Judgment No. HB 124/14
Case No. HCAR 1023/14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 14 AUGUST 2014
TAKUVA J: The accused was charged with two counts as follows:
Count 1: contravening section 4 (1) as read with section 3 (1) of the Domestic Violence Act [Chapter 5:16].
Count 2: contravening section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
The complainant and the accused were residing at 19 Donston Greenvalle, Gweru as husband and wife. The complainant was then aged 15 years and the accused was 25 years old. The two started living together on 4 January 2014. Sometime in April 2014 the accused assaulted the complainant once with open hands on her face.
On 8 May 2014 at around 22:00 hours, the accused chased the complainant from his home resulting in complainant filing a report at ZRP Gweru Central. On 9 May 2014 complainant was referred to hospital for medical examination. A medical report was compiled showing that she was pregnant and HIV positive.
Accused initially pleaded guilty to both counts but later had his plea in respect of count 2 altered to not guilty after he said he was not aware of complainant’s age. The accused was convicted of this count at the end of the short trial and sentenced as follows:
Count 1: 2 months imprisonment
Count 2: 15 months imprisonment of which 5 months are suspended for 5 years on condition accused does not commit an offence involving having sexual intercourse with a young person for which if convicted he will be sentenced without the option of a fine. To run concurrently.
Effective: 12 months imprisonment
Nothing turns on the conviction which I hereby confirm. However, I have considerable disquiet about the sentence. In assessing the appropriate sentence, the court a quo committed a couple of misdirections. Firstly, the court found as an aggravatory feature the fact that accused’s conduct derailed complainant’s educational plans when there is no evidence that she was attending school.
Secondly, the court found as an aggravating feature the HIV status of the complainant when there was no shred of evidence that accused infected her with the deadly virus.
It is trite that a sentence assessed on wrong facts is incompetent. In view of these irregularities, this court is at laise as regards sentence. On the facts of this case, an effective 12 months imprisonment is unduly harsh and induces a sense of shock. I say so for the following reasons:
1. the accused did not deliberately set out to abuse a minor in that after the two fell in love, they stayed together for four months as “husband and wife” at accused’s home.
2. the accused discovered the complainant’s age a week after they had engaged in sexual intercourse.
3. the accused is a relatively young first offender who was contrite.
4. At the time of conviction, he was employed at a gold mill earning $80,00 per month.
On the other hand what is aggravating is that after accused discovered that complainant was below the age of 16 years, he continued having sexual intercourse with her. It is also aggravating that the complainant fell pregnant as a result of this cohabitation. Further, the 9 year age difference is aggravating.
Weighing these aggravating circumstances against the mitigating feature, I am of the view that the sentence imposed on the accused should be set aside and in its place is substituted by the following:
“5 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition accused does not commit an offence involving having sexual intercourse with a young person for which if convicted he will be sentenced without an option of a fine.”
The accused person was sentenced on 16 June 2014. He has now served the full term of his sentence. He is entitled to his immediate release and a warrant for his liberation should be issued.
Moyo J ………………………………………… I agree