MAKONESE
J: On 19 October 2015 the appellant argued his appeal
against sentence only in the above matter.
We dismissed the appeal. We have
now been asked to furnish our reasons for judgment. The following are our reasons.
The
appellant appeared before a magistrate sitting at Bulawayo facing one count of
indecent assault as defined in section 67 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23]. The
appellant was convicted on his own plea of guilty and was sentenced to 18
months imprisonment of which 6 months was suspended on the usual
conditions. The effective custodial
sentence was 12 months.
The
appellant filed a Notice of Appeal against sentence only. He argued that there was a gross
irregularity, misdirection or abuse of judicial function resulting in a “disturbingly
inappropriate sentence being imposed. It
was contended in particular that the trial magistrate ought to have imposed a
non-custodial sentence in the form of community service.
The
brief facts of the matter are that on 27 January 2014 and at around 2200 hours,
at house number V50 Mzilikazi, Bulawayo the appellant approached the
complainant in the kitchen and fondled her breasts several times. The accused then placed his hand under the
complainant's dress and fondled her private parts. The complainant was 13 years old at the time
and was attending Form one. The
complainant was not amused by the accused's conduct and reported the matter to
her school teacher leading to the arrest of the accused. It is to be noted that accused is a family
friend and neighbour to the complainant.
The trial court found that the mitigating
features of the case were far outweighed by the aggravating features and
considered that a custodial sentence was appropriate. The trial court's reasons for sentence are
stated as follows:
“In arriving at
an appropriate sentence this court has to put into account what the accused
person said in mitigation, the aggravatory features and the concerns of the
community at large.
The accused
person pleaded guilty to the charge and showed genuine remorse for what he had
done. He is also a first offender who is
a family man and is employed. If
incarcerated he will lose his job and his family will suffer.
However the
offence the accused perpetrated is made more serious in that he did not only
fondle the complainant's breasts but her private parts as well. What is disturbing is that the complainant is
only 13 years and in Form one and grew in the eyes of the accused.
Our young girls
need to be protected from the depravations slations of the accused and his ilk
(sic). Society view in day light a
married man who sexually abuses young children and the courts should side with
the society by giving custodial terms wherever appropriate. Accused person's moral blameworthiness is on
high ground.”(sic)
It
is a well-established principle of our law that sentencing is the discretion of
the trial court and that it is not for the appeal court to interfere with the sentencing
court merely on the grounds that it could have passed a sentence somewhat
different from that imposed by the court a
quo. See, S v Nhumwa SC 40/88.
It
is my view that that the trial magistrate gave well-thought out and detailed
reasons in arriving at a sentence it deemed appropriate. The sentence imposed was proper in the
circumstances considering that the twenty eight year old appellant was regarded
as family and regarded complainant's father as an uncle. The complainant trusted the appellant who
instead violated her instead of being protective towards her. The appellant is a married man who out of
lust and nothing else sought to abuse a child of thirteen years by exposing her
to sexual acts at a young age. A
custodial sentence was appropriate to reflect the seriousness of this
offence. Appellant's moral
blameworthiness is on the high scale as he was well known to the complainant
who practically grew up in his eyes. Appellant was supposed to be protective
towards her and was expected not to turn sexual predator.
I
am aware that the court in the case of S
v Shariwa HB 37/03 held that a
failure to consider community service in cases where the court has imposed a
sentence of 24 months or less amounts to a misdirection. I hold the view that where a trial court
considers a matter to be serious and warranting a custodial sentence and
pronounces his reasons for sentence justifying the imposition of a custodial
sentence, the approach, on appeal should be to raise the following factors:
1. Is
the offence serious?
2. Is
the sentence imposed manifestly excessive so as to induce a sense of shock?
3. Did
the trial court misdirect itself in its approach to sentence?
4. Is
the sentence in line with cases of a similar nature?
In
my view, in this case there was no misdirection on the part of the trial court
in its approach to sentence. See, Sibanda v The State HC 54/15 and Zulu
v The State HC 52/03.
The
court in the Zulu case (supra), stated obiter that had the matter been properly prosecuted and it was
proved that in addition to fondling the breasts, the appellant had lifted the
complainant's skirt and touched her legs, it would not have hesitated in
imposing a custodial sentence. Although
these sentiments were made obiter by
the court, in the present case, the appellant fondled the complainant's breasts
several times before fondling her private parts. This is a serious violation of the complaint
and amounts to child sexual abuse. The appellant
was a married man and 15 years older than the complainant. This court as the upper guardian of minors,
must be seen as affording real protection to the vulnerable group of the young
girl child by imposing custodial sentences on those who choose to violate the
rights of young persons.
In
the circumstances I can see no basis for interfering with the sentence imposed
by the court a quo. For these reasons the appeal against sentence
was dismissed.
Mcijo, Dube and Partners,
appellant's legal practitioner
National Prosecuting Authority,
respondent; s legal practitioners
Bere J……………………………………………..agrees
