NDABAMBI v THE STATE

HIGH COURT, HARARE

[Criminal Appeal HH 441-16]

July 25, 2016

CHATUKUTA AND MANGOTA JJ

Criminal procedure – Sentence – Offences under the Criminal Law (Codification and Reform) Act [Chapter 9:23], s 70 (1)(a) – Extra-marital sexual intercourse with a young person – Factors to be taken into account – Age difference between accused and complainant – Importance in assessing sentence.

The appellant a young adult aged 22 at the time of the offence, pleaded guilty to having had sexual relations once with the complainant, whose age was around 13 years old. He was sentenced to an effective term of imprisonment. He appealed against the severity of the sentence.

Held, that when assessing sentence in cases involving extra-marital sexual intercourse with a young person in contravention of s 70 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the age difference between the accused person and the complainant must be given consideration. It is an aggravatory factor where the age disparity is substantial.

Cases cited:

S v de Jager and Another 1965 (2) SA 616 (A), referred to

S v Five 1988 (2) ZLR 168 (S), referred to

S v Gono 2000 (2) ZLR 63 (H), referred to

S v James 1998 (1) ZLR 424 (S), referred to

S v Mlambo HB 100-92 (unreported), referred to

S v Mundowa 1998 (2) ZLR 392 (H), referred to

S v Mutowo 1997 (1) ZLR 87 (H), referred to

S v Nare 1983 (2) ZLR 135 (H), referred to

S v Ncube 2013 (2) ZLR 268 (H), referred to

S v Nhumwa SC 40-88 (unreported), referred to

S v Pillay 1977 (4) SA 531 (A), referred to

S v Sidat 1997 (1) ZLR 487 (S), referred to

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 70 (1)(a)

High Court Act [Chapter 7:06], s 38 (2)

F Murisi, for the appellant

S Fero, for the respondent

CHATUKUTA J:

The appellant and the complainant were lovers. The appellant was 22 years old. The complainant was estimated to be ±13 years old. On 26 May 2013, they had consensual sexual intercourse once. The complainant’s aunt made a report to the police when she became aware of the sexual escapade. The appellant was charged with and was convicted, on his own plea of guilty, of contravening s 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 24 months imprisonment of which six months was suspended on condition of future good behaviour.

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