Davies Dzinoreva v The State

The appellant, a 30-year-old tuckshop owner, was convicted of two counts of rape under s 65(1) of the Criminal Law (Codification and Reform) Act. The complainant was a 9-year-old girl attending grade four. On the first occasion, the appellant lured the complainant into his tuckshop after she came to buy bread, told her he loved her, and had unlawful sexual intercourse with her. A few days later, he again raped her in his tuckshop while her two friends waited outside. The friends peered through and witnessed what was happening, and reported it when they got home. A medical examination confirmed that the complainant had ruptures on her private parts, tears on her hymen, and that penetration was definite. The appellant was sentenced to 15 years imprisonment on each count, with 5 years suspended on conditions of good behavior and 5 years to run concurrently, resulting in an effective sentence of 20 years imprisonment.

• Whether the sentence of 20 years effective imprisonment for two counts of rape of a 9-year-old child was disturbingly inappropriate or harsh
• Whether the trial court misdirected itself in imposing sentence
• The proper approach to sentencing in cases of rape of young children

The appeal against sentence was dismissed in its entirety. The effective sentence of 20 years imprisonment was confirmed.

An appellate court will only interfere with a trial court's sentencing discretion where there has been a misdirection or where the sentence is disturbingly inappropriate. Sexual intercourse with a female child below the age of 12 years constitutes rape as a matter of law under s 70(4) of the Criminal Law (Codification and Reform) Act, regardless of any purported consent or characterization of the relationship. In sentencing for rape of young children, courts must give due weight to aggravating factors including the extreme vulnerability of the victim, the age disparity, abuse of position of trust, and the prevalence of such offences, while balancing mitigating factors. A sentence of 20 years effective imprisonment for two counts of rape of a 9-year-old child by a 30-year-old adult is not disturbingly inappropriate where the trial court has properly exercised its discretion.

The court made critical observations about the State's outline which incorrectly characterized the relationship between the 30-year-old appellant and 9-year-old complainant as 'boyfriend and girlfriend' and referred to 'romancing'. The court stated it 'should be elementary for a Prosecutor representing the state in the Regional Court that sexual intercourse with a girl below twelve years is rape.' The court also commented on the growing societal concern about child sexual abuse, citing Professor Geoff Feltoe's article describing it as an 'evil of abuse' and the need for 'stricter measures to curb the scourge upon vulnerable minors including the possibility of establishing a National Register of Sex Offenders.' The court noted that 'society as a whole is also becoming de-sensitised as to the gravity of these offences' and that 'the wave of rape cases is indeed disturbing' with rapists targeting 'the young and vulnerable' such that 'women are mostly targeted and they are no longer safe in our community.'

This case is significant in Zimbabwean criminal law for reinforcing the approach to sentencing in cases of child rape. It emphasizes that sexual intercourse with a child below 12 years is rape as a matter of law regardless of any purported 'consent' or 'relationship'. The judgment highlights the pandemic of child sexual abuse and the need for courts to impose serious sentences to protect vulnerable children. It also demonstrates the limited scope for appellate interference with sentences that are within the appropriate range and where no misdirection is shown. The case contributes to the body of jurisprudence calling for stricter measures to combat child sexual abuse, including the possibility of a National Register of Sex Offenders.