6 ‘The first thing that struck me about the evidence of the complainant’s mother was that she never mentioned finding any indication of distress or trauma about the incidents on the part of the victim when she asked her about what the appellant had done to her. She testified in chief that she had asked her child whether the appellant had touched her inappropriately, which she confirmed.’ [11] The court then proceeded to say the following: ‘In her evidence the complainant stated that she participated in these activities with the appellant because he had told her that there would be trouble if she did not do as he told her. It is not clear on her evidence that she acted out of fear or that the threat was repeated on any subsequent occasion. It is in any event not her version that there was any form of compulsion on every occasion. Apart from the alleged threat there is no indication in her evidence of how she felt about the incidents – no expression of fear, disgust, embarrassment or any other negative emotion. That also appears from the two photographs in the exhibits on which her facial expression can be seen and which show no sign of fear, anguish, embarrassment, disgust or any other negative emotion. Based on the above evidence there is a strong suspicion that the victim was not an unwilling participant in the events. I am fully aware that she was at the time only ten years old and that the absence or otherwise of her consent is irrelevant as an element of the commission of the offence. It must, however, be an important factor in considering an appropriate sentence.’ (Own emphasis.) [12] When the High Court said that the complainant was under the age of ten years at the time of the rape – thus under the age of 12 years – and that ‘the absence or otherwise of her consent [was] irrelevant as an element of the commission of the offence’ it obviously had in mind s 57(1) of the Sexual Offences Act. The section reads, in material parts: ‘Inability of children under 12 years and persons who are mentally disabled to consent to sexual acts.—(1) Notwithstanding anything to the contrary in any law contained, a male or female person under the age of 12 years is incapable of consenting to a sexual act. (2) . . . ’ [13] Having disposed of the appeal against the convictions, the High Court proceeded to deal with the appeal against the sentences. First, it noted that the regional magistrate had found that there were no substantial and compelling