HIGH Court judge, Justice Munamato Mutevedzi, has ordered the resentencing of a teenage boy who was spared jail after being convicted of raping a five-year-old girl.
The 17-year-old rapist took advantage of the absence of the girl’s parents sometime in August last year to commit the crime.
He pleaded guilty, was convicted and sentenced to five years, which were wholly suspended on condition he does not commit another crime of a sexual nature.
Justice Mutevedzi said the trial magistrate was wrong not to impose a jail term after convicting the teenager.
He said the rape was committed in aggravating circumstances.
“It is on that aspect that I respectfully hold a different opinion. My conviction is that it is not possible for an offender of whatever age, convicted of rape not to go to prison under the current law.
“Put bluntly, it is wrong for a magistrate to convict anyone (including children) of rape and spare them imprisonment.
“That seemingly incomprehensible conclusion stems from the rule of law that it is not permissible to suspend the whole or a portion of a minimum mandatory sentence,” ruled Justice Mutevedzi.
He said the conviction was in accordance with substantial justice, but the sentencing was irregular. He said the magistrate should have sentenced the teenager to a minimum of 15 years considering the age of the person raped and the degree of force used.
“In this case for instance, the victim of the rape was five years old.
“I presume that by making reference to the age of the person raped, the intention of the legislature was to beseech the courts to take a dim view of offenders who abuse victims in those categories generally deemed as vulnerable.
“Where an offender raped a child as young as five years, there is no escaping that the offence gravitates into the realm of those committed in aggravating circumstances.
“In casu, the trial magistrate acknowledged the age of the victim. She nonetheless did not think it prudent to find that the crime had been committed in aggravating circumstances.”
Justice Mutevedzi said the offender was a teenager, and should not have reduced his moral blameworthiness.
“The trial magistrate in this case made that mistake. She thought that the offender’s age could reduce his moral turpitude.
“The trial court therefore used the age of the offender factor wrongly. What it did is not permissible. S 3 of Amendment Act No. 10/2023 changed the factors listed under s 65(2) from mere circumstances which a court was obligated to look at in determining sentence and made the same aggravating circumstances.
“The sentence imposed on the offender in S v TG is set aside and the matter is remitted to the trial magistrate to resentence the offender in accordance with the guidelines given in s 65(4) of the Criminal Law Code,” said Justice Mutevedzi.