MAKARAU
JP: The accused appeared before
the Magistrates' Court facing one count of contravening section 65 (a) the
Criminal Law (Codification and Reform) Act, [Chapter 9.23]. He pleaded guilty
to the charge and was duly convicted. He was sentenced to twelve years
imprisonment, with three years suspended for five years on conditions of good
behaviour.
The
facts giving rise to the charge and conviction may be summarized as follows.
The
accused and the complainant are brother and sister respectively. At the time of
the offence, the accused was aged sixteen whilst his sister, the complainant
was aged twelve.
It
would appear that during the day of the 27th May 2006, the accused
person went for a beer drink with his parents. Upon his return to the
residence, he found the complainant and a younger brother alone. The two ran
away when the accused arrived as they were afraid. Presumably they mistook him
for an intruder.
The
complainant and the accused's young brother prepared their respective sleeping
places in their mother's room. The accused joined them and insisted on sleeping
in the same room with them. He then spread his own blankets in between the two
and they all proceeded to sleep. Later during the night, the accused crept into
the complainant's blanket and forcefully removed her short. He then inserted
his penis into the complainant's vagina and she resisted him and pushed him
away. He did not persist with this conduct.
The
medical affidavit adduced into evidence did not reveal any evidence of
penetration. No tests of any sexual transmitted diseases were done on the
complainant.
The
conviction of the accused is proper and raises no issues. The trial magistrate
correctly noted that the facts of the matter constituted an offence as the
accused inserted his penis into the complainant's vagina who removed it when
she pushed the accused away. There was legal penetration even though such
penetration could not be medically detected when the complainant was examined
some three days later.
In
this regard, the words of the accused person when entering a plea to the charge
are in my view telling. This is what he had to say:
“I forced her but I did not have
sexual intercourse with her. I inserted my penis and she removed it.”
It
is the sentence that was imposed upon the accused person that has exercised my
mind in this matter.
Two
issues arise.
Firstly,
the record indicates that the trial magistrate took long in sentencing the
accused as he was waiting for a probation officer's report. The report never
came and in the end, the trial magistrate had to proceed to assess sentence
without the report. In doing so, he observed that there was an acute shortage
of staff at the Social Welfare Department. He presumably could not continue
waiting for a report that was not forthcoming. This situation must face a
number of magistrates across the country who have to come up with sentencing
options for juvenile offenders. The issue that then presents itself to me is
the challenges that face the courts in handling matters of juvenile offenders
in the absence of the requisite support structures to inform them on how to
manage such offenders.
The
Criminal Procedure and Evidence Act [Chapter 9.07] has a number of sections
that specifically provide for how the courts should deal with juvenile
offenders and juvenile witnesses appearing before them. It is the age old
practice of our courts to treat juveniles differently from adults. Section 351
of the Act deals specifically and in detail with how convicted juveniles should
be handled. The import of the section is to give discretion to the court
convicting a juvenile on the options available for the management of the young
person.
It
is also clear from the section that there must be close liaison between the
courts convicting the juvenile and the Ministry responsible for Social welfare
where training institutions or reform schools where convicted offenders may be
referred to. Such liaison appears to have died down with the passage of time
leaving trial magistrates with no options but to sentence juvenile offenders to
imprisonment as occurred in this matter.
In
casu, it would appear that the trial magistrate did not make the necessary
inquiries with the relevant ministry presumably because he felt that there
would be no response as he had failed to obtain a probation officer's report in
the first instance.
It
would appear to me that there is urgent need for this liaison to be
resuscitated if the management of juvenile offenders is to be done in
accordance with the law and for the rehabilitation of young offenders.
In
addition to the statutory provisions I have cited above, there is a long line
of decided cases in this jurisdiction discussing the manner in which convicted juveniles
are to be treated. Our laws and procedures have for long recognized that it is
wrong to sentence juvenile offenders as if one is dealing with an adult
offender. The thrust of the criminal justice delivery system in sentencing
adults is to punish them for their wrongdoing whilst in dealing with juveniles,
the thrust is to reform them. A
court should thus be exceedingly slow to expose a convicted juvenile to the
same rigours of punishment which it will impose on an adult for the purposes
served by the sentences are different.
In
S v Tendai and Another Gillespie
J admirably in my view, discusses the management of juvenile offenders instead
of the punishment or sentencing of such offenders. The use of such language,
which is deliberate, highlights the differences in approach that a court should
take when dealing with juvenile offenders as opposed to adult offenders.
In
that case, Gillespie J discusses the importance of a probation officer's report
in assisting the court in coming up with the most apt management scheme for
each child that is found to be in conflict with the law. He further discusses
the need to involve the family of the child which he holds to be just as
important as the probation officer's report for the formulation of a management
scheme for the juvenile. Thus where the child has a stable family environment
and there are responsible members of the family who are willing and capable of
taking responsibility for the rehabilitation of the minor, such a minor should
be given a chance to rehabilitate under the supervision of such family members.
The
issue that has presented itself to me is that even in the absence of probation
officers and probation officers' reports, a trial court handling the matter of
a juvenile may be innovative and seek to involve the family of the juvenile
before coming up with a management scheme or sentence. To simply proceed
without both the probation officer's report and involvement of the juvenile's
family is in my view akin to proceeding in complete darkness.
Thus,
while the trial magistrate is to be commended for having waited for the
probation officer's report, which was never availed, I would venture to suggest
that trial magistrates in similar positions should be innovative and seek to
gain an insight into the circumstances of the juvenile before them from other
reliable sources such as the school, family or community of the accused. A
little bit of light is always better than no light at all in my view.
Secondly,
it appears to me that the trial magistrate in
casu treated the accused as an adult offender even though he noted in his
reasons for sentence that the accused is a juvenile offender. The sentence he
imposed clearly falls within the range of sentences ordinarily imposed upon
adult offenders.
It
is common cause that the accused had unlawful sexual intercourse with his
sister and that this constitutes an aggravating feature of the matter. However,
this alone would not strip the accused of his status as a juvenile offender.
In
S v Zaranyika & Ors 1995 (1) ZLR
270 (HC) Bartlett J laid down a guideline to assist magistrates in assessing
sentences for juvenile sexual offenders.
He had this to
say:
“ I would finally emphasise that it is
hoped that this judgment will provide a guideline to assist regional
magistrates in the difficult task of assessing sentence in rape matters where
the accused is aged 17 or 18 (and to a somewhat lesser extent where the accused
is aged 19). It is not suggested or intended that the approach laid down should
be regarded as being engraved in stone. There may well be cases where the
aggravating features are such that a more severe sentence is required. Such
aggravating features could, for example, be: a multiplicity of counts; the
infection of the complainant with a sexually transmitted disease; or the
suffering of serious physical and/or psychological harm. There may equally very
well be cases where the mitigating factors are such that a much more lenient
approach is required. Such mitigating factors could, for example, be: clear and
verifiable indication of minimal physical or psychological harm or a probation
officer's report which, for good reason, after a detailed assessment of the
offence and the offenders' background, recommends a lesser punishment such as
corporal punishment or committal to an institution.”
I
am not aware of any other later judgment that has the effect of varying or
diluting the guidelines laid down in this case.
I
am however aware that there has been a noticeable shift by trial magistrates to
emphasize the gravity with which the courts view the offence of rape and how
this offence traumatizes the victims. This is indeed the correct approach to
adopt in such matters but in my view, the need to protect the complainants in
sexual offences need not strip the youthful offender of his status as such and
the consequent need on his part to be protected by the courts from his
immaturity. The court should always strike a balance between the two competing
rights. None is greater than the other.
In
casu, the trial magistrate did not
aver to any aggravating features that would justify a departure from the
approach that was suggested in S v
Zaranyika and others (supra). I
have not been able to find any such features in the matter. If it were appropriate
to use such language in rape cases, I would venture to suggest that there were
minimal aggravating features in this case. The complainant fought off the
accused who did not persist with his attack. The medical report does not reveal
any physical injury to the complainant who was luckier than most complainants
whose cases have come before the courts.
On
the basis of the foregoing, it is my view that the sentence imposed upon the
accused is severe and induces a sense of shock. It cannot stand.
In
the result, the sentence imposed on the accused is set aside and in its place
is substituted the following:
“5 years of
which 2 are suspended for 5 years on condition the accused does not within that
period commit an offence of a sexual nature and for which upon conviction he is
sentenced to a term pf imprisonment without the option of a fine.”
The accused
person was sentenced on 2 June 2006. He has by now served the full term of his
sentence. He is entitled to his immediate release and a warrant for his
liberation should issue.
Chatukuta J agrees.
