S v Nhomboka (HB 80 of 2017; HCA 61 of 2016; XREF GOKWE REG 15 of 2016) [2017] ZWBHC 80 (30 March 2017)

1 HB 80/17 HCA 61/16 X REF: GOKWE REG 15/16 DANIEL NHOMBOKA Versus THE STATE IN THE HIGH COURT OF ZIMBABWE MAKONESE & TAKUVA JJ BULAWAYO 27 & 30 MARCH 2017 Criminal Appeal Appellant in person Ms S. Ndlovu for the respondents MAKONESE J: The appellant appeared before a Regional Magistrate at Gokwe facing four counts of rape as defined in section 65 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). The appellant pleaded not guilty but however was duly convicted on all counts. He was handed a sentence of 10 years on each count. Of the total 40 years imprisonment 2 years imprisonment was suspended for 5 years on the usual conditions. The effective sentence was 38 years imprisonment. The appellant noted an appeal against sentence only and his broad grounds of appeal argued that the sentence is manifestly excessive and harsh. The appellant who is a self actor was granted leave to appeal in person. The trial magistrate responded to the grounds of appeal as follows: “The accused was convicted of four counts of raping his 11 year old daughter and the court imposed a sentence of 10 years imprisonment in respect of each count. In assessing an appropriate sentence this court was of the view that the aggravatory features of this case far outweighed the mitigatory features in that:- 1. The appellant is the complainant’s father and therefore he was in a position of loco- parentis to the complainant. 2. The appellant systematically raped the 11 year old girl on four different occasions and infected her with a sexually transmitted disease. 3. The appellant is HIV positive and by raping the complainant on four occasions he seriously exposed the complainant to the risk of contracting HIV. HB 80/17 HCA 61/16 X REF: GOKWE REG 15/16 4. The prevalence of sexual violence in our society is deeply troubling and the imposition of stiffer penalties will express the abhorrence with which our society regards these pervasive but outrageous acts”. (In fact the appellant raped his elder brother’s daughter) The state has conceded that the sentence imposed by the court a quo is manifestly excessive in the circumstances of this case and that it warrants interference by this court. Further the state contends that sentencing requires a rational process in which the court weighs all the relevant factors and decides what sentence is fair and appropriate. In this matter, the appellant committed four counts of rape in a space of one month, in July 2015. The general principle in sentencing an accused person who is facing multiple counts was set out in S v Chawasarira 1991 (1) ZLR 66 (H) in that matter SMITH J stated at page 69D-E as follows: “Separate punishment should, save in exceptional cases, be imposed for each separate charge. One globular sentence for two or more offences should only be considered where the offences are of the same or similar in nature and are closely linked in point of time. If these two requirements are not satisfied then a separate sentence must be imposed in respect of each offence.” The appellant in this matter faces four counts of rape all committed in July 2015. The offences are similar and are closely related in time and space. These counts should have been treated as one for the purposes of sentence. A rational basis exists for these counts to be treated as one to avoid a cumulative and excessive sentence. In S v Anderson Ndlovu HB-104-12, the accused was charged with 5 counts of raping his biological daughters one aged 7 and twins aged 4 years. The accused was sentenced to 20 years in respect of each count. The aggregate sentence was 100 years imprisonment. On review, the judge set aside the sentence. The two counts were set aside as the convictions on those counts were improper, of the remaining 3 counts, the court set aside the sentences and substituted it with 6 years for each count resulting in an effective sentence of 18 years. HB 80/17 HCA 61/16 X REF: GOKWE REG 15/16 I observe that on the facts of this matter, appellant raped his elder brother’s daughter on four separate occasions. He was HIV positive and exposed the young girl to the risk of HIV infection. A lengthy sentence is called for. However, the sentence must be fair and just. The court must not impose a sentence that has the effect of breaking the appellant. The sentence must not be so harsh and excessive but must send the correct signal that sexual abuse, especially where the man is in loco-parentis in relation to the complainant will result in lengthy custodial sentences. To achieve a fair sentence the court must take all the mitigating features of the case and weigh these against the interests of the appellant. In this matter a sentence of 40 years imprisonment is inappropriate and manifestly harsh. The length of the prison term does not show that the court “tempered justice with mercy”. The trial magistrate misdirected himself by choosing to split the counts for the purposes of sentence and then imposing an unduly long term of imprisonment on each individual count. The result was a disproportionate and unjust sentence. This court is at large as regards the question of sentence and will make the following order: 1. The convictions in respect of the 4 counts are hereby confirmed. 2. The sentence of the court a quo is set aside and substituted with the following: “All counts treated as one for the purpose of sentence. The accused is sentenced to 20 years imprisonment.” Takuva J ……………………………… I agree The National Prosecuting Authority, respondent’s legal practitioners