MARRIED WOMAN RAPIST SENTENCE QUASHED

The High Court has overturned a mandatory 15-year jail term imposed on a married Victoria Falls woman, who was convicted of raping a mentally-challenged man on two separate occasions on the grounds that the trial magistrate had relied on an outdated piece of legislation.

Justice Munamato Mutevedzi made the decision following Sitheni Masina’s appeal against her conviction and sentence.

Masina was found guilty of two counts of aggravated indecent assault and sentenced to the mandatory term of 15 years.

In her appeal, she argued that the conviction was based on an incorrect law that had since been amended and should be acquitted and discharged on the two sexual offences.

Justice Mutevedzi acknowledged that a Hwange Regional Magistrate had indeed used a law that came into effect after the incidents occurred.

The said offences took place between January 1 and June 9, 2023, prior to the implementation of the Criminal Law (Codification and Reform) Amendment Act No. 10/23 on July 14, 2023.

The amendment does not apply retrospectively, which the court confirmed was a precedent in past rulings.

“Both of the counts with which the appellant was convicted occurred between 1 January 2023 and 9 June 2023. Needless to state, that was before the coming into operation of the Criminal Law (Codification and Reform) Amendment Act No. 10/23 (“the Amendment Act”) on 14 July 2023.

“The Amendment has no retrospective effect. That approach has been adopted by our courts several times,” he noted.

Justice Mutevedzi added: “The appellant, therefore, correctly submitted in her heads of argument, that, the court a quo applied the wrong law. It could not have sentenced the appellant using a law that came into operation after the commission of the offence.

“The mandatory penalties for rape and aggravated indecent assault which were introduced by the amendment to section 65(2) of the Code do not in this instance. The ground of appeal has merit and is therefore upheld.

“Sentencing is ordinarily the discretion of the trial court. An appellate court can only interfere with a sentence where an appellant clearly demonstrates that such sentence is afflicted by a misdirection.

“In this case, before the amendment, offenders convicted of aggravated indecent assaults were in appropriate cases, entitled to discounts from their gross penalties depending on the mitigatory factors raised in any particular case.

“The offender here is a first timer. She is a mother to three minor children. We are forced to interfere with the sentence imposed. In the result, we order as follows:

“That the appeal against conviction be and is hereby dismissed in its entirety.

“The appeal against sentence succeeds,” he said.

Justice Mutevedzi then sentenced Masina to seven years in jail and set aside three years for five years on condition that she does not commit any offence of a sexual nature within that period.

The period that Musina had already served shall count as part of her effective sentence. H Metro

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