15-Year Jail for Rape Reversed by Appeal Court
High Court reduces a 15-year prison sentence of a mentally challenged man rapist. The court did so after realizing that the lower court had applied an outdated legal provision.
Unlike the prevailing law, which the Magistrate applied on her conviction, Sitheni Masina stated that she was convicted on two counts of aggravated indecent assault because of the above rationale.
Justice Munamato Mutevedzi added that the magistrate had wrongly based his judgment on the Criminal Law (Codification and Reform)
Amendment Act No. 10 of 2023, which became effective on 14 July 2023. Unfortunately for Masina, her offense occurred between 1 January and 9 June in 2023.
“The incidents that culminated in the conviction of the appellant occurred from 1 January to 9 June 2023. It goes almost without saying that these dates were prior to the coming into effect of the Criminal Law (Codification and Reform) Amendment Act No. 10/23 on 14 July 2023. Amendments do not operate retrospectively, and that principle has been upheld by our courts on numerous occasions,” Justice Mutevedzi commented.
The judge pointed out that the appellant was correct in saying that the stiffer penalties imposed could not rightly apply to her situation.
With regard to r@pe and aggravated indecent assault, the new law provided for mandatory minimum sentences, which could not be used retroactively.
Justice Mutevedzi said, “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.”
Prior to the new law, the courts could take into account mitigating circumstances in sentencing for aggravated indecent assault, including the background and circumstances of the offender, especially for first offenders.
Therefore, taking this into consideration, the High Court decided to reduce the sentence imposed on Masina to seven years’ imprisonment, with three years being suspended for five years on condition that she does not commit any other sexual offence during that period.
Justice Mutevedzi agreed that Masina is a first offender and has three minor children. These constituted compelling mitigating circumstances which merited interference with the original sentence; however, the conviction remains in place, and time already served will go towards her new sentence.
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