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.
