A Zimbabwean woman sentenced to 15 years in prison for r@ping a mentally-challenged man has had her sentence reduced by the High Court after it was determined that the trial court applied an outdated legal provision.
Sitheni Masina, who was convicted on two counts of aggravated indecent assault, appealed both her conviction and the sentence, arguing that the magistrate used a law that had not yet come into effect at the time the offences were committed.
Justice Munamato Mutevedzi, who presided over the appeal, agreed with Masina’s argument, stating that the magistrate wrongly relied on the Criminal Law (Codification and Reform) Amendment Act No. 10 of 2023, which only came into operation on 14 July 2023. Masina’s offences occurred between 1 January and 9 June 2023.
“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,” Justice Mutevedzi stated.
He noted that Masina was right to argue that the harsher penalties introduced by the amendment could not legally apply to her case. The new law introduced mandatory minimum sentences for r@pe and aggravated indecent assault, but that provision could not be used retroactively.
“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,” he said.
Before the amendment, sentencing for aggravated indecent assault allowed courts to consider mitigatory factors, including the offender’s background and circumstances, especially for first-time offenders. In view of this, the High Court reduced Masina’s sentence to seven years’ imprisonment, with three years suspended for five years on the condition that she does not commit another sexual offence within that period.
Justice Mutevedzi acknowledged that Masina is a first-time offender and a mother of three minor children. These, he said, were compelling mitigating circumstances that justified interference with the original sentence. However, her conviction remains intact, and the time she has already served will count toward her new sentence.
