The accused was seventy-nine years at the time of his conviction. He was convicted by a Bulawayo Regional Magistrate on two counts of rape.,. He was sentenced to eighteen years imprisonment on each count. Of the total of thirty-six years, six years was suspended on the usual conditions of good future behavior. The old man, who is in the afternoon, if not the sunset, of his life was therefore sentenced to an effective thirty years imprisonment.

On the one hand, the accused is a first offender. He is the sole breadwinner in his family. He is widowed. Despite his advanced age, he has a child doing grade one. On the other hand, this is a very serious form of sexual abuse, as rightly observed by the Regional Magistrate. As a traditional healer, he abused a patient who had consulted him.  

The individual sentences imposed in each count are excessive. More importantly, the cumulative sentence of thirty years imprisonment is manifestly excessive and is in excess of the outer-limit that our courts would ordinarily impose. The sentence imposed here is disturbingly inappropriate. The exercise of the sentencing discretion was tainted with misdirection, calling for interference.

Accordingly, the convictions are confirmed. I, however, set aside the sentence imposed by the trial court and the following is substituted:

Count One - Ten years imprisonment

Count Two - Ten years imprisonment

The appellant was sentenced to 20 years imprisonment of which 6 years was suspended for 5 years on condition of future good conduct….,.

As against sentence, the ground raised by the appellant is that the lower court erred in not observing that no evidence was adduced as to the number of counts allegedly committed and thus did not properly reflect on the appropriate sentence….,.

Although the doctor's report states that the complainant was raped all night, it is true, as submitted by the appellant's legal practitioner, that on the record, no evidence was adduced from the complainant as to how many times she was raped that night.

That, however, is of no material consequence as the appellant was charged with only one count of rape. There is no effect, therefore, on the conviction of the appellant. It may be that this may be a consideration relevant for purposes of the appeal against sentence but certainly not in relation to the charge and/or conviction….,.

With regard to sentence, it is trite that sentencing discretion is generally the trial court's. The authorities are clear that an Appeal Court may only interfere in circumstances where the lower court has misdirected itself or where the sentence appealed against is unduly harsh or so severe as to induce a sense of shock.

In his comments to the notice and grounds of appeal, the trial magistrate said that he agreed that the appellant's sentence be reduced. He opined that another court may reduce the sentence by 2 or 3 years imprisonment. That, in itself, is not a ground entitling an Appeal Court to interfere. It is however noted that, in casu, the HIV tests conducted on the complainant fortunately produced a negative result.

It is true that justice must always be tempered with mercy.

Counsel for the State submitted that a sentence in the region of 12 to 13 years would meet the justice of the case and suffice. There is no doubt, however, on the facts of this case that a custodial sentence is called for. At the time of the trial the appellant was said to be 30 years old. He would thus have been 29 at the time of the commission of the offence. The complainant was only 11 years old. As the learned trial magistrate stated, in his reasons for sentence, the appellant was brutal to a defenceless minor towards whom he should have assumed a protective role. He cannot escape a lengthy term of imprisonment. Any other sentence would send the wrong message abroad….,.

The appeal against sentence succeeds. The appeal against sentence is allowed to the extent that the sentence of the lower court be and is hereby set aside and is substituted with the following:

“16 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the accused is not during that period convicted of an offence involving sexual abuse on the person of another and for which he is sentenced to imprisonment without the option of a fine.”

As for the appeal against sentence, we did not find the submission that the sentence induced a sense of shock in all the circumstances of this case.

The appellant's youthfulness and that he was a first offender were factors which the trial court properly took into account in the assessment of the sentence which it eventually imposed. The fact that the sentence may be harsher than we would have imposed in similar circumstances is not a proper ground for interfering with the sentencing discretion of the court a quo. In any event, we find that the hurtful words spoken by the youthful appellant to the complainant during her humiliation only added salt to aggravate the humiliation. Those young strong men who take advantage of the very young or very old do so because these two groups are indeed vulnerable to their vulgar and deplorable attacks. When they are properly found guilty of committing such heinous crimes on society's vulnerable, they should not expect mercy from the courts.

In the event, the appeal against both conviction and sentence is dismissed.

The appellant was sentenced to eighteen years imprisonment, of which four years imprisonment was suspended for five years on conditions of good behaviour.

It was argued, on the appellant's behalf, that the sentence is too harsh, and induces a sense of shock. Counsel for the respondent..., conceded, in his oral submissions, that it was too severe when it was pointed out that in the case of S v Nyathi HB60/03, an accused who raped his sixteen year old daughter on ten occasions, and was sentenced by the trial court to thirty years, had his sentence reduced to an effective eighteen years.

The concession was properly made, as the fact that Nyathi was facing ten counts of rape should distinguish his crime from the accused's.

Section 65(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the factors to be taken into consideration in assessing the appropriate sentence. It provides as follows:

“(2) For the purpose of determining the sentence to be imposed upon a person convicted of rape, a court shall have regard to the following factors, in addition to any other relevant factors and circumstances –

(a) The age of the person raped;

(b) The degree of force or violence used in the rape;

(c) The extent of physical and psychological injury inflicted upon the person raped;

(d) The number of persons who took part in the rape;

(e) The age of the person who committed the rape;

(f) Whether or not any weapon was used in the commission of the rape;

(g) Whether the person committing the rape was related to the person raped in any of the degrees mentioned in subsection (2) of section seventy-five;

(h) Whether the person committing the rape was the parent, or guardian, or in a position of authority over the raped person;

(i) Whether the person committing the rape was infected with a sexually transmitted disease at the time of the rape.”

The magistrate forgot to specifically deal with the convicted person's mitigation and age. These are factors which should, in terms of section 65(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], be taken into consideration before arriving at the appropriate sentence.

This court is, therefore, at large as regards sentence.

The convicted person was aged fifty-nine at the time of his conviction and sentence. Courts generally consider advanced age as a mitigating factor for which the ordinarily deserved sentence is reduced. The age difference between the appellant and the complainant is aggravating. She is a young child, while he is an old man who should have protected her.

He took advantage of his being in loco parentis over her.

The convicted person did not use a lot of force. He simply over-powered the complainant, causing no further physical harm beside that inflicted on her private parts. He, however, caused the complainant mental anguish, as demonstrated by her leading a restless life thereafter. She could not continue staying with the appellant's family. She resorted to shedding tears which remained unrewarded until July 2008...,. Her close relative, who she looked up to, raped her. Her grandmother, who got to know of the offence the next day, took no interest...,. The complainant suffered a lot of psychological trauma because of what the accused did to her. He threatened her with death if she reported. When she reported, the report was suppressed, sending home a message that her aggressor was being afforded protection at her expense.

After considering the offence of which the appellant was convicted, and the fact that he is self-employed and of little means, it becomes apparent that a fine is out of consideration.

The offence is a serious one, and calls for imprisonment.

However, when the offence is compared to that of S v Nyathi HB60/03..., the sentence imposed by the trial magistrate becomes severe. A sentence for one count of rape cannot equal to one for ten counts of rape. The reduction of the sentence must, however, not trivialize the offence.

I am convinced that a sentence of twelve years imprisonment, with four years suspended on conditions of good behaviour, will do justice in this case...,. The sentence imposed by the magistrate is set aside and is substituted by the following:

The applicant was convicted of raping his nine year old daughter.

The conviction in Count One is confirmed but the sentence is set aside and substituted by the following:-

He was sentenced to undergo fifteen years imprisonment, of which three years imprisonment was suspended for five years on the usual conditions of good future behaviour.

As far as sentence is concerned, counsel for the appellant did concede before us that the sentence was within the sentencing discretion of the learned Regional Magistrate in the court a quo.

This concession was properly made.

The sentence imposed is appropriate for the offence. In fact, if the sentence is to be criticized, it is because it is on the lenient side. The appellant, at the age of fifty-six, was old enough to be the twelve year old complainant's grandfather. He injured the complainant in her genitals..., in the cause of the rape. He was known to the complainant as a local elder, i.e. he was in loco parentis. From the facts, it does not seem that the sexual act was protected.

Offences involving the rape of juveniles are disturbingly prevalent.

He was sentenced to a total of sixty years imprisonment...,.

The conviction is proper, but, it is the sentence which is a cause for concern.

The offence committed by the accused is no doubt abhorrent, and is, therefore, serious.

The learned trial magistrate used a mathematical formula in arriving at what he perceived to be a suitable sentence. The individual sentences are not excessive, but, taken cumulatively, they are – see S v Hassin 1976 (2) PH H58 (N).

The cumulative effect of the sentence is disturbingly shocking and inappropriate as it is excessive in the circumstances. For that reason, justice demands that it be interfered with.

Accordingly, the sentence in this matter is set aside and is substituted by the following –

“Count One to Two   – 10 years imprisonment.

Count Three to Four – 10 years imprisonment.

Count Five to Six      – 10 years imprisonment.

Total 30 years imprisonment.

Of the total 30 years, 5 years imprisonment is suspended for 5 years on condition accused does not during that period commit any offence of which sexual intercourse is an element.

Effective – 25 years imprisonment.”

He was sentenced to ten years imprisonment with three years imprisonment suspended for five years on the appropriate conditions.

The sentence struck me as unduly lenient, and I then asked for the trial magistrate's explanation.

Her explanation is basically that the accused was sixteen years at the time, and the complainant was mentally challenged.

The court should have objectively looked at the matter from both a social and criminal justice point of view. The complainant, who is a mentally challenged woman, also was taken advantage of by a young man who is himself bestowed with full mental faculties.

In light of the above, the sentence, in my view, is shockingly lenient in the circumstances. This type of crime should attract no less than fifteen years imprisonment effective, irrespective of the accused's age as there are more aggravating features than mitigating ones.

He was sentenced to twelve years imprisonment with three years suspended for five years on conditions of good behaviour.

It is the sentence that was imposed upon the accused person that has exercised my mind in this matter.

Two issues arise....,.

Secondly, it appears to me that the trial magistrate in casu treated the accused as an adult offender even though he noted in his reasons for sentence that the accused is a juvenile offender.

The sentence he imposed clearly falls within the range of sentences ordinarily imposed upon adult offenders.

It is common cause that the accused had unlawful sexual intercourse with his sister, and this constitutes an aggravating feature of the matter. However, this alone would not strip the accused of his status as a juvenile offender.

In S v Zaranyika & Ors 1995 (1) ZLR 270 (HC) BARTLETT J laid down a guideline to assist magistrates in assessing sentences for juvenile sexual offenders. He had this to say -

“I would finally emphasise that it is hoped that this judgment will provide a guideline to assist regional magistrates in the difficult task of assessing sentence in rape matters where the accused is aged 17 or 18 (and, to a somewhat lesser extent, where the accused is aged 19). It is not suggested, or intended, that the approach laid down should be regarded as being engraved in stone. There may well be cases where the aggravating features are such that a more severe sentence is required. Such aggravating features could, for example, be; a multiplicity of counts; the infection of the complainant with a sexually transmitted disease; or the suffering of serious physical and/or psychological harm. There may equally very well be cases where the mitigating factors are such that a much more lenient approach is required. Such mitigating factors could, for example be; clear and verifiable indication of minimal physical and/or psychological harm; or a probation officer's report which, for good reason, after a detailed assessment of the offence and the offender's background, recommends a lesser punishment, such as corporal punishment or committal to an institution.”

I am not aware of any other judgment that has the effect of varying, or diluting, the guidelines laid down in this case.

I am, however, aware, that there has been a noticeable shift by trial magistrates to emphasise the gravity with which the courts view the offence of rape, and how this offence traumatises the victims.

This is, indeed, the correct approach to adopt in such matters but, in my view, the need to protect the complainants in sexual offences need not strip the youthful offender of his status as such, and the consequent need on his part to be protected by the courts from his immaturity. The court should always strike a balance between the two competing rights. None is greater than the other.

In casu, the trial magistrate did not aver to any aggravating features that would justify a departure from the approach that was suggested in S v Zaranyika & Ors 1995 (1) ZLR 270 (HC). I have not been able to find any such features in the matter. If it were appropriate to use such language in rape cases, I would venture to suggest that there were minimal aggravating features in this case. The medical report does not reveal any physical injury to the complainant, who was luckier than most complainants whose cases have come before the courts.

On the basis of the foregoing, it is my view that the sentence imposed upon the accused is severe and induces a sense of shock. It cannot stand.

In the result, the sentence imposed on the accused is set aside and in its place is substituted the following -

On the charge of rape, he was sentenced to eight (8) years of which two (2) years were suspended on the customary conditions of good future behaviour.

Rabson Dube pleaded not guilty, but, was however, convicted and sentenced to twelve (12) years imprisonment on each count, totaling thirty-six (36) years of which six (6) years imprisonment was suspended on condition of good behaviour.

Stephane Sibanda pleaded not guilty, but, was convicted and sentenced to twelve (12) years imprisonment on each count which totaled thirty-six (36) years imprisonment of which six (6) years imprisonment was suspended for five (5) years on the usual conditions.

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, the 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 thirty (30) years for rape has no difference with being caged for life.

While the traumatic effect of rape on a victim cannot be glossed over, it should not be forgotten that a sentence of thirty (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….,.

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.

The appellant was sentenced to eighteen (18) years imprisonment of which six (6) years imprisonment was suspended for five (5) years on condition of good behavior.

Regarding sentence, counsel for the appellant argued that it is so excessive as to induce a sense of shock because the appellant is a teacher who had lost his job and therefore a lengthy term amounted to double punishment. He suggested a sentence of twelve (12) years with five (5) suspended considering that appellant had spent a long time awaiting judgment.

Rape is a serious offence which currently carries a maximum sentence of life imprisonment. In considering an appropriate sentence in rape cases the court must have regard to a number of factors including the age of the victim, the degree of force used or violence used, the extent of physical and psychological injury inflicted, the age of the person who committed the rape and whether the culprit was in a position of authority over the victim.

In this case, the appellant was the teacher of the victim, a victim who was only ten (10) years old and doing Grade 5 and he took advantage of his position of authority to inflict a sustained attack on this helpless simple rural girl over three consecutive days using the same modus operandi. The degree of physical and psychological trauma suffered by the victim is immeasurable and yet the appellant was unrepentant, and, in fact, appeared to derive sadistic pleasure in castigating the innocent girl and painting her as someone of loose morals.

The aggravation is huge and we are satisfied that the trial magistrate properly exercised his discretion in imposing the sentence that was imposed in this case.

The conviction is therefore confirmed but the sentence is set aside and substituted by the following:

15 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition accused does not within 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.

The accused was sentenced as follows:-

“Each count 6 years imprisonment of the total 36 years imprisonment of which 6 years is suspended on condition accused does not within 5 years commit any offence of a sexual nature for which upon conviction he is sentenced to imprisonment without the option of a fine.”

Nothing turns on the conviction, but, the issue arises with regards to sentence.

He was sentenced to a total of thirty-six (36) years imprisonment. This type of sentence, taken cumulatively, induces a sense of shock to any right thinking human being.

While rape is a serious offence and the courts are indeed empowered to show their indignation by passing very stiff sentences, there is, however, a need to strike a balance between the interest of society and that of the accused….,.

In casu, the conviction is confirmed but the sentence is set aside and is substituted by the following:

All counts are treated as one for the purposes of sentence;

20 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within 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.

The applicant was convicted of one count of rape by the Regional Magistrates' Court sitting in Bulawayo on the 13^th October 2010. He was sentenced to fifteen (15) years imprisonment of which three (3) years was suspended on condition of good behaviour. 

He has since appealed against conviction only.

The appellant was sentenced to 14 years imprisonment of which three and a half (31/2) years imprisonment was suspended on condition of good behaviour…..,.

As against sentence, the ground of appeal raised is that the trial magistrate erred and misdirected herself in imposing a very severe sentence which in the circumstances was so excessive as to induce a sentence of shock….,.

With regard to sentence, the appellant's counsel has submitted in his heads of argument that the trial court slavishly adhered to sentencing trends as reflected in precedents without taking the individual circumstances of the instant offence and the offender. He submitted that the trial magistrate fell afoul of the sentencing guidelines as espoused in the case of S v Dube 2000 (1) ZLR 386. He listed a number of factors that he submitted would have considerably lessened the appellant's moral blameworthiness had the trial magistrate taken them into account. These are listed as the fact that the offence was not premeditated and neither was it repeated; that the appellant did not have ample time to reflect upon his conduct and desist therefrom; that this was merely an unfortunate and uncharacteristic moral lapse; that the appellant did not infect the complainant with sexually transmitted infections; that there was no protective relationship between the complainant and the appellant; that there is no evidence of psychological trauma on the complainant. He submitted that the appellant ought to have been sentenced to a shorter term of imprisonment.

Counsel for the respondent has, on the other hand, in his heads of argument, appositely made the submission that it is trite that an appeal court will only interfere with the discretion of a trial court where the sentence is disturbingly inappropriate or where the discretion of a trial court in respect to sentence has been exercised capriciously or upon wrong principles. See S v Sidat 1997 (1) ZLR 487 (S)…,.

The trial magistrate's reasons for sentence are clearly stated. On a perusal of the same, it cannot be said that she did not exercise her discretion judiciously. Furthermore, in S v Nyamimba 2002 (2) ZLR 607 it was held that complainants in sexual cases are traumatized by the act of rape. It was also held that a rape perpetrated on a young girl should attract a sentence of at least ten to twelve years imprisonment. In that case, a 44 year old man raped a 6 year old child. At page 611E the following was stated –

“Given the high incidence of rape of innocent young children and their possible exposure to…, diseases, the courts must impose severe penalties in order to deter offenders from committing such offences. That this view is widely held in Zimbabwe is evidenced by the recent promulgation of the Sexual Offences Act [Chapter 9:21] and the severe penalties which are provided therein.

In S v Makorisha HH130-04 the following was stated -

“Given the dangers to which a rape victim is exposed, a rape perpetrated on a young girl should attract a sentence of at least ten to fifteen years imprisonment.”

In casu, the appellant was aged twenty (20) while the complainant was six (6). The trial magistrate stated, at the end of her reasons for sentence, that considering the age of the complainant and the serious nature of the crime of rape, a lengthy custodial term is inescapable. Furthermore, that as the appellant was youthful she would suspend a portion of the sentence for his future deterrence. The trial magistrate, thus, for reasons that she clearly spelt out, imposed a sentence that is in line with sentencing trends for the matter and circumstances before her. The appeal against sentence thus has no merit either and it must also fail.

The appellant was, on 7 December 2011, sentenced to 14 years imprisonment of which 4 years were suspended for 5 years on the usual condition…..,.

As against sentence, the appellant is a church pastor and a family friend of the complainant's family. His family volunteered to look after the complainant and her younger sibling out of the goodness of their hearts as in a pastor ministering his flock. I find nothing exaggerated in the language used to describe the treacherous behaviour displayed by the appellant when he changed from being the good shepherd to being the rapist that he was found to be by the court a quo. There is nothing unusual in the sentence imposed on the appellant. The Criminal Law (Codification and Reform) Act [Chapter 9:23] permits the imposition of the sentence which the magistrate imposed. There is no allegation that in assessing the appropriate sentence the magistrate took into account factors which he was not entitled to take into account or that he had disregarded those factors which he was obliged by law to take into account. The sentence imposed sends the right message to child rapists in particular, and to rapists in general, that they should not expect to be treated with kid gloves when convicted of such heinous crimes. Those persons who commit this type of crime should not expect leniency when their heinous crimes finally catch up with them. Society expects that those who stand in loco parentis (to) take their roles seriously and protect, rather than abuse, those children in their care and custody.

The appellant was sentenced to ten (10) years on each count. Of the total of 20 years imprisonment, 5 years were suspended for 5 years on conditions of future good conduct…,.

The basis of the appeal against sentence was that it was too harsh.

The appellant was 21 when he committed the two offences and 23 when he was sentenced. He spent 13 months in custody before sentence. He was a single first offender who, however, looked after 10 siblings from his occupation. In aggravation, it was found that he raped two young girls. Both cried out in pain but where bribed by sweets. The experience was traumatic for them. All these factors were considered by the trial magistrate before she imposed sentence.

In S v Chuma SC165-94 McNALLY JA stated that -

“All cases of rape are horrible and sentences of rape having been increasing over the years.”

Severe penalties are called for on the basis that rape is a gross violation of the rights, body and dignity of the victims. Our courts have called for stiff penalties - especially against adults who prey on young children.

In the present matter, it is clear that the children were physically injured and psychologically scarred. Rape is a crime of violence which seeks to subjugate the will and dignity of the victim to that of the perpetrator. The appellant's moral blameworthiness was very high. He committed two offences against two young girls within a short space of time. Young children are easy prey because they can easily be threatened or bribed into silence. It was fortuitous that the alertness of one of the mothers led to the rapid discovery of the offences.

I have considered a variety of cases to guide me on whether the sentence imposed induces a sense of shock.

I have referred to S v Nyathi HB60-03 where a father was convicted of ten counts of rape on his juvenile daughter. An effective sentence of 30 years imprisonment was reduced, on review, to 18 years.

Again, in S v Nhire HH115-05 a 54 year old father raped his juvenile daughter on diverse occasions and had the sentence of 20 years reduced, on review, to 17 years imprisonment of which 2 years was suspended for 5 years on the usual conditions of future good conduct.

In S v Chakapfava HH188-04 a 33 year old offender who committed indecent assault using his finger on a 3 year old toddler was sentenced, on review, to 7 years of which 2 years was suspended.

In S v Musasa SC45-02, the age of the accused was not provided but he raped a 4 year old and had the sentence of 10 years imprisonment of which 1 year was suspended confirmed.

In the present matter, it seems to me that the accused did not use gratuitous violence on the two girls. At 21, he was an adult who falls into the category of a young offender. He was entitled to a measure of leniency. Even though his actions were abhorrent, it seems to me that imposing an effective sentence of the same magnitude as in S v Nyathi HB60-03 and S v Nhire HH115-05 was inappropriate. The two counts were perpetrated separately but in close proximity. It would have been appropriate to treat them as one for purposes of sentence. It seems to me that the sentence imposed was unduly harsh and induces a sense of shock.

Accordingly, it is set aside and is substituted by the following:

Both counts as one for sentence:

Upon conviction, the appellant was sentenced to twelve (12) years imprisonment of which five (5) years imprisonment was suspended for five (5) years on condition of future good conduct….,.

With regard to the appeal against sentence, the first ground raised is that taking into account the personal circumstances of the appellant the sentence imposed is unduly harsh and severe. Secondly, that the sentence is out of line with sentences imposed in similar circumstances.

Though brief, the trial magistrate's reasons for sentence show that he took the relevant considerations into account in arriving at the sentence that he did. Furthermore, it has not been shown how the sentence is not in line with sentences passed in similar circumstances. On the other hand, State counsel cited the case of S v Nyaminda 2002 (2) ZLR 607 wherein it was held that a rape perpetrated on a young girl should attract a sentence of at least 10 to 12 years imprisonment.

In casu, by reason of the appellant's personal circumstances, a sentence within the expected range was imposed but a substantial portion thereof was suspended on condition of future good conduct.

On 7 June 2010, the appellant was sentenced to 18 years imprisonment for the 3 counts of rape and 15 years imprisonment for the 2 counts of aggravated indecent assault. Of the total 33 years imprisonment, 8 years imprisonment was suspended on the usual conditions….,.

On the sentence, the appellant grounded his appeal on the fact that the court a quo erred in treating the 3 counts of rape separately from the 2 counts of aggravated indecent assault when they constituted a single criminal transaction….,.

Regarding sentence, counsel for the appellant could not advance any meaningful argument. In Mkombo v The State HB140-10…, I stated…, as follows;

''The position of our law is that in sentencing a convicted person, the sentencing court has a discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and in aggravation. For an appellate tribunal to interfere with the trial court's sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H) at 429D; S v Ramushu & Others SC25-93. It is not enough for the appellant to argue that the sentence imposed is too severe because that alone is not a misdirection and the appellate court would not interfere with a sentence merely because it would have come up with a different sentence.''

The appellant was sentenced to 20 years imprisonment of which 4 years was suspended on

condition of good behaviour.

The appellant is the complainant's grandfather and was living in the same house with her. He was visiting her at night armed with a knife and issued death threats if she reported. The complainant, being an 11 year old child under those circumstances, must have been terrified and must have felt that the world had collapsed around her. This is not the kind of behaviour expected of a parent let alone of the appellant's age. With the prevalence of these sexual offences in general and the fact that the appellant infected her with a sexually transmitted infection, the appellant's offence is, by any standard, aggravated. In fact, in my view, by suspending part of the sentence, the trial court was very generous in its approach. Deterrent sentences are called for and these courts should not give up fighting against this scourge in our society. There is a need to shift the approach from sympathising with criminals at the expense of paying lip-service to the complainant who will be left with the trauma of having been carnally known against their will under such violent circumstances.

The accused were sentenced as follows:

“Each:

Count 1-2= 10 years imprisonment.

Counts 3-4= 20 years imprisonment.

Total: 30 years imprisonment of which 5 years imprisonment was suspended for 5 years on the customary conditions of good behaviour.

  Effective: - 25 years imprisonment.

The appellant is a self actor. Her argument is that the sentence imposed by the court a quo was very harsh.

In assessing a suitable sentence, the courts' approach has always been to consider the effect of the sentence on the offender, but, most importantly, the accused's moral blameworthiness. See S v Goodson 1976 (2) PH H 169 (R).

The appellant was sentenced him to 18 years imprisonment of which 3 years was suspended for 5 years on the usual condition of future good behaviour….,.

In his address to the court, the appellant, who appeared in person, concentrated on his unhappiness with his conviction and did not say much about the sentence imposed upon him. Asked if he had anything to say in respect of the sentence, the appellant could only say that the reason why he lodged the appeal was for the court to assess an appropriate sentence. This was therefore not helpful at all.

Section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that a person convicted of rape shall be liable to imprisonment for life or any shorter period. What the court is required to consider, in arriving at an appropriate sentence for rape, is set out in section 65(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides:

“For the purpose of determining the sentence to be imposed upon a person convicted of rape, a court shall have regard to the following factors, in addition to any other relevant factors and circumstances-.

(a) Tthe age of the person raped;

(b) The degree of force or violence used in the rape;

(c) The extent of physical and psychological injury inflicted upon the person raped;

(d) The number of persons who took part in the rape;

(e) The age of the person who committed the rape;

(f) Whether or not any weapon was used in the commission of the rape;

(g) Whether the person committing the rape was related to the person raped in any of the degrees mentioned in subsection (2) of section 75;

(h) Whether the person committing the rape was the parent or guardian of, or in a position of authority over the person raped;

(i) Whether the person committing the rape was infected with a sexually transmitted disease at the time of the rape.”

It is clear, therefore, that the sentencing court has a wide discretion in sentencing a person convicted of rape and can indeed sentence the person up to life imprisonment. The court also has regard to a range of factors in considering sentence.

The appellant raped a child aged three (3) years and infected her with syphilis, a sexually transmitted infection. The child had been left in his care when he attacked it. He had been employed as a herdboy. The trial court noted that what aggravated the appellant's case was the fact that he was “in a protective relationship with complainant.”  The appellant therefore abused the trust of both the complainant and her grandmother who employed the appellant. That, together with the age of the child, made this “a very bad case of sexual abuse.”

The appellant was sentenced to 20 years imprisonment of which 2 years was suspended on the usual conditions of future good behaviour….,.

SEVERITY OF SENTENCE

The appeal against the sentence imposed in casu is premised on the personal circumstances of the appellant, i.e. that he is an elderly first offender and a respectable businessman whose trial received considerable publicity. It is averred, in the notice of appeal, that the sentence confirmed by the court a quo was unduly harsh and so severe as to induce a sense of shock. However, at the hearing of the appeal, counsel for the appellant did not proffer any submissions in this regard.

The Magistrates Court imposed a sentence of 12 years imprisonment of which a period of 5 years was suspended on condition of good behaviour.

In imposing this sentence, the court took into account all the relevant mitigatory considerations, including the appellant's age and diabetic condition and the fact that he was a first offender. It also had regard to the aggravating features of the offence in casu, in particular, that the appellant took advantage of a poor young girl.

The High Court confirmed the sentence imposed.

In so doing, the learned judges relied on the decision in S v Nyaminda 2002 (2) ZLR 607 (H)…, where it was held that a rape perpetrated upon a young girl should attract a sentence of at least 10 to 12 years imprisonment. The court noted that in this case a sentence within the expected range was imposed with a substantial portion being suspended on condition of future good conduct.

I am unable to perceive any misdirection in the sentencing discretion exercised by the trial court or the court a quo.  Accordingly, there is no merit in the appeal against sentence.

The appellant was sentenced to twenty (20) years imprisonment of which three (3) years were suspended for five (5) years on the usual conditions of good behaviour….,.

The appeal against sentence was on the ground that the sentence was unduly harsh and induced a sense of shock.

The allegation was that the learned magistrate misdirected herself in the assessment of the sentence by placing less weight on the personal circumstances of the appellant particularly that he was a youthful first offender aged eighteen (18) years at the time of the commission of the offence.

It was also alleged that the learned magistrate over-emphasised the age of the complainant when there were no particularly aggravating features in the manner the rape was committed which would have justified a sentence more severe than sentences in similar cases….,.

On the question of sentence, it has been said time and again, that sentencing is a matter for the exercise of discretion by the trial court. The appellate court not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the appellate court to interfere with the sentence and assess it afresh.

The allegation in this case is that the sentence imposed is unduly harsh and induces a sense of shock. In S v Mkombo HB140-10.., it was held that:

“The position of our law is that in sentencing a convicted person, the sentencing court has discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and in aggravation. For an appellate tribunal to interfere with the trial court's sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H)…,.; S v Ramushu and Others SC25-93.”…,.

In S v Nyamimba 2002 (2) ZLR 607 it was held that complainants in sexual cases are traumatised by the act of rape.

It is trite that an appeal court will only interfere with the discretion of a trial court where the sentence is disturbingly inappropriate or where the discretion of a trial court in respect to sentence has been exercised capriciously or upon a wrong principle. In S v Sidat 1997 (1) ZLR 487 (SC) it was held by McNALLY JA…, as follows:

“Once it is decided that there has been a material misdirection in relation to sentence then there has been a substantial miscarriage of justice. The appellate court is then at large to consider on the right facts, what an appropriate sentence should be. In so considering, it is not fettered by a consideration of the sentence by the lower court.

If, on the other hand, there has not been a misdirection by the lower court, then there can only have been a substantial miscarriage of justice if the sentence is 'disturbingly inappropriate' or 'so severe as to induce a sense of shock.' Lacking a misdirection, in other words, the court will not be 'at large' and will only be able to interfere if the severity of the sentence amounts to a substantial miscarriage of justice.”

The court is not at large to interfere with the sentence imposed by the trial court and confirmed by the court a quo.

The appeal against sentence thus has no merit and it must also fail.

There can be no doubt that there is a pressing need to clear the neighbourhood of people like you and to remind society that women not only have rights too but also that anybody who offends against the girl child will be dealt with in a manner that recognizes the sanctity of human life….,.

After hearing arguments in this criminal appeal against conviction and sentence by the Regional Magistrates Court at Bulawayo we dismissed the appeal against conviction and upheld the appeal against sentence reducing the sentence from 20 years imprisonment of which 5 years imprisonment was suspended for 5 years on condition of future good behaviour to 15 years imprisonment of which 5 years imprisonment is suspended for 5 years on condition of future good behavior. We said the reasons would be made available in due course. These are the reasons.

Following a conviction on one count of rape the appellant was, on 16 July 2012, sentenced aforesaid….,. It is on sentence that the court a quo was found wanting.

There is absolutely nothing in the record to suggest that the court ever considered the mitigating circumstances that were presented. In fact, what transpired during sentencing is captured in only 13 lines of the record which read:

“BY DEFENCE (To court)

Accused is a first offender. It is appropriate and desirable that part of accused's sentence be suspended: S v Chirara 1990 (2) ZLR (sic). Accused is a family man. He has 7children the youngest being 2 years old. A harsh sentence will ruin accused's family. Accused has been a law-abiding citizen prior to the crime perpetrated. It is clear that accused will lose his employment. Accused's conduct has been good in the past. Long imprisonment is likely to affect his life and family. Those are my submissions.

SENTENCE (By Court)

Accused's blameworthiness is very high given that he committed this crime against his pupil. Teachers are professionals who act as parents most of the time. Accused reduced himself to an ordinary rapist betraying not only the trust of the parents but that of his profession. Accused no doubt deserves imprisonment. Part of the imprisonment term will be suspended on condition of good behavior.”

What about the fact that the appellant is a family man with seven children the youngest of which was two years old and that he was a first offender? Or that he was certainly going to lose his teaching job as a result of the conviction, itself some form of punishment? It all counted for nothing in the mind of the court.

In our view, that was a misdirection.

Although sentencing is the discretion of the trial court which the Appeal Court is loath to interfere with, where there is a misdirection, as in the present case where the sentencing court ignored all the mitigation, the Appeal Court will interfere with the exercise of that discretion. See S v Chiweshe 1996 (1) ZLR 425 (H)…,.; S v Nhumwa SC40-88.

In light of the misdirection we are therefore at large in so far as the sentence is concerned. Taking into account the fact that the accused is now 51 years old and has a huge family and he will lose his job as a result of his lack of self-control, we are of the view that an effective sentence of 10 years will meet the justice of the case.

In the result, it is ordered that:

1….,.

2. The appeal against sentence is upheld.

3. The sentence of the court a quo is set aside and substituted with the sentence of 15 years imprisonment of which 5 years imprisonment is suspended for 5 years on condition the appellant does not, during that period, commit an offence of a sexual nature for which, upon conviction, he is sentenced to imprisonment without the option of a fine.

The appellant was sentenced to 16 years imprisonment of which 4 years imprisonment was suspended for 5 years on condition of future good behavior.

The applicant.., was sentenced to 17 years imprisonment of which 3 years was suspended for five years on the usual conditions….,.

As regards sentence, the appellant, who was HIV positive at the time of the commission of the offence, was found guilty of a serious offence. There is no evidence of misdirection by the court a quo.

It is trite law that sentencing discretion is that of the court a quo and the Appellate Court is reluctant to interfere with that discretion in the absence of a misdirection. See the case of S v Nhumwa SC40-88….,.

It is my view that the applicant, who has been sentenced to a long term of imprisonment, would be tempted to abscond if granted bail pending appeal. If released on bail pending appeal there is every likelihood that the applicant would not await the outcome of his appeal regard being had to the fact that the applicant is aware that he has very little prospects of success on appeal.

I am satisfied that the applicant has failed to discharge the onus to establish that he is a proper candidate for bail.

In the result, the application for bail pending appeal is hereby dismissed.

In casu, increasing public sentiment, especially from women's groups, against perceived leniency in meting out sentences to rapists, given the prevalence of sexual offences against women and girls appear to have influenced the sentence. Although Regional Magistrates generally impose fairly stiff sentences for rape, often in the range for 15 to 20 years for a count of rape, some such sentences involving multiple counts are often reduced on review; perhaps feeding into perceptions of the “permissive court”.

For instance, S v Ndlovu 2012 (1) ZLR 393, the view was expressed, on review, that ordinarily the sentence for rape should not exceed the sentence for murder or culpable homicide. In that case, a 43 year old accused had been charged with five counts of raping his biological daughters aged between seven and four years. The four year olds were twins. He was sentenced to 20 years in respect of each count giving him a total period of 100 years in prison. The sentence in one count was made to run concurrently with another involving the same complainant. A further 20 years was suspended on good behaviour. The total effective sentence was accordingly 40 years.

In reviewing the sentence, KAMOCHA J emphasized that life imprisonment is indeed the maximum sentence permissible for rape under the Criminal Code and that this should be reserved for the worst examples of the crime. He reasoned that the worst crime under crimes against the person is the crime of murder, and, in the past, unless there were no extenuating circumstances, the sentence would be death. He further reasoned that in those cases where the death penalty was not warranted the sentence imposed is generally between 14 and 20 years. He also noted that in cases of attempted murder the penalty rarely exceeds 10 years. Although acknowledging its traumatizing effects, in his view, a sentence of 20 years for a single count of rape was excessive. As he put it:

“It seems to me that a sentence of 20 years on a single count of rape is completely out of steps with sentences imposed in respect of other crimes against a person as outlined above. It seems to me that rape should also attract a sentence from 5 to 10 years. Only the very bad cases of rape should attract a sentence beyond ten years and the worst ones should attract imprisonment for life.

Since the court was initially dealing with five counts of rape it should have borne in mind the cumulative effect of the sentences on the five counts and imposed a sentence which is not so excessive as to induce a sense of shock.”

He accordingly reduced the sentences on the three counts for which he found him to have been rightly convicted to six years per count, giving a total of 18 years.

Also, in S v Nyathi 2003 (1) ZLR 587 a 30 year sentence had been imposed on a father for 30 counts of rape on his 16 year old daughter. The 30 year sentence was deemed excessive and reduced to 18 years.

The yardstick by KAMOCHA J is somewhat useful in so far as it purports to give a benchmark figure of what should constitute a starting point when sentencing multiple counts of rape. However, akin to comparing oranges to apples as fruits in the same basket, it seems to me to skirt the point of the vast implications of sexual violence for the enjoyment of a range of fundamental rights for women and girls. In my opinion, an informed assessment of the sentence to be imposed in cases such as this cannot be reached without utilising an engendered approach to this area of Criminal Law, as well as engaging a Constitutional and human rights perspective.

The enjoyment of rights, such as bodily and psychological integrity, freedom from violence, inherent dignity take on their specific meaning in the lives of men and women when real life experiences are examined with gender lenses. For women and girls, the fear of violence is generally that which arises from the actions of non-State actors. Rape is a particularly serious form of gender violence against women and girls which impacts on their ability to enjoy certain guaranteed rights as contained in international instruments that we have signed as well as articulated in our Constitution.

Freedom from violence is guaranteed in our Constitution [Amendment Act (No.20) Act 2013], under section 52 of the Constitution which states that:

“Every person has the right to bodily and psychological integrity which includes the right -

(a) To freedom from all forms of violence from both public and private sources….,.

(b)…,.

(c)…,.”

Article 51 is also useful in providing protection from violence in that it protects the right to human dignity. It is couched as follows:

“Every person has inherent dignity in their private and public life and the right to have that dignity respected and protected.”…,.

It is not only the right to personal security that is at stake when women experience forms of gender-based violence, as exemplified by rape, but, it is also rights such as freedom from cruel and degrading treatment and the right to equality and non-discrimination. (See Articles 53 and 56 of the Constitution). It is the pervasive nature of sexual violence and the reality that women and girls have to live in constant fear of it from childhood to old age that continues to hamper true equality between men and women. The bottom line is that it is the responsibility of the State not just to protect women against any such violations which encroach on their fundamental rights, but to also prosecute and punish appropriately as part of its exercise of due diligence. The courts cannot adopt an overly “softly, softly” approach under the guise of comparative sentencing, completely oblivious of the reality that we are dealing with a problem of gender based violence so pervasive in our society and largely indicative of its treatment of women and girls as sexual objects, such as to impact on their right to enjoy fundamental freedoms. Even when society's interests are balanced against those of the individual, sight should not be lost of the fact that sexual violence is a deeply engrained societal problem and the approach to sentencing should acknowledge rather than skirt this reality.

The provisions discussed above in our Constitution are examples of concerted efforts to tailor local legislation to meet global norms. Of relevance, for instance, are Article 9 of the International Covenant on Civil and Political Rights which deals with the rights to security of the persons and Article 7 which prohibits cruel and degrading treatment. The Convention on All Forms of Discrimination against Women is also significant in that its provisions have been interpreted by the CEDAW Committee, in Recommendation No. 19, to specifically cover gender-based violence against women as a form of sex discrimination. It is regarded as discrimination because of the distinct effects it has on the lives of women which prevents them from enjoying equality as envisaged by Article 1 of the Convention. Equally significant are provisions to the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa whereby Article 3, for example, guarantees the right to dignity for women and the protection of their human and legal rights. Article 4, in particular, addresses violence against women including the punishment of perpetrators (Article 4(2)(e)). Women also have a right to live in a positive cultural context in terms Article 17.

Rape is a form of gender based violence that emanates from cultural attitudes towards women that permit the use of sex as an instrument of power and control.

The appellant was sentenced to 20 years imprisonment....,.

The appellant raises..., four grounds of appeal against sentence....,.

As for the appeal against sentence, we believe that in all matters where a first offender is sentenced to imprisonment, he ought to enjoy the benefit of a suspension of a portion of the sentence as a salutary recognition to his status as a first offender. Any offender is capable of reform. He must benefit from the usual and time-honoured practice of our courts to suspend a portion of a term of imprisonment in spite of how the court assesses the usefulness of this approach. A failure to observe this salutary practice may, in certain circumstances, such as here, constitute a misdirection entitling this court to interfere with sentence.

Further, a court must always pay due regard to the language it uses in giving reasons for any decision.

To use what might be termed “extravagant language” may lead to a conclusion that the court was swayed by considerations extra-judicial. I make mention of this because, in the present case, the learned trial magistrate remarked that this crime was committed for ritual purposes.

Nowhere is this suggestion made. He states that “the evidence in these courts is that all the cases that we deal with are influenced by rituals; for how else can we explain a man of 57 years raping an 11 year old child?”

As pointed out above, there is no evidence that the appellant committed the crime in pursuance of a ritual. There is, therefore, no justification for reference to rituals as having motivated this crime.

It cannot be ruled out that the court may well have been subconsciously swayed, in its assessment of sentence, by this factor.

It is true that where a fairly long effective sentence is determined to be appropriate, there may be no point in suspending a portion of such a sentence. However, while there is no rule which requires that in such cases no portion of such a sentence should be suspended, it is practice to suspend a portion of any such sentence where the offender is being sentenced for the first time.

Further, the statement that “if the accused cannot repent after serving a long term of imprisonment he cannot repent even after suspending a portion of it…,” cannot, in my view, be justification for not suspending any portion of a term of 20 years imprisonment. Clearly, this approach to assessing sentence constitutes a misdirection.

The usual considerations, when assessing sentence, is the gravity of the crime, the personal circumstances of the offender and the interests of society. It has been held, repeatedly, that the sentence must suit both the crime as well as the interests of society. Needless to say, a court will give due weight to all the mitigating factors in the matter and weigh against those factors which constitute aggravating features in the matter.

We note that the appellant was 57 years old at the time. He was a first offender with the usual family responsibilities. On the other hand, his victim was only 11 years old and a neighbour. The psychological trauma she must have suffered is immeasurable. She must have been taken by surprise, totally, by the accused's sexual assault as she least expected this to happen.

Having applied our mind to both the mitigatory factors as well as the aggravating ones we assess the sentence of 20 years imprisonment as befitting. However, we are of the strong view that, like any first offender, the appellant ought to enjoy the discount of a suspension of his custodial term. Therefore, the sentence imposed in the court a quo will be altered to read as follows:

“20 years imprisonment of which 5 years imprisonment is suspended for 5 years on condition that the accused is not, during that period, convicted of any offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.”

The applicant was sentenced to fifteen years imprisonment. Of those, three were suspended for five years on the usual condition of good conduct. Thus, twelve years remained effective….,.

On sentence, the applicant's argument was that the sentence was shockingly excessive given the personal circumstances of the applicant. He was an elderly person. He was a first offender. No inquiry had been made whether or not he had been contrite.

There is no substance in the appeal against sentence....,. The sentence passed seems squarely within the general range of sentences for crimes of this nature. The Appeal Court is likely to consider that this was a rape within the family by someone who was a father figure to the complainant. The aggravating circumstances will militate against any reduction in the sentence.

This matter was referred to me on automatic review.

I should confess that my sense of justice was offended by the sentence imposed by the learned Regional Magistrate who dealt with the matter.

The 54 year old accused was convicted, after a protracted trial, of five (5) counts of rape involving the 14 year old complainant who is also the accused's step daughter.

The facts proved are that from 10 April to 12 May 2014 at Plot 6, Village 1, Greenlands Farm in Beatrice, the accused, on five different occasions, would forcibly have sexual intercourse with the complainant in the kitchen hut when all other persons were not at the homestead. The matter came to light during the commission of Count 5 when the State witness, Hilda Majoni, who is also a neighbour to the accused and the complainant, saw the accused forcibly dragging the complainant into the kitchen hut. Hilda Majoni thought the accused wanted to assault the complainant and rushed to the kitchen hut. The accused was found in flagrante delicto. From the evidence of Hilda Majoni she had to pull off the accused from the top of the complainant to cause him to withdraw his penis from the complainant's vagina.

Despite the minor confusion in relation to the date in Count 5, the evidence led points to the accused's guilt. The conviction on all the five Counts is in order and is confirmed.

What exercised my mind is the sentence imposed by the learned Regional Magistrate which I find to be manifestly lenient.

All the five (5) Counts were treated as one for sentence and the accused was sentenced to 16 years of which 4 years imprisonment were suspended for 5 years on the usual conditions of good behaviour leaving an effective term of 12 years imprisonment.

After reading the learned Regional Magistrate's reasons for sentence, I could not appreciate why he decided to exercise such measure of leniency in respect of the accused. The only discernable mitigating factors are that the accused is a 54 year old married man with four (4) children, two of whom are with the complainant's mother aged 4 years and 6 months old respectively. The accused is a first offender, owns a house in Pumula Suburb in Bulawayo, and is now involved in farming at Greenlands Farm. The other two children, born in 1982 and 1984, are majors.

The accused committed a very serious offence of rape. He in fact raped the complainant five times which aggravates his conduct. This happened over a period of a month and could have continued as he threatened the complainant after each Count if the accused had not been caught in the act in Count 5. The accused is a step-father to the complainant who should have offered parental love and protection. Instead, he turned her into his “wife” forcibly at the tender age of 14 years. The accused was not sexually starved as he is married to the complainant's mother. Despite being caught in the act the accused is not contrite at all.

The general public has rightly demanded that rapists should be severely punished.

Rape is a crime of violence rather than passion. It dehumanises and traumatizes the victim. It is even worse when the victim is potentially exposed to the lethal infection of the HIV virus and other sexually transmitted infections. The penal provisions in section 65(1) of the Criminal Code [Chapter 9:23], which relates to rape, is imprisonment for life or any other shorter period. I believe the legislature has done enough by giving the courts very sharp teeth in dealing with rapists. The courts should, in my view, play their role by punishing such offenders in a manner which acknowledges the serious nature of the offence and the interests of justice. A sentence of 16 years imprisonment is wholly inadequate for a step father who ravished his step-daughter on five different occasions.

In my view, an effective term of 20 years to 25 years imprisonment would have been appropriate in respect of all the five (5) Counts of rape.

I am therefore, for that reason, unable to certify the proceedings as in accordance with real and substantial justice. I withhold my certificate.