MINIMUM SENTENCE APPLY TO ATTEMPTED RAPE

S v SILO 2016 (2) SACR 259 (WCC)

Rape — Attempted rape — What constitutes — Act of consummation of crime — Assault on victim before rape takes place considered act of consummation if assault inflicted with intention to rape in order to overcome resistance — Appellant pushing complainant onto bed in her flat saying that he wanted to have sexual intercourse with her, assaulting her, instructing her to take off her gown and panties, and attempting to fetch knife to further threaten and restrain her — Such amounting to clear acts in commencement or consummation of crime of rape.

Rape — Attempted rape — Sentence — Prescribed minimum sentence — Criminal Law (Sentencing) Amendment Act 105 of 1997 — Legislation not making express provision in parts I – IV of sch 2 for imposition of prescribed minimum sentence in case of attempt to commit listed offence — But s 55 of Criminal Law (Sexual Offences and Related Matters)  Amendment Act 32 of 2007 providing that offender, on conviction of attempted rape, liable for punishment to which would have been subjected if had actually committed such offence — Where prosecution reveals in charge of attempted rape that minimum-sentence legislation relied on, court would be correct in applying provisions of such legislation.

 

An assault on a victim before a rape takes place is considered an act of consummation (and not mere preparation) and would constitute attempted rape, if it is clear that the perpetrator inflicted such assault with the intention to rape in order to restrain or overcome the resistance of a victim.

In the present case the court held that the pushing of the complainant onto a bed in her flat by the appellant who had said that he wanted to have sexual intercourse with her, the assault by slapping the complainant in the face, the instruction to her that she take off her gown and panties, as well as the attempt to fetch a knife to further threaten and restrain her, are clear acts in the commencement of the crime of rape. An appeal against the appellant’s conviction of attempted rape in contravention of s 55 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 was accordingly dismissed.

The Criminal Law (Sentencing) Amendment Act 105 of 1997 (the Minimum Sentencing Act) does not make express provision for the imposition of a prescribed sentence in any of parts I – IV of sch 2 in the sentencing of an attempt to commit any of the listed offences. However, s 55 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 prescribes that an offender may be liable upon conviction of an attempt to commit rape in terms of s 3 or s 4 to a punishment which such offender would have been subjected to if such offender had actually committed such an offence. Thus, where the prosecution has revealed in the charge-sheet that it would be relying on the provisions of the Minimum Sentencing Act, and in particular the provisions of part III of sch 2, which prescribes a sentence of 10 years’ imprisonment, unless of course the court finds that there are substantial and compelling circumstances to deviate from such a prescribed sentence, the court would be correct in applying the provisions of the Minimum Sentencing Act.

COMMENT

I wonder if this decision is correct in view of the principle of interpretation of statutes that an Act should be interpreted strictly where the increase of sentences is concerned.

My experience in the Regional Courts is that the principle contained in this decision is not the practice in our courts.

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