The
accused was sentenced to 18 months imprisonment. 8 months
imprisonment was suspended for 5 years on the usual condition of good
behaviour. The remaining 10 were suspended for community service….,.
I
considered that the sentence was too lenient. It induced a sense of
shock. There were too many aggravating features in the case. The
trial magistrate did not even comment on, let alone take them into
account. He or she dwelt solely on what he/she considered to be the
mitigating features. He/she seems to have given them overriding
importance. That was a misdirection. In passing sentence, the trial
magistrate said he/she had considered the following:
(a)
That the accused was a first offender who, by norm, had to be spared
jail;
(b)
That the accused had a wife and 2 children who would suffer if he was
gaoled;
(c)
That the accused was the sole breadwinner, not only for his immediate
family, but also, allegedly, for his late brother's children as
well;
(d)
That he had shown remorse by pleading with the court for forgiveness;
(e)
That a fine would trivialise the offence;
(f)
That a suspended sentence on condition of good behaviour would be a
constant reminder to him to desist from committing similar offences;
(g)
That another suspended sentence for community service would meet the
justice of the case;
(h)
That a custodial sentence would be too harsh under the circumstances.
In
my view, there was nothing so extraordinary in the so-called
mitigating features as to warrant the overriding importance that the
trial magistrate seemed to have given them. They were the usual and
natural consequences of judicial punishment. Inevitably, there is
always collateral damage to family and/or society where the law
finally catches up with a miscreant.
In
this case, some of the statements in mitigation were not correct. For
example, the accused was not the sole breadwinner. His wife was
employed. The evidence established that on the occasions that he had
sexual intercourse with the complainant, the wife had been at work.
Undoubtedly, the accused was simply exploiting the wife's absence
to quench a fleeting desire for extra-marital sex. There was no
evidence of the alleged support for his late brother's children.
There was no evidence of any remorse. 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 mature man of
36 years, and coupled with the other factors highlighted below,
should have outraged the trial court. I consider that the trial
magistrate should have taken the following factors into account as
aggravating:
(i)
The fact that the accused could claim, apparently without shame, that
he had been seduced by a mere 15 year old school girl, against whom
there had been no evidence of prior sexual conduct;
(ii)
That, in fact, it was the accused who had actually corrupted or
depraved the young girl by, among other things, inducing her to cheat
on her uncle and aunt with whom she stayed; enticing her to sneak
into his room for sexual trysts when his wife was away at work;
(iii)
That, on one occasion, and as manifest evidence of complete
depravity, the complainant had hidden underneath the accused's
marital bed as her uncle and aunt had been busy looking for her;
(iv)
That when the accused's wife had unexpectedly arrived back from
work, the complainant had been prepared to remain under the accused's
bed aforesaid for as long as it took the wife, who suspected nothing,
to fall asleep, only for the complainant to crawl away and sneak out
of the room afterwards;
(v)
That, as further evidence of the moral ruin, on the third and last
occasion of the sexual encounter, the complainant had been prepared
to, and did, hide in the toilet from 10:00pm to 3:00am the following
morning, a whopping 4 hours, as her uncle and aunt frantically looked
for her again;
(vi)
That, on the last occasion aforesaid, the accused had even pretended
to assist the complainant's uncle and aunt to search for the
complainant when he could have spared them the agony by disclosing
her hiding place in the toilet;
(vii)
That the accused and his family, as long-term tenants at the
complainant's uncle's house [3 and a half to 4 years], were
treated as part of the uncle's family in whom, so the evidence
disclosed, the uncle confided intimate family secrets;
(viii)
That the accused had wasted the court's time by pleading not
guilty; by putting up a puerile defence such as that the complainant
had told him that she was 16 years old, turning 17; that even though
he knew she had written her Grade 7 examinations the previous year
and was attending school at the time of the offence, he did not know
that she might have been in Form 1 or that she might have been
under-age; that he actually intended to marry her when there was no
evidence of any love affair between the two beyond the casual sexual
encounters.
(ix)
That, on all the three sexual encounters, no protection had been
used.
Section
70[1] of the Criminal Law (Codification and Reform) Act (the Code)
penalises extra-marital sexual intercourse with a young person. Extra
marital sexual intercourse is defined to mean sexual intercourse
otherwise than between spouses. A young person is a boy or girl under
the age of 16 years. The offence carries a maximum penalty of a level
twelve fine [US$2,000=] or imprisonment up to 10 years, or both. In
my view, that is quite severe. This, obviously, is an indication of
the seriousness with which the society, through the Legislature,
views the offence. Therefore, for the accused, whose misdeeds fitted
all the essential elements of the offence, to have escaped with an
effective sentence of a paltry 350 hours of community service, was a
betrayal of the societal norms and values.
Evidently,
the trial court did not take account of the rationale behind this
offence. This rationale was explained in S v Nare
1983
[2] ZLR 135.
At pp 137G–H, GUBBAY J…, [with KORSAH J agreeing] said:
“The
rationale of this offence is to protect immature females from
voluntarily engaging in sexual intercourse on account of a lack of
capacity to appreciate the implications involved and the possibility
that psychic or physical injury may be suffered. That protection is
achieved not by punishing the female, but rather the male partner,
who, in effect, is assumed to have been responsible for inducing her
to engage in sexual relations.”
In
that case, the court listed some of the factors that would be
considered as mitigatory for the offence. But, it stressed that the
list was by no means exhaustive. The factors listed were these:
[i]
Where the complainant, though not a prostitute, is a girl of loose
morals;
[ii]
Where the complainant entices the accused to have sexual intercourse
with him;
[iii]
Where the complainant and the accused are genuinely in love with one
another;
[iv]
Where the complainant is nearly 16 years old;
[v]
Where the accused is a simple unsophisticated person from a community
in which this type of offence is not well known;
[vi]
Where the accused is a youth;
[vii]
Where the accused bona fide believed that the complainant was of age,
though unable to establish reasonable cause for such belief.
The
above list is just a guide.
It
is not possible to prescribe, in advance, what may, or may not,
constitute mitigating or aggravating features in any given case. But
the absence of such factors in a crime of this nature, might, in my
view, actually work against the accused person.
In
the present case, none of those features was present.
The
accused was a motor mechanic. He was lodging at the complainant's
uncle's house in Tynwald South, Harare, a fairly affluent middle
density suburb. Thus, the accused could hardly be described as a
simple and un-sophisticated person from a community in which the
offence was little known. He was not a youth, but a man in his middle
ages. In S v Elisha Virimai
HH251-16,
MUSHORE J decried the prevalence of inappropriately lenient sentences
for this type of offence. The learned judge ascribed this to the
unwillingness of the Magistrate's Courts to inconvenience accused
persons whom they routinely favour with community service. At page 3
of the cyclostyled judgment, the learned judge said:
“I
am perturbed at the manner [in] which the magistrate tiptoed around
the accused so as not to inconvenience him because in so doing the
magistrate seemed to have forgotten the punitive aspect of
sentencing. To my mind, and taking 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.”
In
that case, the accused, a 28 year old serving soldier, was convicted
on his own plea of guilty for having had sexual intercourse with a 14
year old girl. The two were boyfriend and girlfriend. He was
sentenced to a fine of US$300=, or, in default, 2 months'
imprisonment. In addition, 2 months' imprisonment was suspended for
5 years on condition of good behaviour. MUSHORE J, with me agreeing,
considered the sentence too lenient. She declined to certify the
proceedings as being in accordance with real and substantial justice.
On what ought to have been the appropriate sentence, the learned
judge said…,:
“A
substantial custodial term of imprisonment would have been
appropriate without the option of a fine and a portion of the
custodial sentence suspended for five years on grounds of good
behaviour. The option of accused performing community service should
never have entered into the mind of the magistrate for public policy
reasons.”
In
S v Nare
1983
[2] ZLR 135,
the accused, 22 years old, also a serving soldier, was convicted on
his own plea of guilty for having sexual intercourse with a girl
under the age of 16 years. It had been a chance encounter, there
having been no prior love relationship between the two. He was
sentenced to 18 months' imprisonment of which 6 months imprisonment
was conditionally suspended for 5 years. On appeal, the court
accepted the concession by counsel for the accused that, but for the
pre-trial incarceration of the accused [for 3 and a half months
before bail had eventually been granted] a custodial sentence would
have been appropriate. Only because of that pre-trial incarceration
did the court impose a fine of $750=, which, in my view, was quite
severe, given that the prescribed maximum in those days was $1,000=.
I
am mindful of the sentencing trends in this country. In terms of the
2000 Revised Guidelines on Community Service by the Zimbabwe National
Committee on Community Service [“the Guidelines”], any person
sentenced to an effective of 24 months imprisonment or less is prima
facie eligible for community service: see S v Chinzenze & Ors
1998
[2] ZLR 64 [H]
and S v Chireyi & Ors
2011
[1] ZLR 254 [H].
However,
the 24 months rule is just but one of a coterie of factors to be
considered. It is not a rule of thumb. It is the starting point. In
all situations there is need for a proper inquiry to be made whether
or not community service is suitable. A trial court enjoys discretion
in determining the appropriate sentence. Schedule 8 of the Criminal
Procedure and Evidence Act [Chapter 9:07] lists murder [other than
infanticide], conspiracy or incitement to murder; or any offence with
a prescribed minimum sentence as being outside the range of offences
that may be considered for, inter alia, community service. However,
in spite of that list, the Guidelines say that there are a number of
other offences which, depending on the circumstances, might warrant a
non-custodial sentence, such as community service, but which should
be treated with caution even if the effective sentence is less than
24 months imprisonment. Wrong signals should not be given to the
society at large. Although the list of offences the Guidelines give
as examples excludes sexual intercourse with a young person, this
does not mean that, in appropriate circumstances, community service
should not be discounted even if the effective sentence imposed is 24
months imprisonment or less.
In
my view this is one such case.
Admittedly,
I have not carried out a proper survey. I do not have the empirical
evidence. But from the records pouring into the Judges' Chambers on
a daily basis for automatic review, cases of sexual intercourse by
adult males with young girls by far constitute a significant portion.
The time may well have arrived when consideration should be given to
whether or not community service is still an appropriate
consideration for this type of offence, particularly given its
prevalence.
In
the present case, I withhold my certificate. The proceedings were not
in accordance with real and substantial justice. The penalty imposed
by the trial magistrate was so lenient as to trivialise the offence.
The accused deserved an effective prison term of not less than 6
months. I would say a sentence of 18 months imprisonment, with 10
suspended on the usual condition of good behaviour, would have met
the justice of the case.
