adminMashudu Netsianda Senior Court Reporter
A BULAWAYO man serving a 35-year jail term for sodomising three boys while he was 16-years-old broke into tears of joy yesterday after the High Court ruled that the sentence was too harsh and ordered his immediate release.
Busani Nkiwane, 28, of Nkulumane suburb, was in August 2007 convicted of seven counts of aggravated indecent assault by regional magistrate Fadzai Mthombeni and sentenced to an effective 25 years in jail after 10 years were suspended for five years on condition that he did not within that period commit a similar crime.
Justice Nicholas Mathonsi ruled that the sentence was too harsh following an appeal filed by Nkiwane’s lawyer, Kenneth Lubimbi.
Justice Mathonsi, who was sitting with Justice Nokuthula Moyo in the criminal appeals court, said the court was satisfied that the appeal against the sentence had merit. He reduced the sentence to 13 years of which four-and-a half years were conditionally suspended for five years.
The judge ordered that Nkiwane should be immediately released since he had already served the remaining eight-and-a half years.
“We are satisfied that the appeal against sentence has merit. The sentence was too harsh and the sentence is set aside and substituted with a 13-year jail term of which four-and-a half years are suspended for five years. Since the appellant had already served the remaining eight and a half years, it is ordered that he be released immediately,” ruled Justice Mathonsi.
Lubimbi, in his grounds of appeal, argued that the sentence imposed on his client was too severe and induced a sense of shock.
“It’s settled law when sentencing a juvenile offender that emphasis is on reforming the offender rather than punishing them. It’s respectfully submitted that the multiplicity of counts in the appellant’s case should not have been over-emphasised because of his young age of 16 at the time of committing the offence and the fact that he was basically engaged in one criminal conduct,” argued the lawyer.
The state led by Thompson Hove concurred with the defence counsel.
The court heard that sometime in December 2004, three boys went to a bush near Nkulumane Zesa office to play. Nkiwane ordered them to follow him to a nearby bridge. The court heard that Nkiwane ordered the boys to remove their trousers before sexually abusing them in turns.
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