appellant is appealing against that judgment with the leave of
the court below.

[2] As the appellant had pleaded guilty to the charge, the material facts
surrounding the commission of this offence are very scanty. Suffice to
state that the appellant admitted that he had unlawful sexual intercourse
with the complainant, and, importantly that he knew that she was below
the age of sixteen years at the time of the commission of the offence. In
fact she was twelve years old during the sexual intercourse.

[3] The nub of the appellant’s attack against the imposition of life
imprisonment is that the majority of the members of the court erred in not
finding (a) that the sentence imposed is unreasonable and out of kilter
with the sentences imposed for similar offences by this court (b) that the
facts and circumstances adduced by the appellant amounted to substantial
and compelling circumstances which justified a sentence less than life
imprisonment. I interpose to record that the minority disagreed, and
Roberson J held instead that: ‘I cannot say that with its own peculiar
circumstances it is a worse case than those to which I have referred, or is
devoid of substantial factors compelling the conclusion that such a
sentence is inappropriate and unjust.’ In the circumstances, the minority
proposed to set the sentence of life imprisonment aside and replace it with
a sentence of imprisonment for 25 years antedated to 10 September 2009.

[4] It became clear that the issue in this appeal is whether the court
erred in not finding that the facts put forward by the appellant amounted
to substantial and compelling circumstances justifying a sentence other
than life imprisonment as envisaged by s 51(3)(a) of the Act. In the
context of this case, the section requires that if the court is satisfied that
substantial and compelling circumstances exist which justify the
imposition of a sentence less than life imprisonment, it must enter those
circumstances on the record of the proceedings and may thereupon
impose such a lesser sentence as it deems appropriate.

[5] In argument before us Ms Crouse, appearing for the appellant,
referred to three considerations which she submitted qualified as
substantial and compelling circumstances, to justify a lesser sentence than
life imprisonment. First, that remorse emanated from the fact that the
appellant pleaded guilty and further that he verbalised such remorse to the
probation officer who interviewed him for a pre-sentence report; second,
that there are prospects of the appellant being rehabilitated; and third, that
it was mentioned to the probation officer that in 2005, the appellant
started to use drugs. It was contended that the fact that the appellant
pleaded guilty should be accepted as a demonstration of remorse, more
so, that he continued to express some contrition to the probation officer.
The argument was developed further that, based on this, it must be found

that the appellant has shown that he has an appreciation of the
wrongfulness of his conduct and insight which makes him amenable to
rehabilitation. Relying on S v Sikhipha 2006 (2) SACR 439 (SCA)
counsel argued that life imprisonment would effectively deny the
appellant the opportunity for rehabilitation. Regrettably, counsel was not
able to explain what role and effect, if any, the alleged use of drugs by the
appellant had on his commission of this offence. Therefore no value can
be attached to the alleged use of drugs by the appellant.

[6] The further argument raised by Ms Crouse was that life
imprisonment was out of kilter with sentences imposed on other similar
cases by this court. In support of this argument she referred, amongst
others, to S v Abrahams 2002 (1) SACR 116 (SCA), S v Sikhipha (above)
and S v Nkomo 2007 (2) SACR 198 (SCA). The crux of this argument
was that, notwithstanding the fact that all these matters involved rape
which fell within the purview of s 51(1) of the Act, where, absent
substantial and compelling circumstances, the court was obliged to
impose life imprisonment, this court notwithstanding, did not impose
imprisonment for life. In fact the court set aside the sentences of life
imprisonment which had been imposed by the trial courts and replaced
them with different custodial sentences.

[7] On the other hand, Ms Packery for the respondent submitted that
the facts placed before the court by the appellant did not qualify as
substantial and compelling to justify a lesser sentence than life
imprisonment. She argued that the mere fact that the appellant pleaded
guilty did not necessarily support the conclusion that he was remorseful
as the plea of guilty could have been motivated by various factors eg that
the appellant realized that the evidence against him was overwhelming
and that it would be futile to plead not guilty.

[8] Concerning the prospects of rehabilitation, Ms Packery contended
that the appellant placed no facts before the court to demonstrate any
probability of rehabilitation. To the contrary, the appellant had two
previous convictions for theft for which he was sentenced to six months
and three years imprisonment respectively. He was also convicted of or
attempting to escape and on two counts of fraud. Moreover, he was
convicted on a count of attempted rape for which he received a 5 year
sentence of which 3 years were suspended. Based on this, she submitted
that, instead of providing support for the prospects of rehabilitation as
argued the record of the appellant’s previous convictions manifested quite
the contrary.

[9] In responding to the argument that life imprisonment in this case is
out of kilter with sentences imposed in, for instance, Abrahams, Sikhipha
and Nkomo, Ms Packery contended that the facts of this case, in particular
the serious psychological and emotional impact which this rape had on
the complainant as described in the Victim Impact Report, distinguishes it
from those cases and calls for life imprisonment as mandated by the
legislature. In particular, she submitted that the mere fact that the
complainant did not suffer any physical injuries could not be said to be
mitigating as the complainant suffered serious emotional and
psychological harm.

[10] In support of this submission, Ms Packery referred us to the Victim
Impact Report which was handed in by consent, which depicts a sad and
painful picture of the complainant after the rape. Amongst the most
severe of the after-effects of the rape are that: she suffers from (a)
anxiety, fear and sleeping disorder; (b) misplaced feelings of guilt and
shame; (c) mood swings. She has also lost her trust in mankind and
harbours a great sense of anger and hostility towards her father, whom
she feels has abused her trust. In addition she has developed hatred for
her brother as he reminds her of her father and sadly, she no longer trusts
her own mother.

[11] She argued further that, as a result of the rape, the complainant left
school prematurely when she discovered that she was pregnant. She
furthermore suffered two miscarriages. The rape left the complainant with
a distorted understanding of love and she confuses sexual intercourse
with love.

[12] It is clear to me that the rape has had a very serious and deleterious
effect on the complainant. One gets the picture of her whole life in tatters.
Although the social worker did not indicate whether the complainant
could through counselling be cured of these after-effects, it cannot be
gainsaid that the impact is both devastating and far-reaching.
Undoubtedly, this makes this case heinous and different from those
referred to. To my mind, any comparison of this case with the three
referred to is misguided if the intention is to use them as precedent
binding any court not to impose life imprisonment as a sentence,
particularly where the offence falls within the purview of s 51(1) of the
Act.

[13] It can hardly be disputed that rape of young girls by their fathers is
not only scandalous; it has become prevalent as well. To all right-thinking
people it is morally repugnant. It has emerged insidiously in recent times
as a malignant cancer seriously threatening the well-being and proper

growth and development of young girls. It is an understatement to say
that it qualifies to be described as a most serious threat to our social and
moral fabric.

[14] Dealing with the rape of a minor by her father, Cameron JA
described it graphically as follows in S v Abrahams para 17:
‘Of all the grievous violations of the family bond the case manifests, this is the most
complex, since a parent, including a father, is indeed in a position of authority and
command over a daughter. But it is a position to be exercised with reverence in the
daughter’s best interest, and for her flowering as a human being. For a father to abuse
the position to obtain forced sexual access to his daughter’s body, constitutes
deflowering in the most grievous and brutal sense.’
Later in the judgment para 23 Cameron JA proceeded to say:
‘Second, rape within the family has its own peculiarly reprehensible features, none of
which subordinate it in the scale of abhorrence of other crimes.’
Importantly in para 23(c) dealing with the effect of incestuous rape as is
the case here, he states that:
‘Third, and lastly the fact that family rape generally also involves incest (I exclude
foster and step-parents, and rapists further removed in family lineage from victims)
grievously complicates its damaging effects. At common law incest is still a crime.
Deep social and religious inhibitions surround it and stigma attends it. What is
grievous about incestuous rape is that it exploits and perverts the very bonds of love
and trust that the family relation is meant to nurture.’
The facts of this case amply demonstrate this.

[15] It is true that Abrahams, Sikhipha and Nkomo all involved rapes
that fall under s 51(1) of the Act. Yet the court after having considered all
the relevant facts came to the conclusion that, in those cases, a sentence
of life imprisonment was disturbingly disproportionate to the offence to a
point where it could be described as unjust. The court then imposed
various terms of imprisonment in respect of each of the cases in the place
of the ordained life imprisonment.

[16] What then is the value of such a comparative analysis of previous
cases. Can this trend, if it can be called that, qualify to be elevated to the
status of a precedent which is intended to bind all the courts which have
to consider sentence whilst sentencing an accused who has been
convicted of rape read with s 51(1) of the Act? Is a court expected,
without proper consideration of the peculiar facts of this case, to slavishly
follow the so-called trend not to impose life imprisonment for rape? By
doing so, a court would be acting improperly and abdicating its duty and
discretion to consider sentence untrammelled by sentences imposed by
another court albeit in a similar case. It follows in my view that such a
sentence would be appealable on the basis that the sentencing court either
failed to exercise its sentencing discretion properly or at all. Commenting
on the utility of such a comparative approach Marais JA in S v Malgas
2001 (1) SACR 469 (SCA) para 21 said the following:

‘It would be foolish of course, to refuse to acknowledge that there is an abiding reality
which cannot be wished away, namely, an understandable tendency for a court to use,
even if only as a starting point, past sentencing patterns as a provisional standard for
comparison when deciding whether a prescribed sentence should be regarded as
unjust. To attempt to deny a court the right to have any regard whatsoever to past
sentencing patterns when deciding whether a prescribed sentence is in the
circumstances of a particular case manifestly unjust is tantamount to expecting
someone who has not been allowed to see the colour blue to appreciate and gauge the
extent to which the colour dark blue differs from it. As long as it is appreciated that
the mere existence of some discrepancy between them cannot be the sole criteria and
something more than that is needed to justify departure, no great harm will be done.’
(own emphasis.)

[17] Van den Heever JA put it more succinctly in S v D 1995 (1) SACR
259 (A) at 260e when she stated that: ‘I agree that decided cases on
sentence provide guidelines not straightjackets.’ I also agree with this
correct approach.

[18] Our everyday experience in the criminal courts proves that, save
where multiple accused are charged as co-accused in one case for having
committed the same offence, no two cases present exactly the same
factual matrix. To compound the problem further, it is hard to imagine
two accused persons who have exactly the same personal circumstances.
Further still in a case involving rape for instance, it is unthinkable that

two different complainants in two different cases would manifest the
same physical, emotional or behavioural problems after the rape.
Evidently, these are important matters which must be considered in the
determination of an appropriate sentence as they have a direct bearing on
what an appropriate sentence should be. It follows in my view, that the
sentence in such matters will be different because of the variation in
personal circumstances of the accused, the nature and gravity of the
offence and all other factors germane to sentencing.

[19] The minority judgment in the court below appears to reflect the
misunderstanding that the refusal by this court to endorse the life
imprisonment imposed in the three cases of Abrahams, Sephika and
Nkomo constitutes a benchmark or a precedent binding other courts. That
is a misconception. Such an approach or trend can never be elevated to a
benchmark or binding precedent. Those cases remain guidelines. Suffice
to state that it remains an established principle of our criminal law that
sentencing discretion lies pre-eminently in the sentencing court and must
be exercised judiciously and in line with established and valid principles
governing sentencing as enunciated in a long line of cases which includes
S v Zinn 1969 (2) SA 537 (A) which espoused a proper consideration and
balancing of the well-known triad; S v Rabie 1975 (4) SA 855 (A) at 862;

and S v de Jager and another 1965 (2) SA 616 (A) at 628-9. This salutary
approach has recently been endorsed by Marais JA in S v Malgas para 12.

[20] What then is the correct approach by an appellate court on appeal
against a sentence imposed in terms of the Act? Can the appellate court
interfere with such a sentence imposed by the trial court after exercising
its discretion properly simply because it is not the sentence which it
would have imposed or that it finds it shocking? The approach to an
appeal on sentence imposed in terms of the Act, should in my view, be
different to an approach to other sentences imposed under the ordinary
sentencing regime. This in my view is so because the minimum sentences
to be imposed are ordained by the Act. They cannot be departed from
lightly or for flimsy reasons. It follows therefore that a proper enquiry on
appeal is whether the facts which were considered by the sentencing court
are substantial and compelling or not.

[21] The most difficult question to answer is always: what are
substantial and compelling circumstances? The term is so elastic that it
can accommodate even the ordinary mitigating circumstances. All I am
prepared to say is that it involves a value judgment on the part the
sentencing court. I have, however, found the following definition in S v
Malgas (above) para 22 to be both illuminating and helpful:

‘The greater the sense of unease a court feels about the imposition of a prescribed
sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a
court reaches the point where unease has hastened into a conviction that an injustice
will be done, that can only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence unjust, or as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs of society. If it is
the result of a consideration of circumstances the court is entitled to characterise them
as substantial and compelling and such as to justify the imposition of a lesser
sentence.’

[22] Reverting to this appeal the question to be answered is whether the
majority of the court below erred in failing to find that the circumstances
of this case were so substantial and compelling as to justify a departure
from imprisonment for life.

[23] This makes a consideration of the appellant’s personal
circumstances necessary. He was 38 years old at the time of the
commission of the offence; he was 40 years old during sentencing. He is
married to the complainant’s mother and they have 3 children including
the complainant. He was gainfully employed before his arrest and he was
responsible for the maintenance of his children. He had a drug habit
which was caused by the death of his father. He also pleaded guilty and

expressed remorse for his actions. The appellant had previous convictions
for theft, fraud, attempted rape and other offences.

[24] On the other hand, the complainant was twelve years old when she
was raped; the appellant is her biological father. This rape therefore is
incestuous, which is found to be morally repugnant by many if not all
right thinking people. In addition before the rape the appellant had
performed improper sexual practices on her twice. The full extent of the
emotional and psychological suffering, as they appear from The Victim
Impact Report had already been discussed earlier. Undoubtedly, these are
seriously aggravating circumstances which deserve to be given
appropriate weight in the consideration of an appropriate sentence. Like
the majority of the court below I am not persuaded that the appellant’s
circumstances meet the threshold of substantial and compelling
circumstances set out in s 51(3)(a) of the Act.

[25] In the result, the appeal against the sentence imposed is dismissed.

_________________

L.O. BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
L Crouse (with her DP Geldenhuys)

Instructed by:
Legal Aid, Grahamstown

Legal Aid, Bloemfontein

For Respondent
:
W Packery

Instructed by:

Director Public Prosecutions, Bloemfontein

Director Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

01 October 2012

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Bailey v The State (454/2011) [2012] ZASCA 154 (01 October 2012)

Today the Supreme Court of Appeal (SCA) dismissed the appeal by the appellant against a
sentence of imprisonment for life and upheld a judgment of the Eastern Cape High Court.

The appellant was convicted on his plea of guilty of the rape of his 12 year old daughter read
with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997 (Act). This
section provides that absent any substantial and compelling circumstances as contemplated
by s 51(3)(a) of the Act, a sentencing court must impose life imprisonment as the minimum
sentence. The full bench, by a majority of two to one held that the fact that the appellant
pleaded guilty; declared his remorse; that he had been using drugs did not qualify as
substantial and compelling to justify a sentence other than life imprisonment.

Regarding prospects for rehabilitation, the SCA held that no evidence had been tendered to
prove that the appellant was a good candidate for rehabilitation. The SCA held that, on the
contrary, the appellant’s three previous convictions of theft had proven that he had the
previous lenient sentences had not helped to rehabilitate him.

The SCA found further that the fact that the appellant was the father to the complainant; that
he breached his parental duty of care to the complainant; that he betrayed the complainant’s
trust in him; that this rape is in fact incestuous, which makes it more abhorrent and repulsive;
that the complainant suffered serious and far-reaching psychological and emotional injuries
made this rape heinous.

Having weighed the appellant’s mitigating circumstances against the seriously aggravating
features inherent in this case, the SCA found that it could not say that the full bench erred in
finding that life imprisonment was the appropriate sentence as there were no substantial and
compelling circumstances to justify a lesser sentence.

---End---