After her case was automatically reviewed, a Rusape woman who was imprisoned for 10 years after being found guilty of forcing herself on a 17-year-old boy will now only be detained for 36 months.
The woman, Elizabeth Nyamvura (28) was jailed this year after a full trial during which she denied the charges.
She was charged with aggravated indecent assault.
High Court Judges of Appeal sitting at the Mutare High Court, Justices Sijabuliso Siziba and Isaac Muzenda took into consideration that she was a first-time female offender with three children who are all minors.
The judges noted that at law, female offenders should be treated differently from their male counterparts convicted of rape.
They said the issue of sentencing is ordinarily a matter of discretion of the trial court but if there is an irregularity or if the discretion was wrongly exercised, the sentence can be interfered with.
“Clearly, the learned magistrate did not avert her mind to the above statutory provisions of the Sentencing Guidelines.
“If such was done, the suitability or otherwise of a non-custodial sentence would have been considered in the sentencing judgment,” noted the judges.
The judges said the offence at hand was not committed with violence.
They also considered that the minor was not infected with any disease.
“The question is whether she must now languish in prison for the next ten years. In my view, such will not be in conformity with the spirit of the Sentencing Guidelines,” Sibanda noted.
“It will not also be in conformity with real and substantial justice. This female offender should not have been treated like a male rapist even though the penal provision is the same as that of the crime of rape.
“The sentence does not conform with the constitutional burden of ensuring that in every case where children are affected, their best interests are paramount,” he said.
The judges agreed that Nyamvura qualifies for a prison sentence with a portion thereof suspended on condition of good behaviour and another suspended on the condition of performance of community service.
Circumstances were that Nyamvura had sexual intercourse with the boy aged 17.
The offence took place at Village B, Sherenje, Headlands.
The victim had been sent by her grandmother to get some videos from Nyamvura around 1700 to 1800 hours on the evening of 17 February 2024.
When he was about to leave Nyamvura’s house she made sexual advances towards the vulnerable juvenile.
She accosted the boy, inserted her hand into his trousers and caressed his privates.
“She gave him a condom to wear. He failed to wear it… she took it upon herself to put it on,” prosecutors charged.
Nyamvura then lay down and ordered the boy to sleep with her.
After the assault, she told him that if he told anyone she would lay the blame on him.
The boy only told his mother months later as the ordeal continued to haunt him.
