KUDYA J: The
accused person was born on 24 May 1992. On an unknown date but during the
period between December 2006 and January 2007 he sexually assaulted two six
year old girls in the bush where they were all herding cattle. He threatened
them with dire consequences if they ever reported the incident. The threats
held sway until 3 March 2007 when the two girls made a report to their
grandmother. He was thereafter arrested. The two girls were taken to hospital
where a medical doctor examined them on 13 March 2007. He confirmed that
penetration had been effected.
The
accused person was arraigned before the Regional Magistrate, Masvingo on 9 July
2008. He pleaded guilty to and was duly convicted of two counts of rape in
violation of s 65 (1) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. A detailed probation
officer's report that was compiled on 27 April 2007 was produced. In addition,
the boy told the learned regional Magistrate in mitigation that he was a form
two pupil at a secondary school in Masvingo. In answer to the question why he
committed the two offences, he retorted that he thought they were playing.
The
trial magistrate paid regard to his plea of guilty. She surmised that he must
have pleaded guilty because of the presence of the two girls who had come to
testify as the probation officers' report indicated that he was denying the
charges. She noted that he was 14 at the time of commission. She counterpoised
these factors against the seriousness of the offence, the ages of the girls at
the time and the threats he issued against them. She disregarded the
recommendation of the probation officer to consider corporal punishment on the
basis that such a punishment would be too lenient. She proceeded to sentence
him on the day she took the plea to 9 years imprisonment of which 3 years was
suspended for 5 years on condition he did not during that period commit any
offence of a sexual nature for which he would be sentenced to imprisonment
without the option of a fine.
It
seems to me that the trial magistrate misdirected herself in her approach to
sentence. There is no doubt in my mind that at the time he committed the
offence he knew that his actions were wrongful, otherwise he would not have
issued the threats and then proceeded to deny the offences by hiding behind the
façade of some perceived ammosity
between their families. These factors notwithstanding, it must have dawned on
the trial magistrate that on the date of commission he had just completed Grade
7 and was waiting to make entry into Form 1. He was clearly an immature 14 year
old boy who was given to acting out childish pranks. To consign such an
immature character to prison at all and for the length imposed was so harsh as
to induce a sense of shock.
The
second misdirection was her consideration that corporal punishment is a lenient
sentence. Her view contradicts the sentiments expressed in superior court
decisions such as S v A Juvenile 1989
(2) ZLR 61 (S) and S v Marko Mhlanga and Two Others HB 2/94 These
decisions have characterized it as brutal, inhuman and degrading. Such a
sentence cannot ever be characterized as lenient.
This
court in such cases as S v Zaranyika
& Ors 1995 (1) ZLR 270 (H), S v
Tendai & Anor 1998 (2) ZLR
423 (H) set out guidelines for Regional Magistrates in sentencing juveniles
convicted of rape. The common thread between these decisions is that juvenile
offenders should not be treated as little adults. Their very ages denote their
mental immaturity. Non-custodial options other than fines and community service
should be pursued. See S v Zhou 1995
(1) ZLR 329 (H) and S v Stoddart 1996
(1) ZLR 1 (H). Some of these options are counseling, institutionalization in
juvenile reformatories and corporal punishment. The choices in Zimbabwe
are limited by our level of economic development and our prevailing economic
challenges which impact negatively on the development of new institutions and
the funding and staffing of existing ones. Our courts therefore are obliged to
resort to the disproportionate use of corporal punishment coupled with a
suspended term of imprisonment as the only available and viable option.
At
the age of 14, the accused must have been undergoing pubertal stirrings on his
sexuality which he did not appreciate. His actions of setting upon two infants
would be inexplicable other than through a failure on his part to handle his
sexuality. Such a boy would be a suitable candidate for rehabilitation through
counseling perhaps in a probation home or other reformatory institution other
than prison. See S v Kuzhinginya HH
175/94. It appears from the probation officer's report that such an option was
not available hence his recommendation for corporal punishment.
The
appropriate sentence would have been in the region of 5 cuts with a rattan cane
with an additional suspended period of imprisonment of 3 years. The boy has
unnecessarily been in prison for the past 6 months. One hopes that he has not
been contaminated by the corrosive prison subculture. I will set aside the
sentence that was imposed and substitute it with a wholly suspended term of
imprisonment and thereafter issue a warrant for his immediate liberation.
In the result,
the sentence that was imposed is set aside and substituted by the following:
3 years
imprisonment the whole of which is suspended for 3 years on condition he does
not during this period commit any offence of a sexual nature for which he is
sentenced to imprisonment without the option of a fine.
I have issued a
warrant for his immediate release from prison.
GUVAVA J, agrees ............