S v Makorisha (HH 130 of 2004) [2004] ZWHHC 130 (15 June 2004)

HH 130/04 CRB R330/03 THE STATE Versus THOMAS MAKORISHA IN THE HIGH COURT OF ZIMBABWE KAMOCHA J HARARE, 16 June 2004 Criminal Review KAMOCHA J: This matter came on automatic review from the regional court – eastern division. The 38-year-old accused was charged with the crime of raping a 6-year- old girl. When he appeared in the regional court a plea of not guilty had to be entered because what he had tendered was equivocal. He was convicted after the trial and was sentenced to undergo 5 years imprisonment of which 3 years imprisonment was suspended for 5 years on the customary conditions of future good behaviour. That left the accused with an effective sentence of 2 years imprisonment. The conviction, in my view, seems proper and therefore nothing turns on it. What is of grave concern to me is the sentence imposed. The accused was aged 38 and was on separation with his wife. He however, has 5 children. He is a mature man. At least three of his five children must be older than the complainant. The trial magistrate appears to have appreciated the seriousness of the crime of rape of a child. He stated in his reasons for sentence that such crimes always attract custodial sentences in the region of 8 to 10 years when they are committed by mature man like the accused. He however decided to impose the above sentence despite his appreciation of the seriousness of the crime. He reasoned in the following manner: “In this case it appears that accused was tempted persistently by a group of silly girls to do what he did. His blameworthiness is lowered considerably by the provocation he was subjected to. In sentencing him one considers that at his age he should have resisted the taunts. By his own admission, it was clear that complainant is too young for him to be intimate with her. Accused abandoned the rape on his own once complainant started crying in pain. That too is mitigatory. The doctor who examined complainant’s private parts found them HH 130/04 CRB R330/03 normal. Complainant’s virginity was not tempered with. Further no physical harm was done to the 6-year-old girl. Complainant herself did not report the rape to her mother. I doubt if she was emotionally traumatised by this momentary and partial penetration. Accused has been in custody since 6 March 2003 almost a year, for this case. Out of ignorance he has been tendering a confusing guilty plea. Hence the delay in prosecuting him.” The trial court found the above circumstances to be unusual and imposed the sentence it did. In as far as the alleged provocation was concerned it was the accused’s assertion that a group of 5 girls were teasing him. They requested him to expose his private parts to them. He refused to do so. They then exposed the private parts of one girl and later of the complainant. They pushed the complainant through some fence to accused’s side and asked him to try his luck at having sexual intercourse with her. As he had been sexually aroused by seeing the exposed private parts he grabbed complainant and tried to insert his male organ into complainant’s female organ. Complainant cried in pain. He immediately abandoned his attempt at having sexual intercourse with her. He had realised that his male organ could not fit into complainant’s female organ as he had suspected. What is difficult to understand is that a man aged 38 years can be teased by a group of 5 children of the age of 6 and succumb to a temptation. One would perhaps understand the accused’s allegations if it were a group of women in his age group or a group of teenage girls. But in this case it was a group of very young children who would not know about sexual matters. The accused seems to suggest that about two of the children were a little older and one of them was in grade 5. He suggested that it was these two older girls who exposed the complainant’s private parts who persistently requested him to have sexual intercourse with the complainant but he refused until they allegedly ordered him to do so. That is why he tried. This is incredible. What the accused was alleging seems to suggest to me that the accused may not be quite normal or he is a simpleton. Otherwise how can children of that age tease such an old man, compared to them, about sexual matters if he was quite normal? One is inclined to think that the children have known him to be of low intellect and they can play with him in the manner described. They would not have dared playing with him in that fashion if he was quite normal. He would have told them that he would beat them up if they tried to continue HH 130/04 CRB R330/03 doing something silly like that. He would have straight away told them to go away and would have told them that he was going to tell their parents abut what they had done. His suggestion that the little children ordered him to have sexual intercourse with a child of six years is incredible and, with respect, does not make sense to any normal mature person. Such an allegation would have made a bit of sense if it had come from a boy of between the ages 10 and 14 years. This court has repeatedly emphasised that accused persons who rape children need to be adequately punished. They should expect severe penalties. In Chidodo v S HH78/98 BLACKIE J had this to say at page 2 of the judgment. “Firstly and primarily rape is a very serious offence. It is a gross violation of the rights, body and dignity of the complainant. The offence is aggravated when it is committed on a child. A severe penalty must be seen to have given.” In an earlier case of Daniel Phiri v S HH219/93 MUBAKO J had stated that: “It is important that the courts protect victims of sexual aggression who are usually woman. Sexual assaults are a most reprehensible invasion of one’s body, one’s personality and dignity, the more so when it is perpetrated on young people.” The court of appeal quoted the above cases with approval in a recent case of Thomas Amuvet. Nyamimba v S HH204/02 where a 44-year-old man raped a 6-year girl. GUVAVA J with the concurrence of HLATSHWAYO J had this to say when dismissing the appeal against both conviction and sentence at page 6 of the cyclostyled judgment. “These sentiments are now even more valid in view of the high incidents of sexually transmitted diseases and the rampant spread of HIV-AIDS in Zimbabwe. Given the high incidents of rape of innocent young children and their possible exposure to these diseases, the courts must impose severe penalties in order to deter offenders from committing such offences. That this view is widely held in Zimbabwe is evidenced by the recent promulgation of the Sexual Offences Act [Chapter 9:12] and the severe penalties which are provided therein. In my view given the above dangers to which a rape victim is exposed, a rape perpetrated on a young girl should attract a sentence of at least 10 to 15 years imprisonment.” In casu the sentence imposed is so grossly inadequate as to induce a sense of shock. In the result I find myself being unable to certify the proceedings as being in accordance with real and substantial justice. HH 130/04 CRB R330/03 KAMOCHA J………………