Review Judgment
CHEDA J: This
is a review judgment. Accused was
charged with 6 counts of rape to which charge he pleaded guilty, was convicted
and sentenced to a total of 60 years imprisonment of rape.
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 cumulating they are – see S v Hassin 1976 (2) PH H58 (N).
No doubt a trial magistrate has a wide discretion, which, however, if exercised
judiciously, the appeal or review court will not interfere, see S v Coetzee 1970(4) SA (RA). In S v
Davious Nyathi HB 60/03 at p2
(cyclostyled judgment) NDOU J ablely stated:
“Where multiple
counts are closely connected or similar in point of time, nature seriousness or
otherwise, it is a useful way of ensuring that the punishment imposed is not
unnecessarily disputed or its cumulative effect not too harsh on the
accused. Nevertheless the practice is
undesirable and should only be adopted by lower courts in exceptional case- see
S v Young 1977 (1) SA 602(A), S v Vanzyl 1974 (1) SA 113 (T) and S v Van der Mewve 1974 (4) SA 523 (N).”
In Zimbabwe,
our courts have made this principle quite clear as stated in Chirwa v S HH 79/94 and Sifuya v S HH
77/02.
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 1 to 2 - 10
years imprisonment
Count 3 to 4 - 10
years imprisonment
Count 5 to 6 - 10
years imprisonment
Total 30 years
imprisonment
Of the total of 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.”
Cheda
J…………………………………………..
Ndou J agrees…………………………………..
