BERE J: This appeal stems from the conviction and sentence
of the appellant at Chipinge Magistrates Court for contravening s 70 of the
Criminal Law (Codification and Reform) Act [Cap 9:23].
Following his conviction the appellant was sentenced to 24 months imprisonment
three (3) months of which were suspended on the usual grounds of future good
conduct. This appeal is against both conviction and sentence.
The sole ground of appeal is that the learned Magistrate erred in convicting
the appellant when the facts showed that the appellant and the complainant had
sexual intercourse whilst living together as husband and wife and that such a
relationship is not criminalised by s 70 (supra).
As against sentence the appellant's position is that the learned Magistrate
ought to have considered a sentence other than a custodial sentence given that
he had opted for a prison term of 24 months. Counsel for the appellant argued
that the court a quo should have considered either a fine or community
service as a viable option to the prison term.
The respondent has opposed the appeal in its entirety.
It is clear as argued by Ms Fero for the respondent that the position
now adopted by the appellant is a clear departure from his defence outline when
he appeared at Chipinge Court where he flatly denied ever indulging in an
intimate relationship with the complainant. Secondly the appellant's position
even if it were to be accepted (which factor is not borne out by the evidence
led and accepted in the court a quo) would not exonerate the appellant
as the protection afforded to the complainant in terms of s 70 is statutorily
given, it does not derive from the wishes of the parents.
Taken to its logical conclusion what the appellant now alleges would simply
mean that the complainant's mother participated in violating the provision of s
70 and that she could herself have been properly charged for aiding and abating
the appellant in the commission of this offence if regard is had to the age of
the complainant at the time she was abused by the appellant.
The evidence accepted by the court a quo was more than sufficient to
sustain a conviction against the appellant for having “extra-marital sexual
intercourse with a young person” who in any event would not have consented to a
spousal relationship. Against the stout denials by the appellant of having
indulged in sexual intercourse the court a quo rightly concluded that
the complainant had been candid and concluded that indeed sexual intercourse
had taken took place. The conviction is therefore more than safe and it needs
not be disturbed.
As regards sentence the measure that is generally applied is that before a
superior court interferes with the sentence imposed, that sentence must be
regarded to induce a sense of shock and outrage.
It is accepted that there is a plethora of authorities emanating from this
court that have spelt out that it is a misdirection not to consider community
service as a viable option where the sentencing court decides to impose a
sentence of 24 months and below. See S v Mabhena 1996 (1) ZLR
134.
But I must add caution and say that approach is not a rule of thumb as each
case must be considered on its own circumstances.
What cannot be disputed in this case is that in crafting s 70 (supra)
the legislature was largely motivated by the spirited desire to protect young
girls in the mould of the complainant from prematurely indulging in intimate
relations with men like the appellant who would be tempted to sexually exploit
such young girls.
By indulging in an exploitative sexual relationship with the complainant, the
appellant placed himself within the ambit of the provision of s 70 (supra)
whose penalty provision speaks of a fine not exceeding level twelve or
imprisonment for a period not exceeding 12 years or both. The first sexual
encounter speaks to a possible rape. It was overlooked during proceedings in
the lower court and the appellant could have properly have been charged of
rape.
In his reasons for sentence the learned Magistrate gave detailed reasons why he
felt very strongly, I must confess, the imposition of a custodial sentence was
appropriate.
As observed in the case of S v Gono 2000 (2) ZLR 63 (H) the
learned Magistrate fell into error of not giving reasons why a sentence of
community service was inapplicable in this case.
Be that as it may, I do not believe such an omission was so fatal as to vitiate
the sentence which was eventually meted out if regard is had to inter alia
the disparity in ages between the appellant and the complainant, a young
unsuspecting girl, clearly unaware of the inherent dangers of being forced to
indulge in pre-marital sex.
Everything considered, I am of the firm view that the appeal must be dismissed
in its entirety. The appeal is accordingly dismissed.
Mugadza, Chizamba & Partners, appellant's legal practitioners
Attorney General's Office,
respondent's legal practitioners
BERE J ________________________________
HUNGWE J agrees ______________________
