THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 502/08

In the matter between:

M P COETZEE

Appellant

and

THE STATE

Respondent

Neutral citation:  Coetzee v The State (502/08) [2009] ZASCA 134
(30  September  2009)

Coram:
Mpati P, Mthiyane et  Mhlantla JJA
Heard:
31 August 2009
Delivered: 30 September 2009

Summary: Criminal law – Sentence – appellant, a pastor ─ sentenced  to
an effective term of four years' imprisonment upon conviction
on four counts of indecent assault and two counts of crimen
iniuria. On appeal all counts treated as one for purposes of
sentence ─ sentence set aside and replaced with one of four
years' imprisonment in terms of s 276(1)(i) of the Criminal
Procedure Act 51 of 1977.

ORDER
____________________________________________________________

On appeal from:  High Court, Pietermaritzburg (Koen J and Gorven AJ,
sitting as a court of appeal).

1.
The appeal succeeds.
2.
The sentences imposed by the trial court are set aside and replaced
with the following:
'The accused is sentenced to four years' imprisonment in terms of s
276(1)(i) of the Criminal Procedure Act 51 of 1977.'

JUDGMENT
___________________________________________________________
MHLANTLA JA (Mpati P and Mthiyane JA concurring):

[1] The appellant was convicted in the Regional Court, Richards Bay,
on four counts of indecent assault and two counts of crimen iniuria. He
was sentenced to an effective term of four years' imprisonment. An
appeal against conviction and sentence was dismissed by the
Pietersmaritzburg High Court (Koen J, Gorven AJ concurring). The
present appeal is against sentence only and is before us with the leave of
the court below.

[2] The essence of the attack on the regional magistrate's decision on
appeal is that he misdirected himself or failed to properly exercise his
discretion in that the sentence he imposed is excessive and induces a
sense of shock.

[3] The facts relevant to sentence are briefly the following. The
appellant was employed as a pastor at the Apostolic Faith Mission
Church in Meerensee, Richards Bay. All the complainants and their
parents were members of the appellant’s church. The appellant also
provided counselling sessions to members of his church. There was,
however, a dispute as to whether the constitution of the church permitted
him to do so. A youth pastor, Mr Francois van Niekerk, testified that the
appellant was not entitled to conduct counselling sessions. The parents of
two of the complainants had nevertheless requested the appellant to
provide counselling to them. The incidents forming the subject of the
appeal occurred during the period between August 2002 and January
2005.

[4] The first incident, being count 1, occurred in August 2002 and
involved Ms Natasha Lamprecht, who was then 19 years old. Her mother
had discovered a diary which revealed that Natasha had begun to have
sexual relations with her boyfriend. Her parents, probably disapproving
of what was going on, arranged for Natasha to consult the appellant. The
counselling session took place in the appellant's house in his study.

[5] The appellant's wife was present in the house when he indecently
assaulted Natasha. The counselling session commenced with what
appeared to be a normal discussion. Out of the blue the appellant began to
stroke her leg, moving his hands up and down, and then rubbed her thigh.

Despite her objection, he pulled up her dress and touched her vagina. He
then asked her if she ever imagined having a relationship with a pastor
and began to ask searching questions about her sexual relations with her
boyfriend. Natasha felt shocked, stunned and nervous and did not know
what to do about this intrusion. She cried and felt traumatised. Soon after
leaving the appellant's home, she reported the incident to her boyfriend.

[6]      The second complainant, Ms Adele Taljaard, then 16 years old,
was indecently assaulted on two occasions. The relevant counts are
counts 3, 4 and 5 respectively. Adele's father had assaulted her for
spending a weekend with her boyfriend. Because of the seriousness of the
assault a social worker, to whom the matter had been reported, referred
her to the appellant for counselling. The first incident occurred on 21
January 2003 at Adele's home. She was alone with her brother when the
appellant arrived for the counselling session. He asked her brother to
leave the house as he wanted to talk to her alone. The so-called
counselling session commenced with him inspecting the weal marks on
her legs. He then applied a cream high up on her thigh after he had pulled
up her skirt. He touched her vagina saying that he was 'closing it'. These
incidents relate to count 3. The appellant forced her to sit on his lap. He
asked her about her sexual relations with her boyfriend and about her
preference in relation to sexual acts. He pushed open her blouse, as he put
it, in order to see her brassiere. These incidents relate to count 5. He then
asked her to come to his house the next day when he would discuss her
case with her parents.

[7] The incident in regard to Count 4 occurred on 22 January 2003.
Adele arrived at the appellant’s house and was met by his wife who
showed her to the appellant’s study. Her parents were not present. The

appellant sat very close to her and lifted her skirt, thus exposing her
underwear. She testified that she was shocked and felt ashamed. She left
immediately thereafter and later reported both incidents to her boyfriend.

[8] Counts 8 and 9 relate to incidents involving Ms Lee-Ann van
Rensburg, then 21 years old. Her parents were concerned about her self-
esteem and well-being and referred her to the appellant for counselling
during January 2005.  The two families had a close relationship and Lee-
Ann regarded the appellant as a father figure and a person to whom she
could talk about anything. On the day in question the appellant arrived at
Lee-Ann’s parental home for the counselling session after he had
telephoned her. As with the other complainants, the appellant behaved
oddly.  He began with lifting Lee-Ann's skirt and went on to rub her
thighs and then touched her vagina. Subsequently he put his hands inside
her bra and looked at her breasts. He then asked her to take a shower and
stated that he would choose underwear for her. After she had had a
shower, he asked her about her sexual relationship. Lee-Ann testified that
she felt very uncomfortable about the encounter.

[9] Following the appellant's conviction two pre-sentencing reports
were obtained, one from a probation officer and the other from a
correctional officer. Ms Mthembu, a social worker, reported that the
appellant did not verbalise remorse although she deduced, from his
conduct, the presence of some remorse. She recommended a sentence
with an option of a fine or correctional supervision. Ms Mabuyakhulu, on
the other hand, recorded that the appellant showed no remorse for his
actions and raised concern about the practical difficulties which would
arise from the implementation of a sentence of correctional supervision.

She concluded that the appellant was not a suitable candidate for
correctional supervision.

[10] The magistrate rejected the suggestion that a wholly suspended
sentence or correctional supervision be imposed. He concluded that a
term of direct imprisonment was the only appropriate sentence. In respect
of each of the counts of indecent assault, the appellant was sentenced to
six years' imprisonment, two years of which were suspended for four
years on condition he is not again convicted of indecent assault or crimen
iniuria during the period of suspension. A sentence of 18 months'
imprisonment was imposed in respect of each of the crimen iniuria
counts, half of which was suspended for three years on condition that the
appellant is not again convicted of crimen iniuria, or indecent assault,
committed during the period of suspension. All the sentences were
ordered to run concurrently.

[11] The court below concluded that it was in the interests of society
that the appellant be sentenced to a term of incarceration and that any
non-custodial sentence would merely be a slap on the wrist. The
appellant's appeal against sentence was thus dismissed. The court below
altered the sentences by treating all the indecent assault counts as one for
purposes of sentence and imposed a sentence of six years' imprisonment,
two years of which were suspended for four years on condition that the
appellant was not again convicted of indecent assault or crimen iniuria
committed during the period of suspension. Regarding the two crimen
iniuria counts, the court imposed a sentence of 18 months' imprisonment,
half of which was suspended for three years on similar conditions. The
sentences were ordered to run concurrently.

[12] In this court it was contended that the regional magistrate
committed a misdirection in that he associated the offences in this case
with rape. He relied on authorities which dealt with rape and, in the
result, exercised his discretion as if he were sentencing a rapist. The
second criticism was that the magistrate had placed undue emphasis on
the element of deterrence as an object of punishment, with the result that
he imposed a sentence that was excessive in the circumstances of this
case.

[13] The imposition of sentence is a matter falling pre-eminently within
the judicial discretion of the trial court. The test for interference by an
appeal court is whether the sentence imposed by the trial court is vitiated
by irregularity or misdirection or is disturbingly inappropriate.1

[14] Regarding the first challenge, I am, like Koen J in the court below,
not persuaded that the regional magistrate misdirected himself in
expressing certain sentiments concerning assault on women and children
after he had referred to the judgment in S v Ncheche 2005 (2) SACR 386
(W), which dealt with rape. In my view this was no more than an
indication of the seriousness of the offence. The magistrate in fact,
despite his reference to Ncheche, recognised that the offences in question
were not committed in a violent manner. And it is clear from the sentence
eventually imposed that the magistrate did not treat the appellant as a
rapist.  In my view, a harsher sentence would have been imposed had the
magistrate regarded the appellant as a rapist. In the result, I conclude that
there was no material misdirection, justifying interference on that basis.

1 DPP, KwaZulu-Natal v P 2006 (1) SACR 243; [2006] 1 All SA 446 (SCA) at para 10.

[15] I turn now to consider the second challenge, which is that the
magistrate, in considering an appropriate sentence, overemphasized the
seriousness of the offences and attached too much weight to the element
of deterrence. Amongst the factors mentioned in mitigation of sentence
was that the appellant was a first offender. He is married and has
children. He had already lost his job at the church where he worked at the
time of the incidents. The complainants were not young girls but mature
women who were already sexually active. Counsel for the respondent
conceded, correctly in my view, that a sentence of four years'
imprisonment in these circumstances was severe. He submitted that a
sentence in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977
(the Act) would be more appropriate.

[16] It was submitted, on behalf of the appellant, that he had a
psychological problem and should be referred for psychological
evaluation. This argument cannot be sustained. In my view, if the defence
considered that the appellant had a psychological problem for which he
required therapy, it should have raised this at the trial and taken the
necessary steps to secure a report to that effect and have it placed before
the trial court. This court cannot speculate on that score. The appellant
cannot expect preferential treatment and be given a second opportunity to
present his case. This court cannot remit the matter to the trial court on
that basis, more so since the appellant had already been interviewed by a
probation officer and a correctional officer before sentence was imposed.

[17] Even if there was no misdirection, however, as I have indeed found
there was none, it would still be competent for this court to interfere if it
were satisfied that the trial court had not exercised its discretion
reasonably and imposed a sentence which is inappropriate in the

circumstances. Although each case stands against the setting of its own
facts and circumstances, it may be necessary to have a look at
comparative cases in determining whether the trial court properly
exercised its discretion in its imposition of sentence.

[18] The first of these examples is S v R,2 where the accused was
convicted of indecently assaulting a 15 year old boy and was sentenced to
18 months' imprisonment, half of which was suspended on condition that
the appellant received psychiatric treatment. In a further appeal, this court
considered the suitability of correctional supervision in terms of s
276(1)(h) of the Act. The court set aside the sentence and remitted the
matter to the trial court for the imposition of such a sentence. In S v R,
evidence was placed before the court by a probation officer that the
accused's conduct in that case stemmed from personality defects and a
drinking problem. In the present matter we do not have any evidence
touching on the appellant's psychological make-up or any evidence
justifying an order in terms of s 276(1)(h) of the Act. We are therefore
not at liberty to approach the present matter on the same basis as Kriegler
AJA did in S v R.

[19]   In S v D,3  the accused was convicted of indecently assaulting an
eight year old girl.  He was sentenced to 6 years' imprisonment, two years
of which were conditionally suspended. On appeal, this court set aside the
sentence and replaced it with a sentence of three years' imprisonment in
terms of s 276(1)(i) of the Act, plus a further two years’ imprisonment
suspended for five years on certain conditions.

2 1993 (1) SACR 209 (A).
3 1995 (1) SACR 259 (A).

[20] In S v K,4 the appellant pleaded guilty to seven counts of
contravening s 14(1)(b) of the Sexual Offences Act 23 of 1957. He had
committed the offences on young boys who were street children. He was
sentenced to an effective term of seven years' imprisonment. Expert
evidence tendered on behalf of the appellant recommended that he be
sentenced to a period of correctional supervision and be compelled to
undergo intensive psychotherapy. On appeal to the Provincial Division
the sentence of seven years’ imprisonment was confirmed on the basis
that the appellant had previous convictions for the same offence and that
he had in the past not reacted positively to treatment and the boys had
begun to display deviant behaviour.

[21] In S v R,5 the appellant, a 25 year old primary school teacher, had
been convicted on six counts of indecent assault involving his male
pupils. He was sentenced to five years' imprisonment of which two years
were conditionally suspended. A clinical psychologist had testified in
mitigation of sentence. On appeal this court confirmed the sentence due
to the seriousness of the offences.

[22] In S v V,6 the appellant was convicted on a charge of a
contravention of s 14(1)(b) of the Sexual Offences Act, in that he had
committed an indecent sexual act with a girl under the age of 16. He was
sentenced to five years' imprisonment of which two years were suspended
on certain conditions.

4 1995 (2) SACR 555 (O).
5 1995 (2) SACR 590 (A).
6 1994 (1) SACR 598 (A).

[23] In S v McMillan,7 the accused, a 32 year old man, who had an
unhappy childhood and was molested as a child was convicted of five
counts of indecent assault against three boys ranging in age between nine
and 12 years. The evidence before the trial court was that he suffered
from a sexual deviance and that he had a need for intensive psychiatric
treatment over a long term. The trial court, despite the expert evidence
imposed a sentence of ten years' imprisonment. On  further appeal to this
court, Brand JA held that it was expected of courts, through the sentences
they imposed, firstly to reflect society's resentment and repugnance for
the present type of conduct, and, secondly, insofar as it was possible by
sentencing, to prevent the recurrence of thereof, either by the particular
offender or by others. The court held that the sentence of ten years'
imprisonment, particularly when compared with sentences imposed in
comparable cases and which were confirmed on appeal, was too severe.
The court set aside the sentence and replaced it with one of five years'
imprisonment in terms of s 276(1)(i) of the Act.

[24] In S v O,8 the accused pleaded guilty to three counts of indecent
assault and one of attempted indecent assault on four boys ranging in age
from eight to 12 years. He was sentenced in the trial court to eight and a
half years' imprisonment. On appeal all four charges were taken together
for purposes of sentencing and his sentence was reduced to four years'
imprisonment, of which three years were suspended on certain
conditions, including that the accused subject himself to programmes for
treatment of sexual offenders.

7  2003 (1) SACR 27 (A).
8  2003 (2) SACR 147 (C).

[25] In S v Egglestone,9 the appellant, who had been conducting an
escort agency employing high school teenagers from impoverished
communities, was convicted in the High Court on three counts of
indecent assault, one of rape, one of assault and one of kidnapping. On
appeal to this court the convictions of kidnapping and assault were set
aside. This led to a reduction of the sentence. The rape and indecent
assault on the one complainant were taken together for the purpose of
sentencing and the appellant was sentenced to eight years. In regard to the
two counts of indecent assault on the other two complainants where the
appellant had touched the breasts of one of the complainants and had
rubbed the leg and stomach of the other complainant, the court confirmed
the sentence of six months' imprisonment on each count.

[26] Turning to the facts of this case and having regard to sentences
imposed in the above named cases and, given the personal circumstances
of the appellant, namely that he is a first offender, coupled with the fact
that the complainants were no longer young and immature and did not
appear to have suffered permanent psychological trauma, it seems to me
that a custodial sentence of four years was excessively severe. In the
result this court is at large to interfere with the sentence on the basis that
it is disturbingly inappropriate.

[27] The seriousness of the offences committed by the appellant cannot
be underestimated. He did not show remorse. He abused his position as
pastor and the position of trust placed in him by the complainants and
their parents. All the complainants were vulnerable and in need of
counselling. Having regard to all of the above factors, I am of the view
that a custodial sentence should be imposed, but the length of the

9 2009 (1) SACR 244 (SCA).

appellant's incarceration be left in the hands of the Commissioner. I
propose to impose a sentence of direct imprisonment in terms of s
276(1)(i) of the Act. To achieve this goal, all the counts will be taken as
one for purposes of sentence. Accordingly a sentence of four years'
imprisonment in terms of s 276(1)(i) of the Act will be appropriate.

[28] In the result the following order is made:
1.
The appeal succeeds.
2.
The sentences imposed by the trial court are set aside and replaced
with the following:
'The accused is sentenced to four years' imprisonment in terms of s
276(1)(i) of the Criminal Procedure Act 51 of 1977.'

_______________

N Z MHLANTLA

JUDGE OF APPEAL

Appearances:

For Appellant

J Marais SC

Breytenbach Attorneys, DURBAN

McIntyre & van der Post, BLOEMFONTEIN

For Respondent

P Bezuidenhout SC

Director of Public Prosecutions,

PIETERMARITZBURG

Director of Public Prosecutions,

BLOEMFONTEIN

SUPREME COURT OF APPEAL OF SOUTH AFRICA

PRESS RELEASE

30 September 2009

STATUS: Immediate

M P Coetzee v The State
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

The Supreme Court of Appeal (SCA) today upheld an appeal against a
judgment of the High Court, Pietermaritzburg in which the sentence of an
effective four years’ imprisonment was set aside and replaced with a sentence
of four years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure
Act  51 of 1977 (the Act).

The appellant, a pastor, was convicted on four counts of indecent assault and
two counts of crimen iniuria committed against three females ranging in ages
from 16 to 21 years, who were members of his congregation and to whom the
appellant was providing counselling. Regarding the appellant’s first
contention, namely, that the regional magistrate committed a misdirection by
relying on authorities dealing with rape and thus exercising his discretion as if
sentencing a rapist, the SCA noted that the regional magistrate recognised
that the offences in question were not committed in a violent manner. This
court found that the magistrate would have imposed a harsher sentence if he
had regarded the appellant as a rapist. The court accordingly held that there
was no material misdirection justifying interference on that basis.

Regarding the second contention that undue emphasis was placed on the
element of deterrence as an object of punishment and that the sentence
imposed was excessive, the SCA held that a custodial sentence of four years
was excessively severe. This was so especially when taking into account that
appellant was a first offender, the complainants were no longer young and
immature and appear not to have suffered permanent psychological trauma.
The sentence of four years’ imprisonment was set aside. This court treated all
the offences as one for purposes of sentence and imposed a sentence of four
years’ imprisonment in terms of s 276(1)(i) of the Act.

- - - ends - - -