Revisit for a moment the story of a 13-year-old girl regularly raped by W, her father. The rapes took place almost every day, from just after her 13th birthday until he was eventually arrested by the police some seven years later.
In the interim she had two children by him, and the father himself suggested that she might have finally decided to report him to the authorities when she discovered she was pregnant a third time.
Earlier this month I reported the story in the Mail & Guardian (“My father raped me for eight years”, April 2), but the outcome of the matter was so unsatisfactory that it seems appropriate to revisit the decision on conviction and sentence.
In the trial court, W was charged with just two counts of rape — presumably the ones that led to the birth of the two children — though according to the girl’s evidence there were possibly hundreds more.
The magistrate presiding at the trial sentenced W to life impri-sonment, as provided for under minimum sentencing legislation when the person raped is under age. W’s appeal to the high court in Grahamstown was heard by judges Igna Stretch and Jean Nepgen.
Stretch, who wrote the decision, found a number of irregularities related to conviction and sentence. She upheld the guilty finding but decided the sentence could not stand.
Among the irregularities identified was this: athough it is a requirement that someone facing life imprisonment be informed of this fact in the charge sheet or during the trial, W was not so warned.
Having set aside life as provided by the minimum sentencing laws, Stretch invoked the only section of these provisions cited in the charge sheet and substituted the original sentence with 10 years on each count.
There’s an obvious anomaly here in that W raped his daughter when she was under age, but 10 years is the minimum penalty that may be imposed for the rape of someone who is older. Were the judge’s hands tied to this extent or could a tougher sentence have been imposed?
In at least one comparable case — Cock vs S — the judge found he could not impose life under the minimum sentence laws. However, using a different route — invoking the court’s inherent common law power — he imposed a life sentence anyway.
The court hearing W’s appeal might also have found that while the minimum sentencing regime stipulates a minimum term, tougher penalties may be imposed where appropriate.
Criminal law specialist and former law professor James Grant, who stressed he was speaking in the abstract, said the minimum sentencing regime for rape provided for a 10-year sentence if the rape did not involve an underage person or a gang rape.
In the case of a second conviction, however, the penalty increased to 15 years. In W’s case, the judge could thus have imposed a total of 25 years, instead of the 20 years handed down.
These are important distinctions when it comes to parole. A life sentence, said Grant, is for one’s natural life, but there is a possibility of parole after 25 years. A sentence imposed under minimum sentence laws would allow the possibility of parole after 80% of the sentence.
What about a state appeal against the 20-year sentence? Or a further trial? Grant said where the state prosecuted only two of what were obviously many more rapes, and where the court felt constrained by technicalities in the imposition of an appropriate sentence, it would be open for the prosecution to try the accused on further rape counts. As the state had not already prosecuted the new rape counts, the accused would not be able to raise the defence of double jeopardy.
Would the prosecution be willing to consider this? How would W’s daughter feel about such a step? Would an additional nine years, possibly more, be worth the effort? Or should we feel content that the high court’s approach and the sentence it ultimately imposed was true justice for the girl and her children?