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of raping a mentally-challenged man on two separate occasions on the grounds that the trial magistrate had relied on an outdated piece of legislation.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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