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South Africa: High Court, Northern Cape Division, Kimberley
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2017
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[2017] ZANCHC 18
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Olyn v S (CA&R120/2016) [2017] ZANCHC 18 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
CA&R120/2016
DATE
HEARD:
27/02/2017
DATE
DELIVERED:
03/03/2017
In
the matter between:
OLYN,
RAMON
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Snyders AJ
JUDGMENT
Olivier
J:
[1.]
The
appellant, Mr Ramon Olyn, appeared in the Regional Court, Kimberley,
on two counts of rape
[1]
.
In both charges it was alleged that the appellant had penetrated the
vagina of the 6 year old girl, with his penis (count
1) and with his
finger (count 2). The appellant pleaded not guilty to both
counts and tendered no plea explanation.
He was convicted on
both counts and sentenced to life imprisonment, on the two counts
taken together. The present appeal
is directed at the
conviction on count 1, and at the sentence.
[2.]
From what
was common cause and from factual findings of the Regional Magistrate
that are not challenged at this stage, it appears
that the
complainant went to look for her mother at a shebeen when the
appellant came upon her and took her into an outside toilet
on the
premises. In the toilet the appellant removed both his own
pants and the pants of the complainant, and it was at that
stage that
the appellant sexually assaulted the complainant.
[3.]
When
other people wanted to use the toilet and could not get the appellant
to vacate the toilet, the door was opened from the outside
and the
appellant and the complainant were discovered in the toilet.
The complainant then left the toilet trembling and the
appellant’s
pants were down. The complainant made a report to the effect
that the appellant had sexually molested her.
The complainant’s
mother was summoned and when she arrived the complainant started
crying.
[4.]
A
gynecological examination of the complainant revealed injuries
indicating penetration. The injuries, however, were consistent
with penetration by a penis and/or a finger, in other words the
possibility of the injuries having been caused by only a finger
was
not ruled out.
[5.]
The DNA
profile of a sample containing material removed by a swab from the
vulva of the complainant was identical to that of the
appellant.
The most conservative possibility that someone else could have a DNA
profile identical to that of the appellant
was 1 in 31 000
people.
[6.]
The
appellant did not testify in his own defense, but from statements
made in cross-examination by his attorney it appeared that
his
version was that he was never inside the toilet with the complainant,
that he had merely assisted her outside the toilet to
pull up her
pants and that his finger may in that process have touched her
vagina. The rejection by the Regional Magistrate
of that
version is not challenged on appeal.
[7.]
In fact,
the appeal against the conviction on count 1 is based solely on the
contention that the Regional Magistrate erred in finding
that the
appellant had penetrated the complainant with his penis.
Counsel for the respondent, Mr R R Makhaga, concedes that
this
finding of the Regional Magistrate was wrong.
[8.]
In my
view the concession is correct. The complainant testified that
the appellant had “
missed
”
when he attempted to penetrate her with his penis and that he had
penetrated her with his finger.
[9.]
The
Regional Magistrate erred in finding that the genetic material inside
the complainant, and which was on the swab that was analysed,
was
semen. There was no evidence by the complainant that the
appellant had ejaculated at any stage. On the evidence
of the
forensic analyst the material on the swab could also have been,
inter
alia
,
skin cells or hair. Material like that could arguably have been
left behind after the appellant’s finger had penetrated.
[10.]
In my
view the reasonable possibility was not excluded that the complainant
was only penetrated by the appellant’s finger,
and that his
penis had only, as the complainant herself put it, “
poked
”
against her waist or hip, which she clearly understood to be an area
of her body different from the vagina.
[11.]
Both
legal representatives suggested that the conviction on count 1 be set
aside and substituted with a conviction of attempted
rape. In
my view it is indeed clear from a reading of the whole of the
evidence of the complainant that the appellant’s
penis had made
contact with her hip or waist when he attempted to “
poke
”
her vagina with it and “
missed
”,
which would obviously have constituted attempted rape.
[12.]
The
Regional Magistrate deemed a sentence of life imprisonment
appropriate on the two convictions of rape, taken together, both
of
which carried prescribed sentences of life imprisonment. The
fact that one of the two convictions will now be substituted
with a
lesser conviction, carrying no prescribed sentence at all,
necessitates a reconsideration of the sentence/s.
[13.]
It is so
that technically speaking life imprisonment would in any event still
be the prescribed sentence in respect of the remaining
rape
conviction (count 2), but in my view it would be unduly harsh and
inappropriate on the facts of this matter. This was
also
conceded by counsel for the respondent. The complainant
sustained no physical injuries (other than relatively minor
gynecological injuries) during the incident. She was not
subjected forcibly. There was no evidence that she sustained
lasting psychological harm. The appellant had only one
unrelated previous conviction (theft). The appellant had
permanent
employment at the time of his arrest and it was placed on
record that he had contributed towards the maintenance of one of his
minor children before his arrest (the other child having been born
while the appellant was in custody on these charges).
[14.]
The age
of the victim in this case is most definitely an aggravating factor,
as is the fact that the appellant for all intents and
purposes had
abducted her when she was looking for her mother. There is also
no telling at what point the appellant would
have stopped, had he not
been interrupted. Even weighed up against these factors,
however, the abovementioned mitigating
factors, viewed cumulatively,
in my view constitute substantial and compelling circumstances
justifying a deviation from the prescribed
sentence of life
imprisonment. Despite her tender age the penetration of the
complainant by the appellant with his finger
“
cannot
be classified as falling within the worst category of rape
”
[2]
.
[15.]
In
considering an appropriate sentence on count 2 a prescribed sentence
of life imprisonment must still however serve as a bench
mark
[3]
.
At the same time, however, sight must not be lost of the fact that
the appellant had spent 18 months in custody awaiting
trial.
[16.]
Mr Van
Tonder, the attorney who appeared on behalf of the appellant,
suggested that the facts of this matter are comparable with
those in
S v
MMM
[4]
and that the appellant should there also be sentenced to 15 years
imprisonment. I disagree. The most important distinction
is that the complainant in that matter had been more than twice as
old as the present complainant.
[17.]
The
preceding attempt by the appellant to penetrate with his penis was
essentially part of the same incident and in my view it would,
especially where the prescribed sentence in respect of count 2 will
be deviated from, be appropriate to take the two convictions
together
for purposes of sentencing.
[18.]
The
covering sheet in this matter reflects that the appellant is in
custody and it therefore appears that he has been serving the
imposed
imprisonment pending this appeal. The substituted sentence will
therefore be antedated to date that the original
sentence was
imposed.
[19.]
In the
circumstances the following orders are made:
1.
THE
CONVICTION OF RAPE ON COUNT 1 IS SET ASIDE AND SUBSTITUTED WITH A
CONVICTION OF ATTEMPTED RAPE.
2.
THE
SENTENCE OF LIFE IMPRISONMENT IS SET ASIDE AND IT IS SUBSTITUTED WITH
A SENTENCE OF 18 YEARS IMPRISONMENT, IMPOSED ON COUNTS
1 AND 2 TAKEN
TOGETHER, AND THE SENTENCE IS ANTEDATED TO 8 FEBRUARY 2016.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
J
A SNYDERS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
MR A VAN TONDER
(Kimberley
Justice Centre)
For the
Respondent:
ADV R Makhaga
(Office
of the Director of Public Prosecutions)
[1]
In contravention of the provisions of section 3
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act
, 32
of 2007.
[2]
S v Nkomo
2007 (2) SACR 198
(SCA), para [17]; Compare
S
v Molefe
2014 JDR 1317 (GP) para 18.3
[3]
Compare
Director of Public
Prosecutions, Transvaal v Venter
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA) para
[53]
[4]
2013 (2) SACR 292
(SCA)