Amos Chidzinzwa v The State

### Preamble
1
HMT 42-21
CA 39/20
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AMOS CHIDZINZWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 19 May 2021 & 15 July 2021

Criminal Appeal

C N Mukwena, for the appellant

M Musarurwa, for the respondent

MWAYERA J: On 19 May 2021 after considering papers filed of record and hearing counsel we gave an extempore judgment wherein we dismissed the appeal in its entirety. We undertook to avail written reasons in due course. These are they:

The appellant was arraigned before the Magistrates Court facing a charge of attempted rape as defined in s 189(1)(a) or (b) as read with s 65(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. After a protracted trial the accused who had pleaded not guilty was convicted and sentenced to 5 years imprisonment of which 2 years imprisonment was suspended on the usual conditions of good behaviour. Dissatisfied by the conviction and sentence the appellant lodged the present appeal against both conviction and sentence. The appeal is opposed.

Background

The appellant a 29 year old man and the complainant a 16 year old girl are neighbours. The state contended that on 7 November, 2020, the complainant proceeded to the appellant’s store to have her hair plaited by the appellant’s sister in law. Therefore the accused grabbed her by the hand and pulled her inside his room. The appellant closed the door and started fondling the complainant’s breast. The complainant cried out and ordered appellant to stop caressing her. The appellant ignored the complainant and went further to insert his hand inside her dress and pulled her underwear a few inches down. The complainant resisted and struck the appellant with an elbow on his private parts rendering the appellant powerless. The complainant then made good her escape. The complainant reported the matter to her parents upon arrival at home and the matter was reported to the police.

The appellant raised 2 grounds of appeal against conviction. A close look at both grounds reveals that the 2 grounds speak to one.

Issue of whether or not the conviction of the appellant was anchored on evidence and safe in the circumstances.

Grounds as discerned from the notice of appeal.

Ad Conviction

The court a quo grossly misdirected itself both on facts and the law by convicting the appellant of attempted rape despite that the state had failed to prove its case beyond reasonable doubt given that the defence that was raised by appellant was probable.

The court a quo grossly misdirected itself both on facts and law by convicting the appellant based on circumstantial evidence and concluded that the reason why complainant was crying was that appellant had committed the offence despite that that was not the only reasonable inference in the circumstances.

Ad sentence

The court a quo grossly misdirected itself by imposing a sentence which is unduly harsh such that it induces a sense of shock regards being to the mitigatory factors …”

Evidence in court a quo

The appellant denied the allegations and denied touching or attempting to rape the complainant. The appellant stated that the complainant was moody on the day in question that she was even sobbing alleging she was being ill-treated at her homestead. The complainant’s evidence was to the effect that after her hair was plaited by 2 children (since appellant’s sister in law had said she was tired) the appellant who had inquired why she was leaving without exchanging greetings came out of his room and dragged her inside his room. The appellant’s sister in law then closed the door from outside. The appellant started caressing her and fondling her breast without her consent and caused her to fall. He pulled her pant down but not completely off as she was resisting. She then hit him with an elbow on his private parts prompting the appellant to call out for his sister in law to come and open the door. The complainant was crying and when the door was opened appellant wiped off her face to remove tears. This evidence by the complainant was not challenged at all by the appellant. The appellant asked about peripheral issues that complainant was crying because her grandfather was refusing to buy sandals for her. The other 2 state witnesses’ evidence confirmed complainant came out crying and that she reported that the appellant attempted to rape her. The appellant’s defence witness confirmed a meeting by families over what had happened. The court a quo considered all the evidence presented before it and concluded that the complainant was credible and had no reason to emerge from the room crying and falsely incriminate the appellant.

Submissions by the parties

Mr Mukwena  for the appellant argued that the court a quo erred in deciding that the complainant had no motive to lie against the accused yet it was probable she was afraid of the consequences  since she was seen coming out of appellant’s room. He submitted that the appellant’s defence or story should not be dismissed without reason. The appellant counsel referred to S v Makanyanga 1996 (2) ZLR 231 and S v Munsaka HB 104/16 stressing the very settled position that once the accused’s version is reasonably possibly true then it should not lightly be dismissed. In Munsaka case (supra) the court made the following pertinent remarks:

“The next crucial question that the court should have asked itself was if the accused’s version could safely be dismissed as being improbable, unreasonable and not possibly true….. An accused person’s defence should not be disbelieved by the court and rejected where that accused person proffers as a defence cannot be on improbable, unreasonable and not possibly true.”

The respondent’s counsel Mr Musarurwa, on the other hand submitted that the conviction of the appellant is unassailable as it is anchored on evidence adduced in the court a quo. The uncontroverted evidence of the complainant (p 16-17 of the record) is clear that appellant dragged her indoors caressed her causing her to fall and pulled her pant down only to stop when complainant struck him on his private parts with an elbow. Also evidence that complainant had been closed in by appellant’s sister in law and that she came out crying and reported the matter was not challenged. Mr Musarurwa submitted that the conviction was based on direct evidence from the complainant since the appellant did not challenge the evidence. The respondent submitted that the complainant freely and voluntarily reported the matter timeously. Mr Musarurwa further contended that the appellant did not attempt to challenge the averments by the complainant but actually pointed out that he wanted to marry the complainant. I must hasten to point out that marriage or intended marriage is not a defence for the offence of attempted rape. The mental capacity to commit a crime is not affected by the motive.

APPLICATION OF LAW TO FACTS

It is not in dispute that the state has the onus to prove its case beyond reasonable doubt whereas an accused only has to give a defence or story which if it is reasonable possibly true he should be granted the benefit of doubt and is entitled to an acquittal. It follows that once essential elements of the offence are proved beyond reasonable doubt then a conviction should be sustained.

In casu the undisputed evidence that accused dragged the complainant into his room, started caressing and fondling the breast and removed her pant are clear indications of the appellant having gone beyond preparatory stage. This direct evidence was uncontroverted even that the complainant cried whilst indoors with the appellant although appellant explains she was crying because she was being ill-treated at home. She started crying while with accused who imposed his intentions on her as the other witnesses confirmed they observed her crying while outside. This went a long way in confirming that the complainant was not crying because of pressure from people. In fact that appellant indicated he intended to marry her is in conformity with complainant’s version that as soon as appellant dragged her in and the sister in law closed the two inside the room. The court a quo having assessed the totality of evidence before it was properly satisfied that both the actus and mens rea for the offence of attempted rape were proved beyond reasonable doubt. The decision of the court a quo is well anchored on evidence adduced before the court. There is therefore no basis for interference with the decision of the court a quo on facts and law. The appellant also argued that the sentence of 5 years imprisonment of which 2 years is suspended on conditions of good behaviour is excessively harsh and induces a sense of shock. The respondent on the other hand argued that the court a quo properly exercised its sentencing discretion and imposed an appropriate sentence.

Both counsel cited relevant cases on the settled position that the appeal court will not lightly interfere with the sentencing discretion of the lower court since sentencing is pre-eminently the domain of the trial court. As long as the sentencing discretion is properly and judiciously exercised then inference with sentence is not warranted. See Fungai Mavhundura v S HH 18/02, S v Mundava 1998 (2) ZLR 392/. In this case the court a quo in its reasons for sentence clearly spelt out its reasoning for sentence. All the circumstances of the case both mitigatory and aggravatory reasons were taken into consideration. There is clear balancing of the nature of the offence and the offender. The sentence imposed is in sync with sentencing trends in cases of ilk. See S v John Magodora HH 245/15. In the present case for attempted rape of a 16 year old juvenile by a mature adult of 29 the sentence of 5 years with 2 years suspended is certainly not excessive sentence. To this end therefore the sentencing discretion was properly and judiciously exercised.

The appeal against both conviction and sentence is unmeritorious.

Accordingly it is ordered that:

The appeal be and is hereby dismissed in its entirety.

Chibaya & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners