State v Tatenda Revesai Musiiwa

On 19 February 2014, at Marowa Village, Chief Chivero, Mhondoro, the accused, aged 20 years, was herding cattle when he saw the deceased, Moreblessing Maruve, a 17-year-old Form Three student at Mazorodze Secondary School, walking along a footpath. The accused manhandled and dragged her to the nearby Kwamura River where he raped her. After the rape, the deceased threatened to report the incident to her uncle. To prevent this, the accused dragged her to his employer's garden, retrieved a grass slasher, and struck her multiple times on the head and fingers until she collapsed. He initially hid her body in the garden and continued herding cattle. At around 2000 hours that evening, he returned, carried the deceased's body and bag, and dumped them at a footpath junction near Kwamura River bank. The body was discovered the next morning. The accused fled from police on 8 March 2014 during interviews and was only arrested on 8 September 2016 at Westlea dumping site, Harare, following a tip-off. Post-mortem examination revealed the cause of death as brain damage, head injuries and skull fractures (temporo-parietal).

• Whether the accused unlawfully had sexual intercourse with the deceased without her consent
• Whether the accused unlawfully and intentionally killed the deceased
• What factors should be considered in sentencing a youthful offender convicted of rape and murder
• Whether extenuating circumstances existed to avoid the death penalty for murder

The accused was convicted on Count One (rape) and sentenced to 9 years imprisonment. The accused was convicted on Count Two (murder) and sentenced to 20 years imprisonment. Both sentences to run concurrently, resulting in an effective sentence of 20 years imprisonment.

When sentencing a youthful offender convicted of rape and murder, courts must balance mitigating factors (including age, immaturity, lack of parental guidance, psychological disturbances, and admission of guilt) against aggravating factors (including the vulnerability of the victim, the violence used, and calculated conduct to cover up crimes). While youthfulness and associated immaturity may constitute extenuating circumstances preventing imposition of the death penalty for murder, the serious nature of violent crimes against children, the court's duty as Upper Guardian, and the need for deterrent sentences require substantial custodial sentences. Murder committed to cover up rape demonstrates heightened moral blameworthiness and aggravates the offence. In applying s 65 and s 47 of the Criminal Law (Codification and Reform) Act, courts must consider all statutory factors including the age of the victim and perpetrator, the degree of force used, and whether extenuating circumstances exist.

The court emphasized that it is the Upper Guardian of all minor children and has a duty to ensure children are protected. The court reiterated that life is sacrosanct and that deterrent sentences are always called for to dissuade like-minded persons from perpetrating violence on defenceless children. The court stated that violence must always be frowned upon and that heinous crimes such as rape and murder will never be tolerated by the courts. The court noted that a strong message must be sent to would-be offenders that crime does not pay. The court observed that the accused's admission of guilt was akin to tendering a plea of guilty, warranting credit for not wasting the court's time and showing some contrition.

This case is significant in Zimbabwean criminal jurisprudence for: (1) demonstrating the courts' approach to sentencing youthful offenders for serious violent crimes, balancing the immaturity and lack of experience associated with youth against the gravity of rape and murder; (2) affirming the court's role as Upper Guardian in protecting minor children; (3) emphasizing the sanctity of life and the need for deterrent sentences in cases involving violence against defenceless children; (4) illustrating the application of s 65 and s 47 of the Criminal Law (Codification and Reform) Act in cases involving rape and murder; (5) showing how the murder of a victim to cover up a rape offence constitutes an aggravating factor demonstrating moral blameworthiness; and (6) demonstrating judicial consideration of extenuating circumstances to avoid the death penalty while still imposing substantial custodial sentences.