The appellant was convicted on a charge of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21].

He appealed to this court against both conviction and sentence.

After hearing submissions from counsel for the parties we upheld his appeal and set aside his conviction and sentence....,. 

The appellant fell in love with the complainant who was then aged thirteen. He, early in the morning of 17 April 2006, invited her to his house where it is alleged he raped her. He was charged with rape, but, was convicted of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21]. He was convicted by a Regional Magistrate sitting at Harare Regional Magistrate's Court, who sentenced him to 36 months imprisonment of which 12 months were suspended on conditions of good behaviour.

The court treated both counts as one for the purpose of sentence and sentenced the appellant to fifteen (15) years imprisonment of which three (3) years imprisonment was suspended for five (5) years on the customary conditions of future good behavior.

The appellant's complaint against the sentence was that it was excessive and too long and that it induced a sense of shock and outrage. It was way out of line with the maximum of ten (10) years imprisonment stipulated in section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He concluded that since no violence was used during the commission of the offence, and regard being had to the ages of the parties, the sentence should be reduced to a period of imprisonment not exceeding ten (10) years imprisonment…,.

In relation to the sentence imposed, counsel for the respondent again properly conceded that it was out of step with that prescribed by the provisions of section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provide that a person convicted of having sexual intercourse with a young person shall be liable to imprisonment for a period not exceeding ten (10) years.

It was submitted by the respondent's counsel that the appellant deserved to be incarcerated for a long period in the region of ten (10) years imprisonment with a portion being suspended on the customary conditions of future good behavior. It was pointed out that the appellant was twenty-six (26) years when he committed the offences while the complainant was thirteen (13) years old.

The offences were committed from January 2008 - barely seven months after she had attained the age of consent. The age difference was thirteen (13) years which is too wide a difference. In addition, the complainant was way below the age of sixteen (16) years. Furthermore, the appellant was the boyfriend of the complainant's mother. He had sexual intercourse with the complainant on diverse occasions; meaning that, at some stage, he used to have sexual intercourse with both mother and daughter during the same period. The appellant is completely depraved. Very little or nothing can be said in his favour. The maximum sentence stipulated by law is appropriate in his case…..,.

(a) ….,.

(b) …,.

(c) The sentence of fifteen (15) years imprisonment imposed by the court a quo is set aside and substituted with the following:-

Ten (10) years imprisonment of which two (2) years imprisonment is suspended for a period of five (5) years on condition that the appellant is not convicted of any offence of a sexual nature committed within that period for which he is sentenced to imprisonment without the option of paying a fine.

The accused was sentenced to perform 210 hours of community service which commenced on 21 May 2010 and was completed within six (6) weeks from that date. He has therefore served his sentence.  Nothing can be done now to remedy the situation.

The accused received the following sentence as worded by the magistrate:

“24 months imprisonment of which 16 months are suspended for 5 years on condition that the accused does not, within that period, commit any offence involving contravention of s3 of the Sexual Offences Act (Chapter 9:21) and for which upon conviction the accused is sentenced to a term of imprisonment without the option of a fine. The remaining 8 months are further suspended on condition that the accused marries the complainant.” …,.

There are three issues arising from the above paragraph.

The first is a point of correction is that the offence was committed in January 2010 at a time when the Sexual Offences Act had already been incorporated into the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Therefore, what should have been cited in the sentence is section 70(1)(a) of the Criminal Code as had been correctly stated in the charge sheet.

The second issue relates to the scope and framing of the nature of prohibited behaviour that would bring the suspended 16 months into action…,.

The third issue, which goes to the root of this review judgment, centres on the suspension of a further 8 months on condition that the accused married the complainant.

In a White Paper, the magistrate was requested by BHUNU J to respond to several issues, namely;

(i) The competency of compelling the accused to marry the complainant;

(ii) If any enquiry had been made into whether the accused's marriage permitted polygamy;

(iii) Whether the order to marry had been complied with; and

(iv) To investigate the possibility of community service.

The response received from the Provincial Magistrate was that the magistrate who had passed the sentence had since left service. However, the Provincial Magistrate agreed that the sentence was improper with respect to the marriage aspect and sought the court's guidance on corrective measures, given that the parties were yet to be summonsed and the issue of community service examined.

This review judgement seeks to elaborate on the impropriety of ordering marriage and to give the necessary guidance requested….,.

The mitigating factors put forward by the accused to the court included the fact that he had been given the 15 year old complainant as a wife by her parents for when she became of age. His wife was asthmatic. Furthermore, he was the one who had educated her. The magistrate also noted, in his reasons for sentence, that there was a smack of a love affair between the complainant and the accused which he deemed a strong indicator of the consensual nature of their relationship.

The critical issue is whether the magistrate misdirected himself in ordering eight months of the sentence to be set aside if the accused married the complainant.

Pledging, as can be inferred from the circumstances described by the accused to the court, is in strict violation of section 94(1)(b) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. Whilst this was not the issue before the court, it was in the very least the duty of the magistrate to point out to the accused that no regard could be had to the parents pledge of the complainant as a wife as it was, in fact, in violation of the law. The relevant section states as follows:

“(1) (a) Lawful custodian of a female person who -

(b) At a time when the female person is under the age of eighteen years, or without her consent, enters into an arrangement whereby the female person is promised in marriage to any man whether for any consideration or not…,.

shall be guilty of pledging a female person and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding two years or both.”…,.

Based on what had been disclosed to the magistrate, ordering marriage to the complainant amounted to sanctioning a violation of what the law clearly forbids. Furthermore, in sanctioning an impermissible marriage, the magistrate effectively cast aside the protective function of the law on sexual intercourse with young persons.

While he indeed cited several case law to illustrate the factors that the courts take into account in assessing sentence in such matters, these do not appear to have weighed heavily in the ultimate decision. In S v Nare 1983 (2) ZLR 135 (H) GUBBAY CJ…, stated that the offence is aggravated where, among other factors, the accused is much older. At 30 years of age, the accused in this case was twice the complainant's age. The magistrate's allusion to a consensual relationship neglects the effects of such a vast age discrepancy on the complainant's ability to withstand the lecherous advances and persuasions of the accused. While the closeness to the age of consent of the complaint is also taken into account, born in June 1995, she was just fourteen and a half when the crime took place. The age discrepancy and its attendant power dynamics should have been central in interrogating the unlikelihood of a truly consensual relationship. The two were at different levels in terms of emotional maturity. Her ability to stave off his persistent advances would undoubtedly have been weaker.

Indeed, in S v Chuma 1983 (2) ZLR 372, it was emphasised that to accept love as a mitigatory factor when the disparity in ages is great and the girl's age is known to the accused is 'to break the ring of protection accorded complainants by the law'. Frequency of intercourse was held by KORSAH J, in that case, not to be an indicator of genuineness of affection but was more likely that of lasciviousness on the part of the man.

Besides age as a weighty consideration, there is also the critical issue of the relationship between the accused and the complainant. Indeed, the magistrate pointed out in his reasons for sentence that the accused was in loco parentis to the complainant. As he put it:

“The complainant regarded him not as a brother but a father.”

With this critical observation, how then did he purport to find marriage suitable under these circumstances when a breach of a relationship of that nature should require a more stern approach in punishment?

In our cultural context, where some married men believe the wife's unmarried sister is equally for the taking, ordering marriage gives a very unhealthy nod to predatory behaviour and does little to foster attitudes of respect and dignity towards females in what should be a safe family environment. Ordering marriage under such circumstances also does nothing towards sending a strong message of disapproval to such adult males who, behind a cloak of negative cultural practice, coerce a relative who is a minor into having sexual intercourse. The fact that the family reported the criminal conduct is indicative of the fact that they regarded him as having crossed the boundaries of what they regarded as acceptable behaviour. He was already married to her sister and had five children. It could not have made for a healthy sibling relationship.

Finally, another critical consideration of relevance in such cases involving minors is whether pregnancy resulted. In this case, the complainant fell pregnant, a factor which added to the seriousness of his conduct. The accused's coercive actions, stemming from the advantage he had over her catapulted the complainant into adulthood by thrusting her into motherhood with all the attendant risks of doing so at a young age. Her education was interfered with. His actions further deprived her of the opportunity to develop her sexuality, progressively, on her own terms…,.

As she is by now a major, it is also necessary to ascertain, assuming a mutually consensual relationship, that the accused's marriage permits polygamy so that no law is being broken.

As regards the accused, while it would not be competent to order incarceration in light of the sentence he had received, it is still necessary to send a strong disapproving message about this prevalent conduct, where, as in this case, an adult family man uses his power to take advantage of his wife's minor sibling or where in general adult men take undue sexual advantage of minors with their seeming consent. The magistrate is ordered to effectively look into the issue of appropriate community service to substitute the incompetent order to marry. Given the sexual nature of the offence the accused was charged with, care should be exercised to ensure that any community service ordered does not expose vulnerable groups to risk such as would be the case by ordering him to work in a school environment for example.

Since the accused was found guilty of committing a sexual offence, in order to ensure that the conditions of the suspended sentence take into the broad spectrum of sexual offences, the sentence is corrected to read as follows:

“1. 24 months imprisonment of which 16 months are suspended for 5 years on condition that the accused does not, within that period, commit any offence of a sexual nature in contravention of relevant provisions of the Criminal Law (Codification and Reform) Act Chapter (9:23) and for which upon conviction, the accused is sentenced to a term of imprisonment without the option of a fine. The remaining 8 months are further suspended on condition that the accused performs appropriate community service at a place and for a duration to be determined by the magistrate.”

The Provincial Magistrate who convicted the accused sentenced him to:

“18 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition accused does not within that period commit an offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.” 

He was sentenced on 25 February, 2013.

In justifying her sentence, the trial magistrate reasoned in these words:

“The accused person is a mature 1^st offender. He pleaded guilty to the charge and did not waste the court's time. The offence committed by the accused person is a serious offence. Young girls need to be protected from people like the accused, especially in this era of sexually transmitted diseases. The girl is only 14 years and is doing Grade 7. Because of the gravity of the offence a fine/community service will be too lenient.”

I did not consider it worthwhile to send a query to the trial magistrate regarding the error of the citation of the charge alluded to supra, and also regarding the extremely harsh sentence that she imposed without any plausible justification, as it would have the effect of further prejudicing the accused person. 

An insight into sentencing patterns in cases of having sexual intercourse with young persons would be instructive.

In S v Nare 1983 (2) ZLR 135 (HC) the court held that the rationale behind punishing carnal knowledge of girls under 16 years is the protection of immature females from voluntarily engaging in sexual intercourse on account of a lack of capacity to appreciate the implications involved and the possibility of mental or physical injury. The offence is mitigated where for instance -

(i) The complainant is of loose morals; or

(ii) She enticed the accused to have intercourse; or

(iii) The accused and complainant were genuinely in love; or

(iv) She was nearly 16 years old; or

(v) The accused is a simple and unsophisticated person from a community in which this law is not well known; or

(vi) He is a youth; or

(vii) He bona fide believed the complainant to be of age.

On the other hand, the offence is aggravated where -

(i) Accused is much older and more mature than the complainant; or

(ii) She is just above the legal age of consent; or

(iii) The accused has relevant previous convictions.

Other factors to consider in determining the seriousness of the offence are the age, appearance and character of the complainant, the age of the accused and the circumstances in which the offence was committed.

This case offered guidance to magistrates in assessing appropriate sentences for the offence in issue for decades and it is still relevant to this day.

In S v Mutowo 1997 (1) ZLR 87 (HC) GILLESPIE J remarked that the sentencing of persons found guilty of “statutory rape” is a difficult matter because of the wide range of differing circumstances that can attend this crime. The factors that should be considered include, inter alia, the age, appearance and character of the complainant, the age of the accused and the circumstances of the offence – a refreshment of memory of what was stated in S v Nare 1983 (2) ZLR 135 (HC).

The complainant's age is relevant because the younger she is, the more seriously will the court regard the exploitation of her youth, while the closer she is to sixteen (16) the less justified will be any presumption of her incapacity to make an informed decision about sexual intercourse. Her appearance is important because the moral blameworthiness of the man will be less if he wrongly believes, from her appearance, that she is older than she actually is. Similarly, the girl's character – whether she be virgin or promiscuous, a flirt or demure – must have a like bearing on whether the accused was knowingly preying on the innocent or merely risking lying with an underage but worldly-wise girl. In no case, though, can the girl's sexual experience be a defence. The accused's age is important because of the relevance to his moral blameworthiness of his own experience or lack of it and of any disparity in the ages of the parties. Apart from the accused's age, it is also important to determine whether the accused was in a position of responsibility to the girl. A careful investigation of these and other relevant factors by the trial court is essential.

In the S v Nare 1983 (2) ZLR 135 (HC) case, the accused was 22 years old and was a captain in the army. He had sexual intercourse with a fifteen (15) year old girl he had met on the very day. He was sentenced to a fine of $750= or 5 months imprisonment.

In the S v Mutowo 1997 (1) ZLR 87 (HC) case, a 27 year old widower had sexual intercourse with a 13 year old girl. Due to inadequate investigation into factors relevant to sentence, the review court was obliged to give the accused the benefit of the doubt and treat him as a mature, recently bereaved widower, who sought release with a willing and experienced teenager who he took to be fifteen (15). A sentence of 24 months imprisonment of which 10 months were suspended on condition of good behaviour was altered to a fine of $300= or 1 month imprisonment.

In S v James 1998 (1) ZLR 424 (SC), a 20 year old accused had sexual intercourse with an eleven year old girl on several occasions. He was sentenced to a fine of $600= or 1 month imprisonment.

In the instant case, the accused is a 20 year old who pleaded guilty and is a first offender. He is unsophisticated and did not know that it was an offence to have consensual sexual intercourse with a girl below sixteen (16) years of age. He had sexual intercourse with her two days after his advances were accepted. She was between 14 and 15 years old. The trial magistrate's reasons for sentence are very scanty and are devoid of an investigation into the essential relevant factors alluded to in the above-cited cases. For instance, the girl's appearance and character were not interrogated. How could a 14/15 year old girl just agree to have sexual intercourse with a stranger she had met four days previously and two days after accepting his proposition? This could well point to a girl of loose moral fibre or one sexually experienced – which fact was also not investigated. The sentencing trends expounded above, coupled with the circumstances of this case, compels me to hold that the accused did not deserve to be incarcerated at all…..,.

Following his conviction, the appellant was sentenced to 24 months imprisonment three (3) months of which were suspended on the usual grounds of future good conduct….,.

As against sentence, the appellant's position is that the learned magistrate ought to have considered a sentence other than a custodial sentence given that he had opted for a prison term of 24 months. Counsel for the appellant argued that the court a quo should have considered either a fine or community service as a viable option to the prison term….,.

As regards sentence, the measure that is generally applied is that before a superior court interferes with the sentence imposed, that sentence must be regarded to induce a sense of shock and outrage.

It is accepted that there is a plethora of authorities emanating from this court that have spelt out that it is a misdirection not to consider community service as a viable option where the sentencing court decides to impose a sentence of 24 months and below. See S v Mabhena 1996 (1) ZLR 134.

But I must add caution and say that approach is not a rule of thumb as each case must be considered on its own circumstances.

What cannot be disputed in this case is that in crafting section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the legislature was largely motivated by the spirited desire to protect young girls in the mould of the complainant from prematurely indulging in intimate relations with men like the appellant who would be tempted to sexually exploit such young girls. By indulging in an exploitative sexual relationship with the complainant, the appellant placed himself within the ambit of the provision of section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] whose penalty provision speaks of a fine not exceeding level twelve or imprisonment for a period not exceeding 12 years or both. The first sexual encounter speaks to a possible rape. It was overlooked during proceedings in the lower court and the appellant could have properly have been charged of rape.

In his reasons for sentence, the learned magistrate gave detailed reasons why he felt very strongly, I must confess, the imposition of a custodial sentence was appropriate. As observed in the case of S v Gono 2000 (2) ZLR 63 (H), the learned magistrate fell into error of not giving reasons why a sentence of community service was inapplicable in this case. Be that as it may, I do not believe such an omission was so fatal as to vitiate the sentence which was eventually meted out if regard is had to, inter alia, the disparity in ages between the appellant and the complainant, a young unsuspecting girl, clearly unaware of the inherent dangers of being forced to indulge in pre-marital sex.

Count 2: 15 months imprisonment of which 5 months are suspended for 5 years on condition accused does not commit an offence involving having sexual intercourse with a young person for which if convicted he will be sentenced without the option of a fine….,.

I have considerable disquiet about the sentence. 

In assessing the appropriate sentence, the court a quo committed a couple of misdirections. Firstly, the court found as an aggravatory feature the fact that accused's conduct derailed the complainant's educational plans when there is no evidence that she was attending school. Secondly, the court found as an aggravating feature the HIV status of the complainant when there was no shred of evidence that the accused infected her with the deadly virus.

It is trite that a sentence assessed on wrong facts is incompetent. In view of these irregularities, this court is at laise as regards sentence. On the facts of this case, an effective 12 months imprisonment is unduly harsh and induces a sense of shock. I say so for the following reasons:

1. The accused did not deliberately set out to abuse a minor in that after the two fell in love, they stayed together for four months as “husband and wife” at the accused's home.

2. The accused discovered the complainant's age a week after they had engaged in sexual intercourse.

3. The accused is a relatively young first offender who was contrite.

4. At the time of conviction, he was employed at a gold mill earning $80= per month.

On the other hand, what is aggravating is that after the accused discovered that the complainant was below the age of 16 years, he continued having sexual intercourse with her. It is also aggravating that the complainant fell pregnant as a result of this cohabitation. Further, the 9 year age difference is aggravating.

Weighing these aggravating circumstances against the mitigating feature, I am of the view that the sentence imposed on the accused should be set aside and in its place is substituted by the following:

The magistrate justified the sentence, and his refusal of bail, largely on the review judgment in Banda v State; State v Chakamoga HH47-16. He considered that there were virtually no prospects of success in the appeal against sentence. He said that the sentence that he had imposed was commensurate with the directive given in that judgment. He said:

“In the circumstances, and in light of the very comprehensive and educative precedent from the superior courts, it is difficult to conclude the appeal against sentence bears any prospects of success. On the contrary, it is my considered view that the appeal bears little or no prospects of success.”

In the bail application before him, the magistrate noted that there was no risk of the appellant absconding his appeal, or of him committing an offence of a similar nature while out on bail. The magistrate's decision in refusing bail was predicated solely on what he perceived to be an unmeritorious appeal against sentence.

Before me, it seemed the predominant and decisive factor in the bail appeal was whether or not the main appeal against sentence had any prospects of success.

The Banda v State; State 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 that 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 commuted for community service. On the other hand, counsel for the respndent, 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; see Mudzuri & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors CC12-15, nonetheless argued that the appeal against sentence had no prospects of success 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; State 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.

In my view, the Banda v State; State 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 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 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.

Consensual intercourse with a girl between 12 and 16 years is an offence under section 70(1) as read with section 64(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. 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, a relatively far more serious offence.

Banda v State; State v Chakamoga HH47-16 were two un-related cases that were dealt with under one review judgment given the similarities of the facts.

The accused persons were male persons more than 30 years of age each. The complainants were two girls, 15 years old each. Sexual intercourse was consensual. Both girls fell pregnant. The one accused went on to take the complainant as his wife. The other went on to give the complainant a total of $3=. Both accused were convicted by the same magistrate. He sentenced them to 24 months imprisonment. 12 months imprisonment was suspended on condition of good behaviour. The effective sentence was 12 months.

The learned judge considered that the sentences were too lenient.

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 of the intent of the Constitution and those conventions.

On what should have been the appropriate sentences in those cases, the learned judge, CHAREWA J, 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, 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 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 my 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 [Chapter 9:23] 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.

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.

In my view, a paedophile community or satanic cult could not care less if under-age girls were ravaged daily. But for an average normal Zimbabwean community, I 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 I 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]. Among other things, he 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 mis-deeds, 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 [Chapter 9:23], the sentence that is prescribed for this offence is a fine not exceeding level 12, i.e. $2,000=, or imprisonment for a period not exceeding 10 years, or both.

This is quite stiff.

But the Banda v State; State 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 judgment was 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 36 year old married man had sexual intercourse with a 16 year old girl on several occasions. He escaped with a paltry 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:

“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 more of such cases.

In the present case, I granted bail because I considered that the magistrate had misdirected himself in assuming, or implying, that his discretion to consider an appropriate sentence had been taken away. I considered that an Appeal Court, properly weighing the aggravating features and balancing them against the mitigating ones, would most probably reduce the sentence substantially. The kind of sentence meted out in the court a quo served 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. The Appeal Court was likely to impose a prison sentence but was likely to suspend it for good behaviour and for community service. Therefore, the appeal against sentence was arguable.

Those were my reasons.

Both accused were tried by the same magistrate, and sentenced to 24 months imprisonment of which 12 months were suspended for 5 years on the usual conditions for such cases, remaining with 12 months effective….,.

The reasoning of the magistrate, for sentencing purposes, based on current practice, can hardly be faulted.

However, the level of sentences handed down belie the magistrate's reasoning, particularly with regard to aggravating factors. Moreover, to say that the sentences handed down appear to trivialize the protective measures for young persons prescribed in our law, and in the current international framework for safeguarding young persons, is an understatement. Further, it seems that the magistrate appeared to go by rote and refrained from freely applying his mind to the developments in the law and best practices on the protection of children, both locally and internationally. In particular, I note a worrying trend that judicial officers seem not to be aware that section 327(6) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution), requires them, in interpreting legislation, to adopt any reasonable interpretation that is consistent with international conventions, treaties,  and agreements that are binding on Zimbabwe.

In passing sentences for these kinds of offences, therefore, in addition to the usual reasons for sentencing that have evolved in our jurisdiction, which, to his credit, the magistrate in the present cases, took into account, judicial officers ought also to take into consideration the following:

(i) Firstly, domestic law has seen fit to prescribe extensive provisions for the protection of children, for which judicial officers must not be seen to be giving mere lip service. Chapter 2 of the Constitution, sets out national objectives, of which section 19 prescribes the protection of children as one of these national objectives. Section 19(1) requires the State, to adopt policies and take measures to ensure the paramountcy of the best interests of children.

Section 19(2)(c) of the Constitution requires that policies and measures are taken “…, to ensure that children are protected from maltreatment, neglect or any form of abuse.”…,.

Section 78(1) of the Constitution proscribes marriage for persons under 18, providing as it does, that only persons who have attained 18 years of age can found a family.

Chapter 4 contains the declaration of rights, where, in Part 3, section 81 specifically prescribes the protection of children's rights. Section 81(1)(e) of the Constitution provides that children must be protected from “…, economic and sexual exploitation…, and from maltreatment, neglect or any form of abuse.”…,.

Sub-section (1)(f) guarantees children's rights to education and healthcare while subsection (2) declares that the best interest of children are paramount. Finally, sub-section (3) declares that –

“Children are entitled to adequate protection by the courts, in particular the High Court as their upper guardian.”

It is trite that the judicial service is but one of the pillars of State.

Therefore, the general Constitutional duties and obligations placed on the State apply equally to the conduct of judicial officers in their dispensation of justice. It therefore behoves on judicial officers to ensure paramountcy of children's interests in all proceedings before them, including handing down appropriate sentences that deter those preying on children to refrain from doing so in order to give the maximum protection accorded to children by law.

The questions judicial officers must always ask themselves in sentencing predatory adults who sexually exploit young persons should be:

What message is the judicial service sending when a person more than twice the age of a child is sentenced to serve a mere 12 months in jail? Is it in the paramount best interests of young persons to hand down a sentence that seems to suggest that were it not for section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] this conduct would be perfectly acceptable?

More particularly, the specific obligation placed on the courts, and the High Court in particular, by section 81(3) of the Constitution made me consider that it may be high time that the courts had a serious re-look at the sentencing regime for sexual offences so that the message is clearly sent that the courts, in the discharge of their protective mandate for young persons, find that it is totally unacceptable to sexually exploit young persons. This is especially pertinent for offences committed against those young victims aged between 12 and 16 who were directly, or impliedly, assumed to have 'consented' to the sexual violations. The courts must be seen to apply the law in a manner that achieves the intended aim of the legislature in these cases: that is, to effectively protect children from predatory older persons and ensure the eradication, or seriously attempt to eradicate the problem.

(ii) Secondly, Zimbabwe is part of the international consensus that effective and full protection must be accorded to children to ensure their health, education, and consequent full realisation of their potential as participants in socio-economic and political development.

In that regard, regionally, Zimbabwe is signatory to the African Charter on the Rights and Welfare of the Child, which defines anyone under 18 as a child. The preamble, in paragraph 4, notes that children require special safeguards and care on account of their physical and mental immaturity. Paragraph 6 reinforces the need for legal protection …, of children to ensure particular care with regard to their health, physical, mental, moral and social development. Article 4 echoes our Constitution in directing that in all processes, it is the best interests of children that are paramount. Articles 11, 14 and 16 emphasize children's rights to education to promote development of a child's personality, talents and mental and physical abilities to the fullest potential; the child's right to physical, mental and spiritual health; and protection against sexual abuse. Article 21 goes to the extent of requiring member States to pass legislation specifying the minimum age of marriage as 18 in order to enhance the protection of children.

Further, Zimbabwe has, for decades, had a Commissioner sitting as a member of the African Committee of Experts on the Rights and Welfare of the Child, set up to ensure the promotion and protection of children's rights on the continent. In addition, the current African Union Ambassador against Child Marriages is Zimbabwean. Zimbabwe currently holds the Chairmanship of the African Union, with the mandate to ensure meaningful compliance with African Union legal frameworks, and, in so far as these cases are concerned, the effective implementation of the African protective framework for children.

On the wider international platform, Zimbabwe has ratified the Convention on the Rights of the Child, thus subjecting itself to the rigours of regular examination and review of its child protection record by the United Nations Committee on the Rights of the Child. The review process focuses, among other issues, on the prevalence of sexual exploitation and abuse of children and forced or early marriages of young girls.

Increasingly, in various regional and international judicial colloquia (see the report of First Summit of  Presidents and Chief Justices of Constitutional, Regional and Supreme Court Justices 5-14 November 2012 held in Mexico City, Mexico,( website of the National Supreme Court of Justice of Mexico) and reports of the Continental Judicial Dialogues for African Judiciaries, Arusha 2013 and 2015 (website of the African Court on Human and Peoples' Rights)), it has been recognised that domestic judicial officers must, when dealing with cases which impact on the human rights of children in particular, take cognisance of best practices and standards elsewhere including international standards set by regional and international treaties and conventions to which their country is party.

In our jurisdiction, therefore, judicial officers must, in the discharge of their mandate, take into account the norms and standards that Zimbabwe has subscribed to in the treaties and conventions it has ratified.

The NewsDay newspaper of 15 January 2016, reported, in its Southern Eye supplement,…, that –

“Zimbabwe is one of the countries battling an increasing number of child rights abuses, including rape, forced early marriages…,.”

It is therefore incumbent upon judicial officers to play their part in improving the country's record by seriously shouldering the obligation that section 81(3) of the Constitution puts upon the courts to protect children by passing sentences which effect is to ensure that would-be marauding adults stop targeting vulnerable and immature young persons. Further, in order not to belittle or contradict the country's advocacy and agitation for the protection of children in the wider sphere, judicial officers must be in consonance with the national position by not ignoring or minimising such protection through appropriate jurisprudential pronouncements.

Section 327(6) of the Constitution effectively means that, gone are the days when it was enough for a judicial officer to be insular in his jurisprudence, but that attention must be paid to international best practices, particularly on matters that impinge on the rights of vulnerable groups, such as children. The current position that Zimbabwe holds on the African continent requires judicial officers to rise to the responsibility that go with it and help, if not lead, in setting judicial standards and benchmarks for the protection of children.

In casu, therefore, sentencing a plus 30 year old man to an effective 12 months imprisonment for having sexual intercourse with a young person of 15 can hardly be aimed at deterring other older men from preying on young and immature persons, who are swayed by the offer of $1= or $2=, in these harsh economic times. The very fact that a young person 'agrees' to sexual intercourse with a much older man for such a paltry amount is clear evidence of her immaturity and incapacity to make an informed choice or decision. As GUBBAY CJ stated, in S v Nare 1983 (2) ZLR 135 (H), the offence is aggravated where the accused is much older. This is because, per TSANGA J in S v Ivhurinosara Ncube HH335-13…, ;

“The age discrepancy and its attendant power dynamics (are) central in interrogating the unlikelihood of a truly consensual relationship.”

Nor can a promise to marry, or even eventual marriage of the child be, in my view, mitigatory. This is because, firstly, as stated by TSANGA J in S v Peter Chigogo HH943-15…, section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] penalises extra marital intercourse with a young person, and, at the time of the commission of the offence, the accused was certainly not married to the complainant. I therefore fully subscribe to TSANGA J's further comment that -

“The continued lenient attitude towards grown 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.”

Indeed, I share TSANGA J's concern that child marriages are unlikely to end where the courts continue to pass sentences that go against the intended letter and spirit of the Constitution and international instruments to which Zimbabwe has subscribed.

I find it particularly aggravating that the much older accused person in Review 4727/15 divorced his wife and made this child-'wife' look after his two children, who included a 4 month old baby, at a time when she herself was a pregnant child.

It is my view, therefore, that judicial officers should not look with favour on these much older men who 'marry' or intend to marry these children for purposes of sentencing as this attitude from the Bench would seem to be promoting child marriages, which our Constitution and the international instruments, which Zimbabwe has ratified, frown on.

That the accused persons were both married men with four (4) and two (2) children, respectively, is, in my view, aggravating rather than mitigatory. Such mature persons ought to take their obligations as married fathers seriously enough to want to protect their families. That they did not consider the plight of their families as a damper on their sexual abuse of young persons is the height of irresponsibility and carelessness which they should not to be allowed to hide behind to escape a just punishment. In S v Onismo Girandi HB55-12, the need to send a signal to society that courts will descend heavily on child sexual abusers was emphasised, with the court exhorting that a sentence of not less than two years should be imposed. More than three years later, there appears to be no slackening off of the rate of commission of these offences, requiring the courts to effectively discharge their obligation under section 81(3) of the Constitution more forcefully.

I agree with the trial magistrate that the fact that the victims fell pregnant adds to the aggravating factors of the two cases.

Indeed, these are young persons whose bodies are still developing and not yet mature enough to carry a pregnancy without added risk to their health. It is a matter of public information that maternal mortality rates in young persons are higher than in mature women. Other health challenges may also ensue from the early pregnancies and subsequent child births that the young persons' immature bodies will be subjected to, including vaginal fistula and haemorrhoids.

I also agree with him that, in addition, the accused persons interfered with the education of the complainants, one of whom was in Form 3 and the other in Form 1, thus limiting their prospects for self-advancement.

Looking at the aggravating features that the magistrate rightly took into account, I am unable to understand how, after such a well-reasoned analysis, he came up with such lenient sentences. It is up to judicial officers to show that the courts will not tolerate predatory older men who prey on young persons by handing down appropriately severe sentences.

The prevalence of these type of offences, the consequential incalculable damage they cause in preventing young persons from attaining their full potential, the damage to the social fabric, coupled with its impact on national development, and the need to conform to international standards in the protection of children ought to be additional grounds for handing down deterrent sentences.

When the aggravating features considered by the magistrate are  considered together with the 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, 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 the result, I am unable to certify that the sentencing regime was in accordance with real and substantial justice, and I accordingly withhold my certificate.

The accused is a first offender.

By implication, he pleaded guilty to the appropriate charge as he did not dispute having sex with the complainant but stated that it was consensual. The sentencing trends on statutory rape, the previous equivalent of contravention of the current section 70(c) of the Code, have been dealt with in depth by the late MUTEMA J in the case of S v Tshuma HB70-13.

From that judgment, it is clear that a non-custodial sentence is usually passed in such offences. In that case, the learned judge altered a sentence of 18 months imprisonment with 6 months suspended on the usual conditions to a fine of $200=, or, in default of payment, 25 days. The 25 days being the amount of time the accused person had already spent in prison. The court, in that case, held that the accused, from the sentencing trends, did not deserve incarceration at all. The court quoted the following cases:

1. In S v Nare 1983 (2) ZLR 135, the accused was sentenced to $750= or 5 months imprisonment for statutory rape (which was the equivalent for the current charge then).

2. S v Mutowo 1997 (1) ZLR 87 (HC). On review, a sentence of 24 months imprisonment with 10 suspended was altered to a fine of $300= or 1 month imprisonment.

3. In S v James 1998 (1) ZLR 424 (SC). The accused was sentenced to $600= or 1 month imprisonment.

At the time the accused person in this matter was liberated, on automatic review, he had already served 21 days, and yet, from the sentencing trends, he did not deserve to be incarcerated at all.

It is for these reasons, guided by S v Tshuma HB70-13, that the accused will be sentenced to pay a fine of $200=, or, in default, 21 days imprisonment (which he has already served) and is therefore entitled to his immediate release.

The accused received the following sentence:

24 months imprisonment of which -

(a) 8 months imprisonment is suspended for 5 years on condition the accused is not convicted of any offence of a sexual nature committed within that period for which he is sentenced to imprisonment without the option of a fine.

(b) The remaining 16 months imprisonment is suspended on condition the accused completes 525 hours of community service at Chivaka Primary School on the following terms:

(i) The community service starts on 17/11/14 and must be completed within 18 weeks of that date.

(ii) The community service must be performed between the hours 8am to 1pm and 2pm and 4pm 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 to be absent on a particular day or days or during certain hours. Any such leave of absence shall not count as part of the community service to be completed…..,.

My view is that the sentence is manifestly excessive given the overall context under which the offence occurred.

Section 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is gender neutral in its thrust in that it seeks to protect both girls and boys from extra-marital sex when they are young persons. Where the parties involved are both under 16 our courts have held that there can be no prosecution in such instances since both parties are effectively young persons under the age of 16. See S v CF (A juvenile) 2011 (2) ZLR 48 which followed the reasoning in S v Juvenile (RPS) HB01-03 decided under the then Sexual Offences Act [Chapter 9:21] as still applicable under the current Criminal Code.

Even juvenile sex offenders who commit the more serious crime of rape are not sentenced to imprisonment. See S v M 2009 (1) ZLR 47.

While corporal punishment was discussed as an alternative in that case, it is no longer among the options available for non-custodial remedies following it being outlawed as unconstitutional. See S v Chokuramba HH718-14.

Perpetrators of the crime of sex with a young person under section 70 often constitute the predatory male adult who preys on a young girl - albeit with her consent. However, in addition to adult males as predominant perpetrators, those who have equally fallen foul of the provision are adolescent boys over the age of 16 but still children under the Constitution in terms of section 81(1). They are not young persons as defined by section 70 of the Criminal Code.

Unlike in some jurisdictions, ours does not exempt from prosecution adolescent violators of such provisions when the parties are within a similar age bracket by two or three years above the minimum (such as in some states in the United States of America).

Youthful violators over 16 have to deal with the actuality of punishment which is often tempered down due to their age - where the circumstances permit. Sentences, however, can still be harsh.

Reports in the local media suggest that 66% of teenagers between the ages of 15 and 19 indulge in unprotected sex (see Daily News, Wednesday 28 January, 2015). Ignoring the reality of consensual sex among teenagers and adopting an overly formalistic approach to the crime can result not only in an unnecessarily punitive sentence but also a criminal record and stigmatisation as a sex offender.

In the context of the prevalence of sexually transmitted diseases (STDs), including the Acquired Immune Deficiency Syndrome (HIV/AIDS), and the very real dangers of teenage pregnancy, as resulted in this case, it is understandable that the law, as well as public opinion, discourages sex with, and among adolescents. Male and female adolescents also do not suffer the same consequences from the act of teenage sexuality. The risks for girls are far graver due to the very real risk of pregnancy and the attendant problems associated with early motherhood that arise from such unprotected sex. There are also risks that arise from illegal abortions using crude means that span from drinking detergent to use of sticks to extract the foetus.

Sex among peers is a reality of adolescent sexuality. It does not justify a suspended imprisonment term for the teen male offender who has had sex as part of a romantic relationship with a peer.

Also, law can only do so much to protect teenagers by discouraging sex with young persons by criminalising the act. It can also only go thus far to protect adolescent violators by taking age into account so as not to weigh too heavily on consenting peers. From a law reform standpoint, increasing the age that defines a young person to 18 would not only accord with the Constitutional definition of a minor but would hopefully also help to protect girls from adult predators in particular. Even then, the reality is that law, on its own, in such instances, cannot be the panacea to problems that have deep social contexts. Law does not operate in a vacuum. To stem the dangers that arise, for girls in particular, from teenage sex, part of the answer would appear to lie in policy makers and society accepting the prevalence of youth sex and fashioning appropriate interventions. Availing contraceptive protection is one such intervention. A more rigorous and open approach to what is actually taught as sex education in schools is also another. This seems imperative since the dominant message of abstinence has obviously not succeeded in keeping the youth from having sex among their group.

In this case, the sentence of 8 months imprisonment, albeit suspended on condition that the accused does not commit any crime of a sexual nature, is totally uncalled for given the fact that the accused was also sentenced to community service. At 525 hours, the length of community service is equally excessive. It amounts to about 75 working days based on a 7-hour working day.

The suspended prison sentence suggests that the accused belongs to the category of offenders that poses some danger to society hence the need to put him on terms of good sexual behaviour. Yet, in the same breath, if his actions pose any danger, he is being asked to serve his community service at a primary school where there are many young girls who could easily put him into temptation. Clearly, given the circumstances of the case, he cannot be said to pose the same danger as the predator who seeks under-age girls for sex hence the reason for placing him at a school to perform his community service.

Community service, under the circumstances of his case, is sufficiently rehabilitative and more in tune with a policy approach towards juvenile justice which places emphasis on rehabilitation rather than branding such a youth as a criminal.

Accordingly, for the above reasons the sentence in this case is altered as follows:

The accused is sentenced to 210 hours of community service at Chivaka Primary School on the following terms;

(i) The community service starts on 17/11/14 and must be completed within 16 weeks of that date.

(ii) The community service must be performed between the hours 8am to 1pm and 2pm and 4pm 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 to be absent on a particular day or days or during certain hours. Any such leave of absence shall not count as part of the community service to be completed.

In Mharapara v State HMA42-17 the whole question of sentencing in a crime of this nature was canvassed. As with all other crimes, the court has to balance the interests of the accused; the interests of justice; the expectations of society where social norms and values have been breached; and all the other relevant factors.

In this case, the accused was twenty years old. The complainant was fifteen. The accused was single and unemployed. He was a first offender. He and the complainant were in love. He said he was prepared to wait for her and marry her eventually. But he did not wait. He had sexual intercourse with her knowing full well she was under age. And by denying sexual intercourse, he was just wasting time. He showed no contrition. The complainant was still going to school.

This offence is quite prevalent. The rationale for its existence in the statute books; the aspiration of the Constitution and the various international Conventions on Children's Rights, as was noted in Banda v State; Sate v Chakamoga HH47-16, are the protection of the girl child against sexual exploitation by adult male persons. There have been several calls to jail offenders so as to effectively protect the girl child.

But, at twenty years of age, the accused was just barely into adulthood. At fifteen years of age [and some two months] the complainant was a few months shy of the age of consent. The age-gap between them was less than five years.

Taking all the above into account, the accused should be spared jail - but just barely. He should be given a chance to reform. Jail will break him. The most reasonable punishment should be thirty six [36] months imprisonment with portions suspended on condition of good behaviour and community service. It is noted that the accused was sentenced on 30 January 2018 [to an effective 10 years imprisonment]. Therefore, to the date of this judgment he has already served more than two months imprisonment.

In the circumstances, the accused is sentenced as follows:

1. Thirty [36] months imprisonment of which twelve [12] months imprisonment is suspended for five [5] years on condition that during this period the accused is not convicted of any offence of a sexual nature upon 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 performs community service.

The court a quo is hereby directed to recall the accused to pronounce to him the altered…, sentence above, and to assess the suitability of community service. The court shall take into account the period already served.

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 16^th 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.

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.