THE State V Leader Sibanda

### Preamble
1
HB 168.20
HCAR 1137/20
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THE STATE

versus

LEADER SIBANDA

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 24 JULY 2020

Criminal Review

MAKONESE J	This matter was placed before me by way of review. The matter was referred to this court by the Regional Magistrate with the following comments:

“Accused appeared before me facing 5 counts of rape. He was not defended till the end of the State’s case. He successfully sought the services of Miss Manyeza assisted by Miss Mazarira both from Ndove and Associates, at the commencement of the defence case.

Accused was therefore defended till the matter reached finality when I convicted him and sentenced him for one count of having sexual intercourse with a young person as defined in Section 70 (1) of the Criminal Law (Codification and Reform) Act.

The accused person’s defence counsel had quarrels with the conviction. Her expression of disquiet was with regards the sentence meted on the accused.

In view of the fact that the accused was not defended halfway through the trial the defence counsel requested that the matter be placed for review regarding sentence only. I hereby humbly forward this record for review on sentence.”

Brief Facts

The accused was charged with 5 counts of contravening section 64 (1) as read with section 65(1) of the Criminal Law Codification and Reform Act (Chapter 9:23) “Rape”. It was alleged that the accused had on 5 different periods extending from 2011 to 2019 had sexual intercourse with the complainant, Ayanda Sibanda who is the accused’s half-sister. The siblings share a father. The accused is said to have been 17 years old in 2014, which means that he was born in 1997. The complainant was born on 19 November 2004. The siblings are of a 7 year age difference.

The accused who was undefended at the beginning of the trial pleaded not guilty to the five charges of rape levelled against him. At the opening of the defence case, accused was represented by Ms Manyezaa legal practitioner with Ndove and Associates Legal Practice. During the defence’s case, the accused stuck to his plea rejecting the five counts of rape levelled by the State. The accused however admitted to having sexual intercourse with the complainant and stated that it was with the complainant’s consent. He contended sexual intercourse occurred during the period June 2019 to October 2019. This was in line with concessions by complainant, during her cross examination by the accused. She admitted that during the period of June to October 2019, she had consented to having sexual intercourse with the accused. She also conceded the fact that she and the accused had agreed to keep their relationship a tightly guarded secret.

The trial court acquitted the accused of the first four counts due to insufficient evidence. With respect to count 5, the court found the accused guilty of having sexual intercourse with a young person in terms of section 70 of the Criminal Law (Codification and Reform) Act. Accuse was sentenced to 6 years imprisonment with 2 years suspended for 5 years on the usual condition of future good conduct.

In mitigation, the defence submitted that the accused was a 1st offender and therefore deserved a second chance, and that the societal condemnation of accused’s conduct was also a punishment to accused. It was submitted that he is 23 years old, a youthful offender and is doing form 3.It was further submitted that the accused had a rough upbringing without a mother, and was neglected by his father therefore lacking parental guidance. It argued in mitigation that accused showed remorse and pleaded guilty. The court was urged to consider the fact that accused had been in custody from 3 January 2020. It was the defence’s case that the accused was therefore a good candidate for rehabilitative sentence.

In aggravation ,it was submitted that the accused stands convicted of a serious offence whose prevalence should not be ignored. It was also argued the nature of the relationship between the accused and the complaint was aggravating. Other factors for the court’s consideration were that accused exposed complainant to STIs, that she fell pregnant as a result of the sexual intercourse. Accused gave complainant potentially harmful concoctions in a bid to terminate the pregnancy.

Nothing turns on the conviction in this matter. I however, take issue with the sentence imposed by the magistrate.

In his reasons for sentence the trial magistrate took cognisance of the fact that the accused is a youthful 1st offender, that this category of offenders is generally treated with leniency by the courts. Further that the accused stood convicted of the lesser charge of having sexual intercourse with a young person, a charge the accused did not deny but admitted to during trial. The court also found that accused lacked proper parental guidance during his upbringing, and further that he had been in custody for 6 months.

It was the trial magistrate’s finding that the aggravating features out-weight the factors mitigation. He pointed out that the circumstances of the case are chilling in that the accused had sexual intercourse with a biological sister until she fell pregnant and birthed a child. Further that unprotected sex showed a disregard for the health of the complainant in exposing her to disease

From the reasons for sentence as laid down in the court a quo, it would appear to me that the mitigatory features of the case in fact out-weigh the aggravating features. It is pertinent to point out that the offence that the accused stands convicted of is premised on the age of the complainant as opposed to degree of relationship as would have been the case had the accused been charged with incest. It is also important to note that no infections or diseases were diagnosed or detected in relation to the complainant. This factor was therefore overly relied upon in considering an appropriate sentence. Mitigation and aggravation as set out by the learned magistrate in the court a quo, does not support a finding that aggravation outweighs mitigation.

In the trial court’s reasons for sentence, the court refers to the accused as an abuser stating that:

“The complainant will forever be reminded by the child you sired that you took advantage and abused her.”

This approach seems to overlook the admitted fact that the complainant consented to the sexual activities and to keeping them secret. Further to that, the learned magistrate continues in judgment to refer to the accused’s conduct without reference to the complainant’s consent. He paints the accused as a predator waiting to pounce on the complainant whenever the opportunity presented itself. This is problematic for the simple reason that it is not in accordance with the admitted facts. The facts as admitted show the two to have been in mutual agreement.

The judgment is replete with repetitive language as the court in its reasons for judgment keeps going back to the already traversed and canvassed reasons of the degree of relationship, that it resulted in pregnancy and that there was an attempt on the part of the accused to have the complainant abort through concoctions. It seems whenever the court sought to apply its mind to mitigation it would be drawn back to restating the same already stated factors in aggravation. In the result this appears to have clouded the court resulting in the court failing to approach the matter with an open mind.

The court in the case of The State v Muwombi HH 164-16 at page 4 stated that:

“The reason why it is a crime to have sexual intercourse with a consenting young person is that the law seeks to protect young persons from sexual exploitation by older persons. The law also seeks to protect young persons against the harmful consequences of early sexuality such as early pregnancies and contracting of sexually transmitted diseases.

For committing an offence under s 70 of the Criminal Code the penalty is a fine not exceeding level 12 or imprisonment for a period not exceeding 10 years or both such a fine and imprisonment.

Under s 70, in canvassing the essential elements of the offence, all that is necessary to establish is that there was sexual intercourse or indecent act between an older person and a young person and that the young person consented to it. The relationship that exists between the two parties is not an issue … .”

In light of the above provisions, it is clear what considerations are paramount when accused is convicted in terms of section 70 of the Criminal Code. While the provisions allow for a sentence of up to 10 years, the sentencing trends when sentencing young to relatively young offenders ranges from 2 to 3 years imprisonment depending on the circumstances of each particular case See; State v Polite Sithole HB 124/14; State v Daimoni HH499/14.

It is my view that the magistrate misdirected himself in exercising his sentencing discretion. The accused has already served 7 months imprisonment. In the circumstances, it is this courts view that the following sentence would meet the justice of the case.

It is hereby ordered that:

The sentence by the trial magistrate is set aside.

The sentence of the court a quo is substituted with the following;

“Accused is sentenced 36 months imprisonment of which 12 months imprisonment is suspended for 5 years on the condition accused is not within that period convicted and sentenced of any offence of a sexual nature. The remaining 24 months imprisonment is wholly suspended on condition that accused performs community service as prescribed by the probation officer”

The accused is to be brought before the court a quo and advised of the substituted sentence.

MOYO J ........................... I agree