Sodomite wins appeal against 35-year jail term

By The Standard | Feb. 9, 2016

Bulawayo High Court of appeal has granted a 27-year-old man a lifeline by quashing his 35-year jail term and ordering his immediate release from prison where he had already served eight-and-half years after being convicted of sodomising three boys in 2004 when he was 16-years old.

BY SILAS NKALA

The convict, Busani Nkiwane, was convicted of the heinous offences by Bulawayo regional magistrate Chrispen Mberewere in 2007 whereupon he was jailed effective 25 years behind bars.

However, through his lawyer Kenneth Lubimbi, Nkiwane filed an appeal against sentence and when the matter was heard before Justices Nicholas Mathonsi and Nokuthula Moyo, Nkiwane got a reprieve and his sentence was reduced.

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“We are satisfied that the appeal against sentence has merit. Therefore, for count one to three he is sentenced to five years, count four and five he is sentenced to four years and count six and seven he is sentenced to four years. This gives him 13 years in jail of which four-and-a-half are suspended for five years on condition of good behaviour. Since he has already served eight-and-a-half years in jail it is, therefore, ordered that he be released with immediate effect,” ruled Mathonsi.

In the heads of argument Lubimbi submitted: “It is submitted that the court a quo misdirected itself by imposing an excessive sentence on appellant because the appellant was a juvenile at the time he committed the offence, he was a youthful first offender and was still immature at the time of sentencing (19 years old).”

The State represented by Thompson Hove conceded the appeal, admitting the sentence was excessive and agreed with the defence that he be sentenced to 15 years with a portion suspended.

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Passing judgment, Justice Mathonsi considered the appeal and ruled that there was misdirection on party of the learned magistrate considering the age of the now appellant then.