Criminal
appeal
MAFUSIRE
J:
[1] There
has been an inordinate delay in delivering judgment in this matter.
It was a criminal appeal from the Magistrates' Court. We heard
argument on 2 August 2017 and reserved judgment. My Brother, MAWADZE
J, was the lead judge in the case. It was hoped to deliver judgment
in the forthcoming weeks. It was not to be. A dreadful family tragedy
struck and scuttled all the work in progress, leaving the station
somewhat disoriented for some considerable time afterwards. A
horrific traffic accident claimed the lives of the Judge's beloved
wife; his driver and his sister-in-law. May the souls of the departed
rest in eternal peace.
[2] The
appeal was against both conviction and sentence in Count One, and
against sentence only in Count Two. The facts were these. The
appellant, thirty eight [38] years of age at the time of his arrest,
was a father of six children from two customary law wives. On 15
February 2017 he was convicted of the two counts by the Provincial
Magistrate's Court sitting at Mberengwa in the Midlands Province.
[3] Count
One was indecent assault, in contravention of section 67[1][a][i]
of the Criminal Law [Codification and Reform] Act, Cap
9:23
[“the Criminal
Code”].
The appellant was alleged to have indecently assaulted his own
biological daughter, Anesuishe Baloyi [“Anesu”].
She was seventeen [17] years old at the time. The incident happened
at the family's village homestead in rural Mberengwa. The appellant
allegedly smeared and applied some foul smelling and bitter tasting
herbs onto her breasts and privates. This allegedly followed advice
from a traditional healer, or n'anga,
who had supplied the herbs. The whole gory business was so that the
appellant could amass untold wealth.
[4] Count
Two was physical abuse, in contravention of section [3][1][1][a],
as read with section 4 of the Domestic Violence Act, Cap
5:16.
The appellant was alleged to have assaulted his first wife, Susan
Sibanda [“Susan”]
so severely that she fell unconscious. She was pregnant at the time.
He beat her all over the body with clenched fists, booted feet and a
switch. The reason for the assault was said to be her adamant refusal
to share their matrimonial home with the appellant's new wife.
[5] The
appellant pleaded not guilty to both counts. But after a full trial
he was convicted of both. In Count One he was sentenced to thirty six
[36] months imprisonment. In Count Two he was sentenced to six [6]
months imprisonment. Thus, the total period of imprisonment was forty
two [42] months. Nothing was suspended. No periods of imprisonment
were ordered to run concurrently.
[6] Certain
facts were agreed or were common cause. The offence in Count One
occurred on the evening of 29 November 2015. The one in Count Two
occurred on 6 January 2017. Both offences were reported to the police
either on 6 January 2017 or so soon thereafter. Thus for Count One,
the report was being made fourteen months after the event.
[7] Anesu
was the single witness for the State in Count One. In a nutshell, her
evidence was this:
-
She
was very close to her father. He sometimes confided certain secrets
in her. For example, he would from time to time entrust her with his
money without Susan's knowledge.
-
On
the day in question, Susan had been away from home attending some
agricultural show elsewhere. In the afternoon, the appellant
informed Anesu that he would be coming to her in the evening. In the
evening, at around 21:00 hours or 22:00 hours, whilst she had
already retired to bed, the appellant called her to his bedroom.
Everyone else had gone to asleep. Inside his bedroom, the appellant
urged her to sit on the bed. She was hesitant. He lifted her up and
sat her on the edge of the bed. He was wearing a navy-blue short.
Lighting inside the room was from a single candle.
-
From
underneath the bed the appellant took out a black bag. It had
different kinds of herbs inside. They looked like stale potatoes. He
mixed them together to produce some fluids. He asked her if she was
menstruating. She said yes. He ordered her to stand up. She did. He
lifted up her blouse, leaving her breasts exposed. He applied the
herbs all over her body from top to bottom. Afterwards, he produced
some more herbs and ordered her to drink. They tasted sour. He then
gently instructed her to get into his bed and sleep. She hesitated.
She sat on the bed. He pushed her down into a lying position. He had
lowered his shorts, leaving his genitals exposed. She freed herself,
bolted from the room and went back to her bedroom.
-
After
about thirty minutes, the appellant followed her. He bade her to
keep her silence over the issue and never to tell Susan or else he
would rot in jail. He gave her $2 which he said she was to clutch
onto as she slept. He went back to his bedroom.
-
Anesu
said she reported the matter only in January 2017 because after she
had gotten married, she was continuously thinking about the
appellant. Her marriage was collapsing. The incident was tormenting
her. She said she did not “enjoy” her husband.
[8] The
appellant's cross-examination of Anesu was meaningless. In fact, it
bolstered the State's case.
[9] When
she gave evidence in Count Two, Susan was also asked to say what she
knew of Count One. She gave several anecdotes that corroborated some
aspects of Anesu's evidence. She said Anesu had married but that
the marriage was facing turbulence. Anesu's husband had implored
them, his in-laws, to assist. Anesu had come back home. They kept
forcing her to go back. They also consulted some prophets. Anesu
eventually disclosed what the appellant had done to her.
[10] Anesu
had narrated to Susan the intrinsic details of the incident
concerning the appellant, namely:
-
that
the appellant had asked her about her menstruation;
-
that
the appellant had lifted her blouse and applied herbs all over her
body;
-
that
the appellant had made her drink the remnants of the concoctions;
-
that
the appellant had forced her to lie on the bed;
-
that
the appellant had lowered his shorts and exposed his privates to
her;
-
that
she had fled from the room and gone back to her bedroom; and
-
that
the appellant had given her $2 to hold onto as she slept.
[11] Susan
confirmed the appellant kept some herbal concoctions the ingredients
of which included chameleon tails. In cross-examination, the
appellant asked Susan not a single question in respect of Count One.
[12] In
respect of Count Two, Susan said the appellant had severely assaulted
her for a prolonged period extending for about two hours from around
17:00 hours to around 19:00 hours. The reason for the assault was to
break down her perceived stubborn resistance to the appellant's
resolve to bring into the single matrimonial household another woman
as a second wife.
[13]
Susan said the assault was so brutal that she lost consciousness. The
foetus inside her womb stopped moving.
[14] As
with Anesu, the appellant's cross-examination of Susan was not only
incompetent, but it also bolstered the State's case. She stuck to
her story. She was unmoved.
[15] To
both counts, the appellant's defence was basically a bare denial.
In respect of Count One; he confirmed a n'anga
from Beitbridge town had given him herbs to administer on his
daughter so that he could get rich quickly. The idea to visit the
n'anga
had been planted in his head by friends. He admitted calling Anesu to
his bedroom. However, he denied he had himself administered the herbs
on her body. He said he had given them to her to do it by herself. He
admitted this ritual had to be done in the evening when nobody else
was watching. He denied the allegations by the prosecutor that he
fondled her breasts and private parts and that he intended to sleep
with her.
[16] In
respect of Count Two, the appellant claimed he and Susan had been
fighting and that he had merely overpowered her. They had been
fighting over the issue of his second wife. He conceded that it was
him who had started hitting Susan, who was pregnant at the time.
[17] In
its judgment, the trial court accepted the evidence of Anesu and
Susan in its entirety. On the question of the delay in Count One, the
court said Susan's objective in divulging the incident after that
long, was not so that the appellant could be arrested. It was so that
she could be assisted in her troubled marriage. On Count Two, the
court found that the appellant assaulted Susan to force her to accept
the appellant's second wife into the household and for her [Susan]
to leave.
[18] As
against conviction in Count One, the grounds of appeal were that the
trial court erred in failing to appreciate:
-
that
Anesu had not made her complaint freely and voluntarily;
-
that
there had been an undue delay between the date of the offence and
the time the report was eventually made;
-
that
in making that report, Anesu had been influenced by Susan whose
design had been to fix the appellant for having married a second
wife;
-
that
the court should not have convicted on the evidence of a single and
unreliable witness.
[19] As
against sentence in both counts, the grounds of appeal were that the
trial court had misdirected itself:
-
by
not giving sufficient weight to the appellant's status as a first
offender and to the other mitigating features;
-
by
regarding imprisonment as the only punishment that is appropriate
for all purposes.
[20] We
find the appeal devoid of merit. The State witnesses' evidence was
robust, straightforward and thoroughly incriminating. The grounds of
appeal and Counsel's submissions bore no relationship to the
reality on the ground. The trial court dealt competently with the
relevant issues. For example, it is not true that the court convicted
on the evidence of a single witness, even though this would not have
been a misdirection in itself. Both Anesu and Susan gave evidence on
Count One.
[21] The
appellant argued broadly about the delay of fourteen months in Count
One. It was said Anesu's report was not made freely and voluntarily
or timeously. Inevitably, the cases of R
v Petros
and S
v Banana,
and the general principles espoused in them, were quoted liberally.
Basically, these principles are that a complaint in sexual assault
cases must be made freely and voluntarily, and without undue delay,
to the first person to whom the complainant could reasonably be
expected to have made it.
[22] Plainly,
the appellant was misapplying those principles. In a sense, Anesu's
report was not made immediately or voluntarily. But the circumstances
under which it was made actually vindicate her sincerity. But for the
turbulence in her marriage, the result of the trauma she was
suffering by reason of the appellant's macabre conduct, she would
not have reported the incident. As the court a
quo
correctly noted, her disclosure was not so that the appellant could
be arrested. It was so that she could be assisted.
[23] In
fact, it is our considered view that some legal practitioners
misconstrue the true import of the principles laid out in such cases
as Petros;
Banana,
supra,
and S
v Nyirenda,
to mention just but a few. An early complaint in a rape case, or any
other sexual offence, is admitted, not
as proof of the rape or of the sexual offence.
It is admitted, not
to corroborate the complainant
[our
emphasis].
Rather, it is admitted to show consistency by the complainant. It is
admitted to negative a defence that the act was consensual: see
Nyirenda,
supra,
at p 75E.
[24] In
this case, there was not much in the form of a defence that the
appellant himself proffered. He admitted virtually everything else
surrounding the commission of the crime, except the intrinsic part
forming the essential ingredient of the offence, namely his smearing
of the herbs on Anesu's breasts and private parts. He said he
merely gave Anesu the herbs to apply them on her body herself. But
this was at night; with just himself and the vulnerable girl present;
in the privacy of his own bedroom; when everyone else had gone to
asleep; on a day Susan was sleeping out, and for the furtherance of
some occult ritual prescribed by some dubious practitioner of the
nether world.
[25] Anesu's
evidence was quite graphic. It left nothing to imagination.
Evidently, the appellant's singular intention was to rape her. The
charade about smearing herbs on her body and asking her to drink some
of them was evidently to numb her psyche and make it easy for him.
Defence counsel said, on the authority of R
v Difford,
no onus rests on an accused person to convince the court of the truth
of any explanation given by him. That is too sweeping. Not when the
State has led such damning and incriminating evidence as to allow no
other inference to be drawn, except that of guilty as charged. The
evidential onus shifts to the accused. For him to fool around with a
fanciful; whimsical; far-fetched, and inherently implausible
explanation is to play Russian roulette.
[26] Only
the appeal against sentence made sense. But surprisingly, in the
court below, it seems neither the parties nor the court itself paid
attention to the prescribed sentences. In Count One, the sentence
passed was incompetent, incidentally, a point not forming part of the
appeal. As the State correctly concedes now, the penalty provision
for indecent assault in the Criminal Code, namely section
67[1][a][i],
prescribes a sentence of a fine not exceeding level seven [i.e.
$400], or imprisonment for a period not exceeding two years, or both.
The court imposed thirty six months imprisonment. This was a manifest
misdirection. As such, this court can interfere.
[27] Defence
counsel pressed for twenty months imprisonment for Count One, not
because of the above misdirection, but on the grounds that the
appellant was a first offender whose mitigatory circumstances the
court a
quo
allegedly failed to take into account.
[28] In
Count Two, defence counsel pressed for three months imprisonment
wholly suspended on condition he performs community service. The
sentence of the court a
quo
was six months imprisonment. The penalty provision in the Domestic
Violence Act, namely, section 4, prescribes a sentence of a fine not
exceeding level fourteen [$5,000], or imprisonment for a period not
exceeding ten years, or both.
[29] Since
the court a
quo
did not treat the two counts as one for the purposes of sentence, it
ought to have considered such sentences as would have been
appropriate for each individual count. It seems the court's paltry
six months imprisonment for Count Two was influenced by the
relatively staggering thirty six months imprisonment for Count One.
Apparently the court did not appreciate that, from the perspective of
the prescribed sentences, Count Two was the more serious offence of
the two.
[30] In
our view, the mitigating circumstances of the appellant can be summed
up in two short sentences. He was a first offender. He was a married
man with heavy family responsibilities. But the aggravating
circumstances far outweighed those mitigating factors. The appellant
is self-centred. Both offences were committed for selfish benefit. He
wanted to get rich quickly. So he got herbs to abuse his own flesh
and blood. He wanted a second wife. So he pummelled his first wife to
breakdown her resistance. He was not contrite. So he put forward a
maladroit defence. His actions in Count One had far reaching effects.
They destroyed, or threatened to destroy, his daughter's marriage.
His actions in Count Two must also have left nothing of what had been
his marriage with Susan.
[31] We
consider that the appropriate sentence for Count One should have been
twenty four months imprisonment, of which four months could have been
suspended on condition of good behaviour. In Count Two, the
appropriate sentence also ought to have been twenty four months
imprisonment, four of them also being suspended on condition of good
behaviour. Both counts could have been made to run concurrently,
leaving an effective twenty months imprisonment.
[32] We
reiterate that unless the circumstances militate against it, judicial
officers should not, out of impulse or whim, or caprice, or
otherwise, depart from the sentencing practice of suspending portions
of prison sentences on conditions of good behaviour. In Zunidza
v State,
HUNGWE J, sitting with CHIWESHE JP in a criminal appeal, said:
“…,
we believe that in all matters where a first offender is sentenced to
imprisonment, he ought to enjoy the benefit of a suspension of a
portion of the sentence as a salutary recognition of his status as a
first offender. Any offender is capable of reform. He must benefit
from the usual and time-honoured practice of our courts to suspend a
portion of a term of imprisonment in spite of how the court assesses
the usefulness of this approach. A failure to observe this salutary
practice may, in certain circumstances, such as here, constitute a
misdirection entitling this court to interfere with [the] sentence.”
[33] In
S
v Gadzai,
a judgment by myself, with which my Brother MAWADZE J agreed, I said
suspending portions of prison sentences is a very useful tool at the
disposal of a sentencing court to salvage multiple benefits out of a
situation of criminality. Among other things, a suspension on
condition of good behaviour is both deterrent and rehabilitative. For
that period that the suspension order is operative, the accused knows
that a sword is hanging over his head, and that it will strike if he
should step his foot wrong again.
[34] I
also said in that judgment, drawing on the case of S
v Mugwenhe & Anor,
that for that period that the accused is kept out of jail, the
pressure on the fiscus is necessarily reduced, for the State does not
have to concern itself with his upkeep. The accused regains his
responsibility or privilege to feed himself and his family. He avoids
the full wrath of prison life, and the exposure to dangerous elements
inside prisons.
[35] In
the final analysis therefore, we make the following orders:
i/
The appeal against conviction in Count One is hereby dismissed;
ii/
The appeal against sentence in Count One is hereby allowed;
iii/
The appeal against sentence in Count Two is hereby dismissed;
iv/
The sentence of the court a
quo
in Count One is hereby set aside and substituted with the following:
“Twenty
four months imprisonment of which four months imprisonment is
suspended for five years on condition that during this period the
accused is not convicted of an offence of a sexual nature for which
he is sentenced to imprisonment without the option of a fine.”
v/
The sentence in Count Two shall run concurrently with the sentence in
Count One.
14
February 2018
Hon
Mawadze J: I agree ________________________
H.
Tafa & Associates,
legal practitioners for the appellant
National
Prosecuting Authority,
legal practitioners for the respondent
1.
1967 RLR 35
2.
2000 [1] ZLR 607 [S]
3.
2003 [2] ZLR 64 [H]
4.
1937 AD 370
5.
HH778-15
6.
HMA51-17
7.
1991 [2] ZLR 66 [SC]
