CHEDA J: This is an appeal against sentence
only imposed by the Regional Magistrate Court sitting in Bulawayo.
On the 24th November 2009
appellant together with her accomplice, one Sibuthene Ndlovu aged 24 years were
charged with five (5) counts of contravening
section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
(Rape). They pleaded not guilty to all
counts but were however convicted and sentenced as follows:
“Each:
Count 1-2= 10 years imprisonment –
Counts 3-4= 20
years imprisonment.
Total: 30 years
imprisonment of which 5 years imprisonment was suspended for 5 years on the
customary conditions of good behaviour.
Effective: - 25
years imprisonment.
The facts as outlined by the state
are that between the 15th September 2009 and 19th
September 2009 complainant was subjected to rape by Sibuthene Ndlovu
[hereinafter referred to as “Ndlovu”] with the assistance of the appellant.
Appellant and complainant are
related as aunt and niece respectively.
Ndlovu was employed as a herdboy in the neighbourhood. Both appellant and complainant were staying
with one Monica Ndlovu who is their grandmother. Appellant though at the time was at Monica
Ndlovu's homestead, she was infact residing elsewhere and had at the relevant
period visited Monica Ndlovu's homestead.
Monica Ndlovu had left for Bulawayo and asked appellant to remain
looking after complainant at her homestead.
On the 15th September
2009 while appellant and complainant were asleep, Ndlovu came and called
appellant outside. She went outside and
they talked. After a while, appellant
came and asked the complainant to accompany her where Ndlovu was and she
obliged. Upon arrival appellant told
Ndlovu that he had brought him a wife referring to the complainant. Appellant asked complainant to comply. Ndlovu then held complainant by the arm, led
her out of the homestead and forcibly had sexual intercourse with her.
The following day, Ndlovu again came
at night, made a similar request to appellant who then forced complainant to
accompany Ndlovu. Ndlovu again forced
the complainant to engage in unlawful sexual intercourse.
On counts 3, 4, and 5 Ndlovu came to
where appellant and complainant were sleeping in a hut, he knocked on the door
and was let in by appellant.
On all the three occasions appellant
would first have sexual intercourse with Ndlovu in the presence of
complainant. After finishing the act,
she would lift complainant onto the bed and thereafter force her to have unlawful
sexual intercourse with Ndlovu in her presence.
The offence came to light when
Monica Ndlovu returned and noticed that complainant was limping. She took her to the clinic for a medical
examination and a report was compiled which indicated that indeed penetration
was effected. A report was then made to
the police. Both appellant and her
accomplice, Ndlovu were subsequently arrested.
They were charged, tried, convicted and sentenced as stated above.
Appellant is a self actor. Her argument is that the sentence imposed by
the court a quo was very harsh.
In assessing a suitable sentence,
the courts' approach has always been to consider the effect of the sentence on
the offender, but, most importantly the accused's moral blameworthiness, see S v Goodson 1976 (2) PH H 169(R).
The appellant was left with the
complainant as her guardian as her grandmother (Monica Ndlovu) was away, she
was, therefore, in a position of loco
parentis on the complainant. Instead
of parenting complainant, she introduced and exposed her to highly immoral
practices which have all the hallmarks of sexual perversion at a tender age. Complainant was far too young to be exposed
to such nefarious sexual activities.
Appellant involved complainant in her sexual orgies against her will. This conduct must have injured complainant's dignitas. I fail to understand why appellant chose to
abuse the complainant in this manner. It
is for that reason that I hold the view, that, her moral blameworthiness is very
high. Her conduct was indeed of such a
reprehensible nature that it merits severe punishment.
Appellant has asked this court to
disturb the sentence imposed as she views it as being unduly harsh in the
circumstances.
The general rule with regards to
sentences is that, the appeal court is slow to upset a sentence by the court a
quo as that is the domain of the trial court unless it was arrived at
without the correct application of well known legal principles governing
sentencing. It can also interfere, where,
the sentence by the appeal court was arrived at as a result of improper motives
or the sentence is completely out of step with decided cases applicable in the
circumstances. The appeal court can also
interfere if the sentence is so outrageous in the circumstances to an extent
that it shakes the conscience of a reasonable man. In my opinion it is not the case here.
It is trite that these courts
will invariably consider closely related offences as one for the purposes of sentence
or closely related counts to run concurrently with each other. However, there is no fixed rule which compels
a judicial officer to do so. This, infac,t
has been the position in our legal system for a longtime, see R v Malela 1967 RLR 359 (A).
In that case Beadle CJ at page 360
stated;
“The ultimate test
in every case in considering the propriety of the sentences imposed on a number
of related counts, it (sic) is whether or not the aggregate sentence imposed on
all is reasonable in relation to the culpability of the accused.”
Therefore, while, there is no
mathematical formula for calculating sentences, courts will always take into
serious consideration the seriousness and gravity of the offence together with
the personal circumstances of the offender in order to arrive at an equitable
sentence.
I am not persuaded to agree with
appellant that the sentence imposed on her is shocking in the circumstances to
an extent of justifying interference by this court. Appellant's conduct left an indelible mark on
the complainant. Therefore, this
sentence is designed to curb appellant's prurience.
The sentence imposed is clearly
adequate, if anything she should have been sentenced to an effective 30 years
imprisonment.
The appeal is accordingly dismissed.
Kamocha J
................................................................... I agree
Criminal
Division, Attorney General's Office, respondent's legal practitioners
