Pretoria - Old age does have its advantages, as was discovered by a grandfather who was convicted of raping and indecently assaulting his 11-year-old granddaughter.
The court shortened his prison sentence as it felt that he would not outlive his jail time.
The 77-year-old, who cannot be named to protect his granddaughter, received a sentence of 30 years in 2017 from a Benoni Regional Court magistrate.
In taking into account that he was already very old, the magistrate ordered that he had to spend an effective 20 years in jail.
The grandfather approached the Gauteng High Court, Pretoria, to appeal his sentences. He argued that no one could expect an old man of his age to spend his last days in prison.
According to him, the 20 years he was ordered to serve was “cruel” and “inhumane”.
Acting Judge CL Moosa said the grandfather was convicted of raping a child, for which the legislature had prescribed a life sentence, unless there were mitigating circumstances.
The magistrate, in sentencing him, took this into account and said due to his old age, life imprisonment would be disproportionate in the circumstances. He sentenced him to 15 years on this charge, which the judge said was the correct thing to do.
The judge said the Supreme Court of Appeal confirmed in the Bob Hewitt rape case that “oldness is a mitigating factor, but it certainly is not a bar to a prison sentence”.
But in the case of this elderly man, the problem arose when the magistrate ordered that he had to first serve his 15 years for rape. After he had served this time, he should serve a further five years on the charge of child abuse.
Judge Moosa said this would mean that the grandfather would only be released from prison at 95.
He said the Supreme Court treated old age as a mitigating factor on the basis of compassion, coupled with the perception that the community expect elderly people to be treated with sympathy.
The judge quoted the saying “pity at least is due to a feeble octogenarian”.
He also quoted the Constitution which reads that “everyone has the right not to be punished in a cruel, inhumane or degrading way”.
“It is clear that the effective sentence of 20 years imposed would extend beyond the appellant’s natural life expectancy and therefore the sentence is shockingly inappropriate. It is disturbingly cruel and inhumane.”
The judge ordered that the original sentence be replaced by 15 years, which would enable the grandfather to be released sooner on parole. In concluding, the judge repeated the words of a Supreme Court judge that “the object of sentencing is not to satisfy public opinion but to serve the public interest. A sentencing policy that caters predominantly or exclusively for public opinion is inherently flawed”.