9 ….’ [19] The only remaining question pursued by the State on appeal, which it considered a question of law, was formulated in its heads of argument as follows: ‘That the [High] Court erred in law in imputing consent by conduct and/or acquiescence to the commission of the offences, by a child below the age of 12 and in its consideration thereof as an important factor in mitigation of sentence.’ [20] The State contended that in terms of s 57(1) of the Sexual Offences Act a child under the age of 12 years is incapable of consenting to a sexual act. Thus, so the argument went, the ‘consent’ to or ‘acquiescence’ in the sexual act by the complainant – who was only ten years old at the time – could not, as a matter of substantive law, be taken into account in determining an appropriate sentence. [21] It was submitted on behalf of the State that the fact that the High Court did so was wrong in law because it undermined the clear and unambiguous provisions of s 57(1) of the Sexual Offences Act. Further, that it was illogical to find that the complainant’s supposed ‘willing participation’ in the sexual acts could ever be a mitigating factor when it came to the question of sentence. [22] Counsel for the respondent submitted with reference to certain decisions of this court, 8 that: (a) this court does not have jurisdiction to entertain an appeal by the State against a sentence substituting the one imposed by a regional court; (b) that the State was not empowered to appeal against factual findings, however patently wrong they might be; and (c) that there is sound and enduring jurisprudence of this court that the nature of a sentence could never be a question of law. [23] Furthermore, it was contended on behalf of the respondent that even if this court were to accept that the High Court was wrong in imputing consent to the complainant in relation to sentence that would still not avail the State in this case. For this submission counsel relied on S v Mosterd 1991 (2) SACR 636 (T) at 640C8 Director of Public Prosecutions v Olivier 2006 (1) SACR 380 (SCA) paras 13-15; Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA) para 19; Director of Public Prosecutions, Western Cape v Kok [2015] ZASCA 197; 2016 (1) SACR 539 (SCA); Director of Public Prosecutions, Gauteng v Mphaphama [2016] ZASCA 8; 2016 (1) SACR 495.