Judgment No. HB 60/2003

Case No. HC 897/2003

CRB REG 335/01

THE STATE

Versus

DAVIOUS NYATHI

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 22 MAY 2003

Criminal Review

NDOU J: The accused was charged of ten counts of rape of his juvenile

daughter. Despite his protestations the Regional Magistrate in Gweru, sitting in the

Central Region, found him guilty on all the ten counts. He was convicted after a

lengthy trial the greater part of which he was legally represented. Considering the

quality of the evidence adduced during the trial the findings of guilt cannot be faulted.

The assessment of the testimony and the facts of the case by the learned Regional

Magistrate is admirably in terms of the principles of criminal procedure.

The accused was sentenced as follows:

“Count 1 and 2 as one – 10 years imprisonment

Count 3 – 7 years imprisonment

Counts 4 to 8 – 10 years imprisonment

Count 9 – 7 years imprisonment

Count 10 – 10 years imprisonment

Further count 3 ordered to run concurrently with counts 1 and 2. Count 9 to run concurrently with counts 4 to 8. Total 30 years imprisonment.”

This is mathematics in sentencing. In casu, although the individual sentences

imposed in each count are in no way excessive, their cumulative effect is so excessive

as to call for interference – see S v Hassim 1976(2) PH H58(N). It is trite that there

are no hard and fast rules dictating whether a court should treat a number of counts

separately or together for the purpose of sentence. A trial court has a very wide

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discretion and, provided that discretion is exercised on reasonable grounds, an appeal

court or review judge will not interfere – see S v Coetzee 1970(4) SA 83 (RA). The

sentence must, of course, fall within the court’s jurisdiction – see S v Makurira 1975

(3) SA 83 (R). Where multiple counts are closely connected or similar in point of

time, nature, seriousness or otherwise, it is a useful way of ensuring that the

punishment imposed is not unnecessarily duplicated or its cumulative effect not too

harsh on the accused. Nevertheless the practice is undesirable and should only be

adopted by lower courts in exceptional cases – see S v Young 1977(1) 602 (A); S v

Van Zyl 1974(1) SA 113 (T) and S v Van der Merwe 1974(4) SA 523 (N).

Trial magistrates must adopt this approach sparingly and only in exceptional

instances in the interests of the accused. Once this approach is, however, adopted

then the principles set out in Joseph Chirwa v S HH-79-94 and Anele Sifuya v S HH-

2. must be followed In the Chirwa case, GARWE J (as he then was) said at page 3

of the cyclostyled judgment-

“The position is now fairly well settled that in cases involving multiple counts, the correct approach to sentence is either to take all counts as one for the purposes of sentence and then impose a globular sentence which court considers appropriate in the circumstances or alternatively to determine an appropriate sentence for each count taken singly so that the seriousness of offence is properly reflected. The court would then determine a realistic total which is considers appropriate in the circumstances and where necessary the severity of the aggregate sentence on all the counts taken together may be palliated by ordering some counts to run concurrently with others.”

It seems to me that the learned trial magistrate adopted a combination of the

two approaches. The trial magistrate erred by failing to palliate the aggregate

sentence in order to come with a realistic total. The sentence of 30 years

imprisonment is manifestly excessive and is in excess of the outer limit our courts

would ordinarily impose – see S v Sherman SC-117-84. In this case McNALLY JA

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remarked –

“How does one begin to measure the outer limits of a sentence in a case of this magnitude? One may say that even murder with actual intent often attracts a sentence of 16-18 years. One may ask – what sentence would be appropriate where a quarter of a million dollars is stolen and nothing is recovered? What sentence would be appropriate where two or six million dollars is involved? These considerations and suggestions suggest to me that a twenty year sentence for a crime of dishonesty unaccompanied by violence must be approaching the outer limit of what any court in this jurisdiction would impose for such crimes.” See also S v Sawyer HH-231-99

On pages 3 – 4 of the cyclostyled judgment in Anele Sifuya’s case (supra)

GUVAVA J remarked:

“In S v Chikanga SC-123-93 the Supreme Court commented that it knew of no reported case in South Africa or Zimbabwe, whether for only one offence or more where a man has been sentence to more than 25 years imprisonment. The court took the view that life imprisonment rarely exceeds 16 years in Zimbabwe and by statute more than one term of life imprisonment is served concurrently. The sentence imposed in this case was in excess of the outer limit generally accepted by the courts in this jurisdiction.”

In casu, the sentence of 30 years imprisonment is well above the outer limit

calling for interference. The sentence imposed here is so excessive that it is viewed as

being disturbingly inappropriate. Whilst accepting that sentence is pre-eminently a

matter for the discretion of the trial court I find that the exercise of such discretion in

casu, was tainted with misdirection. Ramushu and Ors v S SC-25-93; S v Matanhire

& Ors HH-18-02; S v Mundowa 1998 (2) ZLR 392 H and Mavhundura v S HH-91-02

The aggravating facts of this matter is that, after divorcing her mother, the

accused remained raping their sixteen year old daughter. He is the natural father of

the complainant. The accused has other two wives in his polygamous family. He

raped his daughter ten times over a period of around one and half years. Force was

used to achieve the rapes. Offences of this kind are prevalent and expose children to

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Extreme trauma and incurable diseases. The learned trial magistrate was at least

correct in regarding lengthy imprisonment as being appropriate. Save for what I said

above about the length of imprisonment I otherwise agree with him.

I, accordingly, confirm the convictions in all the ten counts. I, however, set

aside the sentence by the trial court and the following is substituted:

“Counts 1 and 2 treated as one – 10 years imprisonment

Count 3 – 7 years imprisonment

Count 4 to 8 treated as one – 10 years imprisonment

Count 9 – 7 years imprisonment

Count 10 – 8 years imprisonment

It is ordered that the sentences in counts 1 and 2, 3, 4 to 8 and 9 are to run concurrently. Effective sentence is 18 years imprisonment.”

Cheda J …………………….. I agree