This
was an appeal against sentence only. We heard argument and reserved
judgment. This now is our judgment.
In
the court a quo the appellant was not represented. He was convicted
on his own plea of guilty for having sexual intercourse with a young
person in contravention of section 70[1][a] of the Criminal Law
[Codification and Reform] Act [Chapter 9:23 [“the Code”]. He was
sentenced to thirty-six [36] months imprisonment of which six [6]
months imprisonment was suspended on the usual condition of good
behaviour. The effective sentence was thirty [30] months
imprisonment.
Shocked
by the sentence, the appellant engaged counsel and appealed.
Virtually all the material facts were common cause. The appeal solely
turns on the law as it applies to the facts.
At
the time of the offence, the appellant was twenty-one [21] years old.
The complainant was a girl aged fifteen [15] years. They were lovers.
Sexual intercourse was consensual. It happened on several occasions.
The complainant fell pregnant and subsequently gave birth. But 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. It was
said that arrangement was acceptable to the complainant's parents.
Thus, the people dependant on the appellant were his wife and two
children, then the complainant and her child.
The
lower court justified the sentence largely on the review judgment of
this court in Banda v State; Sate v Chakamoga HH47-16.
It said the sentence was commensurate with the directive given in
that judgment. In part, the judgment of the lower court read as
follows:
“As
stated in S v Banda; S v Chakamoga HH47-16, grown up men who have sex
with such minors have been escaping with very lenient non-custodial
sentences as if the courts were encouraging such conduct. The
superior courts have emphasised on the need for lengthy jail terms as
a way of curbing further exploitation of young girls. I have
therefore settled for 36 months imprisonment term with 6 months
suspended on good behaviour as prescribed in the above-cited case.”
In
this appeal, the predominant factor was whether or not a
non-custodial sentence was appropriate, given both the mitigating
factors and the aggravating circumstances, all of which were common
cause. The Banda v State; Sate v Chakamoga
HH47-16
judgment
assumed overriding importance in arguments by both parties.
Counsel
for the appellant, argued, among other things, that the magistrate
had misdirected himself by assuming that the Banda v State; Sate v
Chakamoga
HH47-16
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, counsel 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.
Counsel
for the appellant 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 converted to community service.
On
the other hand, counsel for the respondent, 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 in this
country, especially in the advent of the judgment of the
Constitutional Court in Mudzuri & Anor v Minister of Justice,
Legal & Parliamentary Affairs N.O. & Ors
CC12-15,
nonetheless argued that the appeal against sentence was
un-meritorious because the magistrate had not gone out of the range
of sentences usually meted out for this offence.
Counsel
for the respondent also conceded that the Banda v State; Sate v
Chakamoga
HH47-16
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. However, he argued, that judgment merely serves
to emphasize the need for effective deterrent sentences. Courts must
be seen to be doing their part in giving legal effect to the
aspirations of the Constitutional provisions and the several
international conventions on children's rights.
In
our view, the Banda
v State; Sate v Chakamoga
HH47-16
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 in that
judgment, and others, on the point, 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
(CHAREWA
J, with TSANGA J agreeing)
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.
We
note, in passing, that consensual intercourse with a girl between
twelve [12] years and sixteen [16] years is an offence under section
70[1] of the Criminal Law (Codification and Reform) Act (as read with
section 64[1]). 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, comparatively a far more
serious offence.
Banda
v State; Sate v Chakamoga
HH47-16
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 thirty [30] years of age each. The complainants
were two girls, fifteen [15] years old each. Sexual intercourse had
been consensual. Both girls had fallen pregnant. The one accused had
gone on to take the complainant as his wife. The other had gone on to
give the complainant a total of three dollars [$3=]. Both accused
persons were convicted by the same magistrate. He sentenced them to
twenty-four [24] months imprisonment. Of those, twelve [12] months
imprisonment was suspended on condition of good behaviour. The
effective sentence was twelve [12] months imprisonment.
The
learned judge considered that the sentences were too lenient. She
noted that the aggravating features included the risk of the young
girls dying during delivery, given their under-developed 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 to the intent of the Constitution and those conventions.
On
what should have been the appropriate sentences in those cases, the
learned judge 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 HB55-12 [supra], 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.”
In
our view, sentencing is undoubtedly a complex exercise. It is a
balancing act between the interests of the accused and those of
society. From time to time jurists have espoused brilliant
philosophies around sentencing. Guidelines have been developed. The
legislature sometimes weighs in with mandatory minimum sentences for
certain offences.
However,
there are certain fundamentals in all these philosophies or
principles. One of them is that 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
1983
[2] ZLR 135
GUBBAY J…, 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 our view, the rationale is much broader.
Having
sexual intercourse with a young person falls under a section of the
Criminal Law (Codification and Reform) Act (the Code) that is titled
“Sexual
crimes and crimes against morality”…,.
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. The pre-existing reference in the Code to
“extra-marital intercourse” has probably become tautologous in
the advent of the new Constitution and the Mudzuri
& Anor v Minister of Justice, Legal & Parliamentary Affairs
N.O. & Ors
CC12-15
judgment…,.
It is not possible for a man to contract a valid marriage with a girl
16 years of age or under.
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. A paedophile community, for
example, or a satanic cult, could not care less if under-age girls
were ravaged daily. But, for an average normal Zimbabwean community,
at this point in time, we 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 was
said in Munorwei v Muza & Ors
HH804-15,
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
1988
[1] ZLR 299 [H].
The
judicial officer, among other things, 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
section 70[1][a] of the Criminal Law (Codification and Reform) Act
[the Code], the sentence that is prescribed for this offence is a
fine not exceeding level 12, i.e. two thousand dollars [$2,000=], or
imprisonment for a period not exceeding ten [10] years, or both. This
is quite stiff. But the Banda
v State; Sate v Chakamoga
HH47-16
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
Banda
v State; Sate v Chakamoga
HH47-16
judgment
was written 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
HH251-16,
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 HH943-15 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
HH410-16,
a thirty-six [36] year old married man had sexual intercourse with a
16 year old girl on several occasions. He escaped with a paltry
eighteen [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 as follows:
“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 other such cases.
In
the present case, we consider that the magistrate misdirected himself
by assuming or implying that his discretion to consider an
appropriate sentence had been taken away. In every case the
sentencing court must always consider the aggravating features and
balance them against the mitigating circumstances, and impose what it
considers to be an appropriate sentence.
Despite
the fervent calls for stiffer penalties in the form of long jail
terms, which we support, we consider that in the circumstances of
this case, the kind of sentence meted out in the court a quo serves
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.
Sending
the appellant to jail under the circumstances of this case is a
multiple-edged sword. There was no evidence placed before us of any
social or family support for the complainant and her child. On the
contrary, the appellant accepted his error. He accepted his
responsibility. He took it upon himself to look after both the child
born out of the illicit affair and the complainant as well.
It
would make no sense, just for the sake of precedence and deterrence,
to send the appellant to jail, and, in the process, destroy him;
destroy the complainant; destroy her child; destroy his own family;
unnecessarily crowd out the fiscal space, and add onto the
over-crowdedness in the country's prisons.
It
might be that the appellant arranged some marital union of some sort
with the complainant and/or her parents so as to have unfettered
access to the complainant - possibly for his sexual gratification.
Banda
v State; Sate v Chakamoga
HH47-16,
and the other cases referred to before, have considered that kind of
arrangement as an aggravating circumstance. Mudzuri
& Anor v Minister of Justice, Legal & Parliamentary Affairs
N.O. & Ors
CC12-15
has
said it is contrary to the Constitution. But, to send the appellant
to jail for these reasons is akin to throwing away the bathwater with
the baby.
In
our view, the provisions of the Constitution against child marriages,
and the judgment in Mudzuri
& Anor v Minister of Justice, Legal & Parliamentary Affairs
N.O. & Ors
CC12-15
are
both aspirational. The law aspires that every community in Zimbabwe
should reach the ideal situation envisaged therein; and, judicial
officers must, at all times, be conscious of the need to reflect
these aspirations by the nature of the sentences that they may
pronounce in any given case.
However,
the dilemma that the judicial officer often faces is the absence of
any useful information on, for example, the social support systems in
place for the girl-child who is a victim of sexual abuse, and, as in
this case, her child.
Furthermore,
there is often no information regarding the level of social
development and awareness of the community the offender and/or the
complainant come from in order to, inter alia, assess the level of
social guilt or moral blameworthiness of the offender. In S v Nare
1983
[2] ZLR 135…, one
of the factors considered as mitigatory in a crime of this nature is
where the accused is a simple and unsophisticated person from a
community in which this type of offence is not well known, or, we
would add, condoned.
Considering
that the complainant's parents did not seem repulsed by the
appellant staying with their daughter, as his second wife, despite
the illegality of such a union under the law, we can only give the
appellant the benefit of the doubt that the community was not that
sophisticated. During submissions, we even enquired that if everyone
seemed satisfied with the arrangement, how then did the offence come
to light?
All
in all, we consider that, in this case, the mitigatory features
outweigh the aggravating circumstances. Some of the mitigatory
features listed in S v Nare
1983
[2] ZLR 135,
and which are present in this case, include:
(a)
Where the complainant and the accused are genuinely in love [in this
case they were];
(b)
Where the complainant is nearly 16 years old [in this case the
complainant was only 8 months shy of her 16th
birthday when the offence was committed];
(c)
Where the accused is a youth [at 21 years of age, the appellant was
scarcely an adult].
We
have already considered that the appellant did not run away from his
responsibility by ditching the complainant and her child. This is a
huge mitigatory feature.
This
is a case where sentencing should be rehabilitative rather than
retributive. It is a case where community service is, by all
accounts, more sensible and more useful than gaol. In the
circumstances, the appeal is allowed. The sentence of the court a quo
is hereby set aside in its entirety and substituted with the
following:
1.
Thirty [30] months imprisonment of which six [6] months imprisonment
is suspended for five [5] years on condition that during this period
the accused is not convicted of any offence involving violence for
which he is sentenced to imprisonment without the option of a fine.
2.
The remaining twenty-four [24] months imprisonment is suspended on
condition that the accused completes six hundred [600] hours of
community service at Birchenough Bridge Hospital, Chief Chamutsa,
Buhera, on the following terms:
[i]
The community service shall start on Monday, 14 August 2017;
[ii]
The community service must be performed between the hours of 08:00
hours to 13:00 hours and from 14:00 hours to 16:00 hours each Monday
to Friday which is not a public holiday, to the satisfaction of the
person in charge at the said institution who may, for good cause,
grant the accused leave of absence.
Any
such leave of absence shall not count as part of the community
service to be completed.
