Criminal
Appeal
MATHONSI
J: 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. The case for the State was that the then 47 year
old appellant was a school teacher at Foundation College in Bulawayo.
At the same time he was a private tutor for the 16 year old
complainant. On 4 March 2012 the complainant had attended a lesson at
his lodgings in Tshabalala suburb, Bulawayo and had paid her fees for
the extra lessons in the sum of $24-00 to the appellant.
At
around 1300 hours the complainant was leaving the appellant's house
when the latter called her back and asked her to formally hand in her
assignment. This forced the complainant back into the appellant's
house where she picked up the exercise book intending to hand it to
the appellant but he took advantage to close the door and lock it. He
fondled the complainant's breasts before inserting his finger into
her vagina and then pushing her onto the bed where he pinned her down
using his knees and forcibly had sexual intercourse with her.
It
was common cause that after the event the complainant left the
appellant's home in a huff and was heard saying; “men are dogs.”
It was common cause that the appellant tried to give the complainant
the $24-00 she had paid him but she turned it down. It was also
common cause that immediately after she left the complainant went
straight home and reported the sexual attack to her mother, and that
her parents immediately confronted the appellant at his home before a
report was made to the police.
The
appellant admitted the act of sexual intercourse with his 16 year old
pupil but said that it was consensual with a girl who was
prostituting herself, she having accepted a dollar airtime and $3-00
on a previous encounter during the third week of February 2012 and
$4-00 on another occasion he could not particularise, in return for
sexual favours.
The
court a
quo
embraced the evidence of the complainant which found corroboration in
that of her mother. It found that the State had proved its case
beyond a reasonable doubt and convicted the appellant. The court's
task was made easier by the medical evidence which was unchallenged.
The medical doctor who examined the complainant a day after the event
on 5 March 2012 confirmed not only that penetration had taken place
but other evidence of forced entry. On evidence of penetration he
remarked:
“Definite
penetration effected as evidenced by bruising on anus and hymenal
tears.”
Mr
Siziba
who appeared for the appellant conceded that the medical evidence was
not consistent with consensual sexual intercourse. He however
insisted that the complainant had consented to sexual intercourse
because she had not screamed to raise alarm which would have drawn
the attention of other people who were nearby including Nicholas
Hlatswayo who testified as a defence witness that he was sitting
“about 5 metres from accused's room.” Mr
Siziba
submitted that the door and windows were open and as such if the
complainant was not consenting she could have easily escaped. He
added that the fact that the appellant was able to put on a condom in
the presence of the complainant before the act also pointed to
consensual sex.
I
do not agree.
While
it used to be a requirement for the court trying cases of a sexual
nature to apply the cautionary rule because of the danger of false
incrimination by not only believing the complainant but also to seek
corroboration or evidence excluding such danger, that approach was
thrown out through the window by the Supreme Court in S
v Banana
2000
(1) ZLR 607(S). The position of our law now is that it is no longer
warranted to rely on the cautionary rule of practice in such cases.
However,
the courts are still required to carefully consider the nature and
circumstances of the alleged offence.
One
of the strongest evidence which the State may rely on is the medical
evidence. Where the medical evidence led by the State shows injuries
consistent with forced sexual contact that will be cogent evidence of
the complainant's allegation of rape. I have already referred to
the doctor's findings on the injuries sustained by the complainant,
in particular the bruises to her anul cavity which are consistent
with rape and completely at variance with what the appellant sought
to suggest in court that he had routinely indulged in sexual activity
with the complainant as he had done before on two other occasions.
In
addition to that, the conduct of the complainant immediately after
the sexual experience is consistent with absence of consent. As she
left the appellant's house she was cursing and bitterly complained
that “men are dogs.” When the appellant offered her the $24-00
she had paid for tutorial fees, she sharply rejected the money before
finding her way to her home in another suburb, Nkulumane 12, which is
a considerable distance away from Tshabalala.
Upon
arrival at home she was still seething with anger. She reported the
rape to her mother. That conduct cannot be said to be that of a
naughty girl who took the initiative of soliciting for sex from her
tutor and demanded payment for services rendered. If she was that
kind of person, she would have accepted the money, but she did not.
In fact, the entire defence of the appellant constituted an
unmitigated insult on the complainant whose trust had not only been
betrayed by a tutor 31 years her senior but betrays immeasurable
disdain, disrespect and lack of contrition by an unrepentant rapist
deriving sadistic pleasure out of victimizing a girl young enough to
be his last born daughter.
Lack
of consent is not determined by the question of whether the
complainant put up a bulldog fight to ward off an attack or whether
she screamed herself hoarse during the attack. The appellant wallowed
under that misapprehension as it is not all cases of rape where the
victim has to express her disapproval by screaming. It will help
those who engage in such activity to appreciate that when a woman
says “No,” she means No. No can never be “yes but no.” See
S
v Nyirenda
2003 (2) ZLR 64 (H) 73E.
In
our view the State managed to prove the commission of the offence
beyond a reasonable doubt. The findings of the court a
quo
in that regard cannot be faulted.
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) 429D; S
v Nhumwa
S -40-88.
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.
The appeal against conviction is hereby dismissed.
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.
Bere
J agrees………………………………………………..
Mlweli
Ndlovu and Associates,
appellant's legal practitioners
National
prosecuting Authority,
respondent's legal practitioners
