Criminal
Review
MAWADZE
J:
This
review judgment has been occasioned by the need to assist judicial
officers especially Magistrates in sentencing juveniles convicted of
criminal offences in light of the decision of the Constitutional
Court in the case of State
v Willard Chokuramba
& 4 Ors. CCZ 10/19.
The
Constitutional Court outlawed corporal punishment administered on
male juveniles as was provided for in section 353 of the Criminal
Procedure and Evidence Act [Cap
9:07].
This was with effect from 3 April 2019.
Male
juvenile offenders convicted of any criminal offence cannot be
sentenced to receive corporal punishment.
Consequently,
Magistrates are now enjoined to resort to other forms or methods in
dealing with juveniles in conflict with the criminal law especially
those convicted of such offences.
Prison
sentences have long been regarded as undesirable in dealing with
juvenile offenders.
In
the case of S
v Ncube and Ors.
2011 (1) ZLR 608 (H) I discussed in some detail on other forms of
punishment or options open to judicial officers in dealing with such
juveniles. The guiding principle is that in dealing with juveniles in
conflict with the criminal law is to impose a rehabilitative rather
than a retributive sentence. This is in line with the international
best practices and international instruments which include inter
alia
Article 40 of the United
Nations Convention on Rights of the Child (1990) and
Article 17 of the African
Charter on the Rights and Welfare of the Child (1999).
I
should applaud the trial Magistrate in this matter for attempting to
adhere to these principles. The only problem which arises in this
case is that the trial Magistrate did not fully adhere to the proper
procedure.
The
bare bones of the case is that a 15-year-old male juvenile was
convicted on his own pleas of guilt of 10 counts. Five counts relate
to unlawful entry into premises as defined in section 131(1) of the
Criminal
Law (Codification and Reform) Act [Cap 7:23]
and the other five counts relate to theft as defined in section
113(1) of the same Act
[Cap 9:23].
The
agreed facts are that between the period extending 28 February, 2019
and 15 March, 2019 in and around Chivi growth point, Masvingo, the
15-year-old juvenile broke into five different premises from which he
stole various goods all valued at $548.50 of which goods valued at
$395.00 was recovered this causing actual prejudice of $153.50.
The
matter proceeded in terms of section 271(2)(b) of the Criminal
Procedure and Evidence Act (Cap 9:07]
and the male juvenile was convicted on his own pleas of guilty in all
the 10 counts.
A
detailed probation officer's report was compiled and produced.
It
was recommended that the male juvenile be found to be a child in need
of care as defined in section 2(c), (d) and (g) of the Children's
Act [Cap 5:06].
The recommendation was that the male juvenile be placed in a Training
Institute at Kadoma in terms of section 20(1)(b)(vi) of the
Children's
Act [Cap 5:06].
This
recommendation was informed by a number of reasons.
The
male convicted juvenile is described in the probation officer's
report as an habitual truant. His biological father is unable to
exercise proper care and control over him. Secondly, as already said
the male juvenile is facing and had been convicted of 10 counts which
clearly shows his propensity to crime. Thirdly, the convicted male
juvenile has a relevant previous conviction for contravening section
131(1) of the Criminal
Law (Codification and Reform) Act [Cap 9:23]
as per CRB CH275/18 dated 28 August 2018. In that case passing of
sentence was suspended for 5 years on the usual conditions of good
behaviour.
Clearly
the said male juvenile has failed the test in less than a year.
The
trial Magistrate proceeded in this case at hand to place the
convicted male juvenile at Kadoma Training Institute for 3 years.
The
first anomaly in this matter is that the trial Magistrate did not
deal with the convicted male juvenile's previous conviction on CRB
CH 275/18 in which passing of sentence had been conditionally
suspended for 5 years.
The
convicted male juvenile as already said breached the said conditions
by committing these offenses at hand.
To
his or her credit the trial Magistrate, in the reasons for sentence,
suggested that it would be prudent to further postpone the passing of
sentence on CRB CH 275/18.
However,
the misdirection is that this remained a wish on the part of the
trial Magistrate as it was not captured on the ultimate sentence
imposed.
The
trial Magistrate profusely apologised for this oversight and implored
this court to rectify the omission.
I
am of the view that the convicted male juvenile should be afforded
the proverbial second chance to reform hence the need to further
postpone the passing of sentence on CRB CH 275/18 for another period
of 5 years on the same conditions.
The
second anomaly in this matter is that the trial Magistrate did not
comply with the provisions of section 351(3)(b) of the Criminal
Procedure and Evidence Act [Cap 9:07]
which provide as follows;
“Section
351
Manner of dealing with convicted juveniles
(1)
irrelevant
(2)
Any court before which a person under the age of nineteen years has
been convicted of any offence may, instead of imposing a punishment
of a fine or imprisonment for that offence, subject to subsection (1)
of section three hundred and thirty-seven
—(a)-----------------------------
(irrelevant)
(b)
after ascertaining from the Minister responsible for social welfare
that accommodation is available, order that he shall be placed in a
training institute in Zimbabwe or in a reform school in the Republic
of South Africa for the period specified in subsection (1) of section
three hundred and fifty-two.”
After
I raised a query with the trial Magistrate as to whether he or she
had complied with the provisions of section 351(2)(b) of Criminal
Procedure and Evidence Act, [Cap 9:07]
by ascertaining that that there is indeed accommodation at Kadoma
Training Institute before committing the convicted male juvenile to
that institution, the response by the trial Magistrate was rather
perfunctory.
The
trial Magistrate said he or she simply complied with the
recommendations of the Probation Officer as per the Probation
Officer's report.
This
is incorrect.
The
Probation Officer had suggested that the convicted male juvenile be
referred to the Children's Court and dealt with in terms of section
20(1) of the Children's
Act [Cap 5:06].
The
trial Magistrate although placing the convicted male juvenile at the
said training institute he or she did not do so sitting as a
Children's Court and was not exercising the powers outlined in
section 20(1) of the Children's
Act [Cap 5:06].
The
truth of the matter is that the trial court simply proceeded in terms
of section 351(2)(b) of the Criminal
Procedure and Evidence Act [Cap 9:07].
Be
that as it may, whether the trial Magistrate had exercised the powers
outlined in section 20 of the Children's
Act [Cap 5:06]
sitting as Children's Court or acted in terms of section 351(2)(b)
of the Criminal
Procedure and Evidence Act [Cap 9:07]
the bottom line is that the trial Magistrate was enjoined to first
ascertain from the responsible authority whether there is
accommodation at Kadoma Training Institute before committing the
convicted male juvenile to the institution.
The
trial Magistrate in a bid to explain this omission said he or she
telephonically contacted the said institution and was advised
telephonically that there was such accommodation.
I
have no reason to doubt the integrity of the trial Magistrate. His or
her ability to think on his or her feet is remarkable!
However,
the fact remains that a Magistrate Court is a court of record. This
means that inquiries made in compliance with the law cannot be
sufficient if they are made telephonically only. There is need for
written documents or proof.
How
will this court in exercising its review powers ascertain compliance
with the law where such compliance has purportedly been made
telephonically?
The
proper way to comply with the provisions of section 351(2)(b) of
Criminal
Procedure and Evidence Act [Cap 9:07]
is to simply obtain and attach such proof. This may be in the form of
a letter of confirmation from the head of such a training institute
that accommodation for the convicted juvenile is available.
The
need for this confirmation is obvious.
In
my view it matters not whether such an inquiry is done by the trial
Magistrate or the Probation Officer. The bottom line is that such
proof of confirmation should be part of the record of proceedings.
I
am inclined to condone this omission by the trial Magistrate in the
interest of the convicted male juvenile.
This
court would be not acting in the best interests of the said convicted
male juvenile if it was to decline to confirm these proceedings by
withholding its certificate, worse still by setting aside the order
imposed.
This
court as the upper guardian of minor children should always and at
all times act in their best interests.
Be
that as it may my exhortation is that trial Magistrates should
nonetheless comply properly with the provisions of the law.
I
shall however confirm the proceedings as in accordance with real and
substantial justice but nonetheless seek the concurrence of my
brother MAFUSIRE J as I have made an addition to the order made by
further suspending the passing of sentence in CRB CH 275/18 for 5
years on the usual conditions.
In
the result, I make the following order;
1.
The proceedings are confirmed as in accordance with real and
substantial justice.
2.
The order of placing the convicted male juvenile at Kadoma Training
Institute for 3 years be and is hereby confirmed.
3.
The passing of sentence on the said convicted male juvenile on CRB CH
275/18 is further postponed for 5 years on condition the said male
juvenile does not commit any offence involving dishonesty within the
said period for which he is sentenced to a term of imprisonment
without the option of a fine.
MAFUSIRE
J concurs………………………………………………………..
