Judge Mbutfo Mamba has ruled that there are aggravating factors in all the 12 counts of rape which Carlos Nhabombe (51) has been found guilty of.
The judge yesterday explained that the finding of aggravating factors in all the counts means that whatever mitigation, the sentence that will be imposed by the court on each of the 12 counts shall not be less than nine years imprisonment.
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The judge noted that when computed according to the nine years, this means Nhabombe will serve 108 years in jail.
Nhabombe was arrested for allegedly raping 18 women aged 13 to 20 between 2008 and 2012. At the close of the lengthy trial, he was eventually convicted of raping 12 minors as he was acquitted on some of the charges.
The judge said this as the court reached the final stages in the trial of the 51-year-old convicted on 12 counts of aggravated rape. The judge weighed in on the law, aggravating factors, and possible mitigating circumstances before delivering what is expected to be a lengthy sentence.
Nhabombe, who has been in custody since December 2012, gave sworn evidence in mitigation, pleading for leniency on the basis of his age, ill-health, and family responsibilities.
However, the Crown, represented by Acting Director of Public Prosecutions Lomvula Hlophe, pressed for a stiff, deterrent sentence, insisting that the crimes Nhabombe committed against the survivors, some of them repeatedly raped, warranted a punishment that reflected both society’s concerns and the urgent need to protect women and young girls.
Judge Mamba acknowledged the seriousness of the case. He said his final decision would take into account both the aggravating factors established by law and the constitutional duty to mete out just punishment.
In a detailed ruling on extenuating and aggravating circumstances, Judge Mamba said while the Criminal Procedure and Evidence Act did not expressly define aggravating factors, case law within the jurisdiction has consistently provided guidance.
He highlighted three aggravating factors recognised by the courts in rape cases:
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Violence: Where physical violence was perpetrated against the survivor in addition to the rape itself.
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Repeated rape: Where the survivor was raped more than once during the same incident.
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Failure to use protection: Courts have considered exposing survivors to pregnancy or sexually transmitted infections as an aggravating circumstance.
“Violence is one such aggravating factor and one may say it is obvious rape is a violent act against the survivor. But here what is meant is violence perpetrated against the survivor over and above the rape,” Judge Mamba explained.
He noted that in Nhabombe’s case, all 12 counts involved violence, and in some counts, survivors were raped repeatedly in a single incident.
“For that reason, I find that there is violence on all the 12 counts in which you have been convicted,” the judge told Nhabombe.
The judge then reminded the accused that this finding had direct implications for sentencing.
“This means that whatever mitigation is presented, the sentence meted out on each count shall not be less than nine years imprisonment. Even if the court were to be very lenient and start counting from five years, the law says no, start counting from nine and suspend nothing.”
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