The State v Calvin Tshuma

On 21 May 2021, the 16-year-old accused followed a 9-year-old girl (the deceased) who was returning home from Kwesengulube Primary School in Nkayi. He lured her into a bushy area by offering her jiggies corn snacks. He raped the deceased without her consent and then strangled her to death. At around 20:00 hours that evening, the deceased's body was discovered in the bush, face upwards, with her dress pulled up to waist level, her tights torn, and her legs spread apart. A post-mortem examination revealed the cause of death as asphyxia due to manual strangulation, with evidence of sexual assault (bruised and lacerated vagina, absent hymen, blood present). When confronted by villagers who tracked him to his residence, the accused admitted killing the deceased, stating "Do not assault me. I am the one who killed the child." The accused was arrested and charged with two counts of rape and one count of murder.

• Whether the accused was guilty of rape as defined in Zimbabwean criminal law
• Whether the accused committed murder as defined in section 47(1)(a) of the Criminal Law Codification and Reform Act
• Whether the accused had the requisite mens rea (actual or constructive intent) for murder
• Whether there was sufficient evidence to prove a second count of rape
• Whether the accused's youthfulness constituted a mitigating factor warranting a reduced sentence
• What is the appropriate sentence for rape and murder committed by a juvenile offender

Count One (rape): Guilty - 8 years imprisonment. Count Two (rape): Not guilty - acquitted. Count Three (murder as defined in section 47(1)(a) of the Criminal Law Codification and Reform Act): Guilty - 20 years imprisonment. The sentences to run consecutively, for a total of 28 years imprisonment.

The binding legal principles established are: (1) Under section 47(1) of the Criminal Law Codification and Reform Act (Chapter 9:23) of Zimbabwe, it is not necessary to distinguish between actual intent and constructive intent when convicting for murder - causing the death of another person with either intention specified in subsection (a) or (b) constitutes murder. (2) Where a juvenile offender commits murder and rape demonstrating courage, premeditation, and callousness wholly inconsistent with youthful behaviour, the court is entitled to treat the offender as an adult for sentencing purposes and youthfulness will not constitute a significant extenuating circumstance. (3) The mandatory minimum sentence of 20 years imprisonment prescribed by section 47(4)(a) for murder committed in aggravating circumstances (including murder committed in pursuance of rape, and where the victim is a minor) applies even to juvenile offenders. (4) A confession or admission by an accused regarding one element of an offence (such as a single rape) cannot sustain a conviction for a separate count (such as a second rape) without independent corroborative evidence aliunde.

The court made several non-binding observations: (1) The court noted that the accused was "a sexual predator who was on the prowl" and rejected the suggestion that he was a victim of sexual abuse by his aunt, observing that if such abuse had occurred, he would have reported it and that he appeared to be a willing participant in previous sexual activities. (2) The court observed that the accused showed "no flicker of remorse or contrition" and instead chose to blame "evil spirits" for his conduct, which the court viewed negatively. (3) The court emphasized the need for courts to impose appropriate sentences to maintain public trust, stating: "The courts will lose public trust if inappropriate sentences are imposed for such serious offences." (4) The court commented on the need to protect the girl child from sexual violence and murder. (5) The court noted that while the accused had spent approximately one year in remand prison awaiting trial, and this constituted partial service of sentence, this factor was insufficient to warrant departure from the mandatory minimum sentence given the gravity of the offences.

This case is significant in Zimbabwean criminal jurisprudence for several reasons: (1) It clarifies the application of section 47(1) of the Criminal Law Codification and Reform Act, confirming that the distinction between actual and constructive intent for murder is no longer necessary under the codified law - causing death with either form of intention constitutes murder. (2) It addresses sentencing of juvenile offenders for serious violent and sexual offences, establishing that youthfulness will not be treated as a significant mitigating factor where the offender demonstrates maturity, calculation, and wickedness inconsistent with youth. (3) It emphasizes the need for deterrent sentences to protect vulnerable children, particularly the girl child, from sexual violence and murder. (4) It applies the mandatory minimum sentence provisions under section 47(4)(a) even to juvenile offenders where aggravating circumstances exist. (5) It demonstrates the court's rejection of alternative sentencing options (such as placement in Training Institutes) for the most serious offences involving sexual violence against children followed by murder to conceal the crime.