THE State V Farai Chimhamhasi

### Preamble
1
HMA 45-18
CRB CHR 96/18
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THE STATE

Versus

FARAI CHIMHAMHASI

HIGH COURT OF ZIMBABWE

MAWADZE J,

MASVINGO, 25 SEPTEMBER, 2018

Criminal Review

MAWADZE J:	The 37-year-old accused of Mateko village, Chief Ndanga, Zaka in Masvingo was arraigned before the Senior Regional Magistrate at Chiredzi for raping his 13-year-old daughter in grade 7 on six different occasions in 2018.

As appears from the agreed facts count 1 was committed in February, count 2 in March, count 3 in April, count 4 and 5 on the same day in June and count 6 in August, all in 2018.  All the 6 counts were committed at accused ‘s residence during the absence of the accused’s wife who is also the complainant’s mother.  In counts 2 and 6 it is not stated where the complainant’s mother had gone but in counts 1 and 3 the complainant’s mother had visited her maternal home leaving the complainant in the custody of the accused with the complainant’s young siblings.  In counts 4 and 5 the complainant’s mother had visited a sick relative.

From the agreed facts in some of the counts, the accused would first fondle the complainant’s breasts before sexually abusing her.    After the rape in each of the counts, the accused would threaten to assault the hapless complainant if she dared to disclose the rape.  The complainant summoned courage on 4 September 2018 and disclosed the sexual abuse to her Guiding and Counselling teacher leading to a police report.

When the complainant was medically examined she was found to be pregnant.  It is not clear from the facts what became of the pregnancy as it arose from criminal conduct perpetuated on a juvenile daughter by her father.

The accused did not waste the court’s time as he pleaded guilty to all the 6 counts and was duly convicted.  Nothing turns on the convictions in respect of all the 6 counts.  The convictions are in order and are therefore confirmed.

What pricked my judicial mind is the propriety of the sentence imposed in all the 6 counts.  As can be gleaned from the back of the charge sheet the learned Senior Regional Magistrate found it a daunting task to assess the appropriate sentence.  I say so because the accused was initially sentenced to 17 years imprisonment in each of the 6 counts which would result in a total of 102 years imprisonment.  Apparently realising the excessive nature of the sentence the sentences were altered by super imposing a sentence of 15 years imprisonment in each count.  The accused was sentenced therefore to a total of 90 years imprisonment of which 15 years imprisonment were conditionally suspended for 5 years thus leaving an effective prison term of 75 years.

Let me hasten to point out from the onset that any right thinking person should view the accused’s conduct with utmost abhorrence.  Simply put, the accused forfeited his right           to be regarded as a father.

Some members of our society may not be aware that in terms of s 65 (1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] the maximum penalty for rape is imprisonment for life.  This ignorance had led to the misplaced call by some sections of our society for the amendment of the law in respect of sentence for rape offenders.  Such a call may be understandable if the call is for medieval castration of the offenders or a death penalty as currently only the offences of murder and treason attract a death sentence in appropriate cases.  I am of the firm view that as the law currently stands it adequately provides for an appropriate sentence in rape cases.  What may be debatable is to increase the criminal jurisdiction of Regional Magistrates who deal with rape cases.

In terms of s 65 (2) (a) to (i) of the Criminal Law (Codification and Reform) Act [Cap 9:23] the court is enjoined in assessing the appropriate sentence in rape cases to consider the guidelines therein.  These guidelines include inter alia the age of both the victim and the accused, the degree of force or violence used in the rape, the extent of physical and psychological injury inflicted upon the victim, whether or not any weapon was used to subdue the victim, whether it was a gang offence, whether the accused and the victim fall within the prohibited degree of relationship envisaged in s 75 (a) to (h) of the Criminal Law (Codification and Reform) Act [Cap 9:23], whether the accused is a parent or guardian to the victim or stands in loco parentis to the victim or was a person in authority over the victim and whether the victim was infected with any sexually transmitted diseases.  One may also add such factors as the multiplicity of the counts, whether the rape resulted in pregnancy, and the consequences of such pregnancy for the victim.  It is these factors which, if properly assessed or weighed inform an appropriate sentence in rape cases.   Needless to mention that society is grappling with the scourge of the HIV virus which remain incurable to date.

It is my considered view that in assessing the appropriate sentence in rape cases involving juveniles the court should be alive to both international instruments and our own domestic legal framework.

The legal framework in relation to international standards is set out in both the United Nations Convention on the Rights of the Child (the Convention) and the African Charter on the Rights and welfare of the Child (the Charter).  The Convention in Article 2 and the Charter in Article 4 enjoin all institutions in dealing with matters involving children to consider the concept of the best interest of the child.  While this concept is not defined in both the Conventions and the Charter, my view is that it should be given the widest possible definition or interpretation.  Indeed, case law has laid out certain principles of what constitutes the best interest of the child.  Useful guidance may be found in the Children’s Act of South Africa s 7 (1) (a) to (n) on what constitute the best interest of the child.

In terms of our domestic legal framework, our Constitution in s19 states in matters relating to children the best interests of the children are paramount.  Clearly any form of abuse including sexual abuse is a violation of the constitutional right of the child (see s19 (2) (c) of our constitution).  Indeed, the offence of rape infringes upon the inherent dignity of the victim, a right provided for in s 51 of the constitution.  Further, where such sexual abuse upon a child results in pregnancy it ruins the life of such a child and the child may not be able to proceed with her education thus violating the provisions of s75 of our Constitution.

It is not an easy task to assess an appropriate sentence where a father sexually ravages his juvenile daughter on diverse occasions resulting in pregnancy and such sexual abuse is accompanied with threats of violence or actual violence.

In the case of S v Nyathi 2003 (1) ZLR 587 (H) Ndou J grappled with this problem in a similar case and gave very insightful guidance on how the trial court should assess sentence in such matters.

The cardinal principle that the sentence should always fit both the offence and the offender remains relevant despite the serious nature of any offence.  Thus no matter the abhorrent nature of any offence a court should not lose its sense of justice.  Emotions or whim or caprice should not influence a court in passing sentence.

As already alluded to in outlining the agreed facts of this case there are a number of aggravating factors which justify a harsher sentence against the accused.  The moral blameworthiness of the accused is extremely high by any standards.  The question which then arises is whether he should be condemned to an extreme form of punishment?

I am satisfied that the individual sentence imposed in each count cannot be said to be excessive given the aggravating factors arising from the accused’s conduct.  Be that as it may, it is the cumulative effect of 90 years imprisonment for 6 counts of rape which I find to be manifestly excessive to the extent that it constitutes a misdirection warranting interference by this court.  To that extent therefore corrective measures should be taken to temper justice with mercy.

In casu, in order to achieve a fair and just sentence the learned Senior Regional Magistrate should have ordered some of the counts to run concurrently with others. See S.v Sifuya 2002 (1) ZLR 437 (H).

After considering all the factors in this case, I am of the view that the total sentence of 90 years imprisonment and the effective sentence of 75 years imprisonment for 6 counts of rape is disturbingly inappropriate and excessive.  It constitutes an improper exercise of discretion by the trial court which calls for interference.  Further, I do not believe that where a lengthy prison sentence has been imposed there is a good cause to suspend any portion of such a sentence on condition of good behaviour even for first offenders unless that is done for mathematical purposes only.

In the result the sentence of the trial court is set aside in its entirety and substituted            with the following;

“Count 1				:	15 years imprisonment

Count 2				:	15 years imprisonment

Count 3 and 4 are treated as one	:	15 years imprisonment

Count 5				:	15 years imprisonment

Count 6				:	15 years imprisonment

It is further ordered that

The sentence in count 1 of 15 years imprisonment should run concurrently with the 15 years imprisonment in count 2.

The sentence in count 3 of 15 years imprisonment should run concurrently with the sentence of 15 years imprisonment in count 6.

The sentence of 15 years imprisonment in counts 3 and 4 which are treated as one remain unaltered.

Effective sentence	   :	45 years imprisonment”.

The accused should be called and advised of the altered sentence.

Mafusire J  concurred…………………..