The
accused was charged with a combined thirty counts of contravening
section 131(1) and 2 (unlawful entry) and section 65 (rape) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
Of the total 30 counts, 13 were counts of rape whereby after entering
10 domestic premises the accused committed the rapes. He was however
convicted of 21 of the 30 counts as the complainants and witnesses in
the other nine counts had moved or were out of the county.
For
the 21 counts for which he was convicted, he received a total
sentence of 290 years. Of these, 60 years was suspended for five
years on condition he did not commit a crime involving unlawful
entry, violence on the person of another, or an offence of a sexual
nature.
The
Regional Magistrate who handled the case referred the case, after
sentencing, for review and consideration of whether the charges had
been split unnecessarily.
In
arriving at the cumulative sentence, each count of unlawful entry was
sentenced separately from the crime of rape that had been committed
by the accused at the relevant premises and for which he had been
convicted. To put the cumulative sentence into perspective, he was
sentenced as follows:
Count
1; 10 years (unlawful entry)
Count 2; 20 years (rape)
Count
5; 10 years (unlawful entry)
Count 7; 10 years (unlawful entry)
Count 8; 10 years (unlawful entry)
Count 9; 20 years
(rape)
Count 10; 10 years (unlawful entry)
Count 11; 20
years (rape)
Count 13; 10 years (unlawful entry)
Count
14; 20 years (rape)
Count 15; 10 years (unlawful entry)
Count
16; 20 years (rape)
Count 19; 10 years (unlawful entry)
Count
20; 10 years (unlawful entry)
Count 21; 10 years(rape)
Count
22; 10 years (unlawful entry)
Count 23; 10 years (unlawful
entry)
Count 24; 20 years (rape)
Count 25; 20 years
(rape)
Count 26; 20 years (rape)
Count 30; 10 years
(unlawful entry)
Total
290 years
The
indications of the crime in brackets are for ease of reference as to
what the count related to.
To
put the 21 counts for which he was convicted into further
perspective, 14 of the counts included seven for unlawful entry under
aggravated circumstances and another seven for rape in respect to
each of those unlawful entries. In one of these cases of unlawful
entry the accused had committed three counts of rape against the
victim. There were therefore five counts related to unlawful entry
under aggravated circumstances that excluded rape.
The
counts that included unlawful entry and rape against seven different
complainants were the following:
Counts
1 & 2 (unlawful entry with rape)
Counts 8 & 9 (unlawful
entry with rape)
Counts 10 & 11 (unlawful entry with
rape)
Counts 13 & 14 (unlawful entry with rape)
Counts
15 & 16 (unlawful entry with rape)
Counts 21 & 21
(unlawful entry with rape)
Counts
23, 24, 25 and 26 which involved unlawful entry and three counts of
rape against the same complaint.
The
counts which involved unlawful entry under aggravated circumstances
where property was stolen were as follows:
Count
5
Count 7
Count 19
Count 22
Count 30
The
offences took place between September 2011 and October 2012. The
accused would basically break into domestic premises at night either
through toilet or kitchen windows or the roof. He would be armed with
items such as a knife and/or hammer; a cell phone with a torch. Once
in the room, he would wake up his victim, threaten them with death
and would demand money, cell phones, and laptops. Coupled with
unlawful entry and theft, sexual violence was a tool used by the
accused to exercise power and control over the victims in selected
cases. It essentially became an adventure to his repertoire.
His
luck ran out when he returned to the premises of one complainant
where he had previously been. No doubt traumatised by her previous
experience, upon hearing noises she had immediately managed to make
contact with a relative in the police force using her cellphone. The
response had been swift and the accused had been apprehended whilst
inside the house. Thereafter, some of the complainants had identified
him at an identification parade. The accused had also taken the
police to other premises where he had committed the crimes and had
given indications of how he had committed the offences at the
relevant premises.
The
convictions, in my view, are proper but the sentence induces more
than a sense of shock to the point of being ridiculous given that no
one lives to 290 years - and none of it runs concurrently.
As
such, much of it serves no purpose other than being of shock value.
As
stated in S
v Mukome
2008
(2) ZLR 83 (H) the competing interests of society and the accused
persons must be balanced in arriving at a desirable sentence. While
deterrence is a valid consideration, the view expressed in S
v Nemakuru
2009
(2) ZLR 179 (H) that in sentencing, judicial officers must avoid
giving the impression that a sentence is a tag which society must
read for it to be deterred seems apt in this instance.
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.”
There
is no doubt that the accused's actions clearly trampled on these
fundamental rights.
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.
In
my view, whilst there was no misdirection in the splitting of charges
for unlawful entry and those of rape, the misdirection was in
sentencing each count of unlawful entry separately from rape given
the cumulative effect of the sentence.
Also,
the sentence for each count was excessive and the sentences could
have been made to run concurrently given their similarity in nature
and proximity in time in the commission of some of the offences.
There is, however, no doubt that the court was faced with a serial
rapist and an un-relenting one for that matter for whom a stiff
sentence was called for. Having said that, the 290 year sentence with
60 years suspended makes no sense and certainly arises from
sentencing the counts separately without any of them running
concurrently.
In
dealing with multiple counts and deciding whether to apply a globular
sentence it was stated, in
S
v Chayisva
2004
ZLR (1) 80 (H),
that
the factors to be taken into account include;
(i)
Whether the offence is the same or similar nature;
(ii)
Whether the offences are closely linked in time; and
(iii)
Whether the offences arise out of the
same transaction.
I
do not think that this is a case for a globular sentence as the
offences did arise from the same transaction. They were distinct in
time and nature and should be approached as such. In S
v Muyambo
HH52-94
it was stated that there are two permissible approaches to sentence
where multiple counts are involved:
(a)
Sentencing as one those similar in nature; or
(b)
Where counts are individually sentenced, ordering the sentences to
run concurrently.
It
is the 'concurrent' approach which, in my view, would be partly
appropriate in this case in terms of rationalising the sentence.
The
sentence is accordingly altered as follows for the counts involving
unlawful entry under aggravated circumstances and rape;
Counts
1 & 2: 10 years imprisonment
Counts 8 & 9: 10 years
imprisonment
Counts 10 & 11: 10 years imprisonment
Counts
13 & 14: 10 years imprisonment
Counts 15 & 16: 10 years
imprisonment
Counts 21 & 21: 8 years imprisonment
Counts
23, 24, 25 & 26: 15 years imprisonment
For
the above counts, the accused is accordingly sentenced to a total of
73 years of which 18 years is suspended for five years on condition
the accused does not commit a crime involving unlawful entry,
violence on the person of another or an offence of a sexual nature.
For
the following counts involving unlawful entry under aggravated
circumstances without rape the accused is sentenced as follows;
Count
5: 3 years (unlawful entry)
Count 7: 3 years (unlawful entry)
Count 19: 3 years (unlawful entry)
Count 22: 3 years
(unlawful entry)
Count 30: 3 years (unlawful entry)
The
cumulative sentence of 15 years for these counts to run concurrently
with the effective sentence of 55 years.
