Rapist’s life term up for review

THE LIFE sentence of a sex offender, convicted of a rape committed two days before Christmas 2010, has been set aside after two Western Cape High Court judges found there was insufficient evidence before the magistrate involved to justify such a severe sentence.

The case has been referred back to the Oudtshoorn Regional Court for sentence to be considered afresh, but only after the court has had sight of a pre-sentencing report, setting out the rapist’s personal circumstances.

This means that Donovan Olivier could get off with a lighter sentence, while his co-accused, Clive Coerecius, has to remain behind bars for life.

It emerged from the evidence presented in the trial that Olivier played a leading role when he and Coerecius raped a 19-year-old woman at a scrapyard in Oudtshoorn. Her boyfriend was assaulted and forced to watch the rape at knifepoint. The court heard that Olivier punched the woman in the face when she cried and put up a struggle, before raping her twice.

Coerecius restrained her boyfriend during the rape, and hit him on the head with the sharp part of the knife when he pleaded for the men to let her go. The men also threatened to kill the couple.

Coerecius then had an opportunity to rape the woman, while Olivier restrained the boyfriend.

They eventually let the pair go, but later caught up with them along a tar road.

They grabbed the woman and dragged her, face down, along the road before again letting them go.

The men claimed during the trial that the sex was consensual. Their version was, however, rejected, and in June 2011 both were sentenced to life imprisonment. Both men appealed against their sentences to the High Court, but the matters were heard separately.

In Coerecius’s appeal, the court found that the magistrate should not have taken the charges together for sentencing purposes, and confirmed the life sentence for the rape. However, additional sentences were imposed for the assault of the woman and her boyfriend.

But in Olivier’s appeal, Judge Owen Rogers recently gave judgment in which he said that it was regrettable that the two appeals were not heard together. He said the evidence clearly established that the rape was accompanied by considerable sexual and physical force, adding that it was hugely traumatic for the couple.

The accused, however, was 18 years old at the time, and a pre-sentence report was not obtained.

Judge Rogers pointed out that while the magistrate was aware of the relative youthfulness of both the accused, he did not consider that to be substantial and compelling circumstance which would justify a deviation from the prescribed sentence of life in prison.

Judge Rogers added that the magistrate knew virtually nothing about Olivier’s upbringing.

“(Olivier) was facing the most severe sanction recognised in our law, life imprisonment. It is particularly important in such cases that trial courts take care to elicit the necessary information to put themselves in a position to exercise their sentencing discretion properly.

“(Olivier) had only just reached his 18th birthday. He was of an age where a measure of immaturity and poor judgment on account of youthfulness could still be expected. He had no prior convictions involving violence or for sexual offences. He had two convictions for drug possession. There was evidence that (he and Coerecius) smoked tik on the day of the rape. A deprived upbringing may have set him on a path of drug abuse.”

The aggravating circumstances needed to be balanced against Olivier’s youthfulness, the fact that he was a first offender, and his personal circumstances, the judge said.

Judge Nape Dolamo agreed.