KUDYA
J: This is an appeal against conviction and sentence. On 30 November 2006 the
appellant was convicted of two counts of rape. These were allegedly committed
on 26 July 2004 on two girls aged 4 and 8 years, respectively. He was sentenced
to 10 years on each count. Of the total of 20 years imprisonment, 5 years were
suspended for 5 years on conditions of future good conduct.
It
was common cause that the two girls were sexually interfered with on 26 July
2004. Both girls were examined by a doctor on 28 July 2004. On the four year
old the doctor observed that her hymen was attenuated and had a deep notch at
the 7 o'clock position while the fourchette had a small scar in the middle. On
the eight year old she observed attenuation of the hymen and a deep notch at
the 8 o'clock position. It was common cause that during the evening of 26 July
2004 the mother of the four year old bathed the girl. In the process she
discovered semen in her female organ. She questioned her about the white
substance. She told her how the whitish stuff had been deposited into her
private parts. She took the girl to the clinic where she was referred to
hospital. Thereafter she made a report to the police. The girl led the police
and her mother to one of the three tuck shops that were 50 m from her home. The
culprit was not in that tuck shop. The police took the girl to one of the other
tuck shops where she pointed out one of the three boys as the rapist. The mother admitted under cross examination
that she wielded a switch on the way to the tuck shops. She further stated that
when they were about to reach the tuck shops, the girl stopped in her tracks
and only trudged on after she waved the switch at her. She, however, attributed
her reluctance to fright.
The
four year old gave evidence when she was six. She stated that she was playing
with the eight year old girl close to the three tuck shops that were near their
houses. A boy from one of the tuck shops called them to where he was. She went
to him. He asked her to lie down. She did so. He removed her pants. He took out
his urinating organ and inserted it into her urinating organ. She cried out in
pain. He gave her some sweets and ordered her to go home. She bled. She stated
that she used to see him running the tuck shop before the incident but did not
know his name or where he resided.
The
boy also asked her eight year old companion to lie down. She complied. He
inserted his male member into her female organ and she cried out in pain. The
pants of her friend were blood stained. The boy gave her friend some sweets.
They went home. At home her mother discovered blood stains as she was bathing
her. She was taken to the clinic and to the police. She went to the tuck shop
where she identified the culprit who was in the company of two others. Under
cross examination she averred that she voluntarily led her mother and the
police to the tuck shops where she freely identified the accused as the
perpetrator.
The
eight year old girl, who was born on 14 June 1996, also testified twenty months
after the incident. She confirmed the testimony of the four year old on how they
came to be at the scene of crime and how each of them was sexually abused in
turn by the tuck shop operator. She added that he locked the tuck shop and
proceeded to gag their mouths and tie their hands at the back. She did not
bleed. He gave them sweets after wards. She did not tell her mother for fear
that she would assault her. She went with the first girl and the police to
identify the perpetrator. The elder girl's mother stated that her daughter
revealed what had transpired at the police station where she was accompanied by
her late father.
The
accused testified. He knew the younger girl's mother. She often sought to buy
goods on credit. In line with the tuck shop policy, he declined as it was a
cash and carry shop. She threatened to close the shop because he refused to
extend credit to her. Further, he averred that he had been told by the owner of
the tuck shop that her brother stole some cold drinks from the tuck shop. She
came to the tuck shop holding a crying complainant in one hand and a whip in
the other. He stated that the three tuck shops, one of which operated as a
shebeen, were near a school and were so busy such that the offence would have
been easily detected. He called Isaac Kufa, the owner of the tuck shop, who
gave irrelevant hearsay evidence which was unhelpful to the appellant's
defence. For what it is worth he averred
that the brother to the mother of the four year old once stole some eggs from
his tuck shop before he employed the accused. He did not allege as did the
accused that he stole some cool drinks.
In
her judgment, the trial magistrate correctly identified the issue for
determination to be whether or not the appellant was the perpetrator of the two
offences in question. She found it proved that the two girls had prior knowledge
of the appellant before the offences were perpetrated and that he ran one of
the three tuck shops that was situated 50m -100m from their homes. She found both
girls credible and relied mostly on the testimony of the elder girl to found
conviction. She was old enough at the time to appreciate the difference between
right and wrong, truth and falsity. She did not volunteer the report of rape
for fear that she would be blamed for what had happened to her. She, however, voluntarily
led the police to the tuck shop run by the accused. At the time the accused was
not in the tuck shop. She was able to identify him amongst two others who were
in his company in one of the other two tuck shops. Unlike the younger girl who
might have been impressionable and subject to the influence of her mother at
four, the elder girl was free from these factors. In comparison, her testimony
was more detailed than that of the younger girl. It accorded with the objective
facts in that she correctly stated that she did not bleed. The absence of blood
on both girls was confirmed by their respective mothers. The younger girl's
mother accepted that she carried a switch which she used to threaten the
younger girl when she appeared to falter on the way to the tuck shops. No such
threat was used on the older girl who was also in their company at the time.
Mr
Deme, for the appellant, attacked the
elder girl's evidence on the basis that the State outline indicated that she
was interrogated by the police before she identified the perpetrator. He
suggested that the identification of the culprit was extracted by force.
Neither the girl nor the first girl's mother stated that force was used by the police
to extract the identity of the culprit. Rather the evidence revealed that she
did not know the name of the perpetrator. She however knew where he was based
and she voluntarily led the police to him. The evidence does not show that she
was intimidated or forced into taking the police to and identifying the
perpetrator. In any event, as long ago as 1991 in the case of S v
Nicolle SC 61/91 at p 2 of the cyclostyled judgment KORSAH JA held that
unlike a defence outline which is prepared from what the accused person tells
his counsel and is tendered into evidence with his approval, a State outline is
not prepared on the instructions of the complainant, is not approved by the
complainant before it is tendered in evidence and does not constitute part of
the complainant's testimony. The word interrogation in the State outline did
not constitute part of the elder girl's testimony, was not placed therein by
her or with her approval. In fact, it was at variance with the evidence led at
the trial. It cannot, therefore, be used to undermine her testimony.
The
evidence of the younger girl was attacked on the basis that the mother
threatened her with a switch when she appeared reluctant to proceed with the
journey as they neared the tuck shops. The submission being that the reluctance
demonstrated that the perpetrator was not at the tuck shops. The mother's
explanation, which was not challenged or discredited under cross examination,
was that the girl became frightened as they approached the tuck shops. In my
view, her fright was a natural reaction of a girl of her age regard being had to the more detailed testimony of the
elder girl on how they were tied and gagged before they were raped. She would also
have been frightened to approach the scene of crime after the rigmarole of the examinations
and questions at the clinic, hospital and police station that would in reality
amount to secondary rape.
The
two girls gave conflicting versions on two aspects. The first was that the
elder girl said they were first tied and gagged before they were raped while
the younger girl said they simply obeyed his instruction to lie down. The elder
said she did not bleed, the younger stated that they both bled. These
discrepancies were not dealt with by the trial magistrate, neither were they
referred to on appeal. The medical report compiled two days latter spoke to a
scar on her fourchette. Both girls hymen were stretched and had notches. Both
girls stated that they felt pain as the accused inserted his penis into their
female organs. The interference which left these marks may have caused bleeding
but it could be that the four year old may have associated semen with blood.
After all her mother was emphatic that she saw semen and not blood. It seems to
me that the older girl by virtue of her age had better and more acute powers of
recall than the younger one, thus making her fuller version more accurate. The
importance of their versions lies in the fact that they were raped one after
the other by the same perpetrator at the same place. Both were able to identify
this perpetrator when he was in the company of two others when the police went
in search of him.
I
am satisfied that the identification cannot be impugned. I find that the
appellant was correctly convicted of the two counts of rape.
The
basis of the appeal against sentence was that it was too harsh. The appellant was
21 when he committed the two offences and 23 when he was sentenced. He spent 13
months in custody before sentence. He was a single first offender who however
looked after 10 siblings from his occupation. In aggravation it was found that
he raped two young girls. Both cried out in pain but where bribed by sweets.
The experience was traumatic for them. All these factors were considered by the
trial magistrate before she imposed sentence.
In S v
Chuma SC 165/94 McNALLY JA stated that:
“All cases of
rape are horrible and sentences of rape having been increasing over the years.”
Severe
penalties are called for on the basis that rape is a gross violation of the
rights, body and dignity of the victims. Our courts have called for stiff
penalties especially against adults who prey on young children.
In
the present matter, it is clear that the children were physically injured and
psychologically scarred. Rape is a crime of violence which seeks to subjugate
the will and dignity of the victim to that of the perpetrator. The appellant's
moral blameworthiness was very high. He committed two offences against two
young girls within a short space of time. Young children are easy prey because
they can easily be threatened or bribed into silence. It was fortuitous that
the alertness of one of the mothers led to the rapid discovery of the offences.
The
sentencing of juveniles in rape cases is a difficult exercise. The court has to
perform a delicate balance between the youthfulness of the offender and the
seriousness of the offence. It also throws in the interests of society into the
scales. Society expects long periods of incarceration to those offenders who
commit serious crimes. In the same vein it expects that youthful offenders by
reason of their immaturity be afforded an opportunity to reform so that they
become useful members rather than a scourge to society.
In
S v Tendai & Anor (Juveniles)
1998 (2) ZLR 423 (HC) at 430B-C GILLESPIE J stated that:
“Before doing
so, it would be as well to examine what might be meant by juvenile, or young,
in this context. As one knows, the legal age of majority is 18 years. Therefore
every person under 18 is a juvenile. That, however, is too narrow a definition
of the concept for the present purpose. After all, the law makes express
provision for special treatment of young offenders extending to the age of 20
years. In addition, as a matter of principle, as I have already suggested,
persons up to the age of 21 and even older are generally treated as young offenders
as and with more leniency than other adults. A juvenile or young offender, for
these purposes, therefore, ought to be anyone up to the age of 20 years”.
In
S v Zaranyika & Ors 1995 (1) ZLR 270 (H) BARTLETT J held that for
juvenile offenders aged between 17 and 19 years who are convicted of rape a
sentence in the region of 5 to 6 years with 1½ to 2½ years suspended was
appropriate.
I
have considered a variety of cases to guide me on whether the sentence imposed
induces a sense of shock. I have referred to S v Nyathi HB 60/03 where
a father was convicted of ten counts of rape on her juvenile daughter. An
effective sentence of 30 years imprisonment was reduced on review to 18 years.
Again in S v Nhire HH 115-05 a 54 year old father raped his juvenile daughter
on divers occasions and had the sentence of 20 years reduced on review to 17 years
imprisonment of which 2 years was suspended for 5 years on the usual conditions
of future good conduct.
In
S v Chakapfava HH 188-04 a 33 year old offender who committed indecent
assault using his finger on a 3 year old toddler was sentenced on review to 7 years
of which 2 years was suspended. In S v
Musasa SC 45/02, the age of the accused was not provided but
he raped a 4 year old and had the sentence of 10 years imprisonment of which 1
year was suspended confirmed.
In
the present matter it seems to me that the accused did not use gratuitous
violence on the two girls. At 21, he was an adult who falls into the category
of a young offender. He was entitled to a measure of leniency. Even though his
actions were abhorrent, it seems to me that imposing an effective sentence of
the same magnitude as in S v Nyathi, and S v Nhire, supra, was
inappropriate. The two counts were perpetrated separately but in close
proximity. It would have been appropriate to treat them as one for purposes of
sentence. It seems to me that the sentence imposed was unduly harsh and induces
a sense of shock.
Accordingly, it
is set aside and is substituted by the following:
Both counts as
one for sentence:
10 years
imprisonment of which 2 years imprisonment is suspended for 5 years on
condition the accused does not within this period commit any offence of a
sexual nature for which he is sentenced to imprisonment without the option of a
fine.
HLATSHWAYO J agrees.
Legal Aid Directorate, legal practitioners for the appellant
Criminal Division of
the Attorney General's Office,
legal practitioners for the respondent
