Juvenile offenders should not be treated as little adults. Their very ages denote their mental immaturity. Non-custodial options, other than fines and community service, should be pursued.

The evidence of Yeukai, a probation officer, was admitted by the State.

Firstly, the record indicates that the trial magistrate took long in sentencing the accused as he was waiting for the probation officer's report. The report never came, and, in the end, the trial magistrate had to proceed to assess sentence without the report.

In doing so, he observed that there was an acute shortage of staff at the Social Welfare Department. He presumably could not continue waiting for a report that was not forthcoming. This situation must face a number of magistrates across the country who have to come up with sentencing options for juvenile offenders.

The issue that then presents itself to me is the challenges that face the courts in handling matters of juvenile offenders in the absence of the requisite support structures to inform them on how to manage such offenders.

It is the age old practice of our courts to treat juveniles differently from adults. Section 351 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals specifically, and in detail, with how convicted juveniles should be handled. The import of the section is to give discretion to the court convicting a juvenile on the options available for the management of the young person.  

It is also clear from the section that there must be close liason between the courts convicting the juvenile and the Ministry responsible for Social Welfare, where training institutions, or reform schools, where convicted offenders may be referred to. Such liason appears to have died down with the passage of time, leaving trial magistrates with no options but to sentence juvenile offenders to imprisonment – as occurred in this matter.

In casu, it would appear that the trial magistrate did not make the necessary inquiries with the relevant Ministry, presumably because he felt that there would be no response as he had failed to obtain a probation officer's report in the first instance.

It would appear to me that there is urgent need for this liason to be resuscitated if the management of juvenile offenders is to be done in accordance with the law for the rehabilitation of young offenders.

In addition to the statutory provisions I have cited above, there is a long line of decided cases in this jurisdiction discussing the manner in which convicted juveniles are to be treated. Our laws, and procedures, have, for long recognized that it is wrong to sentence juvenile offenders as if one is dealing with an adult offender.

In S v Tendai and Another 1998 (2) ZLR 423 (HC), GILLESPIE J, admirably in my view, discussed the management of juvenile offenders instead of the punishment or sentencing of such offenders. The use of such language, which is deliberate, highlights the differences in approach that a court should take when dealing with juvenile offenders as opposed to adult offenders.

In that case, GILLESPIE J discusses the importance of a probation officer's report in assisting the court in coming up with the most apt management scheme for each child that is found to be in conflict with the law. He further discusses the need to involve the family of the child, which he holds to be just as important as the probation officer's report, for the formulation of a management scheme for the juvenile. Thus, where the child has a stable family environment, and there are responsible members of the family who are willing and capable of taking responsibility for the rehabilitation of the minor, such a minor should be given a chance to rehabilitate under the supervision of such family members.

The issue that has presented itself to me is that even in the absence of probation officers, and probation officers' reports, a trial court handling the matter of a juvenile may be innovative and seek to involve the family of the juvenile before coming up with a management scheme or sentence. To simply proceed without both the probation officer's report and involvement of the juvenile's family is, in my view, akin to proceeding in complete darkness.

Thus, while the trial magistrate is to be commended for having waited for the probation officer's report - which was never availed – I would venture to suggest that trial magistrates in similar positions should be innovative and seek to gain an insight into the circumstances of the juvenile before them from reliable sources such as the school, family, or community of the accused.

The accused persons were, at the time they were convicted and sentenced, aged seventeen and eighteen years respectively. They are young first offenders who pleaded guilty. They were sentenced on 1 August 2007.

I raised issues on the appropriateness of the charges in Count One and the sentence in view of the accused person's ages. The Regional Magistrate, in response, commented as follows-

“In assessing sentence the court was heavily influenced by the daring and determination of the accused persons. However, in retrospect, I am of the opinion that perhaps the sentence was a trifle too harsh in view of their youthfulness. I agree that the charge in Count 1 is not properly framed.”

The sentences, on their own, are not appropriate for young offenders aged seventeen and eighteen years respectively. Their pleas of guilty should have been given serious consideration. The rigors of imprisonment on young offenders should have had the effect of reducing the sentence to be imposed and the total effective sentence. Youthfulness, and the attendant lack of serious consideration of the consequences of their actions, should also have been considered.  In S v Tendai and Anor (Juveniles) 1998 (2) ZLR (HC)..., GILLESPIE J, commenting on the sentencing of juveniles of about the accused's age said-

“In S v Zaranyika & Ors, this court, through BARTLETT J, attempted to bring some rationality to the difficult area of sentencing offenders aged 17 - 19 years. Such persons were not normally beaten - corporal punishment cannot be imposed upon persons 18 years and above. After a careful review of authorities on the principle of imprisonment for young offenders, and of precedents in sentencing, the learned judge concluded:

'While Zimbabwe would not want to be a nation where rapists of the accused's age are not dealt with appropriate severity, it would also not, to my mind, want to be a nation where 17 and 18 year olds are treated as fully-grown, mature, adults and sent to prison for many years for offences such as rape. As I have previously indicated, a balance needs to be drawn.'

The learned judge drew the balance in the four cases before him by recommending; sentences of 5 to 6 years imprisonment with one and half to two and half years suspended in the case of rapes of girl children by 17 and 18 year olds; and a sentence of 5 years, all of which was suspended, in the case of a similar offence by a 15 year old, where institutionalization would have been appropriate but could not be put in place. These sentences replaced punishments of 6 to 10 years which had been imposed by the magistrates concerned.     

That judgement has been successful in ensuring that a necessary distinction is drawn in sentencing older juveniles and young adults as opposed to more mature offenders.”

In this case, the 17 year old could have been sentenced to corporal punishment plus a wholly suspended prison term. He is now above the age of 18 and must, on the consideration of the appropriate sentence on review, be treated as an adult in the sense that corporal punishment is no longer applicable. In S v Zhou 1995 (1) ZLR 329 (HC)..., CHATIKOBO J, dealing with the sentencing of a juvenile who committed an offence before attaining the age of majority, but was sentenced after attaining the age of majority, said -

“If the accused was a juvenile at the time of commission of the offence but was an adult at the time of conviction; should he have been sentenced as a juvenile? Section 329(1) (formerly s330(1)) of the Criminal Procedure and Evidence Act [Cap 59] provides that-

'Where a male person under the age of eighteen years is convicted of any offence, the court which imposes sentence upon him may-

(a)  In lieu of any other punishment; or

(b)...,.

Sentence him to receive moderate corporal punishment not exceeding six strokes.'

The precursor to section 329(1) of the Criminal Procedure and Evidence Act, namely section 330(1) of the Criminal Procedure and Evidence Act, was dealt with in S v Chitiki 1986 (1) ZLR 60 (H) where GIBSON J ,with the concurrence of REYNOLDS J, held that the effect of the provision is to make the operative date the date of conviction and not the date of commission of the offence. In other words, if the accused who commits an offence while he is a juvenile is convicted after the attainment of majority status he should be sentenced as an adult. I perceive this to mean that while the sentencing court is entitled to take into account the “frailty and deficiencies of youth at the time of commission of the offence” (S v Pledger 1975 (2) SA 244 (E) at 246H), it is not hidebound by the accused's bygone youth in settling upon an appropriate punishment. One of the reasons for distinguishing between juveniles and adults in sentencing is to ensure that young and immature offenders are not exposed to the harsh conditions which are attendant upon the fact of imprisonment. Where the offender has attained majority and is able to withstand the rigors of incarceration, the fact that he was a juvenile at the time of commission of the offence should be no bar to his incarceration if the circumstances so dictate. In any event, section 329(1) of the Criminal Procedure and Evidence Act does not prohibit the incarceration of juveniles. It merely gives the court a choice. It is a choice which, like any other form of discretion, should be exercised judicially.

In my view, it would not be an improper exercise of discretion for a court to send to jail an adult who committed a brutal rape on an infant of four years while he was a juvenile. This is one of those cases where the accused should have been sentenced in the normal way. The proper approach to sentence is dealt with by BARTLETTJ in a thorough review judgment in the case of S v Zaranyika & Ors 1995 (1) ZLR 270 (H).

I would recommend it to all magistrates. It is rewarding to read it and commit to memory the exhortations contained therein.”

In this case, I will extend the reasoning of CHATIKOBO J to the sentencing of a former juvenile on review. 

The then seventeen year old was a juvenile when he was sentenced by the trial court and has now attained the age of majority. Even though I am of the view that he should have been sentenced to corporal punishment plus a wholly suspended term of imprisonment - if the record of proceedings had been timeously submitted for review. It is now not possible to impose such a sentence on him because he is now an adult. I am compelled to send him to prison for the portion in lieu of which he should have been sentenced to corporal punishment. The offence he committed is a serious one. He must now be sentenced to a term of imprisonment as he can no longer be subjected to corporal punishment. Other forms of punishment, like community service or a fine, would trivialize the serious offences committed.

The ages of the accused persons should also have been given serious consideration. It is counter-productive to send seventeen to eighteen year olds to prison for fifteen years. The length of the sentences imposed by the Regional Magistrate induces a sense of shock.

In S v Zaranyika & Ors 1995 (1) 270 (HC)..., BARTLETT J, dealing with the sentencing of accused persons of the accused's ages said-

“Normally, a juvenile should never be sent to prison unless the offence is so serious that only a prison sentence can be justified. In prison he is bound to mix with the worst elements of society. It is a sad reflection on Zimbabwean society that the level of serious offences committed by persons in the 17 to 18 year age group is markedly increasing. Factors such as the high percentage of the population under the age of 18, and the dismal employment prospects, are undoubtedly larger causative factors. Rapes committed by young offenders are regrettably becoming more and more common place.

The prevalence and need for deterrence of such offences are relevant considerations but have their limitations. It is not possible to justify imposing more and more severe sentences on the grounds of prevalence; the intrinsic moral blameworthiness of the offence is the best guide as to the appropriate sentence. Indignation and passion must not be allowed to sway fairness and reason.   

There is reason to believe that the deterrent effect of sentence is not necessarily proportionate to its length; in this field it is likely that there operates a law of diminishing returns. Nor should it be assumed that retribution and recognition of the indignation and fears of the community at large will always demand a more severe sentence.

The court should have regard, not only to the nature of the crime committed and the interests of society, but also to the personality, age, and circumstances of the offender. In the case of a juvenile offender it is above all necessary for the court to consider whether the punishment would serve the interests of society as well as those of the offender. The interest of society cannot be served by disregarding the interests of the juvenile because a mistaken form of punishment might easily result in a distorted (or more distorted) personality being returned to society. 

While Zimbabwe would not want to be a nation where young rapists are not treated with appropriate severity, it would also not want to be a nation where 17 and 18 year olds are treated as fully mature adults and sent to prison for many years for offences such as rape...,.”

I agree with the comments of BARTLETT J. Rape is, in my view, a more serious offence than unlawful entry, and of equal seriousness with theft of a motor vehicle. I am therefore persuaded that in the absence of corporal punishment imprisonment is unavoidable and its length must be carefully considered. 

The accused was born on 29 September 1995 and will therefore celebrate his 16^th 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 two (2) counts of rape of the same complainant.

He was sentenced to moderate corporal punishment of six (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…, 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 notwithstanding 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 HH48-02, 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 HB37-03.

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

While it is proper that an accused of his age should not be sentenced to an effective imprisonment. In my view, he should have been given an effective punishment in the language he understands better. In the circumstances, the language he understands better is a cane. The cane has been known to effectively and adequately correct children, hence the old English adage that: “spare the rod and spoil the child.”…,.

It was further argued that the appellant had committed the offence out of immaturity; he having stolen in order “to please (his) girlfriend” and that as a youthful first offender he was still capable of correction.

The appellant is indeed a young first offender who pleaded guilty to the charges.

The accused is a youthful person being twenty-one (21) years old. He is a first offender who pleaded guilty to the offence. He committed the offence because of poverty and told the court that he wanted to raise money to buy food. The value of the stolen items could not be reliably ascertained and it appeared exaggerated….,.

The appellant was sentenced to eight (8) years imprisonment of which three (3) years imprisonment was suspended for five (5) years on the usual conditions.

The sentencing of juveniles in rape cases is a difficult exercise.

The court has to perform a delicate balance between the youthfulness of the offender and the seriousness of the offence. It also throws in the interests of society into the scales. Society expects long periods of incarceration to those offenders who commit serious crimes. In the same vein, it expects that youthful offenders, by reason of their immaturity, be afforded an opportunity to reform so that they become useful members rather than a scourge to society.

In S v Tendai & Anor (Juveniles) 1998 (2) ZLR 423 (HC)…, GILLESPIE J stated that -

“Before doing so, it would be as well to examine what might be meant by juvenile, or young, in this context. As one knows, the legal age of majority is 18 years. Therefore, every person under 18 is a juvenile. That, however, is too narrow a definition of the concept for the present purpose. After all, the law makes express provision for special treatment of young offenders extending to the age of 20 years. In addition, as a matter of principle, as I have already suggested, persons up to the age of 21 and even older are generally treated as young offenders as and with more leniency than other adults. A juvenile or young offender, for these purposes, therefore, ought to be anyone up to the age of 20 years.”

The trial magistrate goes on to categorise them as young offenders. It boggles one's mind to define a 30 year old person as young, this is with respect to Accused 1….,.

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.”

At the time of conviction and sentence the accused was aged eighteen (18) years. He was born on 7 June 1992 and therefore celebrated his 18^th birthday on 7 June 2010. At the time that he committed the offence for which he stands convicted, on 2 March 2009, he was aged sixteen (16) and due to celebrate his 17^th birthday on 7 June 2009….,.

When the matter was referred back to the trial magistrate for a comment on why she had not treated the accused as a juvenile for purposes of sentence, she commented thus:

''I do not believe I departed from the usual sentencing policy. If the accused was a juvenile at the date of sentence, I would have imposed a different penalty preferably corporal punishment. While he was a juvenile at the time of committing the offence he was an adult when he appeared in court.''

The learned trial magistrate is certainly correct in her interpretation of the relevant provision dealing with sentencing of juveniles, namely, section 353(1) of the Criminal Procedure & Evidence Act [Chapter 9:07]. It provides:

''Where a male person under the age of 18 years is convicted of any offence the court which imposes sentence upon him may -

(a) In lieu of any other punishment; or

(b) In addition to a wholly suspended sentence of a fine or imprisonment; or

(c) In addition to making an order in terms of subsection (1) of section 351;

Sentence him to receive moderate corporal punishment not exceeding 6 strokes.''

Clearly, therefore, the reckoning of age of the accused person is at the time of conviction and not at the time of commission of the offence. If the accused, through no fault of his own, is not sentenced until he attains eighteen (18) years he loses the benefit he would have been entitled to if he had been convicted before attaining that age. This is the interpretation accorded to the predecessor to section 353(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], that is section 330 of Chapter 59, by GIBSON J in S v Chitiki 1986 (1) ZLR 60 (H). 

I am in agreement with that interpretation.

However, it is the decision of the prosecution, as is so apparent in this case, to withhold the matter while bidding time for the accused to attain the age of eighteen (18) and then arraigning him before a magistrate thereafter in order to secure a stiffer sentence by virtue of the fact that the accused would not be entitled to a sentence of corporal punishment, which is unacceptable.

The accused was pleading guilty to the charge and investigations must have been completed in March 2009 after the complainant had been examined by a doctor. No other reason can be assigned to the failure of the State to bring the accused before a magistrate for a plea recording and sentence other than the fact that the State desired to secure a harsher sentence after the accused had turned eighteen (18). 

This is extremely undesirable and brings the administration of justice to serious disrepute.

These courts should act decisively to stamp out such behaviour and protect the reputation of the justice system of this country. It must be stated in no uncertain terms for all to hear that the courts will not tolerate such reprehensible conduct. The State will not be allowed to benefit from its own default, as it were, deliberately designed to gain an unfair advantage over young offenders.

This is a matter in which the accused should have been sentenced in March 2009 to corporal punishment when he was still under seveteen (17) years old. The sentence imposed induces a sense of shock. There is therefore a need to tinker with the sentence in order to give effect to the spirit of the law. Considering that the accused has served almost four (4) months imprisonment nothing will be served by ordering corporal punishment at this stage. What he has served is enough and an adjustment of sentence recognising that will be made.

Accordingly, I make the following order;

1. The conviction of the accused is confirmed.

2. The sentence is set aside and in its place is substituted the sentence of 24 months imprisonment of which 21 months imprisonment is suspended for 5 years on condition he does not during that period commit an offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.

With regards to sentence, the appellant was eighteen (18) years of age. 

He grabbed the complainant's hand in broad daylight. Despite vigorous resistance in protest to an extent of biting him, he was not prepared to let go. He did this in full view of other children including Talent Ncube who tried to stop him. The appellant exhibited beastly conduct which cannot be condoned. He indeed was young but his determination is in tandem with the behaviour of a sexually mature adult.

This is one of those cases where the appellant deserved to be treated like an adult.

Order

The appeal against both conviction and sentence be and are hereby dismissed.

All I can add is that the trauma and anxiety experienced by the victims under the appellants' siege cannot be downplayed to an extent of interfering with the sentences imposed.

The appellants, despite their ages, had no respect for other people's dignity, freedom and property.  They surely deserve to be removed from society to hopefully teach them a lesson and warn those of like mind of the dim view these courts take in these matters.

The accused was aged 19 years at the time he committed the offence.

Sentence

All that needed to be said on behalf of the accused was well put forward by his lawyer. He is a young first offender whose age is likely to be in the region of 22 years. If the estimated age were to be accepted he would be 19 years. His youthful age has been taken into account. Also to be taken into account is that he has spent over 18 months in pre-trial incarceration. Had it not been for those mitigating features he would have been looking at not less than twelve (12) years.

Here is why.

The accused is a person who moves around carrying a dangerous weapon - the Okapi knife. He relied on it so much that it gave him the courage to run after the deceased and confronted him. He then stabbed him with it, inflicting a 7cm deep wound from which he died. The accused showed no remorse at all. He, instead, lied about what took place.

A young life was unnecessarily lost. The court always guards jealously the sanctity of human life.

This court was referred to the case of Richards 2001 (1) ZLR 129 where community service was imposed. The facts in that case are clearly distinguished.

In casu, imposing community service would be trivialising the offence leading to society losing faith in the criminal justice system.

The accused is in that age group which is the one causing trouble in society. Most murders are committed by this group of people, who, at the slightest of provocation or even without provocation, resort to the use of lethal weapons to kill. This should not be allowed to continue unchecked. A loud message must be sent out there that offenders will be adequately dealt with.

In the result, the justice of this case will be met by a sentence of:-

                                 TEN YEARS IMPRISONMENT

The appellant was sentenced to receive corporal punishment of four (4) strokes….,.

The appellant was sentenced to four strokes. This punishment has already been carried out - in circumstances where this should not have been. 

This can only point to one factor, and one factor alone, being that judicial officers should approach trials with the highest degree of diligence, objectivity and professionalism so as to avoid the danger of falling in the emotional trap clothed with the name of justice. It should be remembered that the amount of power they wield, if improperly used, can easily be viewed as abuse by society. This, however, is not to say, was the case in casu.

Reasons for sentence

In considering sentence, we have taken into account all that has been said in mitigation. All accused persons are first offenders.

All of them are youthful persons. Accused 1 is only 20 years old, Accused 2, 22 and Accused 3, 27 years old.

Although young, Accused 3 has done very well for himself and the surrounding community as he employs about a 100 people. This offence will therefore disturb this project. Accused 3 has two wives and two (2) young children.

We consider that compensation has been paid to the family of the deceased in the form of US$10,000= and a beast in order to appease the family. The deceased was certainly not a saint. He had stolen gold ore and was unable to fully compensate for it. Accused 3 has suffered double loss. We are mindful of the fact that not only have you lost your gold ore you have also compensated the family large sums of money which we cannot ignore.

This was an accidental killing as opposed to a deliberate one. You tried to render first aid to no avail and co-operated with the law enforcement agents. You have spent sometime in custody, about 8 months, while awaiting trial.

Against that should be considered that a precious life was unnecessarily lost under circumstances which could have been avoided. You took the law into your own hands and decided to engage in vigilante justice which should be suppressed at all costs. This country should pride itself for the respect of the rule of law. We cannot allow gangs of people to patrol villages wantonly apprehending people and meting out their own form of justice. That is dangerous and unacceptable.

There is therefore a need to remind communities that human life must be respected and that law enforcement agents must be summoned whenever there is a problem instead of resorting to kangaroo courts at the mines.

Sentence

7 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition that you do not during that period commit an offence of which violence is an element and for which you are sentenced to a term of imprisonment without the option of a fine.

Whilst accepting that the appellant's youthfulness is mitigatory, unfortunately, more and more young people are committing such serious offences of violence. 

Considering that the accused person is a youthful first offender, had the proceedings been properly conducted it is very likely that he would have benefited from  the provisions of section 67 of the Criminal Law Code [Chapter 9:23]…, and got a sentence other than imprisonment.

The factors relied upon are that the sentence does not reflect sufficient weight having been placed on the fact that the appellant was a youthful first offender. 

The court a quo observed that the learned magistrate considered the factors of mitigation referred to and placed the weight she considered sufficient on them as reflected in the sentence imposed. The learned magistrate observed, in particular, the social outrage emanating from the increase in rape cases involving elderly women in her area as well as in the country generally.

There is, of course, no gainsaying the fact that rape is a very serious offence which has become very prevalent requiring stern sentences by the courts to protect society. The court a quo made a pertinent observation of the fact that the appellant, being a young and strong man, took advantage of the age of the complainant and her frailty knowing that she was powerless to resist his aggression. The utterances he made during the commission of the offence indicate not only determination to commit the offence but also the total control he had over the complainant.

The court agrees with the court a quo's observation expressed in the following words:

There was a conflict on the age of the applicant.

On the request for remand, Form 242, his age was put at twenty four years. However, in the bail response by the State, his age was put at nineteen years. This was based on an age estimate following a dental examination that was carried out in a previous conviction for aggravated indecent assault. The applicant himself insisted he was seventeen years old, and therefore a minor.

The reason for the conflict on the applicant's age was that he had no identity documents of any sort. Both he and the State resorted to some deductive process to estimate his age. They both started counting from the previous conviction. It was common cause that the previous conviction was in 2011. The applicant has insisted, in his current application, that at the time he was only ten years old and that he did not even know that he was a committing an offence as he thought he was playing with the victim. If the applicant was ten years old in 2011, then now he must be fifteen. But he has said he is seventeen years old. He has no supporting document of any sort, only his word of mouth.

On the other hand, the State has insisted that the applicant had been fourteen years old at the time of the previous conviction. His age was estimated by a dental surgeon following some medical examination of his teeth after which a purported affidavit in terms of section 278(2) of the Criminal Procedure & Evidence Act [Chapter 9:07] [“the C P & E Act”] was filed. So five years down the line, the applicant should, according to the State, be nineteen years old, and therefore a major.

The State has further argued that at any rate, if the applicant had been ten years old at the time of the previous conviction, then he would have been doli incapax [i.e. below the age of criminal responsibility]. He would not have been charged with a criminal offence, let alone sentenced to six strokes with a rattan cane as was done.

Counsel for the applicant challenged the purported affidavit by the dental surgeon and the State's reliance on it. He said it was not a sworn statement therefore not an affidavit. As such, it should not have been taken at face value as actual proof of the applicant's age at the time….,.

Firstly, I resolve the conflict regarding the age of the applicant in favour of the Sate. Apart from his say so, there was no other material or information to support his claim that he was only ten years old at the time of his previous conviction. He did not say who told him he was ten years old at the time or when he might actually have been born. There was just nothing on which he based his age estimate.

On the other hand, in computing the applicant's age in the absence of birth documents, at least the State produced some material which would generally be admissible in terms of statute. It was a scientific estimation of a person's age by a medical examination of his teeth. In the case of the applicant's previous conviction, the results of that medical examination had been admitted in the Regional Magistrates Court which convicted him. That court would have been satisfied of the applicant's age. Otherwise it would be an outrageous miscarriage of justice if it not only convicted a minor lacking criminal capacity by reason of age - but also would go on to sentence him to six strokes….,.

The above four cases came up separately on automatic review in terms of section 57 of the Magistrates' Court Act [Chapter 7:10].

Except for Case 3 (S v Tafadzwa Ruzvidzo), all of them were cases of rape by juvenile male offenders upon female minors or infants. Case 3 was one of aggravated indecent assault. I decided to deal with all of them in one judgment.

The essential element is the same. It is about the constitutionality of corporal punishment.

All accused persons were first offenders. In Case 1 (S v Walter Mufema) the accused was 16 years old. His victim was four (4). The accused pleaded guilty. He was sentenced to 3 strokes with a rattan cane.

In Case 2 (S v Callington Chavhunduka) the accused was 16 years old. The complainant was 13. He was charged with rape, in contravention of section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”). He denied the charge. A full trial ensued. The court found no evidence of rape. Sexual intercourse had been consensual. So the accused was found guilty of contravention of section 70 of the Code, i.e. having sexual intercourse with a young person. He was sentenced to 4 strokes.

In Case 3, the accused was 14 years old. His victim was 3. He indecently assaulted the complainant by inserting a stick into her vagina. She was injured. He denied the charge. Nonetheless he was convicted of aggravated indecent assault as defined in section 66(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The sentence was 4 strokes.

In Case 4 (S v Claudios Baundi), the accused was 15 years old. The complainant was 4. The accused pleaded guilty. He was sentenced to 3 strokes.

In Case 1, the sentence was passed in January 2014. In all others, sentencing was in December 2014. There is no telling from the record whether or not the sentences have already been carried into execution. But in all likelihood they have. Section 110 of the Prison Regulations, 1956, Federal Government Notice (RGN) No.42 of 1956, requires that a sentence of corporal punishment be carried out as soon as possible after it has been awarded. This, of course, is after all the formalities, like confirmation or appeals, have been exhausted.

In this country, corporal punishment of male juveniles is sanctioned by section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CP & E Act”). It reads:

“353 Corporal Punishment of male juveniles

Where a male person under the age of eighteen years is convicted of any offence the court which imposes sentence upon him may –

(a) In lieu of any other punishment; or

(b) In addition to a wholly suspended sentence of a fine or imprisonment; or

(c) In addition to making an order in terms of subsection (1) of section three hundred and fifty-one; sentence him to receive moderate corporal punishment, not exceeding six strokes.”

Section 101 of the Prisons Act [Chapter 7:17] defines corporal punishment as a “.., moderate correction of whipping referred to in section 353 of the Criminal Procedure and Evidence Act…,.”

Sub-sections (2) to (6) of the Criminal Procedure and Evidence Act regulate the manner in which the corporal punishment is to be administered. In brief, it is to be administered in private. The parent or guardian of the juvenile offender may be present. It can only be administered after a medical doctor has certified that the juvenile offender is fit to receive it.

The Prisons Act and the Prison Regulations, 1956, Federal Government Notice (RGN) No. 42 of 1956 aforesaid prescribe, among other things, the manner how, the place where, and the persons by whom, corporal punishment is to be administered. Firstly, in addition to the parents or guardian of the juvenile offender that may be present in terms of the Criminal Procedure and Evidence Act, the Prisons Act adds two more persons. Section 103 of the Prisons Act [Chapter 7:17] provides that no corporal punishment shall be carried out in the absence of the medical officer who certified the juvenile offender to be fit to receive it, and of the officer in charge of the prison. With regards the officer in charge of the prison, the Prison Regulations, in section 111(1), empower him to delegate this function to a senior or junior officer.

The Prison Regulations prescribe the type of instrument by which corporal punishment shall be administered. It is a rattan cane. No doubt, given the time of their promulgation, the Regulations still refer to the measurements of this instrument in feet and inches. They say for prisoners under the age of nineteen years, the rattan cane should be three feet long and not more than three-eighths of an inch in diameter. (For prisoners nineteen years old and above, the measurements are four feet and not more than half an inch respectively).

Then section 109(2) of the Prison Regulations, 1956, Federal Government Notice (RGN) No.42 of 1956 reads:

“(2) The manner in which corporal punishment shall be inflicted…, shall be as follows –

(a) A blanket or similar form of protection shall be placed across the small of the prisoner's back above the buttocks;

(b) A small square of thin calico shall be dipped in water, wrung out and tied over the prisoner's buttocks;

(c) Strokes shall be administered from one side upon the buttocks of the prisoner and on no account on the back.”

Elaborating on the manner of execution of corporal punishment, the Supreme Court painted the following graphic description in S v Ncube 1987 (2) ZLR 246 (SC)…, ; 1988 (2) SA 702 (ZSC)…, , a case that held that corporal punishment on adults was unconstitutional:

“Once the prisoner is certified fit to receive the whipping, he is stripped naked. He is blindfolded with a hood and placed face down upon a bench in a prone position. His hands and legs are strapped to the bench, which is then raised to an angle of 45 degrees. (A) calico square is tied over his buttocks and the kidney protector secured above his buttocks at waist level. The prisoner's body is then strapped to the bench. The cane is immersed in water to prevent splitting. The strokes are administered to one side across the whole of the buttocks.”

On 31 December 2014, MUREMBA J, in a criminal review judgment in S v Willard Chokurumba HH718-14, with which MAWADZE J concurred, declared, among other things, that section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] was misaligned with the new Constitution of Zimbabwe. She came to this conclusion by comparing the wording on corporal punishment in the old Constitution with that of the new Constitution. Section 15 of the old Constitution of 1979 provided as follows:

(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.

(2)…,.

(3) No moderate corporal punishment inflicted -

(a) In appropriate circumstances upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis or in whom are vested any of the powers of his parent or guardian; or

(b) In execution of the judgment or order of a court, upon a male person under the age of eighteen years as a penalty for breach of any law; shall be held to be in contravention of subsection (1) on the ground that it is inhuman or degrading.”…,.

On the other hand, the new Zimbabwe Constitution that came into effect in 2013 and which replaced the old one (Amendment No.20), made no specific mention of corporal punishment. But on inhuman or degrading treatment or punishment it provides as follows in section 53:

“53 Freedom from torture or cruel, inhuman or degrading treatment or punishment

No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.”

In the review judgment aforesaid, MUREMBA J noted that section 86 of the new Constitution outlaws any law that purports to limit any fundamental rights and freedoms enshrined in that Constitution. Expressly mentioned in subsection (3), paragraphs (a) and (b), are the right to human dignity and the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment.

The learned judge also noted the provisions of section 52 and section 56 of the new Constitution. Section 52(a) guarantees the right of every person to bodily and psychological integrity. This includes the right to freedom from all forms of violence from public or private sources. Section 56 guarantees equality and equal treatment of all persons before the law. Discrimination on the grounds of, inter alia, sex, gender or age is outlawed.

On the basis of the change in the wording in the new Constitution, and having regard to several regional and international conventions that have regarded corporal punishment of juveniles as violence against children and a violation of their human dignity, physical integrity and self-esteem, MUREMBA J concluded as follows…,:

“This elaboration of the children's rights in conformity with the regional and international conventions that Zimbabwe has ratified demonstrates that the new Constitution does not allow…, the imposition of corporal punishment anymore. Clearly s 353(1) of the Criminal Procedure and Evidence Act [Cap 9:07] is now a law which is inconsistent or ultra vires the Constitution….,. What it means, under the circumstances, is that whilst the Criminal Procedure and Evidence Act [Cap 9:07] remains in force its section 353(1) is now an invalid law….,. [T]he courts have a duty to uphold the Constitution and to promote, respect and protect the rights and freedoms enshrined therein. I thus declare s 353(1) of the Criminal Procedure and Evidence Act [Cap 9:07] to be constitutionally invalid.”

In my view, and with due respect, my learned sister judge hit the bull's eye. I agree entirely with those findings and those conclusions.

There can be no question that corporal punishment of juveniles has become unlawful in this country. The old Constitution made this country an outpost of tyranny and cruelty against children. Our stance on corporal punishment stuck up like a sore thumb. All around us, and in virtually all over the progressive world, corporal punishment, whether of adults or of juveniles, had been abolished. That the Prisons Act defines corporal punishment as “…, moderate correction of whipping…,.”, or that the Prison Regulations, 1956, Federal Government Notice (RGN) No. 42 of 1956 seem to go to some length to mollify or mitigate the manner of its execution cannot, in my view, make it any less brutal. It is like applying lipstick on a bullfrog, or blowing incense on a skunk.

In fact, our old Constitution, in expressly sanctioning corporal punishment as it did, was not always like that before. Subsection (3) of section 15 that expressly said, inter alia, corporal punishment inflicted upon a male person in execution of a judgment or order of a court was not inhuman or degrading treatment was a 1990 amendment. The subsection was inserted by Act No. 30 of 1990 as the eleventh amendment to the Lancaster House Constitution.

In my view, by amending the Constitution in 1990 to make corporal punishment lawful, the Legislature was being reactive and retrogressive. In June 1989, the then Supreme Court, sitting as a Constitutional Court in the case of S v Juvenile 1989 (2) ZLR 61 (SC), by a majority of three judges to two, had held that corporal punishment inflicted upon male juvenile offenders in terms of the Criminal Procedure & Evidence Act was ultra vires section 15(1) of the Constitution. Given the weight of authority, both in this jurisdiction and elsewhere in the progressive world, except South Africa at that time, and given the provisions of the various international conventions on children's rights, such a conclusion by the then Constitutional Court was inevitable. S v Ncube 1987 (2) ZLR 246 (SC)…, ; 1988 (2) SA 702 (ZSC)…, had been decided two years earlier. The Supreme Court had, by a unanimous decision, adjudged corporal punishment on adults as being unconstitutional, barbaric, inherently brutal and cruel. The court said it stripped the victim of all dignity and self-respect, treating humans as non-humans.

In S v Juvenile 1989 (2) ZLR 61 (SC), noting that the only significant difference between the whipping of an adult and that of a juvenile, in the execution of the sentence of corporal punishment, was in the size of the rattan cane to be used, the Constitutional Court said that the strictures applied to corporal punishment of adults would apply a fortiori to such punishment when meted out on juveniles. The court registered its abhorrence of this type punishment in the most powerful diction and colourful nomenclature.  For example, GUBBAY JA, who had delivered the court's judgment in S v Ncube 1987 (2) ZLR 246 (SC)…, ; 1988 (2) SA 702 (ZSC)…, said….,:

“…, [J]udicial whipping in any form must inevitably tend to brutalise and debase both the punished and the punisher alike. It causes the latter, and through him society, to stoop to the level of the offender. It marks a total lack of respect for a fellow human, be he adult or juvenile. It treats members of the human race as non-humans. By its very nature, it is extremely humiliating to the recipient.

“…, [J]udicial whipping, no matter the nature of the instrument used and the manner of execution, is a punishment inherently brutal and cruel; for its infliction is attended by acute physical pain….,. Irrespective of any precautionary conditions which may be imposed, it is a procedure subject to ready abuse in the hands of a sadistic or overzealous official appointed to administer it. It is within his power to determine the force of the beating.

In short, whipping, which invades the integrity of the human body, is an antiquated and inhuman punishment which blocks the way to understanding the pathology of crime. It has been abolished in very many countries of the world as being incompatible with contemporary concepts of humanity, decency and fundamental fairness. The main categories of exception appear to be some former British colonies and some States where shari'a (Islamic law) is practised.”

In the same judgment, KHOSA JA, on the side of the majority, said…,:

“Speaking for myself, I think any law which compels a person, against his will, to expose his posterior to the gaze of total strangers while blindfolded and strapped to a wooden bench degrades and debases that person, and if this is done for the sole purpose of subjecting him to whipping, then it also dehumanises him.

Even if corporal punishment were to be administered without the victim taking his clothes off, the mere idea of inflicting physical pain as a form of punishment corresponds, in my view, with torture and the lex talionis – an eye for an eye, a tooth for a tooth, a life for a life – all of which have been condemned because they represent an inhuman approach to punishment;…,..”

Not only is this court bound by the decisions of the Supreme Court and the Constitutional Court, but also the manner those courts have expressed themselves on the subject is, in my view, and with due respect, the mark of leadership in the development of jurisprudence.

Therefore, if the new Constitution has dropped the amendment to the old Constitution that permitted the meting out of corporal punishment upon male juveniles, and if the Constitution has gone on to strengthen certain provisions of the Bill of Rights, for instance, by promulgating section 86(3)(c) that says that no law may permit the right to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; section 52(a) that guarantees the freedom from all forms of violence from public or private sources; and section 56 that guarantees fair treatment of all persons and outlaws discrimination on the grounds of, inter alia, sex, gender or age, there can be no doubt that section 353 of the Criminal Procedure & Evidence Act [Chapter 9:07] has become anachronistic.

It is unfortunate that this 19 year old boy who has had his first brush with the law by committing 3 counts of unlawful entry into premises in aggravating circumstances and stealing property in all Counts valued at a paltry US$179= of which property valued at US$108= was recovered (his benefit is just US$61=) has been incarcerated for 24 months.

The only reprieve he got is to have 6 months imprisonment suspended on the usual conditions of good behaviour and a further 3 months on condition he pays restitution (never mind that he has no bond note to his name). This means this teenage boy would serve an effective prison term of 15 months (if not 18 months as he is unlikely to pay restitution).

The bare bones of the facts of this matter are that on 14 December 2016, in Village Musendo, in Count 2, and on 22 February 2017, in Chikanda and Murivi Villages, in Counts 1 and 3, all in Chief Chiwara, Gutu, the 19 year old accused approached the complainants' homesteads.

In Count 1, the accused unlawfully entered into the complainant's kitchen hut and stole 2kg sugar, 750ml cooking oil, one silver pot, 2kg rice and a pair of tackies all valued at US$33=. After his arrest, property valued at US$15= was recovered.

In Count 2, the accused entered into the complainant's house through a window and stole a loaf of bread, an MTN cell phone line, 2kg sugar, 2kg rice and a satchel all valued at US$28= of which nothing was recovered.

In Count 3, the accused gained access into the complainant's house through an unlocked door and stole a Samsung cellphone, a pair of tackies, 3 trousers and one pair of shorts all valued at US$118= of which property valued at US$103= was recovered.

The total value of the property stolen in all the 3 counts is US$179= of which property valued at US$108= was recovered hence the actual prejudice is property valued at US$61=.

It is clear from the agreed facts that the accused went on a spree of committing the offence of unlawful entry into premises in aggravating circumstances as is defined in section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused's moral blameworthiness is elevated by this persistent criminal conduct. To that extent, the accused deserves to be punished lest he believes that there is some virtue in committing crime. The proprietary interest of our rural folk should be protected - even where it is not of any significant monetary value.

Be that as it may, the accused is a youthful first offender with neither savings nor assets. The element of immaturity on his part probably explains his criminal conduct. While the offence of unlawful entry into premises in aggravating circumstances remains a serious offence, the trial court should not lose sight of the value of the property stolen in each count in assessing the appropriate sentence.

The sentence imposed by the trial magistrate in this case does not only induce a sense of shock, if not revulsion, but completely ignores basic sentencing principles. It offends against notions of justice. See S v Shariwa 2003 (1) ZLR 314 (H).

It is trite in our law that that where a trial court imposes a sentence of 24 months or less, the suitability of community service should be considered. Failure to do so constitutes a misdirection. See S v Antonio 1998 (1) ZLR 64 (H); S v Gumbo 1995 (1) ZLR 163 (H), S v Chinzenze & Ors 1998 (1) ZLR 470.

The learned trial magistrate in casu did not even bother to carry out an inquiry into the suitability of community service. Further, no good and sound reasons are advanced in this case as to why community service was not imposed. See S v Mapweza HH125-95; S v Mabhena 1996 (1) ZLR 134.

A proper inquiry would have enabled the learned trial magistrate to determine if community service is suitable punishment for the offence this 19 year old boy committed, his suitability to perform such community service, and all other relevant factors.

The conviction of the accused in respect of all the 3 Counts is in order and is therefore confirmed.

The learned trial magistrate, for reasons outlined above, failed to exercise his discretion in deciding the appropriate sentence and assessing that sentence. This court, however, is hamstrung from the facts before it to carry out a meaningful inquiry into the suitability of community service.

I am, however, satisfied that community service would have been appropriate in this case….,.

In the result, the sentence imposed by the trial court is set aside in its entirety and substituted with the following;

The defence opened its case by producing the accused's national registration certificate which shows that the accused was born on 28 April 1998 in Bulawayo....,.

Sentence

The mental process in which courts engage in, when considering questions of sentence, depends upon the task at hand.

Subject, of course, to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known tried factors relevant to sentence and impose what it considers to be a just and appropriate sentence – S v Malgas 2001 (1) SACD 469 (SCA).

In casu, we will consider the submissions in mitigation submitted by the defence counsel as well submissions in aggravation which were submitted by the State counsel.

On the mitigation side, we will, of course, consider the fact that the accused is a youthful first offender. In fact, the accused is just below the legal age of majority. He is 17 years 10 months to be exact. The courts have always treated youthfulness as a strong mitigating factor. The courts have also, time and again, stated that, when possible, youthful offenders should not be sent to prison. We will also consider that there was an element of provocation in this case.

Further, we will also take into account the sorry background from which the accused comes which must have had an effect on his character and therefore on the eventual commission of an offence such as this one. According to JOHN BOWBY, 'maternal deprivation' plays a critical role in the development of personality deviations. In his report to the World Health Organisation (1952), he concluded that prolonged separation of a child from his mother (or mother-substitute) during the first five years of life stands foremost among the causes of delinquent character development. On the other hand, there are other theories of causes of crime like the 'biological inferiority theory' and the 'humanistic theory'…, etc.

In this case, the accused, we were told, stayed with the grandmother who later sent him to an aunt whom he later murdered. 

That's all we could find in mitigation.

On the aggravation side, as counsel for the State has pointed out, we must take into account, not just the conditions of the offender, but the offence that he had committed, in order to search and arrive at what is referred to as an appropriate form of punishment. That punishment must suit both the offender as well as the offence. The question is usually how to balance the principle of retribution with that of rehabilitation. In other words, should retribution be minimized and rehabilitation maximized in the sentencing process? Put simply, a court imposes a sentence as a deterrent to demonstrate to others who might be inclined to commit similar offences that this was the punishment they would get. Put differently, the court would be addressing to the larger segment of society and reinforce its view that the particular offence was unacceptable. It is, in a sense, a process of moral education. In this regard, the effectiveness of deterrence should not be under-estimated.

The offence of murder is the most serious offence in the book.

The courts have no other way of showing their aversion to murder and their determination to stamp out this kind of crime than by punishing, severely, the perpetrators of the offence. See MUBAKO J's comments in S v Dzaro 1996 (2) ZLR 541 (H). As I said, the punishment is aimed at correcting the offender as well as deterring others from committing similar crimes. The trend is that such brutal crimes are committed by young people. 

Deter this group from committing such crimes.

In this particular case, the accused killed the deceased in the most brutal and callous manner. The killing was totally uncalled for as the accused could have simply run out of the house. The nature of the blows shows that the accused was determined to finish the deceased's life. He used excessive force to murder his aunt who was in loco parentis after his biological mother had refused to stay with him. He mercilessly butchered the only person who had shown him love.

We agree with the State counsel that the cases she cited reflect the sentencing policy relating to juvenile offenders who commit murder in such a horrific manner.

We must warn that the accused would have deserved a very stiff sentence indeed, many more years than we are going to sentence him to had he not been a minor.

The accused is sentenced to 20 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the accused is not within that period convicted of an offence involving violence upon the person of another for which, upon conviction, shall be sentenced to imprisonment without the option of a fine.

Sentence

The accused person stands convicted of the offence of culpable homicide. 

He pleaded guilty to that charge, he is a first offender, he was aged 16 years at the time of the commission of the offence. A misunderstanding arose between him and his cousin. He went to school only up to the level of Grade 7. He is from a poor and unsophisticated background. It is unfortunate that children who cannot be kept in school due poor backgrounds then find themselves in these situations where they lack proper guidance and have no direction in life.

We need to emphasise, however, that loss of life through violence is a cancer that is eating into our society and violence has suddenly taken over out there; where people butcher each other on the slightest of misunderstandings; this the court should express its displeasure at.

The personal circumstances of the accused person, however, bring in weighty mitigation, he was 16, immature, and acted spontaneously and has nothing to show for himself as a background.

Parents should be conscientized that raising children is work and despite their being in poor moral community they should try to bring up children with an acceptable level of education. Even if one goes up to Grade Seven, vocational training institutions are there to assist with skills for different trades that our youth can engage in rather than being idle and finding themselves in this kind of predicament.

We agree with the submissions made by all concerned that a non-custodial sentence would meet the justice of this case.

The accused, despite being 32 years old, he still remains a young offender...,. 

In the instant case, we are dealing with a more mature individual as compared to the situation in S v Dzaro.

Sentence

The accused has been convicted of a fairly serious offence in this matter.

In aggravation, the court notes with extreme concern that the accused negligently cut short the life of the deceased in sad and disturbing circumstances.

What makes the accused's conduct highly reprehensible is the fact that when the accused exhibited his aggressive conduct towards one of his colleagues, Tafara Ndlovu, by threatening to assault him over a minor disagreement, it was the deceased who intervened and restrained him from doing so.

When the accused turned his anger against the deceased, by threatening to strike him with an axe, the accused was disarmed by Brightwell Ndlovu. But alas! The accused did not accept the responsible gesture demonstrated by his colleague. He, instead, chose to be intransigent and demonstrated his resolve to fatally injure the deceased by snatching another axe which turned out to be the murder weapon.

This was an unprovoked assault which was brought about by the evidently bullying attitude of the accused person.

Although this was a single strike, the weapon used was dangerous. Axes are never meant to be used against fellow humans. A young life was needlessly lost and the pain that the accused has caused to the deceased's family cannot be under-estimated.

In mitigation, the court notes the following factors; although this offence is a heinous one, the accused is a youthful first offender, aged 15, and was evidently very emotional and remorseful about his conduct. He regretted his conduct which resulted in the untimely death of the deceased.

The Probation Officer's report suggests that this offence occurred spontaneously with no traces of premeditation. It was out of character with the accused person.

Above all, the report also speaks to the accused being a young man who is capable of being reformed if put in an appropriate institution where counselling and correctional measures can be undertaken. The court has largely been guided by the recommendations made by the Probation Officer. It is hoped the accused, given his youthfulness, will eventually end up as a more youthful member of society.

Both counsels were in agreement that this was a case where the court could also lean on the guidelines spelt out in the African Charter of the Rights and Welfare of Children in assessing what may be an appropriate sentence.

In accordance with section 351(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] it is ordered that the accused be sentenced as follows:

That the accused be taken before Lupane Magistrates' Court to be dealt with in terms of the Children's Act [Chapter 5:06].

At the time of their trial and conviction, the first appellant was 20 years of age and the second appellant was 27 years old. There is, therefore, no doubt that both appellants were, or are, youthful offenders who should, for the mentioned reason, have been treated with some measure of leniency in so far as their punishment was concerned.

Even juvenile sex offenders who commit the more serious crime of rape are not sentenced to imprisonment. See S v M 2009 (1) ZLR 47.

While corporal punishment was discussed as an alternative in that case, it is no longer among the options available for non-custodial remedies following it being outlawed as unconstitutional. See S v Chokuramba HH718-14.

Juvenile justice…, places emphasis on rehabilitation…,.

The accused was sentenced to receive a moderate corporal punishment of three (3) strokes with a rattan cane. He was sentenced, on 26 September 2014, on the strength of section 353(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which allows for the imposition of corporal punishment. The section reads -

“(1) Where a male person under the age of eighteen years is convicted of any offence, the court which imposes sentence upon him may:-

(a) In lieu of any other punishment; or

(b) In addition to a wholly suspended sentence of a fine or imprisonment; or

(c) In addition to making an order in terms of subsection (1) of section three hundred and fifty-one, sentence him to receive moderate corporal punishment not exceeding six strokes.”

What gave rise to the enactment of section 353(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] is the old Constitution of Zimbabwe which permitted the imposition of corporal punishment on boys below the age of 18 years. Section 15(1) thereof reads as follows:-

“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

Section 15(3) reads:-

“No moderate corporal punishment inflicted -

(a) In appropriate circumstances, upon a person under the age of eighteen years, by his parent or guardian or by someone in loco parentis or in whom are vested any of the powers of his parent or guardian; or

(b) In execution of the judgment or order of a court upon a male person under the age of eighteen years as a penalty for breach of any law;

shall be held to be in contravention of subsection (1) on the ground that it is inhuman or degrading.”

The foregoing provision of the old Constitution made it constitutional to impose corporal punishment. The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment was limited to the extent specified in section 15(3). While it was constitutional, under the old Constitution, to impose corporal punishment what is of significance in the present case is that the accused was sentenced after the new Constitution, that is, the Constitution of Zimbabwe Amendment (No.20) Act 2013 had come into operation.

There is need to examine the provisions of the new Constitution and see if it is still competent for the courts to impose corporal punishment on male juvenile offenders.

In the new Constitution, the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is under section 53 and it reads;

“No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.”

Section 86 thereof deals with limitation of rights and fundamental human freedoms. Section 86(3)(c) reads:-

“No law may permit the following rights enshrined in this Chapter and no person may violate them:-

(a)…,.

(b)…,.

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment punishment.”

It is clear that the way the new Constitution is worded on the right to protection from inhuman treatment is different from the way it was worded under the old Constitution. In the new Constitution, the right is not limited at all. In fact, section 86 makes it abundantly clear that no law may limit that right and provides for no exception. If the legislature had intended corporal punishment to remain as part of our law it would have limited the right by categorically stating that moderate corporal punishment inflicted in execution of the judgment or order of a court shall not be held to be in contravention of that right as was the case under the old Constitution.

My interpretation of sections 53 and 86 of the new Constitution brings me to the conclusion that corporal punishment is now unconstitutional. What strengthens my conclusion are further provisions in the new Constitution which protect the right to personal security, equality, and non-discrimination. Below are the relevant provisions;

Section 52(a), which deals with personal security and prohibits violence, states that;

“Every person has the right to bodily and psychological integrity which includes the right -

(a) To freedom from all forms of violence from public or private sources.”

Section 56 deals with equality and non-discrimination. It reads;

“(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)…,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock….,.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if -

(a) they are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.”

Internationally, corporal punishment is regarded as violence against children and as a breach of fundamental human rights. It is considered inhuman and degrading as it violates children's physical integrity and demonstrates disrespect for human dignity and undermines the self-esteem of children. It is said to treat children as half-human beings thereby breaching the principle of equal protection before the law and non-discrimination.

There are regional and international conventions which protect these rights and the right to freedom from torture, inhuman and degrading punishment. Zimbabwe has ratified and acceded to some of them. It ratified the Convention on the Rights of the Child on 11 September 1990 and the African Charter on Human and Peoples' Rights (ACHPR) on 30 May 1986. It acceded to the International Covenant on Civil and Political Rights (ICCPR) on 13 May 1991 and to the African Charter on the Rights and Welfare of the Child on 19 January 1995.

Under the African Charter on Human and Peoples' Rights, under Article 3 -

“1. Every individual shall be equal before the law.

2. Every individual shall be entitled to equal protection of the law.”

Under Article 5 -

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

Under The International Covenant on Civil and Political Rights, under Article 7 -

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment.”

Under Article 4(2), even in times of public emergency, no derogation from Article 7 may be made. Under Article 26 -

“All persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Under The Convention on the Rights of the Child, the following provisions are relevant;

“Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

Under the African Charter on the Rights and Welfare of the Child the following are the relevant provisions;

“Article 1: Obligation of States Parties

1. Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.

2. Nothing in this Charter shall affect any provisions that are more conductive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State.

3. Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall, to the extent of such inconsistency, be discouraged.

Article 2: Definition of a Child

For the purposes of this Charter, a child means every human being below the age of 18 years.

Article 3: Non-Discrimination

Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child's or his/her parents' or legal guardians' race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

Article 16: Protection Against Child Abuse and Torture

1. States Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of the child.

2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child abuse and neglect.

Article 17: Administration of Juvenile Justice

1. Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child's sense of dignity and worth and which reinforces the child's respect for human rights and fundamental freedoms of others.

2. State Parties to the present Charter shall, in particular:

(a) Ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.”

By becoming a State Party to the above-mentioned conventions, Zimbabwe indicated its consent to be bound by these conventions. As such, it has international legal obligations to respect, protect and fulfil human rights for everyone within its jurisdiction. As a State Party, it is duty-bound to enact the necessary legislation to give domestic effect to them. It is evident from Part 3 of Chapter 4 of the new Constitution that Zimbabwe has endeavoured to fulfil its international legal obligation in protecting the rights of the children. Section 81 thereof elaborates on the rights of children. Of significance are sections 81(1)(a) and 81(1)(e) which make it clear that children are not half-human beings as they ought to be treated equally as adults and protected from all forms of abuse including violence. They read as follows:

“81(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right -

(a) To equal treatment before the law, including the right to be heard;

(b)….,.

(c)….,.

(d)….,.

(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse.”…,.

This elaboration of the children's rights, in conformity with the regional and international conventions that Zimbabwe has ratified, demonstrates that the new Constitution does not allow for the imposition of corporal punishment anymore.

Clearly, section 353(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] is now a law which is inconsistent or ultra vires the Constitution.

Section 10 of Schedule 6 of the new Constitution provides that “all existing laws continue to be in force but must be construed in conformity with this Constitution.'' Section 2(1) thereof goes on to state that “the Constitution is the supreme law of Zimbabwe and any law, practice custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”

What it means, under the circumstances, is that whilst the Criminal Procedure and Evidence Act [Chapter 9:07] remains in force its section 353(1) is now an invalid law. Section 2(2) of the new Constitution states that:-

“The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of Government at every level and must be fulfilled by them.”

What it means is that the courts have a duty to uphold the Constitution and to promote, respect and protect the rights and freedoms enshrined therein.

I thus declare section 353(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] to be constitutionally invalid….,.

In view of the fact that the accused was sentenced after the new Constitution had come into operation, the trial magistrate ought to have employed the provisions of the new Constitution in sentencing the accused. Since the new Constitution has outlawed corporal punishment, the trial magistrate should have considered other sentencing options in rape cases in respect of juvenile offenders. Article 17(3) of the African Charter on the Rights and Welfare of the Child states that;

“The essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, reintegration into his or her family and social rehabilitation.”

Article 40(1) of the Convention on the Rights of the Child also states that:

“State Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's re-integration and the child's assuming a constructive role in society.”

The above provisions show that what is important when punishing juveniles is the need to have the child rehabilitated back into society and his family. Fortunately, we have provisions in our Criminal Procedure and Evidence Act [Chapter 9:07] which are meant to promote the child's rehabilitation and re-integration into society.

In terms of section 351(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07] the court may refrain from passing sentence and refer the matter to the Children's Court if the juvenile is a child who is in need of care. Under this section, it is not competent for the court to pass sentence and to refer the child to the Children's Court at the same time. If the matter is referred to the Children's Court the juvenile offender should be dealt with in terms of the Children's Act [Chapter 5:06]. See also S v Mupariwa 2000 (1) ZLR 168 (HC).

The other alternative that the court has is to have the juvenile offender placed or institutionalized in a reformatory or in a training institute. This is in terms of section 351(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. This should be done after ascertaining with the Ministry of Social Welfare that accommodation is available. See also S v Mupariwa 2000 (1) ZLR 168 (HC). The challenge that we have, though, with this option, is that we have very few such institutions in Zimbabwe. With the economic hardships that we are facing even funding the few existing institutions is a big challenge. Again, if the court goes for this option it should not pass sentence.

The courts also have an option to impose wholly suspended prison terms. See S v M 2009 (1) 47 (H).

In some cases, effective imprisonment can be imposed.

Generally, juveniles should not be sent to prison but in cases where there are aggravating features such as multiple counts, transmission of sexually transmitted diseases to the victim, serious psychological and or physical trauma, a high degree of violence or force used during the rape and the use of a weapon during the rape, effective imprisonment might be called for especially if the juvenile offender is between 16 and 18 years. However, the periods of imprisonment should vary according to the age and the moral blameworthiness of the offender – see JOHN REID ROWLAND, Criminal Procedure in Zimbabwe…, See also S v Zaranyika and Ors 1995 (1) ZLR 270 (H).

For the court to arrive at an appropriate penalty it should consider and assess all relevant factors and recommendations by the Probation Officer.

Community service should not be imposed in rape cases as this is meant for petty or non-serious offences. See S v Zhou 1995 (1) ZLR 329 (H).

In casu, I did not have the benefit of reading the Probation Officer's report although the trial magistrate made reference to it in her reasons for sentence. The report was not attached to the record when it was submitted for review. I suppose it was an oversight on the part of the trial magistrate. However, in her reasons for sentence the trial magistrate indicated that the Probation Officer had recommended community service, but, as I have already stated above, community service should not be imposed in rape cases. Considering the way the rape was committed, the age of the accused (15 years), the age of the complainant (14 years) and that the accused is a first offender who is still in secondary school doing Form 3, a wholly suspended prison sentence in the region of 3-4 years would have met the justice of the case.

The accused has already been caned. There is nothing that can be done about it now. I cannot certify the sentence to be in accordance with real and substantial justice. I thus withhold my certificate.

INTRODUCTION

The Constitutional matter before the Constitutional Court (“the Court”) for determination is whether section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) is constitutionally invalid.

The section authorizes the imposition of a sentence of moderate corporal punishment on a male person under the age of eighteen years who is convicted of any offence….,.

The High Court made an order declaring section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] constitutionally invalid on the ground that it contravenes section 53 of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”). The section protects the fundamental right of every person not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The protected right is absolute and non-derogable.

The High Court held that judicial corporal punishment inflicted on a male juvenile in execution of a sentence for any offence of which he is convicted is an inhuman and degrading punishment within the meaning of section 53 of the Constitution….,.

THE ISSUES FOR DETERMINATION

The main issue for determination is whether or not section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] contravenes section 53 of the Constitution. There are two other questions that need to be determined for the Court to be able to answer the main question;

1. The first of the other questions relates to the meaning of the phrases “inhuman punishment” and “degrading punishment”.

2. The second question is whether judicial corporal punishment amounts to “inhuman” or “degrading” punishment or both.

The Constitutional Court Court holds that judicial corporal punishment is, by its nature, intent and effect an inhuman and degrading punishment within the meaning of section 53 of the Constitution. The Constitutional Court also holds, in respect of the main question, that section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] is inconsistent with section 53 of the Constitution. The order of the High Court concerning the constitutional invalidity of section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] is confirmed.

The detailed reasons for the decision now follow…,.

It was not for the court a quo, in HH718-14, to go outside its mandate and determine questions of constitutional validity of other types of moderate corporal punishments. Questions of constitutional validity of moderate corporal punishment inflicted on juveniles in schools and in homes by their parents, legal guardians or persons in loco parentis did not fall to be determined by the court in the automatic review proceedings. The court a quo was exercising review powers in respect of the constitutionality of legislation authorising the imposition of a sentence of moderate corporal punishment on a male juvenile convicted of an offence.

Submissions made on the correctness or otherwise of the decision of the court a quo on matters that were not for its determination are not relevant to the determination of the issues before the Constitutional Court. Nothing further shall be said about matters relating to the constitutionality of corporal punishment administered in schools and by parents, legal guardians or persons in loco parentis. It is trite that courts are generally loathe to determine issues not brought before them….,.

In S v A Juvenile 1989 (2) ZLR 61 (S) it was held that judicial corporal punishment amounted to inhuman and degrading punishment. GUBBAY JA…, said:

“I am, however, prepared to go further than the European Court of Human Rights and hold that judicial whipping, no matter the nature of the instrument used and the manner of execution, is a punishment inherently brutal and cruel; for its infliction is attended by acute physical pain. After all, that is precisely what it is designed to achieve. It may cause bleeding and scarring, and, at the very least, bruises and swellings. Irrespective of any precautionary conditions which may be imposed, it is a procedure subject to ready abuse in the hands of a sadistic or overzealous official appointed to administer it. It is within his power to determine the force of the beating.”

Caning invades the integrity of the human body. It is an inhuman punishment which blocks the way to understanding the pathology of crime. It has been abolished in many countries of the world as being incompatible with the contemporary concepts of humanity, decency and fundamental fairness.

According to Rule 17:3 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (“the Beijing Rules”), 'juveniles should not be subjected to corporal punishment'.”…,.

In S v Williams and Ors 1995 (3) SA 632 (CC)…, LANGA J…, had this to say:

“It was argued that sentencing alternatives for juveniles were limited and that this country did not have a sufficiently well-established physical and human resource base which was capable of supporting the imposition of alternative punishments. This is, of course, an argument based on pragmatism rather than principle. It is a problem which must be taken seriously nevertheless. It seems to me, however, to be another way of saying that our society has not yet established mechanisms to deal with juveniles who find themselves in conflict with the law; that the price to be paid for this state of unreadiness is to subject juveniles to punishment that is cruel, inhuman or degrading. The proposition is untenable. It is diametrically opposed to the values that fuel our progress towards being a more humane and caring society. It would be a negation of those values precisely where we should be laying a strong foundation for them - in the young; the future custodians of this fledgling democracy.”…,.

AVAILABILITY OF SENTENCING OPTIONS

It is necessary to examine available resources to determine whether there are indeed appropriate sentencing options which the State can employ in the punishment of male juvenile offenders that would comport with their human dignity and physical integrity whilst achieving the objectives and purposes of punishment sanctioned by the Constitution.

The choice and assessment of an appropriate sentence or disposition for a juvenile offender is a scientific process with specific objectives, undertaken in accordance with principles defined and prescribed by law in the interests of justice.

The Criminal Procedure and Evidence Act [Chapter 9:07] prescribes a range of sentences which may be imposed by the courts on convicted offenders to achieve the objectives of punishment in the criminal justice system. The sentencing options provided by the legislation may be applied to any person convicted of an offence - including a juvenile offender who would have been processed through the criminal justice system.

The Criminal Procedure and Evidence Act makes provision for a court dealing with a juvenile offender convicted of an offence to consider using Disposition Orders ordinarily used for adjudicated delinquents by the Children's Court for non-punitive purposes characteristic of the juvenile justice system. The provision is in addition to the sentencing options designed for all convicted offenders as punishment.

The Disposition Orders are, therefore, an integral part of the options for the disposition of juvenile offenders convicted of offences through the criminal justice system. Although the sentencing options and the Disposition Orders pursue some of the same objectives, the purpose of the Disposition Order is fundamentally to ensure the reformation and rehabilitation of the juvenile offender and not to punish him or her.

The objective of retribution, which may be the purpose for the choice of a sentencing option by a court, would not be the motivating factor in the decision by a court to dispose of the juvenile offender convicted of an offence through the disposition orders characteristic of the juvenile justice system.

The appropriateness of the choice by a court of a sentencing option or disposition method for a juvenile offender will depend on the extent to which the decision complies with the fundamental principles of international law, conventions and treaties to which Zimbabwe is a party that govern the administration of juvenile justice.

The criminal justice system and the juvenile justice system in Zimbabwe have embraced the fundamental principles of relevant international legal instruments and given effect to them. In that way, they bind judicial officers to comply with the provisions of the international legal instruments in the choice and application of the sentencing options and disposition orders when dealing with juvenile offenders.

The relevant provisions of international law, conventions and treaties brought a revolution to the administration of the juvenile justice system, both in terms of the shift of emphasis in respect of the objectives to be pursued in the punishment of juvenile offenders and the principles to be applied in the assessment of the appropriate sentence.

The most important instrument in this regard is the United Nations Convention on the Rights of the Child (1989) (CRC). The primary objectives the court is required by the United Nations Convention on the Rights of the Child (1989) (CRC) to bear in mind when choosing and assessing an appropriate sentence for a juvenile offender are the re-integration and rehabilitation of the juvenile offender with his or her family or community where he or she becomes a productive member.

PURPOSES OF PUNISHMENT

Recognising that all human rights derive from the inherent dignity of the human being, international human rights law requires that the essential aim of all penal systems must be to allow, encourage and facilitate the reformation and social rehabilitation of the offender. See Article 10.3 of the International Covenant on Civil and Political Rights (1976) (ICCPR).

The goal is critical to community safety.

Underpinning several of the United Nations Convention on the Rights of the Child (1989) provisions is the fundamental recognition of the juvenile offender's potential for rehabilitation. The United Nations Convention on the Rights of the Child (1989) (CRC) recognises the unacceptability of sentences that negate the potential of children to make change for the better over time.

Article 40.1 of the United Nations Convention on the Rights of the Child (1989) (CRC) provides that the objective of sentencing a juvenile offender is the promotion of his or her reintegration into society to assume a constructive rôle in his or her community. According to Article 40.4 of the United Nations Convention on the Rights of the Child (1989) (CRC), a child's wellbeing is not merely a primary consideration but has to be ensured.

Article 14.4 of the International Covenant on Civil and Political Rights (1976) (ICCPR) requires that in the case of juvenile offenders, the procedure adopted in the criminal justice system shall be such as will take account of their age and the desirability of promoting their rehabilitation. The International Covenant on Civil and Political Rights (1976) (ICCPR) requires States to respond to the offences children commit by focusing on positive measures and education rather than punishment.

MANFRED NOWARK “UN Covenant on Civil and Political Rights: Commentary” (1993)…,.

Rule 5.1 of the Beijing Rules asserts that the aim of a juvenile justice system shall be to emphasize and promote the well-being of the juvenile and ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both offender and the offence.

The Rule refers to two of the most important objectives of juvenile justice systems.

(1) The first objective is the promotion of the wellbeing of the juvenile. The objective relates to the criminal justice system and contributes to the avoidance of merely punitive and retributive sanctions.

(2) The second objective is the proportionality of the punishment which, in this particular context, means that “the response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances”, such as “social status, family situation, the harm caused by the offence or other factors affecting personal circumstances.”

The principle of proportionality must, however, also be safeguarded in ensuring the welfare of the juvenile offender so that the measures taken do not go beyond what is necessary, failing which the fundamental rights of the juvenile offender may be infringed. In other words, Rule 5 calls for no less and no more than a fair reaction in any given case of juvenile delinquency and crime.

The issues combined in the Rule may help to stimulate development in both regards. New and innovative types of reactions are as desirable as precautions against any undue widening of the net of formal social control over juveniles.

See “Human Rights - A Compilation of International Instruments” Vol 1 (First Part) Universal Instruments…,.: www.chchr.org/Documents/Publications/training.

The primary focus on the rehabilitation of the juvenile offender is also present in Article 17(3) of the African Charter on the Rights and Welfare of the Child (“the ACRWC”), according to which “the essential aim of treatment of every child during the trial, and also if found guilty of infringing the penal law, shall be his or her reformation, reintegration into his or her family and social rehabilitation.”

FUNDAMENTAL PRINCIPLES OF SENTENCING

The courts are required to choose and assess the appropriate sentence or disposition for a juvenile offender convicted of an offence in a manner that takes account of and applies the fundamental principles of international law contained in the United Nations Convention on the Rights of the Child (1989) (CRC) and other related conventions and treaties on the administration of juvenile justice. The relevant principles show that conviction, even for a very serious offence, does not extinguish a juvenile's claim to just treatment. Nor does it free a Government to ignore fundamental rights.

Three fundamental principles of the administration of juvenile justice having a direct bearing on the issues of sentencing and disposition of juvenile offenders in the criminal justice system deserve mentioning. There are, of course, many other principles of international law that relate to the processes and procedures of adjudication of cases involving juvenile offenders that are not pertinent to the purposes of highlighting the relevant law to be applied in the choice and assessment of an appropriate sentence for or disposition of a juvenile offender.

(1) The first fundamental principle is one contained in the provisions of Article 3.1 of the United Nations Convention on the Rights of the Child (1989) (CRC). It is to the effect that in all actions concerning children, the best interests of the child shall be a primary consideration.

Section 81(2) of the Constitution also provides that “a child's best interests are paramount in every matter concerning the child”. See also Article 4(1) of the African Charter on the Rights and Welfare of the Child (ACRWC).

The best interest of the child is the most important principle laid down by the United Nations Convention on the Rights of the Child (1989) (CRC) which conditions the consideration of issues relating to the choice and assessment of appropriate sentences or dispositions for juvenile offenders.

The fact that the best interest of the child “shall be a primary consideration” in every decision affecting the child is an indication that “the best interests of the child” will not always be the single overriding factor to be considered. There may be competing or conflicting human rights interests. The “child's best interests” must, however, be the subject of active consideration.

It is a matter that takes precedence over all others under consideration.

There must be demonstration of the fact that children's interests have been explored and taken into account, as a primary consideration, in the choice and assessment of appropriate sentences for or dispositions of juvenile offenders. See “Implementation Handbook for the Convention on the Rights of the Child” New York, UNICEF, 1998.

(2) The second principle to be considered by courts, in the choice of sentence options and assessment of appropriate punishment or disposition for juvenile offenders, is that children have special rights that reflect their unique vulnerabilities and needs and the concomitant responsibility of Government to protect them.

The effect of the principle is that a juvenile offender's culpability should not be measured by the same standard as that of an adult. The reason is that during the formative years of childhood and adolescence minors often lack the experience, perspective and judgment expected of adults. In the early and middle teen years, adolescents are more vulnerable, more impulsive and less self-disciplined than adults. See S v Lehnberg and Anor 1975 (4) SA 553 (A)…,.

Crimes committed by juveniles may be just as harmful to victims as those committed by older persons. When an individual of any age can be held responsible for his or her actions, failure to bring them to account would deny justice to the victim. Children deserve less punishment because they may have less capacity to control their conduct and think in long-range terms than adults. Moreover, juvenile crime, as such, is not exclusively the offender's fault.

Offences by juveniles also present a failure by family, school and the social system, which share responsibility for the development of the youth. Actions of a child are less likely to be evidence of irretrievable depravity.

In November 1959, the United Nations General Assembly adopted the “Declaration on the Rights of the Child” which recognised that “the child, by reason of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection before as well as after birth”. General Assembly Resolution 1386 (XIV) Nov. 20, 1959.

The International Covenant on Civil and Political Rights (1976) (ICCPR) specifically acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of their rehabilitation. Human Rights General Comment No.1 (1992)…,.

The principle, therefore, is that whilst children can commit the same acts as adults, they cannot, by virtue of their age and immaturity, be as blameworthy as adults. They do not have adults' developed abilities to think, to weigh consequences, to make sound decisions, to control their impulses, and to resist group pressures. See Roper v Simmons 125 S.Ct. 1183, 1197 (2005).

There is national, as well as international, consensus that it is fair to hold an eighteen year old as accountable as an adult. Most youths of eighteen years of age are well into the process of acquiring the full capacity of adulthood. So sentences for offenders who are children, a group society recognises as uniquely vulnerable and in need of protection in many realms of life, should acknowledge the profound differences between childhood and adulthood.

See Just Sentences for Youth: International Human Rights Law - Human Rights Watch: https://wwco.hrw.orgreports9.htm.

See also In re Stanford 537 US 968,970-71 (2002).

(3) The last principle to guide a court in the choice of sentence options and assessment of appropriate punishment for juvenile offenders is the principle of proportionality.

It is a precept of justice that punishment for a crime should be graduated and proportioned to the offender being punished. The Beijing Rules provide guidance which is relevant to the sentencing process. Rule 17.1 ensures that the reaction to a juvenile offender shall be in proportion not only to the circumstances and needs of the juvenile offender but also to the needs of society.

It is stated in Rule 17.1(a) of the Beijing Rules that “the reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the need of the juvenile as well as to the needs of the society.”

In other words, an appropriate sentence for a juvenile offender is one that does not serve the retributive purpose only by relating directly to the seriousness of the offence and the culpability of the offender in committing it, ignoring his or her personal circumstances and the interests of society.

Rule 16 of the Beijing Rules not only takes a child's developmental stage into consideration, it also emphasizes the importance of considering the background of the juvenile offender. It provides that the background and circumstances in which the juvenile was living or the conditions under which the offence was committed shall be properly investigated so as to facilitate judicious adjudicating of the case by the competent authority.

It is important that the court, in compliance with the principle of proportionality, takes into consideration the background of the juvenile offender and the circumstances in which the offence was committed when deciding on an appropriate sentence for or disposition of the juvenile offender.

TYPES OF PUNISHMENT

The kinds of punishment a court may impose on a juvenile offender convicted of a crime are set out in section 336 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section provides that a court may impose on a person convicted of an offence a sentence of imprisonment for a determinate period, a fine, community service, or recognisance with conditions.

The provisions of the United Nations Convention on the Rights of the Child (1989) (CRC) and other relevant international instruments contain the principles which a court is required to consider and enforce in the assessment of an appropriate sentence to be imposed on a juvenile offender convicted of a crime. The application of the principles ensures that the sentence or disposition order is appropriate in respect of its proportionality to the circumstances of the juvenile offender, the offence, and the interests of society.

IMPRISONMENT

Under the provisions of the United Nations Convention on the Rights of the Child (1989) (CRC) and domestic law, the imposition of a sentence of imprisonment for a determinate period on a juvenile offender convicted of a crime is permitted.

Rule 17.1(c) of the Beijing Rules recognises that a sentence of direct imprisonment may be imposed on a juvenile offender where he or she is adjudicated of a serious act involving violence against another person or persistence in committing other serious offences and unless there is no other appropriate response. The sentence must, however, honour the Constitutional provision to the effect that imprisonment of a child offender should be a measure of last resort and for the shortest appropriate period of time.

A sentence of direct imprisonment involves the deprivation of the juvenile offender of his or her liberty. Deprivation of a juvenile offender of his or her liberty, by means of a sentence of direct imprisonment, must be in accordance with the principles and procedures prescribed in the United Nations Convention on the Rights of the Child (1989) (CRC), the Beijing Rules, and the Constitution.

Under section 81(1)(i) of the Constitution, a juvenile offender has a fundamental right not to be sentenced to a direct term of imprisonment except as a measure of last resort and for the shortest appropriate period. The contents of the right protected by section 81(1)(i) of the Constitution reflect the contents of the provisions of Article 37(b) of the United Nations Convention on the Rights of the Child (CRC).

Article 37(b) of the United Nations Convention on the Rights of the Child (CRC) requires that the imprisonment imposed on a juvenile offender must not be arbitrary. It must be in conformity with the law. It must be used only as a measure of last resort and for the shortest appropriate period of time. A court has to consider other measures to deal with the juvenile offender before resorting to the use of direct imprisonment.

According to Rule 17.1(b) of the Beijing Rules, imprisonment of a juvenile offender “shall be imposed only after careful consideration and shall be limited to the possible minimum.”

Furthermore, the Beijing Rules promote the well-being of the juvenile offender as the guiding factor in the assessment of an appropriate sentence. A sentence should not reflect a determination that there is nothing that can be done to render the child a fit member of society. It should be an expression of faith that hard work and time can promote positive change.

In S v Z 1999 (1) SACR 427 (ECD), it was held that a sentence on a juvenile should be tailored to the personal circumstances of the offender. Three important principles were highlighted -

(i) Firstly, the younger the juvenile offender the more inappropriate a sentence of direct imprisonment.

(ii) Secondly, direct imprisonment is especially inappropriate for a juvenile offender who is a first offender.

(iii) Thirdly, short term imprisonment is seldom appropriate for a juvenile offender.

In S v Nkosi 2002 (1) SA (WD)…, the principles applicable in the consideration of an appropriate sentence for a juvenile offender, particularly with regard to whether imprisonment is the appropriate punishment, were summarised as follows –

(a) Where possible, a sentence of imprisonment should be avoided, especially in the case of a first offender.

(b) Imprisonment should be considered as a measure of last resort and where no other sentence could be considered appropriate.

(c) Where imprisonment is considered appropriate, it should be for the shortest appropriate time and also considering the nature and gravity of the offence and the needs of society, as well as the particular needs and interest of the juvenile offender.

(d) If possible, the judicial officer should structure the punishment in such a way as to promote the rehabilitation and re-integration of the juvenile concerned into his or her family or community.

Imprisonment is not an inherently cruel, inhuman or degrading punishment. An excessive punishment, however, becomes cruel, inhuman or degrading if its severity or length is greatly or grossly disproportionate to the circumstances of the offender, the nature and gravity of the crime, the culpability of the offender, and the interests of society.

The prohibition of cruel, inhuman or degrading punishment in Article 7 of the International Covenant on Civil and Political Rights (1976) (ICCPR) is complemented by the positive requirements of Article 10(1) which stipulates that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

For treatment or punishment to be humane, it must be appropriate to age and legal status. The vulnerability and immaturity of juvenile offenders render them more susceptible to cruel, inhuman or degrading punishments, which will, in turn, have a much more profound impact on the body and mind of a developing child than an adult.

See Just Sentences for Youth: International Human Rights Law - Human Rights Watch: https://wwco.hrw.orgreports9.htm.

The general principle of the administration of juvenile justice is, therefore, that direct imprisonment should not be imposed on a juvenile who is a first offender unless it is absolutely necessary and appropriate to do so, regard being had to the circumstances of the juvenile offender, the nature and gravity of the offence, the degree of culpability of the offender, and the interests of society.

FINES

Imposing a fine on a juvenile offender is generally not an appropriate sentence unless he or she is earning a salary. Few juvenile offenders earn a salary and fines would generally be paid by parents or legal guardians of the child. Consequently, it is not the juvenile offender being punished but his or her parents or legal guardian. Furthermore, where a fine is set with an alternative of imprisonment, the concern is that poverty could cause a child to be imprisoned.

See SKELTON A “The Major Sources of Children's Legal Rights” Children and the Law (1988) 146-158 http://www.ihr.org.za.

The court may permit the juvenile offender, as an alternative to paying the fine, to render such community service as may be specified by it in terms of sections 247(1)(b) and 350A(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

COMMUNITY SERVICE

In terms of section 350A of the Criminal Procedure and Evidence Act, a court which convicted a juvenile offender of any offence may, instead of sentencing him or her to imprisonment or a fine, make a community service order requiring him or her to render service for the benefit of the community or any section of the community for such number of hours as shall be specified in the order.

The court may sentence the juvenile offender to a fine or imprisonment as an alternative punishment if he or she fails to render the service specified in the order. Subject to such conditions and requirements as may be prescribed, an offender in respect of whom a community service order is in force is obliged to render the service specified in the order for the number of hours specified therein. Unless revoked, a community service order remains in force until the offender has rendered the number of hours of service specified. Where there has been failure to comply with any requirement of a community service order, the court may amend or extend the order in such a manner as the court thinks will best ensure that the offender renders the service specified in the order.

The importance of a sentence entailing community service cannot be over-emphasized, especially with regard to juvenile offenders. The advantages of a community service order have been neatly encapsulated in an article by FRANCIS HOWES in 1984 SACC 131, titled “Community Service as Community Orientated Punishment,” cited with approval in the case of S v Sikunyana 1994 (1) SACR 206 (Tk)…,. In the article, HOWES states as follows:

“A system of community service has, inter alia, the following advantages:

(i) Community service is a viable alternative, especially to short-term imprisonment. It can alleviate not only the overcrowding in prisons in this category but can eliminate the detrimental effects that imprisonment can have on certain offenders.

(ii) It is generally accepted that offenders can best be treated in the community and that isolation of the offender in an artificial social environment seldom contributes to his rehabilitation. Community service keeps the offender in the community and combines the punitive and rehabilitative aspects of a sentence.

(iii) Instead of becoming a financial burden on the State, the offender remains a productive member of society. Family dis-integration and dependency, which are often a by-product of imprisonment, are eliminated.

(iv) By involving the community in the treatment of the offender, it becomes more aware of the crime problem which might create a more positive attitude towards treatment of offenders. Furthermore, community service enables the offender to become better integrated into society and affords him a positive learning.”

It is beyond doubt that community service orders are key in the rehabilitation of a juvenile offender. A community service order strikes a balance between the punitive and reformative aspects of the sentencing objectives in criminal law. It metes out punishment in a manner that facilitates the integration of the juvenile into society whilst the community benefits directly from the work performed by the offender. So community service orders may be structured in such a way that they meet the punitive element of sentencing while allowing for the education and rehabilitation of the offender. See S v Williams and Ors 1995 (3) SA 632 (CC)…,.

PICKERING J, in S v Sikunyana 1994 (1) SACR 206 (Tk) correctly held that, prior to the making of a decision to order an accused (a juvenile offender in this case) to render community service, the court should be informed of the following:

“(a) Whether community service is an appropriate sentence in the particular circumstances of the case;

(b) Whether the accused is a suitable candidate for community service;

(c)…,.;

(d) The identification of a suitable place for the rendering of such service;

(e) The identification of a suitable person under whose supervision and control the service should be rendered;

(f) The determination of the number of hours and the days on which the service should be rendered;

(g) The date on which the rendering of the service should commence; and

(h) The duration of the period of such service.”

POSTPONEMENT AND SUSPENSION OF SENTENCE

Section 358(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] refers to postponement of passing sentence. Section 358(2)(a) of the Criminal Procedure and Evidence Act makes provision for the court to postpone the passing of a sentence for a period not exceeding five years upon conditions as are available for the suspension of sentence.

Section 358(2)(d) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that the court may, in its discretion, discharge a juvenile offender with a caution or reprimand. Such discharge shall have the effect of an acquittal - except that the conviction shall be recorded as a previous conviction. This is because, in terms of section 358(2) of the Criminal Procedure and Evidence Act, the discharge follows a conviction for an offence other than an offence specified in the Eighth Schedule to the Criminal Procedure and Evidence Act.

The offences listed in the Eighth Schedule are murder, other than the murder by a woman of her newly-born child, any conspiracy or incitement to commit murder, any offence in respect of which any enactment imposes a minimum sentence, and any conspiracy, incitement or attempt to commit any such offence.

Section 358(4) of the Criminal Procedure and Evidence Act provides that if the period of conditional postponement has expired and the court is, at the end of the period, satisfied that the conditional postponement has expired and the conditions have been kept, the accused shall be discharged without passing sentence. The discharge has the effect of an acquittal, except that the conviction is recorded as a previous conviction.

In terms of section 358(3) of the Criminal Procedure and Evidence Act, the passing of sentence may be postponed or the operation of the whole or part of a sentence may be suspended for a period not exceeding five years on conditions relating to any of the following matters:

“(a) Good conduct;

(b) Compensation for damage or pecuniary loss caused by the offence…,.;

(c) The rendering of some specified benefit or service to any person injured or aggrieved by the offence:

Provided that no such condition shall be specified unless the person injured or aggrieved by the offence has consented thereto;

(d) The rendering of service for the benefit of the community or a section thereof;

(e) Submission to instruction or treatment;

(f) Submission to the supervision or control of a probation officer appointed in terms of the Children's Act [Chapter 5:06]…, or submission to the supervision and control of any other suitable person;

(g) Compulsory attendance or residence at some specified centre for a specified purpose;

(h) Any other matter which the court considers it necessary or desirable to specify having regard to the interests of the offender or of any other person or of the public generally.”

The type of punishment referred to in section 358 of the Criminal Procedure and Evidence Act is particularly appropriate in cases of juvenile offenders. The court has the option of adding conditions for the postponement of the sentence. The juvenile offender may, for instance, be sent on a rehabilitation programme, such as a skills programme, or be placed under the supervision of a probation officer. In the light of the wide discretion of the court in section 358(3)(h) of the Criminal Procedure and Evidence Act, the court can use this form of sentence to advantage.

To determine an appropriate sentence, the court has to be innovative and preventative. Rehabilitation should be a priority.

JUVENILE JUSTICE SYSTEM OPTIONS

When a court considers the question of sentencing a juvenile offender, section 351 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides special alternatives to punishment. Instead of punishment, the court may invoke the procedure of disposition orders specifically applicable in the Children's Court. Procedures relating to the issuance of disposition orders are specifically and exclusively applicable to children alleged as, accused of, or recognised as, having infringed the penal law.

Article 40.4 of the United Nations Convention on the Rights of the Child (CRC) requires States Parties to use a variety of measures to address the situation of children in conflict with the law. The measures include “a variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education; and vocational training programmes.”

The alternatives to punishment are to ensure that children are dealt with in a manner appropriate to their well-being and proportionate to both their circumstances and the offence.

The founding model of the juvenile justice system, characterised by the Children's Court, is not based on offence-related considerations. Interactions with the juvenile offender, as well as the choice of the manner of disposition, are supposed to be based solely on the goal of rehabilitation of the offender. In theory, if not in practice, the seriousness of the offence is not supposed to be a relevant consideration, much less a determinate one, in choosing a Juvenile Court disposition.

See also Just Sentences for Youth: International Human Rights Law - Human Rights Watch: https://wwco.hrw.orgreports9.htm…,.

Section 351(2) of the Criminal Procedure and Evidence Act provides:

“351 Manner of dealing with convicted juveniles

(2) Any court before which a person under the age of nineteen years has been convicted of any offence may, instead of imposing a punishment of a fine or imprisonment for that offence, subject to subsection (1) of section three hundred and thirty-seven -

(a) Order that he shall be taken before a children's court and dealt with in terms of the Children's Act [Chapter 5:06]; or

(b) After ascertaining from the Minister responsible for social welfare that accommodation is available, order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic of South Africa for the period specified in subsection (1) of section three hundred and fifty-two.”

If a juvenile offender is ordered to be taken before a children's court or the court disposes of him or her in terms of section 351(2)(b) of the Criminal Procedure and Evidence Act, the conviction shall not, for the purposes of any enactment, be regarded as a conviction. If, however, such person is convicted on a second or subsequent occasion before he or she attains the age of eighteen years it shall be lawful to prove that earlier conviction as a conviction.

The period of “retention” or “supervision” referred to in section 352 of the Criminal Procedure and Evidence Act is the period during which a person shall remain in a training institute, reform school or certified institution. A juvenile offender in respect of whom a disposition order has been made in terms of section 351(2) of the Criminal Procedure and Evidence Act placing him or her at a training institute or reform school is required to remain there for a period of three years from the date of the order or until he or she is released on licence in terms of the Children's Act or until he or she has been discharged from the effect of the order in terms of the Children's Act, whichever is the soonest.

After the expiration of the period of retention of the juvenile in a training institute or reform school, whether by effluxion of time or release on licence, the juvenile is obliged to remain under the supervision of the management of the training institute or reform school for a period not exceeding three years from the time of the expiry of his or her period of retention or until he or she is discharged from the supervision in terms of the Children's Act or until he or she attains the age of twenty years, whichever is the soonest.

Under section 352(4) of the Criminal Procedure and Evidence Act, where a court is satisfied, on the application of the Minister to whom the administration of the Children's Act is assigned or the parent or legal guardian of the person concerned, that a further period in a training institute, reform school or certified institution would advance the education or welfare of a person who has been placed in such an institute, school or institution and whose period of retention has expired or is about to expire, the court may order the juvenile to return to or remain in the institute, school or institution concerned for a further period or periods as it may fix, and may at any time revoke such order.

In terms of section 3(2) of the Children's Act, every Magistrates Court is a Children's Court for any part of its jurisdiction.

Section 19(1)(b) of the Children's Act provides that a Children's Court before which a child has been brought in terms of an order of a court which has convicted him or her of an offence, in order to be dealt with in terms of the Children's Act, shall inquire into and determine the appropriate order to be made in terms of section 20(1). After holding the inquiry in respect of a child who has been ordered by a court which convicted him or her of an offence to be dealt with in terms of the Children's Act, the children's court may make any of the following orders -

“(i) Upon being satisfied that a certified institution will accept the child…, order that the child…, shall be placed in that certified institution, which shall be named in the order; or

(ii) Order that the child…, shall be placed in, returned to, or remain for foster care in the custody of any suitable person named in the order; or

(iii) Order that the child…, shall be placed in, returned to, or remain in the custody of his parent or guardian; or

(iv) Order that the child…, shall reside in such place as the court may determine; or

(v) Order that the child…, shall render service for the benefit of the community or a section thereof; or

(vi) Upon being satisfied that a training institute will accept the child…, order that the child…, be placed in that training institute, which shall be named in the order;

for the period specified in subsection (1) of section twenty-five.”

A children's court which makes an order in terms of subparagraphs (ii), (iii) or (iv) of subsection (1) of section 20 of the Children's Act may also order, at the same or any later time, that the child shall be placed under the supervision of a probation officer for such period, not exceeding three years, as the court may determine.

A Children's Court which makes an order in terms of subparagraphs (ii), (iii) or (iv) of subsection (1) of section 20 of the Children's Act may order that the child, if he or she is of or above the age of twelve years, shall attend an attendance centre specified in the order on such days and during such hours as may be stated in the order. No child may be ordered to attend such centre for longer than three hours per week or forty-eight hours in all.

Section 25 of the Children's Act provides that a child in respect of whom an order has been made in terms of subsection(1) of section 20 shall reside in the place determined by the court or shall remain in the certified institution or training institute or in the custody in which he or she was placed or ordered to return to or remain in any other certified institution, training institute or custody to which he or she may be transferred in terms of the Children's Act or shall render service for the benefit of the community, as the case may be -

(a) Until a period of three years from the date of the order has lapsed; or

(b) Until he or she is released on licence in terms of the Children's Act; or

(c) Until the order has been discharged or he or she has been discharged from the effect of the order in terms of the Children's Act;

whichever is the soonest.

Upon the expiration of the period of retention of a juvenile in a certified institution or training institute, whether by effluxion of time or release on licence, that juvenile shall remain under the supervision of the management of that certified institution or training institute or under the supervision of the management of any other certified institution or training institute to which he may be transferred in terms of the Children's Act -

(a) For a period not exceeding three years from the date of the expiry of the period of retention; or

(b) Until he or she is discharged from that supervision in terms of the Children's Act;

whichever is the soonest.

A Children's Court may, if it thinks it necessary, order that -

(a) Any former pupil of a certified institution or training institute whose period of retention has expired shall return to and remain in that institution or institute; or

(b) Any juvenile offender in a certified institution or training institute whose period of retention is about to expire shall remain in that institution or institute; or

(c) A child who was ordered to render service for the benefit of the community and whose period of service is about to expire, shall continue to render such service to the community;

for such further period or periods as the court may fix and may, at any time, revoke such order, provided that the period or the aggregate of periods shall not exceed two years at any time. Any such order shall lapse upon the juvenile or former pupil attaining the age of eighteen years.

The juvenile justice system should ensure that juvenile offenders are held accountable for their wrongdoing and that, in doing so, they are treated fairly. A review of the Children's Act reveals that it typically declares dual objectives. It holds youth accountable and provides rehabilitative services to reduce their risk of re-offending. Both of these goals are necessary to satisfy public expectations that corrective action will be taken. What this means is that a juvenile offender can be made to take responsibility for his or her wrongdoing and rehabilitated without being punished.

If designed and implemented in a developmentally-informed way, procedures for holding juvenile offenders accountable for their actions, whilst undergoing programmes for reformation, re-integration and rehabilitation into society, can promote positive legal socialisation, reinforce a prosocial identity, and facilitate compliance with the law.

The courts have to play a new rôle in the promotion and development of a new culture in juvenile sentencing founded on the recognition of human rights enshrined in the Constitution. Sentencing policies have to be influenced by both the Constitution and international law.

The abolition of judicial corporal punishment should give new impetus to the establishment of more training institutions in the country. Formal rehabilitation programmes, such as vocational training for juvenile offenders, need to be intensified and expanded to contribute towards the reintegration of juvenile offenders into the community.

There is need for the training of more probation officers.

Rule 16.1 of the Beijing Rules requires that before a court renders a final disposition prior to sentencing a juvenile offender, the background and circumstances in which the juvenile is living or the conditions under which the offence has been committed shall be properly investigated so as to facilitate judicious adjudication of the case by the court. Social reports are an indispensable aid in legal proceedings involving juveniles. The court should be informed of relevant facts about the juvenile offender, such as social and family background, school career, and educational experience. The rule requires that adequate social services should be available to deliver social reports of an informed nature.

To the extent that facilities and physical resources may not always be adequate, the new dynamic shall be regarded as a timely challenge to the Government to ensure the provision and execution of an effective juvenile justice system. See S v Williams and Ors 1995 (3) SA 632 (CC)…,.

CONCLUSION

The elimination of judicial corporal punishment from the penal system is an immediate and unqualified obligation on the State. Judicial corporal punishment constitutes a serious violation of the inherent dignity of a male juvenile offender subjected to its administration. It is an anti-thesis of compliance with the values recognised in section 53 of the Constitution.

To emphasise human dignity is to engage with our conception of what it is to be human. It is also a point of closure: it is definitive and universal. It is not a value that tolerates either derogation or dissent. We recognise this in all sorts of areas, including Constitutional Law.

See MICHAEL D A FREEMAN “Upholding the Dignity and Best Interests of Children”; “International Law and the Corporal Punishment of Children”; The Law and Contemporary Problems Vol 73 (Spring 2010) 211…, or scholarship.law.duke.edu.

DISPOSITION

The order of the court a quo, declaring section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] to be invalid for the reason that it is in contravention of section 53 of the Constitution, is confirmed.

The declaration of invalidity of section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall take effect from 03 April 2019 which is the date of delivery of this judgment. As of that date, section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] is struck down.

With effect from 03 April 2019 no male juvenile convicted of any offence shall be sentenced to receive moderate corporal punishment. The prohibition shall apply to sentences to receive moderate corporal punishment that have already been imposed and are awaiting execution.

Although he is a youthful first offender who pleaded guilty, one should not lose sight of the seriousness and prevalence of the offence. Even first offenders are sent to jail for this type of offence.

For purposes of sentencing, the counts for both unlawful entry and those for theft were paired alongside into eight counts….,.

The accused was thus sentenced as follows:

1. Count 1 and 2 he received 24 months imprisonment with none suspended. (The value of the stolen property amounted to US$600=).

2. Count 3 and 4, a sentence of 12 months wholly suspended on usual conditions. (The value of goods involved amounted to $42= of which $27= was recovered).

3. Count 5 and 6, a sentence of 12 months wholly suspended on usual conditions. (Goods amounted to $70=).

4. Count 7 and 8, a sentence of 12 months imprisonment. (Goods amounted to $91= in value of which $40= was recovered).

5. Count 9 and 10, a sentence of 12 months imprisonment. (Goods amounted to $54=10).

6. Count 11 and 12, a sentence of 24 months of which 6 months were suspended. (Amount of goods involved was $681=).

7. Count 13 and 14, a sentence of 12 months imprisonment. (Goods involved $52=).

8. Count 15 and 16, he received 36 months imprisonment of which 6 months was suspended. (Value of goods was $779=).

The sum total of years which he is expected to serve effectively amount to 9 years.

The court was indeed faced with an unrelenting offender whom the probation officer had recommended appear in Criminal Court due to his propensity to commit crimes. While the convictions are proper, the sentence induces a profound sense of shock for one so young.

In S v Mavasa HH13-10 it was stated that it is wrong to sentence juvenile offenders as if one is dealing with an adult offender. Courts were admonished to be slow to expose a convicted juvenile to the same rigours of punishment that it would impose on an adult.

Although acknowledging his youth in sentencing him, blameworthiness and protection of the community were among the factors taken into account in sentencing the accused.

The fact that two other records for which he had been convicted and sentenced had been in court on the same day as his sentence put him in less favour with the trial magistrate in sentencing him. He also took into account the fact that the accused had no capacity to pay restitution. The fact that he worked as a tout or rank marshal were taken by the magistrate to be indicative of his emancipation and hence the justification for sentencing him as an adult.

The sentence appears to be clearly dictated by the need to protect the public from a perceived delinquent and incorrigible young criminal offender. Yet the risks of incarcerating such a young offender over a lengthy period of time should not be so easily sacrificed at the altar of expediency as our courts have always emphasised. See S v TM HH65-03; S v CM HB67-03. Each sentence must also suit the offence and the offender. See S v Nemukuru HH102- 09.

Our Constitution adopts the principle that juveniles should be detained for the shortest possible time and only as a last resort - an obligation that is found in international law as exemplified by Article 37(b) of the United Nations Convention on the Rights of the Child to which we are a party. Furthermore, in terms of Article 40(1) the treatment of a child should take into account the child's age and seek to promote re-integration in society.

Section 81(h)(i) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 provides that a person under 18 has the right “not to be detained except as a measure of last resort.”

Also, if detained, he or she has the right to be detained for the shortest appropriate period….,.

Giving a 17 year old an effective 9 year sentence runs contrary to the letter and spirit of this Constitutional imperative when it is considered that he had not committed any violent offences such as robbery, murder, or rape. From the point of view of children's rights, custodial punishment is regarded as criminally damaging for children due to the criminogenic influences of prison. The Constitution also places emphasis on the best interests of the child being paramount at all times in matters involving children. See section 81(2).

Clearly, the magistrate did not fully take into account theses Constitutional provisions which emphasize the duty to respect and protect children's rights in dealing with children under the age of 18.

Some effort was however made, bearing in mind that the referral of the matter to be treated in Criminal Court was on the strength of a probation officer's observations. Where a juvenile commits an offence, the procedural safeguard of roping in the assistance of those with the requisite expertise in dealing with juveniles in order for the court to make an informed decision is one that should be taken seriously by both the probation officer and the magistrate.

The report details a life foot-printed by loss at an early age. The accused's mother died when he was two years old, in 1999. While indeed a probation officer's report was sought and availed, an unexplained detail in the report is the custody of the accused in the hands of his uncle, one Mr Cosmos Mtetwa, said to be currently 27 years old, which would mean that as the custodian he was 12 years old, and a child himself, when he was left with the responsibility of taking care of the accused. Even the other mentioned custodian in the report who is said to have stayed with him when he started his habit of running away from home, is only two years older than the said Cosmos Mtetwa. These facts suggest an upbringing at an early age in what appears to be essentially child-headed households. If, as the report suggests, poor family ties and lack of proper supervision are what pre-disposed the accused to anti-social behaviour it was certainly misplaced on the part of the magistrate to impose a heavy imprisonment sentence as a correctional measure.

This is clearly a case where the proportionality of the sentence should have been guided by the circumstances that fuelled the behaviour.

In S v Mahove it was stated that it is an act of dishonesty to tell an accused person that the court has considered their personal mitigatory features when in fact no such features have been considered.

With a nine year sentence, a substantial part of his youthful life stands to be spent in prison.

Sentencing him as an adult offender lacks justification when the factors surrounding his home environment are taken into account if we are to go by what is contained in the probation officer's report. There was no evidence that he had ever been referred to a juvenile institution or of a history of prior intervention appropriate to juveniles. Rather than rushing to impose adult punishment, in the form of a lengthy prison sentence that may merely accentuate his path to becoming a hardened criminal, it seems to me, at 17, he could have been given a chance by being referred to an appropriate juvenile institution for rehabilitation. It is the responsibility of the State and its officials who come into contact with cases of need to reduce chances of recidivism by thoroughly examining the range of possible interventions. It is also the responsibility of all officials involved, both judicial and non-judicial, to be thorough in their assessments so as to give each accused child a real chance at being justly treated.

The Probation Officer's report had indicated that he be tried as an adult and therefore impliedly the provisions of section 351 and 352 of the Criminal Procedure and Evidence Act [Chapter:9:07] which allows such juveniles to appear before a Children's Court and also to be placed in a training institute or reform school were not regarded as options. Regarding the rehabilitation of the juvenile, the probation officer's report made the following observations:

“This is one of the few cases in Chipinge that has left residents with fear and shock and one would wonder what has befallen our children. Felix committed a series of offences that we greatly condemn and corrective measure should be taken swiftly…,.. It is against this background that we call for a combined effort so as to rehabilitate the juvenile…,.”…,.

Articulation and clarity of the meaning of this 'combined effort' in reforming the juvenile, as suggested in the probation officer's report, is a call that the court ought to have paid heed to. This is moreso in light of the fact that the benefit of treating him as a child had been excluded. Reference to a 'combined effort' would appear to suggest that what the probation officer had in mind was one that would bring in a variety of players - including the community. A wider multi-disciplinary approach to crafting a solution was what was favoured. Yet this angle was not pursued.

Although the primary duty of the courts is indeed to apply the law, failure to pay heed to wider dialogue is a cautionary example of the often made criticism that law tends to exclude other disciplines as irrelevant, preferring to see issues from the narrow prism of State law in particular. It is important that courts presented with an opportunity to understand and craft solutions on critical issues affecting juveniles from a broader perspective, seize the opportunity to do so. It is a crucial way of ensuring that courts are not out of touch with reality in the solutions they impose. It also ensures that the sentences that they pass are at least from a holistic and informed perspective.

A prison sentence of nine years is not the 'combined effort' the probation officer had in mind in rehabilitating the juvenile. It is a sentence that effectively removes the accused from society by locking him up and throwing away the keys for a very long time.

I confirm the convictions in all 16 counts. However, on sentencing, I am of the view that this is indeed one of those cases where multiple counts are involved that are closely connected in nature to justify treating them together for sentencing as a way of ensuring that the cumulative effect is not too harsh. Although the general practice is to sentence each count separately with the option of some sentences running concurrently, where there is justification, the counts can be treated together. See S v Nyathi HB60-03.

In this case, doing so would be in line with the spirit of section 81(1)(i) of the Constitution, aimed at minimising custodial punishment for children.

In view of the circumstances of the case and the counts involved, the sentence for all counts is altered as follows:

3 years imprisonment for all counts of which 1 year is suspended for five years on condition the accused does not during that time commit any offence involving unlawful entry for which he is sentenced to a term of imprisonment without the option of a fine.

The altered sentence should be brought to the attention of the accused.

Reasons for sentence

In assessing an appropriate sentence, the court takes into consideration all the mitigating features of the case as set out by the accused's defence counsel. The accused is a 19 year old youthful offender. He lost both parents when he was still young. He therefore lacked the requisite parental love and care.

The accused is a first offender.

The accused has, however, thrust himself at the deep end. He finds himself guilty of murder with constructive intent. The murder was perpetrated during the course of a robbery. For her part, the deceased lost her life for a cellphone and a paltry $2=. Those were the only valuables the accused took from the deceased.

The court frowns upon the unruly behaviour that is reflected in this matter. The accused has shown no remorse up to the end. He has chosen to defend himself on the hope that he would escape punishment. The accused caused the unnecessary and tragic loss of human life. The victim was pregnant at the time, and, therefore, two lives were lost. Courts will impose stiff sentences in cases where people choose to disregard the law and live by means of violence. This court must, however, balance the interests of the accused and those of the administration of justice. A lengthy prison sentence is unavoidable in spite of the Constitutional provision under section 81 Constitution of Zimbabwe Amendment No.20 (2013) as argued by defence counsel.

It was argued by counsel for the accused that the court must have regard to the provisions of section 81(1)(i), which provides as follows:

“Every child has, that is to say every boy and girl under the age of eighteen years, has the right –

(i) Not to be detained except as a measure of last resort, and if detained –

(ii) To be detained for the shortest appropriate period;

(iii) To be kept separately from detained persons over the age of eighteen years…,.”

Whilst in every other case the courts always endeavour to keep youthful offenders out of prison; in cases such as murder, the courts are enjoined to impose such custodial sentences as will fit the offence and the offender. It cannot be argued that a short custodial sentence would be appropriate for a murder committed in aggravating circumstances. The General Laws Amendment Act (No.3) of 2016 now provides a guideline on the range of sentences that should be imposed where a murder is committed in aggravating circumstances. Part XX of the General Laws Amendment Act provides, under section 2 and section 3, that a court shall regard as an aggravating circumstance the following:

(a) The murder was committed in a robbery.

(b) The murder victim was pregnant.

In my view, the murder was clearly committed in aggravating circumstances. However, the court must take into consideration the accused's youthfulness. The court has also made the finding that this was a murder committed with constructive intent. These two factors tend to substantially reduce the accused's moral blameworthiness. The court must not condemn the accused to a sentence that provides no opportunity for rehabilitation.

The courts must however protect the sanctity of human life. In the circumstance, the accused is sentenced as follows;

“Accused is sentenced to 20 years imprisonment.”

In our assessment of sentence, we have considered the following factors in mitigation;

(a) At the time this offence was committed, the accused was aged 23 years and a youthful offender.

(b) He has spent 1 year in prison awaiting the conclusion of this case.

(c) We are also alive to the fact that the accused has pleaded guilty and registered remorse for his conduct.

(d) The negligent killing of the deceased is likely to haunt the accused for life and the fact that the accused has spilt his own blood is significant.

In aggravation we have taken note of the following;

(a) The manner of chastising this little girl was excessive; it went beyond the bounds of moderate chastisement.

(b) As correctly pointed out by the State counsel, the manner in which it was carried out borders on recklessness.

(c) The little girl looked up to the accused as her father and protector who unfortunately turned out to be her killer.

As a court, we pride ourselves as the upper guardian of all children in this country and this case represents extreme child abuse by any standard and the conduct exhibited by the accused, in persistently hitting the child with several switches of different sizes, summarises the seriousness of this offence.

The accused is sentenced to 8 years imprisonment 3 years of which will be suspended for 5 years on condition the accused does not within that period commit any offence involving violence upon the person of another and for which upon conviction shall be sentenced to a term of imprisonment without the option of a fine.

Effective sentence 5 years imprisonment.

On 1 November 2017, after hearing arguments from counsel, we dismissed this appeal for lack of merit. The reasons for the dismissal were given ex tempore.

On 28 November 2017, counsel for the appellant wrote to the Registrar requesting for the written reasons for dismissing the appeal. These are they.

The 17-year-old appellant was convicted on his own plea of guilty by the Senior Regional Magistrate, Chiredzi for contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to rape. The appellant sexually molested a 10-year-old complainant.

Both the appellant and the complainant reside in the same village in Uswaushava, Triangle, Masvingo and are neighbours.

The agreed facts are that on 12 May 2017 the appellant approached the complainant in the grazing area where the 10-year-old complainant was herding cattle with her 3-year-old cousin. The appellant held the complainant by the arm and pulled her to a nearby field. At the field, the appellant forced the complainant to the ground and removed her pants. In turn, the appellant removed his trousers and pants. The appellant proceeded to tie a cloth around the complainant's mouth in order to prevent her from crying or raising any alarm. Thereafter, he proceeded to ravish her in the presence of the 3-year old child. The appellant then left the scene. Later that day the complainant made a report to her grandmother who had returned from the fields. The appellant was apprehended by local villagers on the same day but managed to escape as he was being taken to the police station. However, police subsequently arrested him the same day.

As already said, the appellant was duly convicted as per the procedure provided for in section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo, in the absence of a probation officer's report, proceeded to adduce evidence from the appellant's mother in a pre-sentence inquiry. The appellant's mother pointed out that the appellant was in Form 2 although he was supposed to be in Form 4 because he had repeated the grades. She pointed out that the appellant's criminal conduct was rather out of character as she was surprised by the appellant's behaviour.

The medical report produced during the trial showed that the hymen of the 10-year-old complainant was torn. It is clear that penile penetration, as agreed to by the appellant, was effected.

The appellant was sentenced to 6 years imprisonment of which 2 years imprisonment were suspended for 5 years on the usual conditions of good behaviour thus leaving an effective term of 4 years imprisonment.

Aggrieved by this sentence the appellant lodged this appeal against sentence.

The grounds of appeal are couched as follows;

“GROUNDS OF APPEAL

1. The court a quo erred in imposing a custodial sentence and ruling out a consideration of corporal punishment coupled with a suspended sentence.

2. The court a quo erred in sentencing a juvenile without a Probation Officer's report and professional opinion outlining the personal circumstances of the individual child offender.

3. The reasons of the court a quo induced (sic) a sense of shock in sentencing the accused person aged seventeen (17) years as an adult and not a child offender deserving adequate protection by the courts.

WHEREFORE appellant prays that the sentence be set aside and replaced with sentence of corporal punishment coupled with a wholly suspended sentence (sic).”

The appellant, at the time of hearing the appeal, was on bail pending appeal, although he had had a short stint in prison.

In his oral submissions, counsel for the appellant went to town about the alleged omissions by the court a quo. Counsel for the appellant submitted the court a quo failed to take into account the well enshrined principle or concept of the best interests of the child (the accused). Reference was made, extensively, to the provisions in our Constitution and various international conventions dealing with the rights of children in conflict with the criminal law.

We were not persuaded that the court a quo erred in proceeding to finalise this matter without the Probation Officer's report.

The learned Senior Regional Magistrate should, in fact, be commended for being innovative by calling the appellant's mother and adduce relevant evidence on the personal circumstances of the appellant. As a result, this matter was expeditiously dealt with rather than waiting for a long time pending the availability of the Probation Officer's report. Judicial notice should be taken of the fact that there are real constraints faced by the courts in obtaining such reports leading to inordinate delays in finalizing criminal cases. Where appropriate, this can be solved by being resourceful and proactive as was done by the learned Senior Regional Magistrate. The bottom line is whether the trial court has carried out a meaningful pre-sentence inquiry to equip itself with sufficient information to properly sentence the accused without committing an injustice. The mere absence of a Probation Officer's report, per ser, does not constitute a misdirection or miscarriage of justice. In casu, the personal circumstances of the appellant were well canvassed and we find no misdirection on the part of the trial court.

It is not correct, as the respondent (the State) had wrongly conceded, that the appellant was treated as an adult. Maybe both counsel were put on the wrong scent by what the learned Senior Regional Magistrate said in the reasons for sentence. The relevant part reads as follows:

“I do not believe corporal punishment will reform you. I believe a short prison term will teach you a good lesson to other boys out there now that you are close to 18 years. I do not believe treating you like a juvenile will save (sic) any good lesson. You should be treated like an adult (sic).”

The mumbled pronouncements by the learned Senior Regional Magistrate are unfortunate.

This should not, however, detract from the fact that the appellant was not treated as an adult. A number of observations inform this finding. The appellant's mother was called to assist the court in the pre-sentence inquiry as there was no Probation Officer's report. What is even more pertinent is that the sentence imposed by the trial court is way below the sentences normally imposed in rape matters where adult men who sexually abuse minor children like the 10-year-old complainant. The sentences are well above 10 years imprisonment. A proper assessment of all the factors clearly show that the appellant was not treated as an adult.

We were not persuaded by the argument that this matter raises any constitutional issues. Indeed, section 81 of our Constitution deals with the rights of children and emphasizes, in section 81(2), that a child's best interests are paramount in every matter concerning the child. The same goes for various international conventions dealing with the rights of children.

What escaped the mind of counsel for the appellant is that in casu the sentencing court was grappling with the competing interests of the appellant (being the abuser) and the complainant (the abused 10-year-old child). It is not the appellant's rights which are paramount. The rights of the victim are equally if not more important - especially a 10-year-old girl.

The simple question which arises in this matter is; what is the appropriate sentence for a 17 year old who sexually abused a 10 year old girl in a rather brutal and violent manner?

In the case of S v Zaranyika & Ors 1995 (1) ZLR 158 (H) BARTLET J, in a very detailed review judgment, grappled with this question. In fact, this case gives very useful guidelines in dealing with accused persons of the appellant's age convicted of raping minor children like the complainant.

There are a number of aggravating factors in this case which elevate the appellant's moral blameworthiness. The offence of rape itself is inherently a very serious offence. The age difference between the appellant and the complainant is not neglible. The offence was committed in a cruel and brutal fashion. The 10-year-old complainant was not only dragged to the fields but had to be gagged by having her mouth tied with a cloth to ensure she would not raise alarm while she was being raped. The appellant's conduct cannot be described as some boyish prank.

It is not a rule cast in stone that all accused persons below the age of 18 years should be sentenced to corporal punishment for committing an offence like rape regardless of the circumstances of each case. There is nothing to suggest that the trial court improperly exercised its discretion in this matter.

It is for these reasons that we found that the appeal in respect of sentence lacked merit. Accordingly, we dismissed the appeal.

We accept that the accused, at 24 years of age, may be regarded as a youthful offender. We are, however, cognisant of the fact that he is married with two children….,.

What may be mitigatory is that the accused had taken alcohol hence his judgment may have been adversely affected….,.

The offence of murder is inherently a very serious offence. It is even worse when a son takes the life of his own father - moreso over such a trivial dispute. Where is our moral fabric?…,. Needless to say, human blood is sacred and that the sanctity of human life cannot be over-emphasized….,.

In the result, the accused is sentenced to 22 years imprisonment.

Counsel also highlighted the accused persons' ages. Bernard is now thirty three [33] years old, and Rabson twenty-six [26] years old. It was argued that, at twenty-five [25] and twenty-one [21], respectively, the accused were still relatively young at the time of the offence….,.

We have taken both the aggravating factors and the mitigating circumstances into account. The assault on Edward and the deceased was one single act of criminality. Alcohol must have reduced or diminished self-control. This might have been compounded by the accused persons' youthfulness. Nonetheless, life was needlessly lost….,.

Taking all the various factors into account, each accused is hereby sentenced to twenty-five [25] years imprisonment.

Counsel also submitted that it should be taken into account that the accused, at 23 at the time of the commission of the crime, was still fairly young. He had consumed large quantities of alcohol on the fateful day and should therefore be taken to have been drunk. As such, and coupled with youthfulness, his sense of judgment could be said to have been become impaired….,.

We believe this was an alcohol-induced lack of self-control that might have been compounded by youthfulness. For example, it was irrational that cousins would fight over an incident that was more than a decade old. Nonetheless, life was needlessly lost. Justice demands that an appropriate punishment that suits both the offence and the offender be imposed….,.

The accused is hereby sentenced to 25 [twenty-five] years imprisonment.

It is a settled position that youthful offenders should not be sent to prison unless that is the only suitable form of punishment in the circumstances.

SENTENCE - the accused now stands convicted of murder with actual intent as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This was after a protracted trial.

What exercised our mind is the question of what is an appropriate sentence for a 22-year old or 23 year old accused person who brutally murdered a 23-year-old innocent man.

It is indeed very difficult to find anything mitigatory in the accused's favour especially as regards factors surrounding the commission of this offence. It is in the accused's favour that he is a first offender. The accused in that regard deserves to be treated with some measure of lenience.

We have taken into account the accused's personal circumstances although they are not out of the ordinary. The accused is married with one child. His family survives on his manual labour as he is unemployed.

What may be an important mitigatory factor is that the accused suffered from pre-trial incarceration period of one year and two (2) months. This should ordinarily reduce the accused's sentence with either an equivalent or reasonable period.

Indeed, the accused can be described as a youthful offender, at 22 years of age, when he committed this offence. He is now 23 years old. This is so despite the fact that he is married with a child. Youthfulness may, to some extent, denote immaturity although in casu we should not place undue weight on this factor.

We shall take note of the fact that the accused had consumed alcohol. However, there is nothing in the evidence before us that the accused's judgment was meaningfullly impaired by the alcohol he had consumed.

The offence of murder is inherently a very serious offence. The sanctity of human life cannot be over emphasised. The court has the duty to protect human life and ensure that every person understands that human blood is sacred.

This court is worried by the prevalence of murder cases in Masvingo Province. What is disheartening is that such murder cases are being committed by fairly young persons. The mind boggles as to why such young persons readily resort to violence at the slightest provocation or at no provocation at all. We do not even understand why on this day you were moving around with a knife in your pocket. This was a day for merry-making. The knife itself is very unique. People should be discouraged to move around with such dangerous weapons.

There is absolutely no reason as to why a young man aged 23 years lost his life in such a brutal manner on that day. All the now deceased tried to do was to prevent violence, but, instead, the same violence was visited upon him leading to the loss of his precious life.

It is clear that you were determined to use the knife on that day. You could not be restrained in any manner. You simply was impervious to reason.

There is nothing to suggest that you are remorseful at all. Even at the eleventh hour you remained unmoved by the brutal attack you perpetrated on the now deceased. Dr Dzowa gave a chilling and graphic account of how the knife was embedded in the now deceased's head. You committed this matter in a very callous and brutal manner. We are shocked that you first decided to give the now deceased an appetiser as it were by first cutting him in the face twice with that knife. Thereafter, you forcefully stabbed him in the head leaving the knife lodged in his skull to be hilt. This kind of brutality is chilling and shocking. Your moral blameworthiness is very high.

The justice of this case demands that we sentence you to a very lengthy prison term of 25 years.

Sentence: 25 years imprisonment.

The accused was sentenced to two years imprisonment, with a paltry six months imprisonment being suspended on the usual condition of good behaviour.

Such a sentence was way over the top.

Given the circumstances, it served only to break the accused. He was a mere eighteen year old rural village man. By all accounts, it was his filial instinct, and a sense of duty to stop any further harm to those close to him, and, possibly, to preserve family honour, that he struck the wildly violent brother-in-law, the complainant, who had been abusive towards his wife, the accused's sister; and was now thumbing his father-in-law, the accused's father, in the presence of some villagers - including the village headman….,.

The accused should have simply been charged with assault as defined in section 89[1] of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. If the State had insisted on proceeding with the charge of attempted murder, then, after canvassing the essential elements, and if in spite of what is said above, it was still bent on convicting, the court could have passed a verdict of guilty of assault. In terms of the Fourth Schedule to the Criminal Law (Codification and Reform) Act [Chapter 9:23], as read with section 275, assault is a permissible verdict to attempted murder….,.

The prescribed penalty for assault, in terms of section 89[1] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a fine up to, or exceeding level fourteen [$5,000=], or imprisonment for a period not exceeding ten years, or both.

The range is quite wide. The top end is quite steep. But, unquestionably, this is designed to cater for all manner of assaults, from the very minor ones, to those very serious assaults as would cause grievous bodily harm.

In no way should the court a quo, if it felt it safe to convict, have considered a custodial sentence….,.

The accused was sentenced on 12 January 2018. At the time of this judgment he had already served more than a month in jail. There is no benefit to be served by remitting the record back to the court a quo for a trial de novo or for the correction of the anomalies noted above because the possible worst outcome for the accused is a conviction on assault, for which, because of the overwhelming mitigating circumstances, including the fact that he was only eighteen years old at the time of the offence; was married; and was a first offender, no custodial sentence would be justified.

The accused is entitled to his immediate release….,.

The sentence imposed is hereby set aside. The Registrar is directed to immediately execute the warrant of liberation to enable the accused to be released forthwith.

Some of the mitigatory features listed in S v Nare 1983 [2] ZLR 135, and which are present in this case, include:

(a)…,.

(b)…,.

(c) Where the accused is a youth [at 21 years of age, the appellant was scarcely an adult].