HIGH Court judge of appeal Justice Charles Hungwe has urged lawyers to consider society’s attitude towards the offence of rape and in particular child rapists before attempting to represent the convicts on appeal to fight for their (rapists) liberty.
CHARLES LAITON SENIOR COURT REPORTER
Justice Hungwe, who was sitting with Justice Owen Tagu in appeals court last week, made the remark while addressing advocate Fred Gijima who was representing convicted rapist Emmanuel Taonezvi, who is serving a 16-year jail term for raping a six-year old girl.
“To me, child rape is the most abhorrent act. Why did he not go for a 22-year-old woman? When you are dealing with these matters, you should take into account society’s attitude towards these kinds of offences. Such offences attract 20-30 years imprisonment or life imprisonment,” Justice Hungwe said.
“If society is mindful of the rights and security of children, the courts must also take that into account and must not interfere with the sentence unless there are circumstances that warrant such interference.”
“Here, there is evidence that the child was abused. What is the basis of the argument that the magistrate misdirected himself?”
Taonezvi (24) filed an appeal at the High Court after a Gokwe regional magistrate convicted him of actual rape.
In his submission, Gijima said the magistrate erred in convicting Taonezvi with actual rape instead of attempted rape.
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“In terms of the sentence, the court aquo (the court from which an appeal has been taken) did not take all the aspects into consideration. The court aquo would not have sentenced the appellant to the shocking 16 years because it would have categorised the offence under non-serious cases that calls for sentences of between five to 10 years imprisonment,” Gijima said.
But, Justice Hungwe said in terms of sentence, the sentencing code gives the magistrate an option of sentencing a convict up to life imprisonment.
“Once he (Taonezvi) was found guilty of rape, the discretion of the magistrate was wide in terms of the Code,” Justice Hungwe said.
Gijima, however, further said there was no evidence that the child felt pain during the abuse, an indication that penetration was not effected and to that end Taonezvi ought to have been convicted of attempted rape.
In response, prosecutor Richard Chikosha opposed the application, arguing the magistrate did not misdirect himself, but properly convicted and sentenced Taonezvi.
Chikosha further concurred with Justice Hungwe that in rape cases, pain was not an essential element. Judgement in the appeal was reserved.
