Criminal
Appeal
MWAYERA
J:
Irked
by the conviction and sentence imposed by the court a
quo
the appellant approached this court on appeal.
The
appellant was convicted of indecent assault as defined in section
67(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
He
was sentenced to 18 months imprisonment of which 6 months
imprisonment was suspended for 5 years on conditions the appellant
does not within that period commit any offence involving sexual abuse
for which he is sentenced to imprisonment without the option of a
fine.
It
is contented by the State that sometime in August 2018 at House
Number 10109 Greenside Extension, Mutare the accused person Lawrence
Zinhumwe with intent and knowing that Kirsty Zinhumwe had not
consented made her touch his penis realising that there was a real
risk or possibility that Kirsty Zinhumwe may not have consented to
it.
The
State's case was that sometime in August 2018 the appellant asked
Kirsty Zinhumwe his biological daughter aged 22 to touch and massage
his penis which he alleged was painful.
It
was the State's case that the complainant massaged the penis
shortly after an epileptic attack.
The
appellant raised two grounds of appeal against conviction:
“1.
The court a
quo
erred when it failed to consider that due to the acrimonious
relationship between the appellant and the complainant's mother it
was possible that the report was only made to fix the appellant.
2.
The court a
quo
erred when it relied on character evidence which was inadmissible and
also its prejudice outweighed its probative value.”
Against
sentence:
“1.
The court a
quo
did not give sufficient weight and value to the strong mitigatory
factors, the appellant is an old family man who was convicted as a
first offender.
2.
The court a
quo
erred when it did not consider community service as a real option to
a custodial sentence. Rather the court over emphasised the issue of
deterrence and ended up passing a sentence not proportionate to the
offence.”
The
appellant's defence was basically that the allegations were
fabricated by his wife with whom he had an acrimonious relationship.
He
suggested that his wife, the mother of the complainant manipulated
the complainant into laying false allegations.
A
close look at the record of proceedings reveals the evidence of both
the complainant and accused's wife.
The
complainant's mother was not taken to task on the issue of
infidelity being the cause of matrimonial problem between the couple
causing the false allegations of indecent assault. The alleged
infidelity and manipulation of complainant to give a false report was
not placed before the court as an issue.
To
then seek to criticise the court a
quo
for not taking into account or not considering the acrimonious
relationship between appellant and his wife as the source of
allegations is expecting the court to base its decision on
speculation moreso considering the appellant did not meaningfully
place this assertion before the court either through the
complainant's mother or through the complainant herself.
The
complainant's mother's evidence was clear that upon observing the
complainant's bulging stomach she questioned the complainant who
alleged witchcraft on the mother.
This
prompted the parties to go to Chief Zimunya's court.
It
was while there that complainant disclosed accused had requested her
to caress or touch his male organ once after an epileptic attack.
That
the complainant was epileptic and that whenever she had an attack
accused would attend to her in her bedroom and give medication is not
in contention as both State witnesses and appellant attested to that
in the court a
quo.
The
appellant was also responsible for taking the complainant to prophets
for help.
The
complainant fell pregnant and at the time of trial had given birth to
a child was common cause although the author of pregnancy who
fathered the child was not known.
The
complainant's testimony was to the effect that on the day in
question the appellant gave her medication after an epileptic attack
and caused her to touch and caress his manhood which he said was
painful. She without knowing what she was doing or in that state of
confusion caressed the penis.
The
complainant's evidence was not challenged by the appellant.
This
was despite the fact that the complainant and appellant enjoyed
cordial relationship. Infact complainant looked up to the appellant
for her wellbeing and welfare.
The
complainant had no reason to falsely incriminate the appellant.
She
infact denied having been raped and testified to one incident of
being made to touch the appellant's manhood.
The
court a
quo
considered the complainant as credible in material respects.
To
that extent the factual findings by the court a
quo
in respect of credibility cannot be faulted.
Moreso
given appellant did not challenge complainant's version.
I
am alive to the fact that this is a case of a single witness's
testimony and the court a
quo
could have done better by having detailed analysis showing
elimination of dangers of false incrimination and also detailing that
caution was applied.
However
lack of mention that the court was wary and cautious does not spell
out lack of appreciation of the legal requirements where evidence
assessed speaks volumes of how the court arrived at the conclusion.
In
this case the court a
quo
exercised special care and diligence to the sexual offence by taking
heed of complainant's evidence and that of the mother, the
recipient of the report. There was no evidence that the complainant
was manipulated to falsely incriminate the appellant her father.
The
pregnancy and inquiry led to allegations surfacing.
The
complainant had no reason to falsely incriminate her father with whom
she is in good books; in fact she denied having been raped when it
was suggested to her. This shows she was not being manipulated and
infact even appellant himself did not challenge complainant's
evidence on indecent assault.
It
is appreciated the appellant was not legally represented.
The
record reflects the court a
quo
explained proceedings to assist the appellant where appellant alleges
allegations are as a result of matrimonial problems between himself
and his wife and when she testified and complainant testified
appellant did not pursue the issue with the witness.
To
then seek to blame the court a
quo
for appellant's omission would be expecting the court to prosecute
the matter for and on behalf of appellant. That would be requesting
the court to descend into the arena.
I
am mindful to the fact that the court has a duty to assist
unrepresented accused but surely such assistance should not amount to
descending into the arena so as to be the prosecutor, defence counsel
and adjudicator.
There
is simply nothing from the appellant on the taking issue with
complainant and the mother's evidence of indecent assault as having
been fabricated for the court to urge on and clarify the issue.
It
is settled the appellate court can only interfere with the trial
court's findings in circumstances where the findings of the court
are not anchored on the record or amount to a misdirection. See
San'anza
v State
HH 590/10; see also S
v Mpetha and Others
1983
(4) SA 262.
It
is only where the findings of the trial court are outrageous and
irrational the appellate court can justifiably interfere with the
findings of the trial court.
In
the present case the trial court made a factual finding based on
credibility of witnesses. The complainant's account tallied with
the mother's account of the report of indecent assault as recounted
by the complainant not only to the mother but to Chief Zimunya.
That
the complainant, the appellant and the complainant's mother went to
Chief Zimunya's court when complainant's stomach had bulged was
not put in contention.
Further
that complainant stated appellant caused her to touch his manhood was
not challenged.
The
complainant was consistent that the appellant did not rape her but
caused her to touch his manhood after an epileptic attack.
The
fact that she recounted what transpired during her mother's
presence clothes the mother as a recipient of report. Such evidence
is admissible and in this case it was corroborative of the
complainant's version.
The
first ground of appeal does not bring out anything meaningful to dent
the conviction.
The
complainant and her mother's evidence was not challenged.
That
the appellant and his wife were having a turbulent relationship on
its own does not render complainant's assertion about how appellant
approached her after an epileptic attack and caused her to touch his
manhood.
The
trial court could not be expected to semice and speculate that the
allegations were fabricated in the absence of a challenge to what was
said to have happened.
The
first ground of appeal in the circumstances cannot be sustained.
Turning
to the second ground that the court erred by relying on character
evidence to convict equally crumbles for the obvious reason that the
court's decision was not based or pinned on character evidence.
The
trial court did not rely on character evidence to convict but noted
as common cause that the appellant has a history of incestuous
relationship.
This
emanated from the appellant's own admission during cross
examination by the prosecutor that he impregnated his niece (sister's
daughter).
The
court commented on a common knowledge or undisputed fact given by the
appellant himself.
This
was not the basis of conviction as reflected from the judgment.
The
appellant was not convicted of raping or impregnating the complainant
but of indecently assaulting the complainant by causing her to touch
his male member.
The
court made a finding on only one issue, whether the allegations were
true or a fabrication.
The
court relied on the complainant's evidence and made a finding that
complainant who was very close to the appellant, her father had no
reason to falsely incriminate him.
Similar
fact evidence is inadmissible to the extent that it is prejudicial to
the accused person. In this case the appellant is the one who
informed the court of impregnating a niece and that evidence was not
the basis of conviction.
By
commenting or noting a common cause aspect one cannot say the court
relied on character evidence to convict.
The
court took complainant's evidence to be credible as there was no
reason for her to fabricate allegations against the appellant her
father whom she was close to.
The
appellant only raised two grounds of appeal in a manner which given
possible legal issues one could take as lack of diligence amounting
to a disservice to client.
Both
grounds cannot be sustained and thus the conviction stands.
Turning
to sentence, during the hearing Mr Sigauke
conceded that in the event of conviction being proper, then the
indecent assault not being ordinary a custodial sentence would be
appropriate.
He
suggested 12 months imprisonment of which 6 months imprisonment is
suspended on the usual conditions of good behaviour.
Sentencing
is the domain of the sentencing court which has a wide sentencing
discretion. Only in circumstances where the discretion is
injudiciously and improperly exercised should the appellate court
interfere with sentence imposed.
In
this case considering the nature of indecent assault, a natural
father causing his own daughter to touch his manhood, the offence is
deserving of an effective prison term.
The
sentence imposed even though it falls within community service grid
considering the sentencing principles of matching the offence to the
offender it would be improper to consider community service as a
suitable sentence.
Sexual
violation of this nature within a prohibited degree of relationship
is not only criminal but immoral and indeed an abomination.
An
effective prison term is appropriate.
It
is not a matter of what sentence the appeal court would have imposed
but whether or not the sentencing discretion was properly exercised
by the sentencing court.
In
this case the sentencing discretion was judiciously exercised. There
is no justification in interfering with the sentence as such the
appeal against sentence cannot be sustained.
Accordingly,
the appeal against both sentence and conviction is dismissed.
Gonese
& Ndlovu,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
