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.”...,.
Turning to sentence, during the hearing, counsel for the appellant 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 the 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 the 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.
