The
Provincial Magistrate who convicted the accused sentenced him to:
“18
months imprisonment of which 6 months imprisonment is suspended for 5 years on
condition accused does not within that period commit an offence of a sexual
nature for which he is sentenced to imprisonment without the option of a
fine.”
He
was sentenced on 25 February, 2013.
In
justifying her sentence, the trial magistrate reasoned in these words:
“The
accused person is a mature 1st offender. He pleaded guilty to
the charge and did not waste the court's time. The offence committed by
the accused person is a serious offence. Young girls need to be protected
from people like the accused, especially in this era of sexually transmitted
diseases. The girl is only 14 years and is doing Grade 7. Because of the
gravity of the offence a fine/community service will be too lenient.”
I
did not consider it worthwhile to send a query to the trial magistrate
regarding the error of the citation of the charge alluded to supra, and
also regarding the extremely harsh sentence that she imposed without any
plausible justification, as it would have the effect of further prejudicing the
accused person.
An
insight into sentencing patterns in cases of having sexual intercourse with
young persons would be instructive.
In
S v Nare 1983
(2) ZLR 135 (HC) the court held that the rationale behind punishing carnal
knowledge of girls under 16 years is the protection of immature females from
voluntarily engaging in sexual intercourse on account of a lack of capacity to
appreciate the implications involved and the possibility of mental or physical
injury. The offence is mitigated where for instance -
(i)
The complainant is of loose morals; or
(ii)
She enticed the accused to have intercourse; or
(iii)
The accused and complainant were genuinely in love; or
(iv)
She was nearly 16 years old; or
(v)
The accused is a simple and unsophisticated person from a community in which
this law is not well known; or
(vi)
He is a youth; or
(vii)
He bona fide believed the complainant to be of age.
On the
other hand, the offence is aggravated where -
(i)
Accused is much older and more mature than the complainant; or
(ii)
She is just above the legal age of consent; or
(iii)
The accused has relevant previous convictions.
Other
factors to consider in determining the seriousness of the offence are the age,
appearance and character of the complainant, the age of the accused and the
circumstances in which the offence was committed.
This
case offered guidance to magistrates in assessing appropriate sentences for the
offence in issue for decades and it is still relevant to this day.
In
S v Mutowo 1997 (1) ZLR 87 (HC) GILLESPIE J remarked that the
sentencing of persons found guilty of “statutory rape” is a difficult matter
because of the wide range of differing circumstances that can attend this
crime. The factors that should be considered include, inter alia, the age,
appearance and character of the complainant, the age of the accused and the
circumstances of the offence – a refreshment of memory of what was stated in S v Nare 1983
(2) ZLR 135 (HC).
The
complainant's age is relevant because the younger she is, the more seriously
will the court regard the exploitation of her youth, while the closer she is to
sixteen (16) the less justified will be any presumption of her incapacity to
make an informed decision about sexual intercourse. Her appearance is
important because the moral blameworthiness of the man will be less if he
wrongly believes, from her appearance, that she is older than she actually
is. Similarly, the girl's character – whether she be virgin or
promiscuous, a flirt or demure – must have a like bearing on whether the accused
was knowingly preying on the innocent or merely risking lying with an underage
but worldly-wise girl. In no case, though, can the girl's sexual experience be
a defence. The accused's age is important because of the relevance to his
moral blameworthiness of his own experience or lack of it and of any disparity
in the ages of the parties. Apart from the accused's age, it is also
important to determine whether the accused was in a position of responsibility
to the girl. A careful investigation of these and other relevant factors
by the trial court is essential.
In
the S v Nare 1983
(2) ZLR 135 (HC) case, the accused was 22 years old and was a captain in the
army. He had sexual intercourse with a fifteen (15) year old girl he had
met on the very day. He was sentenced to a fine of $750= or 5 months
imprisonment.
In
the S v
Mutowo 1997 (1) ZLR 87 (HC) case, a 27
year old widower had sexual intercourse with a 13 year old girl. Due to
inadequate investigation into factors relevant to sentence, the review court
was obliged to give the accused the benefit of the doubt and treat him as a
mature, recently bereaved widower, who sought release with a willing and
experienced teenager who he took to be fifteen (15). A sentence of 24
months imprisonment of which 10 months were suspended on condition of good
behaviour was altered to a fine of $300= or 1 month imprisonment.
In
S v James 1998 (1) ZLR 424 (SC), a
20 year old accused had sexual intercourse with an eleven year old girl on
several occasions. He was sentenced to a fine of $600= or 1 month
imprisonment.
In
the instant case, the accused is a 20 year old who pleaded guilty and is a
first offender. He is unsophisticated and did not know that it was an offence
to have consensual sexual intercourse with a girl below sixteen (16) years of
age. He had sexual intercourse with her two days after his advances were
accepted. She was between 14 and 15 years old. The trial magistrate's
reasons for sentence are very scanty and are devoid of an investigation into
the essential relevant factors alluded to in the above-cited cases. For
instance, the girl's appearance and character were not interrogated. How
could a 14/15 year old girl just agree to have sexual intercourse with a
stranger she had met four days previously and two days after accepting his
proposition? This could well point to a girl of loose moral fibre or one
sexually experienced – which fact was also not investigated. The sentencing
trends expounded above, coupled with the circumstances of this case, compels me
to hold that the accused did not deserve to be incarcerated at all…..,.
The
sentence imposed is set aside and substituted with one of a fine of $200= or 25
days imprisonment.
