CHEDA J: The above
cases have been referred to me for review.
As they present a similar issue I have decided to deal with them
together.
Rabson Dube:
CRB 143/10
The facts of this case were presented and captured in the following
manner:
Accused a 49 year old man was charged with 4 counts of rape which occurred
between 2003 and 11 April 2008. Accused
is related to the complainant as he is her step-father. He pleaded not guilty, but, was however,
convicted and sentenced to 12 years imprisonment on each count, totalling 36 years
of which 6 years imprisonment was suspended on condition of good behaviour.
Stephane
Sibanda: CRB 102/10
On the second case, accused is 22 years of age while the complainant is
15 years. The facts of the case are that
sometime in August 2009 complainant was sent to fetch some firewood in the
nearby bush, at village 5, Zimdabule bushes, Nyamandlovu. Accused is alleged to have had sexual
intercourse with the complainant on three different occasions between August
and October 2009. The rape was
discovered when complainant made a report to a neighbour Saneliso Ndlovu. This led to accused's arrest. He pleaded not guilty, but, was convicted and
sentenced to 12 years imprisonment on each count which totalled 36 years
imprisonment of which 6 years imprisonment was suspended for 5 years on the
usual conditions.
The convictions in my view are proper but the sentences appear to be on
the harsh side.
The
issue is with regards to sentence. Rape
on a minor is a very serious offence, it is more aggravating when the minor is
under the authority of the rapist. In
the first case the relationship was that of step-father and step-daughter. While in the second case accused was staying
in the same homestead with the complainant.
While courts are enjoined to pass stiff sentences on such perpetrators,
there is need for the courts to weigh the age of the accused vis-a-vis the
cumulative effective of the totality of the sentence imposed. In my view as much as an accused person
should be punished for his transgressions, it should not be forgotten that he
still has a life to lead after squaring up his debt with society.
An effective sentence of 30 years for rape has no difference with being
caged for life.
While the traumatic effect of rape on a victim can not be glossed over,
it should not be forgotten that a sentence of 30 years effective irrespective
of the number of counts may tend to sway society's sympathy to the accused when
it is intended to be the other way round.
Where there are multiple counts, the court must carefully weigh the
factors from both the complainant and accused's side and avoid a mathematical
approach to sentence, see S v Makurira
1975(3) SA83(R) and S v Nyathi
2003(1) ZLR 587(H). Our courts' approach
to sentencing is that;
(1)
punishment should fit both the
criminal and the crime.
(2)
It should be fair to the State and
the accused, and
(3)
Should be blended with mercy,
although the accused should be punished he should not get to a point of being
broken see S v Shariwa 2003(1) ZLR 314 at 316-317.
The sentences imposed in this matter are very harsh and there is a need
for interference by the reviewing Judge.
The convictions are confirmed, but, the sentences are set aside and are
substituted by the following:
In both cases, all the counts are treated together for sentence
Each accused- 25 years
imprisonment of which 5 years imprisonment is suspended for 5 years on
condition accused does not during that period commit any offence of which sex
is an element for which upon conviction accused is sentenced to imprisonment
without the option of a fine.
Effective- 20 years imprisonment.
Cheda
J...................................................................
Kamocha
J agrees......................................................
