CRI/S/8/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:-
REX
AND
SAMPO MORENAMANG MOTSOENE
REASONS FOR JUDGMENT
Given by Mr Justice W.C.M. Maqutu on the 6th June 2005
Attempted Crime Sexual Offences Act 2004 - whether Section 182 (1) and Section 183 (1) of the Criminal Procedure and Evidence Act 1981 on attempted crime apply - mens rea - where preparation ends — and commission of offence begins.
In this case the accused was convicted with contravening section 3 (!) of the Sexual Offences Act of 2003 and referred to this court for sentence.
The particulars of the charge are the following.
"That upon or about the 12th April 2004, and at or near Tereseng in the district of Qacha's nek, the said accused did unlawfully and intentionally commit a sexual act with Matholoana Miriam Mohau, in that he threatened verbally and through conduct the said Matholoana to have sexual intercourse with him, and did unlawfully apply physical force to Matholoana with the intent to have sexual
intercourse and as a result he had direct or indirect contact with her thighs, vagina, and some other part of her body. Thereby
committing the offence charged.
The accused pleaded not guilty.
On the 13th May 2004, the accused had been before me. I directed that pro-deo counsel be obtained for him and postponed the matter to the matter will be reviewed before sentence.
On the 20th May 2005 Mr Seema appeared for the Crown while Mr Mokoko appeared for the accused. It was agreed by both counsel that accused claim to have been born in 1985 be accepted because the accused's age had not been properly determined. Accused seemed to be about 20 years old.
The complainant (duly sworn) said she was a woman aged 71 years old. She told the court she knows accused well and during the night of 12th April 2004, the door opened, but it fell to the ground. The accused came to her
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asked her to give him. When complainant asked what exactly he wanted to be given. Accused told her he wanted to have sexual intercourse with her. Complainant then cried out. Accused took off the blankets that covered complainant and strangled her so that she could not make a noise. As he did this accused forced himself onto her and took out his penis. The complainant said she does not know if accused inserted the penis into her or penetrated her, because she was struggling to shout for help. Just then her daughter and a man came. The man held accused and accused begged him to forgive him. A she was saying these word the accused managed to escape.
The house had been lit with a candle - so complainant told the accused she was not mistaken. During cross-examination complainant told the court that accused even bit her during the struggle.
Pw2 Dolly Mohau (duly sworn) told the court she was called by a child who gave her a report that was house breaking at the home of Pw2. It was around 9pm. Pw2 went with Shusha in a rush to go and investigate. She found the door of her house had fallen down. Pw2 said she heard complainant crying Sampo (the accused) is killing her. Accused rushed out of the house, as he
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was doing so Shusha tried to catch him but the accused escaped. Accused had not questions for Pwl.
Pw3 Tsolane Khaseaneng (Shusha) was the next witness. Told the court while he was drinking beer Pw2 asked him to accompany him to her home because something was happening there. Pw3 told the court that he accompanied Pw2 to her home. As she got to the door of Pw2's house - he heard some one crying for help. The door had fallen down. Pw3 knocked at the door - a voice inside said "Is it Shusha, please forgive me." He asked what was going on. There was no response accused went towards him from inside the house running away. Pw3 told the court he tried to hold the accused but he escaped Pw3 told the court it was at 9pm, the house was lit and he knows the accused.
Cross-examined Pw3 said he had known accused for several years. Pw3 told the court he did hold accused but accused got free from him and escaped. Pw3 told accused he did not report to the chief but reported to the army base where he worked because he thought that is where complainant would got help. Accused challenged the truthfulness of Pw3.
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Pw4 was Rethabile Thamae the headman of the village. He told the court he knows accused who is his neighbours child. Pwl and Pw2 at about 9 pm came to his place and gave a report about what accused had done. When accused came, he denied being responsible for what was reported,
Pw5 Police woman Mzamo told the court that he got a report that accused tried to rape complainant.
The medical shows complainant had bruises on the arms. These were caused by an assault.
Accused gave evidence. He told the court he was already in bed at 9 pm and never went to Complainant's home. In the morning he was called before Pw4 the chief and it was alleged by the complainant and Pw2 that he had had sexual intercourse with complainant. They wanted to admit having done so. The complainant had merely told the chief some one had while she was asleep forced himself on her. When she cried Pw2 her daughter came and when she asked complainant what happened complainant had said nothing. It was Pw2 and Pw3 who told the chief (Pw4) that they saw accused there.
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In cross-examination accused said Pw2 and Pw3 know him but not Pwl.
The trial court found the accused guilty as charged. But Mr Mokoko counsel for the accused argued that the evidence did not prove accused committed an unlawful sexual act. The reason being that there was no direct or indirect contact with the anus, breasts, penis, buttocks, thighs, or vagina of one person or any other part of the body.
Mr Mokoko argued that display of genital organs was a species of sexual offence penalty is covered by Section 32 (a) (1) of the Sexual Offences Act 2003 - an offence of which the accused was not convicted. Consequently his taking out of his penis to display it to complainant is not relevant as does not form part of the particulars of his charge.
I noted that force could be implicit, direct or indirect, physical or psychological in terms of section 2. This Act is fraught with
problems because its punishments at places lack proportionality. The sentence of 10 years imprisonment seems to be mandatory for virtually an act described as a sexual act which may be deemed coercive. It does not matter whether the individual complained or not. Touching some one's thigh or buttock in
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circumstances that are deemed coercive - the sentence is the same - at least 10 years imprisonment.
I have in mind what appears in Gordon Criminal Law 3rd Edition paragraph 36. 20 where a lewd, indecent or libidinous act occurs where a male or female places the hand of another on his or her private parts - the sentence has to be a minimum of 10 years imprisonment. There are other problems such as occurred partially in this case namely exposure or display of genital organs by one person to another." I believe (ordinarily) to be a sexual act more should be required than mere exposure. As Gordon Criminal Law observed at paragraph 36.13
"Where the exposure is made to a particular person or persons in such a way as to indicate an improper motive on the part of the accused, that is to say, where the exposure is a form of sexual gesture or invitation, and is something from which the exposer
derives gratification, something which is for him a sexual act. This form of indecent exposure is really an example of lewd practices
although it may be committed against adults, as where A exposes himself to women in the street."
While there are advantages in collecting all sexual crimes under one Act, it seems greater specificity will have to be required by the courts. Indeed whether an act has sexual motives depends on inferences that could be drawn from surrounding circumstances. However, Mr Mokoko argued that
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"coercive circumstances" for section 3 (!) of the Sexual Offence Act 2003 to apply. There has to be contact at the parts of the body specified
Mr Seema supported conviction. His starting point was that a 71 years old woman was involved. The identity of the accused as the perpetrator could not be seriously doubted. In this he was impliedly supported by defence counsel. Mr Seema felt the court should infer from the evidence that the thighs must have been touched. Evidence showed that the struggle was interrupted ~ the only clear evidence is that the complainants arms were heavily bruised showed. The intention to rape her was not only exhibited in words but it was followed by physical acts that were resisted desperately until help came to interrupt the accused's endeavour.
The court enquired from Mr Seema whether offences under the Sexual Offences Act 2003 were capable of being attempted like other crimes. This was particularly so because accused had been resisted even after he had taken out his penis to the extent that he could not get to the complainants relevant parts.
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In this case I was faced with what in the past was called rape. The Sexual Offence Act of 2003 has however repealed the law in respect of rape and replaced it with several offences covering the same area. Accused is charged with contravening section 3 (!) of the Sexual Offences Act 2003 which in the past would have been rape. The only difference is that penetration is no more essential. Steps towards rape have become part of one composite offence.
Although the accused has been convicted of contravening Section 3 (!) evidence shows he did not actually succeed in reaching the sexual parts such as the breast or thighs of the complainant. Had the accused done so, the offence would have been complete.
The court requested Mr Mokoko to address it on whether an attempted crime had not been committed within the meaning of sections 182 (!) and 183 (2) of the Criminal Procedure and Evidence Act of 1981 which provide:
"182. (1) If, on the trial of any person charged with any offence, it appears upon the evidence that the accused did not complete the offence charged, but that he is guilty of an attempt to commit that offence, he shall not by reason thereof be entitled to an acquittal, but a verdict may be given that the accused is not guilty of the
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offence charged but in guilty of an attempt to commit that offence or of an attempt to commit an offence of which he might under this Act be convicted on the charge..."
"183.(1) Any person who attempts to commit any offence against a statute or statutory regulation is guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, liable to the punishment to which a person convicted of actually committing that offence would be liable."
Mr Mokoko drew the courts attention to the fact that rape had been abolished. Consequently competent verdicts such as indecent assault and assault with intention to rape which could have been competent in terms of section 187 of the Criminal Procedure and Evidence Act of 1981 were no longer competent
As argument proceeded Mr Seema for the Crown ultimately conceded that evidence as it stands does not disclose contravention of Section 3 (!) of the Sexual Offences Act 1981, it discloses an attempted crime. Consequently accused should be found guilty accordingly. Accused had expressed an intention to have sexual intercourse with complainant. The complainant refused. Accused thereupon took steps to forcibly have sexual intercourse with her. They struggled during the struggle which is supported by extensive bruises on the complainant's arms, accused took out his penis.
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Just as accused was about to over-power the complainant, they were interrupted by some one who had come to investigate what was going on.
Mr Seema consequently argued that the accused had passed the stage of preparation to forcibly having sexual intercourse with complainant.
Mr Seema argued that accused was interrupted when he was in the process of perpetrating the crime and had overcome or was about to overcome the resistance of complainant and therefore had taken out his penis in order to have sexual intercourse with her forcibly
without her consent.
In reply Mr Mokoko argued that the accused at best was preparing to have sexual intercourse. Consequently Mr Seema for the Crown was mixing up preparation with perpetration. To this submission Mr Seema argued that accused had not only passed the preparation stage, accused had in fact reached the threshold of the final stages of perpetration.
In this judgment the word rape will be used in its colloquial sense - which is having sexual intercourse by a man with a woman against her consent. This conduct forms part of an offence called contravening the provision of Section 3 (1) of the Sexual Offences Act 2003. The view I take of this act is
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that it codifies all sexual offences and tries to relate them to each other. Because it brings common law offences under one roof it should be applied under common law principles. Consequently (where the objective was to have sexual intercourse) attempted crimes under the Sexual Offences Act 2003 will be treated under Section 182 (1) of the Criminal Procedure and Evidence Act 1981 not Section 183 (1).
Gordon Criminal Law 3rd Edition commenting on Scots Law at page 200 paragraph 6.20 says "Hume talks at one stage of 'ambiguous cases with respect to which it is difficult to say where preparation ends and perp etration begins.' " The learned author is critical of the idea of finding attempted crime to be committed when perpetration is at its last stages. Criticizind the final stage theory Gordon Criminal Law 3' Edition 6.35 page 209 says.
"Another objection is that the theory probably makes it impossible to convict anyone of attempting to commit a number of common crimes. This result is contrary to the principle underlying the rule that an attempt to commit any crime is punishable, and also contrary to current practice. Convictions for attempted rape, for example, are not uncommon, but attempted rape cannot be committed on the final stage theory - either there has been penetration, in which case the crime has been completed, or there has not, in which case the last act, penetration, remains to be done and the accused can still change his mind and decide not to commit the rape."
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The better view is that cases of attempted crime cannot be the same across the spectrum of criminal law. Each case is governed by its own facts and the essentials of the particular crime under consideration. I am therefore in agreement with what JM. Burchell says in South African Criminal Law and Procedure volume I General Principles of Criminal Law 3rd Edition pages;
"The universal problem is to determine where preparation ends and attempt begins - to draw a dividing line between 'the end of beginning and the beginning of the end'. Our courts have deliberately refrained from laying down a test whereby the dividing line can be drawn in all cases.
Indeed, it is impossible to do so because so much depends upon the facts of each particular case. It is only to be expected, therefore,
that there is little judicial harmony on this issue, and in the circumstances it is unhelpful to compare and contrast the decisions
taken in cases of similar but different facts."
Attempted crime raises many fascinating and controversial issues. In England they have the Criminal Attempts Act 1981. In Lesotho we have the abovementioned Sections 182 (1) and 183 (1) of the Criminal Procedure and Evidence Act 1981. These Acts largely restate the common law. The practical problems are about where preparation ends and perpetration begins remain.
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In R v Khan (1990) 2 ALL ER 783 Russell LJ in the English Court of Appeal distinguished rape from attempted rape in the following words:
"The only difference between the two offences is that sexual intercourse takes place whereas in attempted rape it does not,
although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the
defendant is precisely the same in rape and in attempted rape and the mens rea identical, namely an intention to have sexual intercourse
plus a knowledge of or reckless ness as to the woman's absence of consent."
In R v Schoombie 1945 AD 541 at page 547 Watermeyer CJ said of attempted crimes:
"... in the case of interrupted crimes Of an attempt to commit such crime is proved when the court is satisfied from all the
circumstances of the case that the wrongdoer, at the time he was interrupted, intended to complete the crime and that he had at least carried his purpose through to the stage at which he was "commencing the consummation" (of the crime)."
It remains controversial where preparation end and perpetration begins. Courts do not always agree. For an example in England in A G's Reference (N01 of 1992) 2 ALL ER 190 the court had been asked whether the Crown has to prove (as a matter of law) that accused even attempted to penetrate the woman's vagina with a penis. The court's answer was that the Crown did not have to prove this fact. It is enough to adduce evidence of intent to rape and acts that show that the accused was not merely preparing to commit the
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offence but had begun committing the offence. - for example, in that case the accused had dragged the victim up some steps, lowered his trousers and interfered with the victims private parts.
In the case before me the accused had struggled with the victim who had refused to have sexual intercourse with him, thrown her on the floor, bruised her arms during the struggle to get on top of her, taken out his penis. Just as the victims resistance was fading, he was interrupted by some one coming to the investigate- That being the case the proximate acts to sexual intercourse remove any doubt that the accused was no more preparing to rape the complainant, but was in the final stages of perpetrating the crime of forcibly penetrating complainant with his penis when he was interrupted.
I consequently found the accused guilty of attempted rape.
As the accused was only 19 years old at the time and he had already been in prison for 11 months, I sentenced him to 6 strokes with a light cane. This
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punishment was to be administered after the accused had been medically examined.
W.C.M. MAQUTU
JUDGE
For the Crown : Mr Seema
For the Accused : Mr Mokoko
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