Brief Summary

Criminal Law — Sexual Offences — Attempted sexual penetration — Appellant convicted of attempted sexual penetration and theft — Appellant's actions included forcibly entering complainant's flat, assaulting her, and expressing intent to engage in sexual intercourse — Appeal focused on sufficiency of evidence for attempted sexual penetration conviction and severity of sentence — Court upheld conviction, finding actions constituted an uncompleted attempt to commit the offence under section 55 of SORMA.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a criminal appeal to the Western Cape Division of the High Court, Cape Town, in which the appellant, Moses Silo, challenged his conviction and sentence imposed by the Regional Court sitting at Parow. The respondent was the State.

The appellant had been convicted in the regional court on two charges, namely contravening section 55 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (an attempt to commit a sexual offence under the Act, treated in this case as an attempt to commit rape under section 3) and theft (relating to a wristwatch). He had pleaded not guilty to both charges, denied the sexual-offence allegations, and in relation to the theft count delivered an explanation in terms of section 115 of the Criminal Procedure Act 51 of 1977, admitting possession of the watch on arrest but alleging it had been given to him by the complainant.

With the leave of the trial court, the appellant appealed against his conviction on count 1 and against the sentence, contending in substance that the proven conduct did not amount to an attempt at sexual penetration as contemplated by section 55. No appeal was pursued against the theft conviction.

The general subject matter of the dispute was whether the appellant’s conduct, as accepted by the trial court, crossed the line from preparatory conduct to an attempt to commit rape under the statutory framework, and whether the effective sentence of six years’ imprisonment was proportionate and properly imposed.

2. Material Facts

The High Court approached the appeal on the basis that the trial court had made no misdirection in its factual findings. Although the appellant’s principal challenge was directed at the legal sufficiency of the conduct to constitute an attempt, the High Court recorded that it was satisfied the regional magistrate had correctly found the complainant to be honest and reliable, and had correctly rejected the appellant’s version as not reasonably possibly true. On that footing, the facts relied upon for purposes of the appeal were those accepted by the trial court.

On the morning in question, at approximately 08h00, the complainant went to a petrol filling station opposite the flat where she lived with her husband to meet a customer. She was dressed in pyjamas and a gown. While she was conducting business, the appellant approached her, showed interest in what she was doing, and asked to see the goods she was selling.

The complainant proceeded to the building where her flat was located and opened the gate with a remote control. The goods were in the boot of her car and she told the appellant to wait at the car while she went to her flat to fetch the car keys. After she found the keys and was about to leave, she found the appellant standing at the door of the flat. He pushed her back into the flat, closed the door, pushed her into the bedroom and onto the bed, slapped her, and stated that he wanted to have sexual intercourse with her.

The appellant instructed the complainant to remove her gown and panties, which she did. The complainant screamed, and the appellant continued to assault her as she resisted. A struggle ensued, during which the appellant choked her. He then went to the kitchen to fetch a knife. During this interval, the complainant jumped out of the bedroom window of the first-floor flat, landing on the ground outside. A man assisted her, and she reported that someone inside the flat had wanted to rape her.

The appellant was later found hiding, brought to the complainant, and identified by her. The complainant was taken to hospital and remained hospitalised for three weeks, having sustained fractures including a fracture to her left ankle and a fracture to her spine at the L3 position, reflected in the J88 medical form, attributed to the fall/jump from the flat.

3. Legal Issues

The first central issue was whether, on the facts accepted by the trial court, the appellant’s conduct constituted an attempt to commit rape in terms of section 3 of the Sexual Offences Act, prosecuted through section 55 (which criminalises attempts and related forms of participation in offences under that Act). This issue was predominantly an application of legal principles to established facts, requiring the court to characterise the conduct as either mere preparation or conduct amounting to the commencement of execution of the intended offence.

The second issue was whether the sentence imposed, being an effective term of six years’ imprisonment (imposed cumulatively in relation to both counts but ordered to run concurrently), was disproportionate or otherwise vitiated by misdirection. This required a value-laden assessment of the sentencing discretion and whether appellate interference was warranted, as well as consideration of whether the trial court correctly approached the relevance of the Criminal Law Amendment Act 105 of 1997 (the minimum sentencing regime) in relation to an attempt under section 55.

4. Court’s Reasoning

Attempt under section 55 read with section 3 of the Sexual Offences Act

The High Court first set out the text of section 55 of the Sexual Offences Act, emphasising that a person who attempts to commit a sexual offence under the Act is guilty of an offence and may be liable to the punishment applicable to the completed offence. The trial court had found that the appellant attempted to commit a contravention of section 3 (rape), namely an intentional attempt to commit an act of sexual penetration without consent.

The High Court then turned to the general principles governing the distinction between preparation and attempt, relying on authorities dealing with criminal attempts. It drew on the classification in Rex v Schoombie 1945 AD 541, which distinguished between cases where the wrongdoer has done everything set out to do but is thwarted, and cases where the wrongdoer has not completed all steps due to intervention or desistance. The court noted, following S v Du Plessis 1981 (3) SA 382 (A), that difficulty often arises in the second category in deciding where to draw the line between preparatory acts and acts constituting an attempt.

The court endorsed the general approach (also reflected in S v Agliotti 2011 (2) SACR 437 (GSJ)) that an attempt requires conduct that is not merely preparatory and has reached at least the commencement of the execution of the intended crime (sometimes described as the commencement of consummation). It further endorsed the pragmatic caution expressed in Schoombie about the fine line between early preparatory steps and conduct sufficiently proximate to execution, and emphasised the relevance of whether it can properly be inferred that the perpetrator’s mind was finally made up to carry through the criminal purpose.

Applying those principles, the High Court evaluated the appellant’s established conduct as a sequence of actions that went materially beyond preparation. The court identified the entry into the complainant’s flat without consent, the act of pushing her back and closing the door, forcing her onto the bed, physically assaulting her, clearly stating the intention to have sexual intercourse, ordering her to remove her clothing, continuing to assault and throttle her to overcome resistance, and seeking a knife when he struggled to restrain her.

The appellant’s argument was that, absent evidence such as him forcing himself on the complainant, removing his own clothes, opening her legs, DNA evidence, or bruising on her thighs, the conduct was insufficient for attempted rape and should at most amount to common assault. The High Court rejected this as an incorrect understanding of what the law requires to prove an attempt. It reasoned that while such features could strengthen an inference in other cases, they were not prerequisites.

In support of its conclusion, the High Court relied on R v B 1958 (1) SA 199 (A) for the proposition that an assault can constitute attempted rape where it is directed at achieving intercourse against the complainant’s will, and that the absence of physiological readiness (such as an erection) would not necessarily negate attempt where the purpose and determination to have intercourse are established. The court also referred to S v W 1976 (1) SA 1 (A), which—relying on R v B—accepted that an assault carried out for the purpose of rape may constitute an attempt even where the rape is not completed.

Against that framework, the High Court considered that this case involved more than an assault in the abstract: the appellant’s acts included physical domination, compelled undressing, and escalation to the threat of a weapon. These were treated as clear steps in the commencement of the crime of rape, such that the complainant’s desperate escape through the window amounted to an interruption of an attempt already underway.

The court also dealt with the suggestion that the conviction should have been for sexual assault under section 5(2) of the Sexual Offences Act (inspiring the belief that the complainant will be sexually violated). The High Court accepted that section 5(2) could operate as a lesser, included offence and noted that it may be a competent verdict in terms of section 161(3) of the Criminal Procedure Act 51 of 1977 on charges such as rape or attempted rape. However, it found that on the established facts there was no missing element for attempted rape under section 55, and therefore no basis to substitute a lesser offence.

Sentence, minimum sentencing considerations, and proportionality

On sentence, the High Court addressed an issue raised in argument regarding whether the minimum sentencing provisions in Schedule 2 to the Criminal Law Amendment Act 105 of 1997 applied expressly to an attempt to commit rape prosecuted under section 55. The court noted that the minimum sentencing schedule does not, on a plain reading, expressly provide a prescribed sentence for attempted rape framed as an offence under section 55. However, it emphasised the sentencing clause in section 55, namely that an offender “may be liable” to the punishment to which a person convicted of the completed offence would be liable.

The court interpreted this as empowering a sentencing court to impose the same punishment that would apply had the offence been completed, subject to ordinary sentencing powers and limits. It considered the types of punishment available under section 276 of the Criminal Procedure Act 51 of 1977, and the limits on the sentencing jurisdiction of lower courts as referred to in section 92(1)(a) of the Magistrate’s Court Act 32 of 1994 (as cited in the judgment). It also stated that sentencing power is subject to “any other law,” which includes statutes prescribing specific sentences, including the minimum sentencing regime. In that context, the court referred to Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA).

On the facts of this case, the charge sheet indicated reliance on the minimum sentencing provisions, specifically Part III of Schedule 2, which prescribes 10 years’ imprisonment for rape unless substantial and compelling circumstances justify deviation. The High Court concluded that the regional magistrate was correct to approach sentencing on the basis that the minimum sentencing framework was applicable and that the regional magistrate was also correct to find substantial and compelling circumstances warranting a deviation.

The remaining question was whether the effective sentence of six years’ imprisonment (with the sentences taken together for purposes of sentence and ordered to run concurrently) was inappropriate or induced a sense of shock. The High Court evaluated whether the trial court properly considered the conventional sentencing factors, including the triad of the offender, the offence, and society, as well as the aims of punishment.

Personal circumstances noted included the appellant’s age (27), his educational background (matric and a period of study at the University of the Western Cape), work history, intention to resume studies, being the youngest of eight children, and having no previous convictions. However, the court weighed these against the seriousness of the offence: the complainant was attacked in the sanctity of her home, and the attempt to rape precipitated her escape through a first-floor window causing severe injuries and a lengthy hospitalisation. In the High Court’s assessment, the sentence imposed was not disproportionate, and the trial court’s decision to order concurrency supported the overall proportionality of the punishment. No basis for appellate interference was found.

5. Outcome and Relief

The appeal against the conviction on count 1 (contravention of section 55 of the Sexual Offences Act, treated as an attempt to commit rape under section 3) was dismissed. The appeal against the effective sentence of six years’ imprisonment imposed in respect of counts 1 and 2 (taken together for purposes of sentence and ordered to run concurrently) was also dismissed.

No separate costs order was made, consistent with the criminal appellate context reflected in the judgment.

Cases Cited

Rex v Schoombie 1945 AD 541.

S v Du Plessis 1981 (3) SA 382 (A).

S v Agliotti 2011 (2) SACR 437 (GSJ).

R v B 1958 (1) SA 199 (A).

S v W 1976 (1) SA 1 (A).

S v Laurence 1975 (4) SA 825 (A).

Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA).

Legislation Cited

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, sections 3, 5(2), and 55.

Criminal Procedure Act 51 of 1977, sections 115, 161(3), and 276.

Criminal Law Amendment Act 105 of 1997 (Schedule 2, Part III).

Magistrate’s Court Act 32 of 1994, section 92(1)(a) (as cited in the judgment).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that, on the facts accepted by the trial court, the appellant’s conduct went beyond mere preparatory acts and amounted to the commencement of execution of rape, thereby constituting an attempt punishable under section 55 of the Sexual Offences Act. The court held further that it was not necessary for the State to prove additional features such as DNA evidence, removal of the perpetrator’s clothing, or specific bruising patterns in order to establish attempted rape where the intention and execution-stage conduct were otherwise proven.

On sentence, the High Court held that the regional magistrate correctly approached sentencing with reference to the minimum sentencing framework in light of section 55’s provision that an attempt may attract the punishment applicable to the completed offence, and correctly found substantial and compelling circumstances to justify deviation. The effective sentence of six years’ imprisonment was held to be appropriate and not disproportionate, and there was no basis for appellate interference.

LEGAL PRINCIPLES

An accused is guilty of an attempt to commit an offence where, with the requisite intention, the accused engages in unlawful conduct that is more than preparatory and has reached at least the commencement of execution of the intended crime. The line between preparation and attempt is fact-sensitive and requires a pragmatic evaluation of whether the conduct has progressed to a stage from which it can properly be inferred that the accused’s criminal purpose was settled and being carried into effect.

In the context of sexual offences, an assault may constitute attempted rape where it is committed with the intention to have sexual intercourse without consent and forms part of the execution-stage conduct aimed at overcoming the complainant’s resistance. The law does not require proof of particular ancillary indicators (such as DNA evidence or specific physical manifestations) in every case; the sufficiency of proof depends on the totality of the conduct and the inferred intent.

Section 55 of the Sexual Offences Act provides that a person convicted of attempting to commit a sexual offence under the Act may be liable to the punishment applicable to the completed offence. In sentencing, the court’s powers remain grounded in the general sentencing provisions and jurisdictional limits, but are also subject to other applicable sentencing statutes, including where the prosecution has invoked the minimum sentencing framework, with deviation permitted upon a finding of substantial and compelling circumstances.

Appellate interference with sentence is not warranted where the sentencing court properly considered the relevant factors and imposed a sentence that is not disproportionate to the offender, the offence, and the interests of society.

Silo v S (A59/15) [2016] ZAWCHC 29; 2016 (2) SACR 259 (WCC) (22 March 2016)