A 20-YEAR-OLD man convicted of sexual assault after attempting to rape a five-year-old girl will be sentenced according to the Children’s Act.
This ruling was made in the Eastern Cape High Court in Makhanda as Judge Motilal Rugunanan found the offender Melvino White was 16 at the time of the attempted rape in 2016, and should be sentenced according to the age he was at the time the incident occurred.
The magistrate in a lower court had refrained from sentencing White and referred the matter to the high court for review under section 304(A) of the Criminal Procedure Act.
According to the prosecutor, White was “too old for child justice procedures”. “The facts in the guilty plea disclose that the accused did not sexually penetrate the victim and that there was indirect contact between his penis and the victim’s vagina. He did not remove her underwear but ejaculated thereon at or near the front of her vagina.
“Although the facts indicate that the accused was the donor of the genetic material on the victim’s underwear, the DNA report was not produced in court, nor was the report of the victim’s medical examination produced as confirmation of that examination,” court documents read.
White, who was charged with attempted rape but who pleaded guilty to a lesser charge of sexual assault, had been served with a summons for the offence when he was 19 in 2019.
The Director of Public Prosecutions (DPP) was approached for a directive on the matter and in an opinion to the high court stated: “The accused in this matter was charged with a serious offence (Schedule 3), he having taken advantage of a sleeping five-year-old child, thereby abusing a position of trust, and committed, on his plea, a sexual assault.
“None of the circumstances that may persuade a DPP to issue a direction in terms of section 4(2) … were present and the prosecutor was accordingly not required to refer the matter to the DPP for a direction,” court documents read.
A child, according to the act is defined as “any person under the age of 18 years and, in certain circumstances, means a person who is 18 years or older but under the age of 21 years”.
Judge Rugunanan said: “I am in agreement with the DPP that his age when the offence was committed is a relevant factor and that, despite his present age, he is entitled to receive the benefit of the sentencing procedure in Chapter 10 of the Act.
“Moreover, the magistrate must, prior to the imposition of sentence, have the benefit of a pre-sentencing report concerning the accused’s personal circumstances,” the judge said.
Reprinter from Cape Times
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