THE State V Samuel Nyabango

### Preamble
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HH 61-18
CRB MTD 911/17
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THE STATE

versus

SAMUEL NYABANGO

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 30 January, 2018

Criminal Review

CHITAPI J: The accused, a 30 year old was convicted of attempted rape as defined in section 65 of the Criminal Law (Codification & Reform) Act, [Chapter 9:23] as read with section 189 of the same enactment. He was convicted on his plea of guilty by the senior magistrate sitting at Mount Darwin Magistrates Court on 24 July, 2017.

The brief facts of the matter were that the accused person was employed as a domestic worker by the complainant’s parents. The complainant was aged 6 years old and attending grade zero at a local school in Mount Darwin area. On 17 July, 2017 the accused sneaked into the complainant’s blankets whilst the latter was sleeping in a kitchen hut which the complainant used as a bedroom with her grandmother.

The accused offered the complainant a sweet and lowered the complainant’s trousers and pant to knee level. He also lowered his trousers and pants to knee level and held his penis which he directed on to the complainant’s vagina. Unfortunately for the accused he was seen in the act of trying to engage in sexual intercourse with the complainant by the complainant’s mother who entered the kitchen. The intervention by the complainant’s mother saved the day. The accused was subsequently arrested and as already indicated he pleaded guilty to offence of attempted rape and was convicted as pleaded. Nothing turns on the conviction.

The accused was sentenced as follows:-

“4 years imprisonment of which 3 months imprisonment is suspended for 5 years on 	condition accused person does not within that period commit any offence involving 	attempted rape as an element of which upon conviction he will be sentenced to 	imprisonment without the option of a fine.”

The sentence needs to be reviewed in its wording and effect. The overall sentence of 4 years with the 3months suspended falls within the purview of sentences for serious offences of this nature. The condition of suspension is too restricted and therefore not sufficiently deterrent of the accused not engaging in sexual offences. The length of the suspended portion within the parameters of the overall sentence is also too short to provide an incentive to the accused person not to offend. The suspended sentence as worded will only be invoked if the accused is convicted of “any offence involving attempted rape as an element.” Attempted rape is not an element of an offence. It is a complete offence. Section 189 of the Criminal Law (Codification and Reform) Act as read with section 192 provide as follows:

189 Attempt

“1. Subject to subsection (1), any person who

Intending to commit a crime , whether in terms of this code or any other 			enactment; or

Realising that there is a real risk or possibility that a crime, whether in terms 	of this code or any other enactment, may be committed;

does or omits to do anything in preparation for or in furtherance of the commission of the crime, shall be guilty of attempting to commit the crime concerned (own underlining):

2. A person shall not be guilty of attempting to commit a crime if he or she changes his or her mind and voluntarily desists from proceeding further with the crime before he or she had taken any substantial step towards its commission.

192 Punishment for incitement, conspiracy or attempt

Subject to this Code and any other enactment, a person who is convicted of incitement, conspiracy or attempting to commit a crime shall be liable to the same punishment to which he or she would have been liable had he or she actually committed the crime concerned.”

The sentence imposed by the magistrate will remain extant. However, it is corrected in the suspended portion to read as follows

“4 years imprisonment of which 6 months imprisonment is suspended for 5 years on 	condition that the accused is not within that period convicted of any offence of a 	sexual 	nature committed against any female person or of any attempt to commit such an offence 	whereof if convicted, the accused is sentenced to imprisonment without the option of a 	fine.”

A wording of the suspended prison term in the manner framed above coupled with a substantial suspended portion provides sufficient deterrence upon the accused if he is mindful to commit any offence of a sexual nature upon women and children and to think again before he offends.

Save for the alteration to the wording of the suspended term and the increase in the length of the same, the proceedings are otherwise confirmed.

The accused person shall be brought before the magistrates court which convicted him to be advised of the alteration to the sentence.

NDEWERE J   I agree:…………………………..