MATHONSI J: The accused was born on 29 September 1995 and
will therefore celebrate his 16th birthday on 29 September
2011. He is a form 3 pupil at Magwegwe
High School in Bulawayo.
He
and the 6 year old complainant reside with their parents at a house in Old
Pumula Bulawayo and the complainant, a Grade 2 pupil at Robert Sinyoka Primary
School, Bulawayo is the accused's step sister.
Her mother married the accused's father after the accused's mother
passed away.
On
15 December 2009, when he was 14 years old, he was convicted by the Regional
Magistrates' Court in Bulawayo of 2 counts of rape of the same
complainant. He was sentenced to
moderate corporal punishment of 6 strokes with a rattan cane. On 19 April 2011 the accused once again
appeared before the Regional Magistrate facing one count of rape. The allegations are that on the morning of 14
January 2011 he had again raped his step sister.
The
learned Regional Magistrate duly convicted the accused and sentenced him to 16
years imprisonment of which 8 years imprisonment was suspended for 5 years on
condition of future good behaviour, leaving the accused with an effective
imprisonment term of 8 years.
In
arriving at that sentence the Regional Magistrate reasoned as follows;
“Accused was described as a
reserved person who is difficult to understand.
He has no friends. A probation
officer could have done a better job but knowing how scarce resources are, I
knew for certain that waiting for the probation officer's report was going to
be an exercise in futility. I therefore
decided to proceed to finalise this matter without the benefit of a probation
officer's report.
Accused and complainant were
living under the same roof as brother and sister under their parent's marital
arrangement. Accused's father told the
court that he talked to him after the first conviction and he promised not to
do it again. He has however repeated
it. The court imposed corporal
punishment and warned accused against repeat conduct. He has repeated it. Indeed accused is a difficult character to
understand. What however one sees is
complete disregard of authority by the juvenile. He takes things casually.
Indeed imprisonment and the
pains associated with it is going to have a devastating effect on the accused
who is still at school. A plethora of
case law authority strongly dissuade imprisonment of juveniles. What should a court do in a case where a
juvenile like the accused takes no heed and proceeds to commit grave crime as a
matter of tendancy?
I know it is destructive on
the accused but I have come to accept that such are the unavoidable
consequences of imprisonment where any other sentencing option makes nonsense
of the particular merits of the case, like in the instance case.
I will reluctantly impose
imprisonment on accused.”
The
learned Regional Magistrate went on to impose, as already stated, a heavy term
of imprisonment under circumstances which suggested that he treated the accused
person as an adult. With all due respect
to the learned trial magistrate, the reasoning adopted in the above excerpt is
not borne by the facts of the matter, is as illogical as it is injudicious and
betrays a closed mind.
For
a start, the trial magistrate was not sufficiently equipped with pre-sentencing
information to enable him to embark on a rational sentencing process. He admits that there was a need for a
probation officer's report before sentencing could be undertaken. He however proceeded that not withstanding
merely because waiting for the report would “be an exercise in futility.” It is not clear why the trial magistrate was
in a hurry to finalise the matter. In
doing so he fell into error.
As
stated in S v Ngulube HH 48/02,
magistrates are required to arm themselves with enough information for them to
assess sentence as humanely and meaningfully as possible and to reach a
decision based on fairness. Upon
realising the need for a probation officer's report the magistrate should not
have proceeded without it. Doing so
lends credence to the notion that he adopted an instinctive approach to
sentencing S v Shariwa HB 37/03.
The
accused had only been convicted once of raping the same victim in 2009. To suggest that he “proceeds to commit grave
crime as a matter of tendancy” is as far from the truth as it is divorced from
the facts of the matter. Such
extravagant and emotional language is clearly inconsistent with the
dispassionate and objective approach to sentencing which should be the hallmark
of any judicial officer. S v Mahati 1988(1) ZLR 190(H).
The
trial magistrate appears to have cut against all reason, logic and indeed case
law authority in arriving at the sentence he imposed. He accepted that case law counsels against
imprisonment of juveniles. He bemoaned
the harmful effect imprisonment would have on the young offender and that he
was not equipped with a probation officer's report to be able to do justice to
the case. He however still went on,
almost headlong, to reluctantly send the accused to a lengthy term of
imprisonment.
This
is a clear case in which the magistrate allowed emotion to get the better of
him. The sentence imposed certainly
cannot be allowed to stand. In terms of
Section 351(2)(a) of the Criminal Procedure and Evidence Act, [Chapter 9:07],
the trial magistrate had an option to refer the accused to the Juvenile Court
to be dealt with in terms of the Children's Act, if he had misgivings about
waiting for a report.
In
the result, I order as follows; that:
(1) The conviction of the accused stands
(2) The sentence is quashed
and the matter is remitted to the Regional Magistrate for purposes of:
(a) either requesting a
probation officer's report on the accused person before an appropriate sentence
is imposed,
or
(b) referral of the accused to a Juvenile
Court in terms of Section 351(2)(a) of the
Criminal Procedure and Evidence Act, [Chapter 9:07] to be dealt with in
terms of the Children's Act.
(3) A warrant for the
liberation of the accused person from prison should be issued forthwith.
Mathonsi
J.............................................................................
Kamocha
J agrees.................................................................
