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.
