S v Makamba AND S v Sahumbe AND S v Muchabaiwa AND S v Kapirikwete (HH 282 of 2017) [2017] ZWHHC 282 (17 May 2017)

1 HH 282-17 CRB NO. MRDP 1780/16 CRB NO. MTS 80/16 CRB NO. MRD 1240/16 CRB NO. CNT 175/16 1. THE STATE versus TINASHE MAKAMBA 2. THE STATE versus BENICE SAHUMBE 3. THE STATE versus MARSHAL MUCHABAIWA 4. THE STATE versus FARAI KAPIRIKWETE HIGH COURT OF ZIMBABWE TAGU & NDEWERE JJ HARARE, 17 May 2017 Criminal review NDEWERE J: The four cases herein are of the same nature. Accused persons in all four matters were rightfully charged of having consensual sexual intercourse with minors. However, in all cases, all the accused persons succumbed to the same fate of incorrect sentencing. I shall then turn to deal with the factual issues of each and every case. 1. S v Tinashe Makamba In this case, the accused, a 20 year old male was convicted of having sexual intercourse with a juvenile, Leoba Mucheki, aged 13 with her consent. The accused was slapped with an effective 1 year 6 months custodial sentence. The complainant and accused were boyfriend and girlfriend. 2. S v Benice Sahumbe The accused in this matter is a 25 year old male who was convicted of having sexual intercourse with one Tinashe Sagombe, a female juvenile aged 15years old. The accused and complainant were lovers and had sexual intercourse on several occasions until the complainant fell pregnant. Subsequently, the accused was arrested and sentenced to an HH 282-17 effective 18 months custodial sentence. 3. S v Marshal Muchabaiwa In this case, the accused aged 25 was slapped with an effective 10 month custodial sentence for having consensual sexual intercourse with Ropafadzo Magorimbo, a juvenile girl aged 15 years. The two were lovers and sometime in April 2016, the complainant and accused met near the complainant’s placed of residence and had sexual intercourse with the consent by each other. The matter came to light after the stepfather had inquired. 4. S v Farai Kapirikwete The accused aged 19 in this matter was sentenced to an effective 24 months custodial sentence for having repeated sexual intercourse with one Gamuchirai Padare, a female juvenile aged 15 years. The accused and complainant were lovers and had consensual sexual intercourse once at complainant’s friend’s homestead initially. From that instance the two went on to have consensual sexual intercourse on several occasions until the complainant’s mother searched for her, leading to the complainant divulging the matter to her mother. Section 70 (1) (a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (herein referred to as the Act) reads as follows: “Subject to subsection (2), any person who – (a) Has extra-marital sexual intercourse with a young person, or … ….. shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding 10 years or both …….” The purpose of this provision is clearly to deter the vulnerability of minors from sexual abuse which at law, they are deemed not to have capacity to consent to sexual activities. However, it is the salient facts in casu which make me conclude that the respective learned magistrates grossly misdirected themselves on sentence. In all instances, the accused persons were in love with the complainants and the sexual intercourse was consensual in all cases. However, having sexual intercourse with a minor remains a crime, inspite of the complainant’s willingness. But then the sentencing should be appropriate. The sentencing HH 282-17 trends on sex with minors otherwise referred to as statutory rape have been dealt with in depth by the late MUTEMA J in the case of S v Tshuma HB 70/13. From that judgment it is apparent that non-custodial sentences are usually passed in such offences. In that case, the late learned judge altered a sentence of 18 months imprisonment with 6 months suspended on the usual conditions to a fine of $200.00 or in default of payment a 25 day custodial sentence. Below are the pertinent jurisprudence in which statutory rape was dealt with: 1. In S v Mutowo 1997 (1) ZLR 87 HC on review, a sentence of 24 months with 10 months suspended was altered to a $300 fine or 1 month imprisonment. The accused in this matter was 27 year old widower who had consensual intercourse with a 13 old girl. 2. In S v James 1998 (1) ZLR 424 (SC) the accused was sentenced to $600.00 or 1 months imprisonment. It is therefore correct to conclude that, depending on circumstances, statutory rape does not usually warrant a custodial sentence. I will accordingly reduce the sentences in line with the given trends in sentencing. The sentences are therefore altered as follows: 1. S v Tinashe Makamba The 1 year 6 month custodial sentence be and is hereby quashed and substituted with a $200.00 fine, 1 month imprisonment. 2. S v Benice Sahumbe The sentence of 18 months imprisonment be and is hereby substituted with a $300.00 dollar fine or 2 month s imprisonment. 3. S v Marshal Muchabaiwa It is ordered that the sentence by the learned magistrate in this case of 18 months imprisonment be substituted with a $300.00 fine or 2 month imprisonment. 4. S v Farai Kapirikwete It is ordered that the sentence by the learned magistrate of 24 months imprisonment be and is hereby replaced with a $200.00 fine or 1 months imprisonment, should the accused fail to pay the fine. Since all accused persons have been in custody for sometime, they have been already punished and their release is ordered forthwith. TAGU J agrees ……………….