MAFUSIRE J: This was an appeal from the magistrate's court against the
refusal of bail pending appeal.
At trial, the appellant was unrepresented. He was convicted on his own
plea of guilty for having sexual intercourse with a young person in
contravention of s 70[1][a] of the Criminal Law [Codification and Reform] Act, Cap
9:23 [“the Code”]. He was sentenced to 36 months
imprisonment. 6 months imprisonment was suspended on the usual condition of
good behaviour. That left him with an effective 30 months imprisonment.
Shocked by the sentence, the appellant engaged counsel and appealed.
Pending the appeal, he applied for bail. It was refused. He again appealed. I
heard the bail appeal on 21 March 2017. Following several concessions by the
State, I allowed the appeal and granted bail in the sum of $100, with some
reporting conditions. I gave my reasons ex tempore but said I would
reduce them to writing upon any written request received within a reasonable
time. The appellant has written to request the reasons. These are they.
At the time of the offence the appellant was 21 years old. The
complainant was a girl aged 15 years. They were lovers. Sexual intercourse
happened on several occasions. The complainant fell pregnant and subsequently
gave birth. The appellant was already married with two children. After the
complainant had given birth, the appellant found alternative lodgings for her
and her child. He was looking after them. The arrangement was acceptable to the
parents. Thus, the appellant was the sole breadwinner for the three children, a
wife and the complainant. All these were common cause.
The magistrate justified the sentence, and his refusal of bail, largely
on the review judgment in Banda v State, Sate v Chakamoga HH 47-16. He
considered that there were virtually no prospects of success in the appeal
against sentence. He said that the sentence that he had imposed was
commensurate with the directive given in that judgment. He said:
“In the circumstances, and in light of the very comprehensive and
educative precedent from the superior courts, it is difficult to conclude the
appeal against sentence bears any prospects of success. On the contrary, it is
my considered view that the appeal bears little or no prospects of success.”
In the bail application before him, the magistrate noted that there was
no risk of the appellant absconding his appeal, or of him committing an offence
of a similar nature while out on bail. The magistrate's decision in refusing
bail was predicated solely on what he perceived to be an unmeritorious appeal
against sentence.
Before me, it seemed the predominant and decisive factor in the bail
appeal was whether or not the main appeal against sentence had any prospects of
success. The Banda/Chakamoga judgment assumed overriding importance in
arguments by both parties. Mr Mhungu, for the appellant, argued, among
other things, that the magistrate had misdirected himself by assuming that that
judgment had prescribed a mandatory minimum sentence for all offences of this
nature, and that all he had to do was merely to pluck out from that judgment
the presumptive mandatory sentence and plant it in his own judgment, without
regard to the individual circumstances of the case.
On the other hand, Mr Mathose, for the respondent, submitted that
sentencing trends in a crime of this nature were in a state of transition. He
argued that there had been a marked paradigm shift by this court in recent
years on its treatment of sentencing for this sort of crime, with fervent calls
for much stiffer penalties than before.
Mr Mhungu argued that an appropriate sentence, given the
overwhelming mitigating features of the case, would be a reasonable term of
imprisonment with a portion suspended on condition of good behaviour, and the
rest commuted for community service.
On the other hand, Mr Mathose, whilst conceding much of the
mitigating factors, except the one about the appellant having allegedly married
the complainant, which he said was actually aggravating, given the unlawfulness
of child marriages[1],
nonetheless argued that the appeal against sentence had no prospects of success
because the magistrate had not gone out of the range of sentences usually meted
out for this offence. Mr Mathose also conceded that the Banda/Chakamoga
judgment did not prescribe any mandatory minimum sentence, or take away a
court's discretion to impose a sentence it considers appropriate in any given
situation.
In my view, the Banda/Chakamoga judgment was a sharp rebuke by
this court against the tendency to impose lenient sentences in an offence of
this nature. It also spoke strongly against the tendency to regard as
mitigating, the fact that the offender goes on to marry his victim. It was said
the fact of marrying an under-age girl following the commission of the offence is
actually aggravating.
The judgment also went on to question other stereotypes manifest in
certain sentencing trends, particularly the issue of consent. It was the
unequivocal view of the learned judge that it is a misnomer to regard that an
impressionable and immature girl-child can be said to “consent” to sexual
intercourse. Rather, she is just a victim of manipulation by much older male
sexual predators.
Consensual intercourse with a girl between 12 and 16 years is an offence
under s 70[1] of the Code[2].
The old name for this crime, before codification of the criminal law, was
statutory rape. Absent consent, or if the girl is 12 years or under, then it
becomes rape, a relatively far more serious offence.
Banda/Chakamoga, were two unrelated cases that were dealt
with under one review judgment given the similarities of the facts. The accused
persons were male persons more than 30 years of age each. The complainants were
two girls, 15 years old each. Sexual intercourse was consensual. Both girls
fell pregnant. The one accused went on to take the complainant as his wife. The
other went on to give the complainant a total of $3. Both accused were
convicted by the same magistrate. He sentenced them to 24 months imprisonment.
12 months imprisonment was suspended on condition of good behaviour. The
effective sentence was 12 months.
The learned judge considered that the sentences were too lenient. The
aggravating features included the risk of the young girls dying during
delivery, given their underdeveloped body parts; being saddled with children of
their own when they themselves were still children; the interference with their
normal development; being made pregnant by men who were already married and
therefore, hardly starved of sex; one of the girls being forced into a putative
marriage; the male offenders being more than twice the girls' ages, and so on.
After considering the Constitution, some regional and international
conventions on children's rights, to which Zimbabwe is a signatory, the judge
implored that judicial officers should pass exemplary sentences to reflect the
gravity of the offence and to give legal fulfilment of the intent of the
Constitution and those conventions.
On what should have been the appropriate sentences in those cases, the
learned judge, CHAREWA J, had this to say:
“When the aggravating features considered by the magistrate are
considered together with additional issues I am urging judicial officers to
take into account when considering reasons for sentencing, and following on
from S v Onismo Girandi [supra][3],
I would add that an effective sentence of not less than three years should be
imposed, on an incremental basis for those accused who are twice the victims'
ages, are married with children of their own, and impregnate the young persons
or infect them with sexually transmitted diseases other than HIV.”
Sentencing is a complex exercise. It is a balancing act. From time to
time jurists have espoused brilliant philosophies around it. Guidelines have
been developed. The legislature sometimes weighs in with mandatory minimum
sentences for certain offences. There are certain basics. The penalty must fit
the crime. The interests of the offender must be balanced against those of
justice. It is not right that someone who has wronged society should go scot
free, or escape with a trivial sentence. But at the same time he should not be
punished beyond what his misdeed deserves. Punishment should be less
retributive and more rehabilitative.
There are more such philosophies or principles. But at the end of the
day, after everything else has been considered and said, the judicial officer
comes down to the hard facts before him; to the individual circumstances of the
people before him – the offender and the victim. He cannot be dogmatic about
anything. There is no room for an approach that is purely mathematical. A
slavish adherence to precedence is manifestly injudicious.
In S v Nare[4]
GUBBAY J, as he then was, said the rationale for the offence of having sexual
intercourse with a young person is the need to protect immature females from
voluntarily engaging in sexual intercourse. They lack the capacity to
appreciate the implications involved, and the possibility that they may suffer
psychic or physical injury. But in my view, the rational is much broader.
Having sexual intercourse with a young person falls under a section of the Code
that is titled “Sexual crimes and crimes against morality”
[my emphasis]. Thus, it is against morality for a man to have extra marital
intercourse with a girl 16 years of age and below. It is therefore for the
preservation of society's sense of morality that the offence exists.
Because of the obligations imposed by the social contract that exists
between the society at large and the judiciary, as represented by the judicial
officer; and because of his training and the oath of office that he took, a
judicial officer, by the nature of the sentence that he passes, and the reasons
he gives, among other things, gives expression to, and pronounces the values of
society at a point in time.
Morality is an abstract concept. It may vary from place to place, group
to group and even from time to time. In my view, a paedophile community or
satanic cult could not care less if under-age girls were ravaged daily. But for
an average normal Zimbabwean community I consider that what is at the core of
the notion of morality is the separation of right from wrong; good from bad; virtuous
from vile; blameless from sinful; chaste from unchaste; upright from wicked,
and so on. At the end of the day, it all comes down to a value judgment. As I
said in Munorwei v Muza & Ors[5],
a judicial officer called upon to give a value judgment is guided by his own
notion of justice and fair play. He is guided by the norms and sense of values
generally prevailing in a society. He makes an objective assessment: see S v
Chidodo & Anor[6].
Among other things, he weighs the extent to which society has been outraged by
the offence, given its sense of morality as understood by him, and pronounces a
sentence that he thinks sufficiently atones for the offender's misdeeds, but is
at the same time careful to avoid destroying the offender, unless the offence
is one that calls for capital punishment.
Under s 70[1][a] of the Code, the sentence that is prescribed for this
offence is a fine not exceeding level 12, i.e. $2 000, or imprisonment for a
period not exceeding 10 years, or both. This is quite stiff. But the Banda/Chakamoga
judgment should not be understood as having prescribed any mandatory sentence.
It is an exhortation to judicial officers to pass meaningful, realistic and
proper sentences. The judgment was against a background of some disturbingly
lenient sentences passed by some magistrates' courts. Concerns had been raised
in several other review judgments. For example, in S v Virima[7],
MUSHORE J, decrying the prevalence of inappropriately lenient sentences, said
in part:
“I am perturbed at the manner [in] which the magistrate tiptoed around
the accused so as not to inconvenience him. … [T]aking into account the fact
that it appears, rightly or wrongly, that the accused subsequently married the
14 year old complainant, the justices of the matter would have been served if
the accused were to be made an example of. …. The option of the accused
performing community service should never have entered into the mind of the
magistrate for public policy reasons.”
In S v Chigogo[8]
TSANGA J said:
“The continued lenient attitude towards grown up men who abuse young
girls and then get off lightly with their offence on the basis of “intended
marriage” of the complainant is not in consonance with the spirit of the
constitution in discouraging marriage of girls below the age of 18.”
In S v Matare[9]
a 36 year old married man had sexual intercourse with a 16 year old girl
on several occasions. He escaped with a paltry 18 months imprisonment all of
which was suspended for good behaviour and community service. The magistrate
inexplicably went out of his way to find mitigating circumstances, which
practically were non-existent, and unbelievably ignored glaring aggravating
features, including evidence of complete moral decay of the girl at the hands
of the accused. In part I wrote:
“There was no evidence of any remorse [by the accused]. On the contrary,
he denied any wrongdoing right up to conviction. In fact, he claimed, quite
incredibly, that the young girl had seduced him. He claimed she would sneak
into his room and fondle him. That, coming from a man of 36 years, and coupled
with the other factors highlighted below, should have outraged the trial
court.”
There are many more of such cases.
In the present case, I granted bail because I considered that the
magistrate had misdirected himself in assuming or implying that his discretion
to consider an appropriate sentence had been taken away. I considered that an
appeal court, properly weighing the aggravating features and balancing them
against the mitigating ones, would most probably reduce the sentence
substantially. The kind of sentence meted out in the court a quo served
no useful purpose to anyone. The complainant and her child would themselves
suffer more. The appellant's own wife and children would also suffer. Although
collateral damage of this sort is sometimes unavoidable, in this case it could
be minimised. The appeal court was likely to impose a prison sentence but was
likely to suspend it for good behaviour and for community service. Therefore,
the appeal against sentence was arguable.
Those were my reasons.
2 June 2017
Mhungu & Associates, legal practitioners for
the appellant
National Prosecuting Authority, legal practitioners for
the respondent
[1] See Mudzuri
& Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. &
Ors CCZ 12-15
[2]As read
with s 64[1]
[3] HB 55-12
[4] 1983 [2]
ZLR 135
[5] HH
804-15
[6] 1988 [1]
ZLR 299 [H]
[7] HH
251-16
[8] HH
943-15
