This is
an appeal against sentence only.
The
appellant attends a conventional boarding school i.e. Cyrene High School where
he is doing Form Three. The appellant was convicted and sentenced by a
Bulawayo Regional Magistrate of two counts of rape. The sexual assaults
were perpetrated on two female minors aged four years and six years
respectively. The offences were committed at the same place, one after the
other and therefore close in space and time. At the time when the appellant
committed the offence he was on school holidays and residing at a relative's
place. A Probation Officer had placed before the court a quo a detailed report on the appellant's family
relationships, education, background, personality, traits, circumstances
surrounding the commission of the offence, attitude towards the offence, the
victim, motivational analysis, prognosis, treatment plan and had made recommendations
on how best to deal with the appellant. The Probation Officer had observed
and concluded that:
(a)
The appellant lacked proper guidance;
(b)
The appellant was of broken parentage;
(c)
The family set up was dysfunctional;
(d)
The appellant was deserving of sympathy than condemnation;
(e)
The commission of the offences was “spontaneous and serious”;
(f)
The appellant was remorseful;
(g)
The appellant was experimental with a tendency to put into effect what he saw
on television; and
(h)
The appellant would not likely commit a similar offence as he had been
frightened about the offences.
Accordingly,
the Probation Officer had recommended that the charges be withdrawn before plea
and that the appellant be placed under supervision of a Probation Officer.
Detailed
submissions in mitigation were placed before the trial court and of note were
evidence of Nkululeko Ndlovu, a business consultant, a professional and family
man who undertook to take over the guardianship and upkeep of the appellant,
having learnt of the appellant's predicament. Nkululeko Ndlovu is an uncle to
the appellant. He further undertook to, at his own expense, secure a
professional psychologist or counsellor to ensure the reformation and
rehabilitation of the appellant.
The
trial magistrate had other ideas.
She
disregarded the recommendations of the Probation Officer. She also
disregarded efforts by the appellant's uncle to assist with his reformation and
rehabilitation. Instead, the trial magistrate sentenced him to be placed at a State
reformatory i.e North Court Training Institute, Mount Hampden, Harare for a
period of three years in terms of section 351 of the Criminal Procedure and
Evidence Act [Chapter 9:07] as read with section 352(A) of the Criminal
Procedure and Evidence Act [Chapter 9:07]. The appellant was thus lodged
in a conventional prison in which he mixed with adult convicts pending transfer
to Harare.
At the
behest of the appellant, this court intervened, under case number HCB107/12 and
ordered the removal of the appellant from Khami Prison to Luveve Remand Home
pending transfer to Harare. Under cover of case number HC1366/12, this court
further stayed the execution of the appellant's sentence and the appellant was
released back to school pending his appeal against sentence.
The
reasoning by the trial magistrate overlooked the fact that the appellant was
just a child when he committed the offences. Further, the two victims were
both his close relatives. He abused them at the same time, on the same day,
and at about the same time. To conceal his deeds, the appellant gave his
victims sweets. The trial magistrate failed to give due consideration and
weight to the fact that the appellant's behaviour was driven by mere
experimenting and excitement of youth. In S v Five 1988 (2) ZLR 168 (SC)
DUMBUTSHENA CJ stated -
“…, it
is a matter notorious enough for judicial notice to be taken, that at no time
in life, other than in youth, are sexual passions more easily aroused. At
the same time, callow youth lack insight and experience and therefore more
readily acts in a foolish manner than a mature person….,.” - See also S v
Julius GS 269-80 and S v Gwaranda 1981 (2) ZLR
17.
The
trial court disregarded the Probation Officer's report regarding the management
of the appellant without good and sufficient reasons for doing so. This is a
misdirection – S v Tendai & Anor 1998 (2) ZLR 423 (H). In the S v Tendai & Anor
1998 (2) ZLR 423 (H) case the court emphasized the importance of not only the Probation
Officer's opinion in formulating a scheme of management for a juvenile offender
but also the involvement of the juvenile's family, education authorities in
efforts to rehabilitate the offender.
For no
good and sufficient reasons, the court a quo spurned the
uncle's efforts. Once the trial court opined that the appellant's conduct
required a deterrent sentence it fell off focus and lost the judicial vision
and objective i.e to sentence a juvenile in order to facilitate and achieve its
reformation and rehabilitation. It was apparent that our penal
institutions are critically constrained as the appellant had to be kept in
prison with adult prisoners pending transfer to Harare. The court did not
investigate how long the appellant would be in adult prison custody before
being transferred to the North Court Training Institute. The trial
magistrate's reasons for sentence are scant and do not evince that she struck a
right balance between the aggravatory and mitigatory factors.
The State
rightly conceded that the appeal has merit.
Accordingly,
the appeal against sentence is upheld. The sentence imposed by the court a quo on 19 April 2012 is set side and substituted with the
following:
“The
accused is sentenced to 6 cuts with a rattan cane to be administered by a
designated officer of Bulawayo Prison. In addition, the accused is placed
under supervision of a probation officer of Department of Social Services,
Plumtree.”
