The State v Elizabeth Nyamvura

### Preamble
1
HCMTJ 50/24
HCMTCR 1718/24
5
HCMTJ 50/24
HCMTCR 1718/24
---------




THE STATE

versus

ELIZABETH NYAMVURA

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 21 OCTOBER 2024

CRIMINAL REVIEW

SIZIBA J: Sentencing an offender is the most difficult, touching, sensitive, emotional and delicate part of a criminal trial. It is a stage of the trial proceedings where a trial court, and even an appellate one, has a closest encounter with an accused person. A sentencing judicial officer unavoidably stands in the place of God in punishing a fellow mortal who has been confirmed to be guilty of a crime. Experience has shown that sentencing remains difficult to a judicial officer even after the most ablest, well researched and eloquent addresses of mitigation and aggravation by counsels has been done for and against an offender. Despite all the clamor about the equality of males and females in respect of all aspects of life in general, the sentencing approach in most jurisdictions is now geared towards treating female offenders with more leniency as compared to their male counterparts who find themselves under similar circumstances. Whist this approach had already been adopted by the courts in Zimbabwe, the promulgation of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 under Statutory Instrument 146 of 2023 has revolutionized the sentencing of female offenders in this jurisdiction. The sentencing of female offenders can no longer be a matter of just business as usual. Every sentencing judgment in a matter dealing with a female offender must now reflect that the judicial officer was alive and awake to the fact that he or she is dealing with an offender who is in the special category of offenders at law. Where such appreciation does not appear in the reasons for sentence, then, an appellate court or a reviewing judge may interfere with the sentence since a misdirection would have occurred.

The case at hand landed upon my Integrated Electronic Case Management System (I.E.C.M.S) portal for automatic review of the criminal proceedings in terms of s 57(1) of the Magistrates Court Act [Chapter 7:10)] as read with s 29(1) of the High Court Act [Chapter 7:06]. The convict is a young mother of 28 years. She has three children. The ages of her children are ten, five and two and a half years old. She was convicted by a Regional Magistrate siting at Rusape of the offence of aggravated indecent assault in contravention of s 66 (1)(b)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. She was sentenced to ten years imprisonment. My attention was drawn to consider the propriety of the sentence in the circumstances of her case.

This convict had sexual intercourse with a boy aged seventeen years under circumstances whereby the juvenile had not consented or where there was a real possibility or risk that he had not consented to the act. The offence took place at Village B, Sherenje, Headlands. The victim had been sent by her grandmother to get some videos from the convict around 1700 to 1800 hours in the evening of 17 February 2024. When he was about to leave the convict’s house, the convict closed the door, and then, in a movie – style fashion she shamelessly made sexual advances towards the vulnerable, unexpectant and ill - equipped juvenile. She accosted the boy, inserted her hand into his trousers and caressed his penis until it was erect. She gave him a condom to wear. He failed to wear it as his penis shrank again. She caressed it again and this time she took it upon herself to put the condom upon the juvenile’s penis. She lay down facing up, opened her legs apart and the two had sexual intercourse as she was holding the juvenile’s back tightly. When the juvenile had questioned her conduct and attempted to resist, she blackmailed him by saying that she was going to storm outside and shout that she was being raped, much the same as what Potiphar’s wife did to Joseph in ancient Egypt. She said that the boy would then be sent to prison and also be made to pay some beasts as compensation to her. This is what then caused the victim to comply and partake of the forbidden fruit. The ordeal haunted the boy thereafter but he had no guts to tell anyone about it.

The incident was discovered in June 2024 when the victim finally told his mother about it. He had not reported the incident out of fear of the convict’s threats. According to the convict, it is the victim who raped him and then apologized to her and promised to compensate her in the sum of US$30.00. When she demanded her money in June, that is when she alleges that the victim reported to her mother of having been abused. The convict’s version was rejected by the learned trial magistrate as it was full of inconsistencies. There was no satisfactory explanation as to why she had initially told the police that she had had sexual intercourse with the victim when in court she had said that the victim did not insert his penis to her vagina as she resisted him. There was no satisfactory explanation also as to why she had not reported the juvenile to the police and to her husband all along if indeed she had been raped. She was arrested when she was attempting to escape from the village. I find no legal grounds to interfere with the conviction of the convict by the learned Regional Magistrate who had first hand observation of the testimony given by the victim, the convict together with all the witnesses who testified in court.

On the sentencing judgment by the learned magistrate, one glaring misdirection was the failure to appreciate that she was dealing with a special offender who should be given a non - custodial sentence unless such was unavoidable in the circumstances of the case. The issue of sentencing is ordinarily a matter a discretion of the trial court but if there is an irregularity or if the discretion was wrongly exercised, the sentence can be interfered with. Such is the case in this matter. See Tapera and Others v The State SC 79/24. Section 21(2) of the Sentencing Guidelines provides as follows:

“Where the offender is a female the court shall have regard to the following principles –

Non – custodial sentences should, where possible, be considered to pregnant women, nursing mothers or women with dependent children.

Imprisonment to female offenders should only be considered where the offender has been convicted of an offence which is serious or violent or where the female offender was jointly convicted with a male offender and there is nothing to indicate that the male offender was the dominant partner.

Where the evidence is presented to show that the offender is a primary caregiver, then, the court shall ascertain and take into account the effects of a sentence of imprisonment on the dependents if such a sentence were to be imposed.”

Clearly, the learned magistrate did not advert her mind to the above statutory provisions of the Sentencing Guidelines. If such was done, the suitability or otherwise of a non - custodial sentence would have been considered in the sentencing judgment. It was not. In terms of the law, a person convicted of aggravated indecent assault is liable to the same punishment as a person convicted of the crime of rape in terms of s 65(1) of the Criminal Law (Codification and Reform) Act. In addition, the factors that are to be taken into account in sentencing the offender are the same. The maximum sentence is life imprisonment while the minimum mandatory sentence is fifteen years where there are aggravating circumstances. Where there are mitigating factors, the maximum mandatory sentence is fifteen years while the minimum mandatory sentence is five years. A sentencing court is at liberty to consider any other relevant factors and circumstances other than those articulated in subsection 2 of s 65 of the Act. Even though paragraph 3 of the eighth schedule forbids the suspension of any portion of a minimum mandatory sentence, a court dealing with special offenders is at large to impose a sentence that meets the justice of the case. Every case should be considered on its own merits. An appropriate sentence is one that is fit for a specific offender who is before the judicial officer and also fit for the particular crime that has been committed. There is no one size fits all in sentencing. In S v Bodibe (2021) ZAGPPHC 715, this aspect of the law was expressed as follows:

“Punishment must fit the criminal, as well as the crime, be fair to society and be blended with a measure of mercy. When sentencing an accused, a court is required to consider the four objectives of punishment (deterrence, prevention, rehabilitation and retribution) in view of the triad of factors as set out in S v Zinn 1969 (2) SA 537 (A). These factors are (i) the personal circumstances of the offender, including his character, conduct in life and personality, and everything that influenced the commission of the offence; (ii) the nature and seriousness of the offence committed; and (iii) the interests of the community, including the necessity for a level of uniformity in sentencing”. (Emphasis added)

In the case at hand, the suspect is a mother of three minor children. The youngest is two and a half years old. He or she still needs a mother’s special care. The offence at hand was not committed with violence. The victim was not infected with any disease. She is a first offender. The age difference between the convict and the victim is eleven years. The question is whether she must now languish in prison for the next ten years. In my view, such will not be in conformity with the spirit of the Sentencing Guidelines. It will not also be in conformity with real and substantial justice. This female offender should not have been treated like a male rapist even though the penal provision is the same with that of the crime of rape. The sentence does not conform with the constitutional burden of ensuring that in every case where children are affected, their best interests are paramount. In my view, the convict qualifies for a prison sentence with a portion thereof suspended on condition of good behavior and another portion suspended on condition of performance of community service. In the result, I order as follows:

The conviction of the convict is confirmed.

The sentence of ten years imprisonment is set aside.

The convict is sentenced to thirty - six months imprisonment of which eighteen months is suspended for five years on condition that the convict does not commit any offence involving sexual indecency of which upon conviction she is sentenced to imprisonment without the option of a fine.

The remaining eighteen months imprisonment is suspended on condition of performance of community service.

The case is remitted to the trial magistrate to inquire about the suitable institution for community service and also compute the hours of community service in light of the period that the convict has already spent in prison.

Muzenda J concurring