On
1 November 2017, after hearing arguments from counsel, we dismissed
this appeal for lack of merit. The reasons for the dismissal were
given ex tempore.
On
28 November 2017, counsel for the appellant wrote to the Registrar
requesting for the written reasons for dismissing the appeal. These
are they.
The
17-year-old appellant was convicted on his own plea of guilty by the
Senior Regional Magistrate, Chiredzi for contravening section 65(1)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
which relates to rape. The appellant sexually molested a 10-year-old
complainant.
Both
the appellant and the complainant reside in the same village in
Uswaushava, Triangle, Masvingo and are neighbours.
The
agreed facts are that on 12 May 2017 the appellant approached the
complainant in the grazing area where the 10-year-old complainant was
herding cattle with her 3-year-old cousin. The appellant held the
complainant by the arm and pulled her to a nearby field. At the
field, the appellant forced the complainant to the ground and removed
her pants. In turn, the appellant removed his trousers and pants. The
appellant proceeded to tie a cloth around the complainant's mouth
in order to prevent her from crying or raising any alarm. Thereafter,
he proceeded to ravish her in the presence of the 3-year old child.
The appellant then left the scene. Later that day the complainant
made a report to her grandmother who had returned from the fields.
The appellant was apprehended by local villagers on the same day but
managed to escape as he was being taken to the police station.
However, police subsequently arrested him the same day.
As
already said, the appellant was duly convicted as per the procedure
provided for in section 271(2)(b) of the Criminal Procedure and
Evidence Act [Chapter
9:07].
The
court a quo, in the absence of a probation officer's report,
proceeded to adduce evidence from the appellant's mother in a
pre-sentence inquiry. The appellant's mother pointed out that the
appellant was in Form 2 although he was supposed to be in Form 4
because he had repeated the grades. She pointed out that the
appellant's criminal conduct was rather out of character as she was
surprised by the appellant's behaviour.
The
medical report produced during the trial showed that the hymen of the
10-year-old complainant was torn. It is clear that penile
penetration, as agreed to by the appellant, was effected.
The
appellant was sentenced to 6 years imprisonment of which 2 years
imprisonment were suspended for 5 years on the usual conditions of
good behaviour thus leaving an effective term of 4 years
imprisonment.
Aggrieved
by this sentence the appellant lodged this appeal against sentence.
The
grounds of appeal are couched as follows;
“GROUNDS
OF APPEAL
1.
The court a quo erred in imposing a custodial sentence and ruling out
a consideration of corporal punishment coupled with a suspended
sentence.
2.
The court a quo erred in sentencing a juvenile without a Probation
Officer's report and professional opinion outlining the personal
circumstances of the individual child offender.
3.
The reasons of the court a quo induced (sic) a sense of shock in
sentencing the accused person aged seventeen (17) years as an adult
and not a child offender deserving adequate protection by the courts.
WHEREFORE
appellant prays that the sentence be set aside and replaced with
sentence of corporal punishment coupled with a wholly suspended
sentence (sic).”
The
appellant, at the time of hearing the appeal, was on bail pending
appeal, although he had had a short stint in prison.
In
his oral submissions, counsel for the appellant went to town about
the alleged omissions by the court a
quo.
Counsel for the appellant submitted the court a
quo
failed to take into account the well enshrined principle or concept
of the best interests of the child (the accused). Reference was made,
extensively, to the provisions in our Constitution and various
international conventions dealing with the rights of children in
conflict with the criminal law.
We
were not persuaded that the court a
quo
erred in proceeding to finalise this matter without the Probation
Officer's report.
The
learned Senior Regional Magistrate should, in fact, be commended for
being innovative by calling the appellant's mother and adduce
relevant evidence on the personal circumstances of the appellant. As
a result, this matter was expeditiously dealt with rather than
waiting for a long time pending the availability of the Probation
Officer's report. Judicial notice should be taken of the fact that
there are real constraints faced by the courts in obtaining such
reports leading to inordinate delays in finalizing
criminal cases. Where appropriate, this can be solved by being
resourceful and proactive as was done by the learned Senior Regional
Magistrate. The bottom line is whether the trial court has carried
out a meaningful pre-sentence inquiry to equip itself with sufficient
information to properly sentence the accused without committing an
injustice. The mere absence of a Probation Officer's report, per
ser,
does not constitute a misdirection or miscarriage of justice. In
casu,
the personal circumstances of the appellant were well canvassed and
we find no misdirection on the part of the trial court.
It
is not correct, as the respondent (the State) had wrongly conceded,
that the appellant was treated as an adult. Maybe both counsel were
put on the wrong scent by what the learned Senior Regional Magistrate
said in the reasons for sentence. The relevant part reads as follows:
“I
do not believe corporal punishment will reform you. I believe a short
prison term will teach you a good lesson to other boys out there now
that you are close to 18 years. I do not believe treating you like a
juvenile will save (sic) any good lesson. You should be treated like
an adult (sic).”
The
mumbled pronouncements by the learned Senior Regional Magistrate are
unfortunate.
This
should not, however, detract from the fact that the appellant was not
treated as an adult. A number of observations inform this finding.
The appellant's mother was called to assist the court in the
pre-sentence inquiry as there was no Probation Officer's report.
What is even more pertinent is that the sentence imposed by the trial
court is way below the sentences normally imposed in rape matters
where adult men who sexually abuse minor children like the
10-year-old complainant. The sentences are well above 10 years
imprisonment. A proper assessment of all the factors clearly show
that the appellant was not treated as an adult.
We
were not persuaded by the argument that this matter raises any
constitutional issues. Indeed, section 81 of our Constitution deals
with the rights of children and emphasizes, in section 81(2), that a
child's best interests are paramount in every matter concerning the
child. The same goes for various international conventions dealing
with the rights of children.
What
escaped the mind of counsel for the appellant is that in
casu
the sentencing court was grappling with the competing interests of
the appellant (being the abuser) and the complainant (the abused
10-year-old child). It is not the appellant's rights which are
paramount. The rights of the victim are equally if not more important
- especially a 10-year-old girl.
The
simple question which arises in this matter is; what is the
appropriate sentence for a 17 year old who sexually abused a 10 year
old girl in a rather brutal and violent manner?
In
the case of S
v Zaranyika & Ors
1995 (1) ZLR 158 (H) BARTLET J, in a very detailed review judgment,
grappled with this question. In fact, this case gives very useful
guidelines in dealing with accused persons of the appellant's age
convicted of raping minor children like the complainant.
There
are a number of aggravating factors in this case which elevate the
appellant's moral blameworthiness. The offence of rape itself is
inherently a very serious offence. The age difference between the
appellant and the complainant is not neglible. The offence was
committed in a cruel and brutal fashion. The 10-year-old complainant
was not only dragged to the fields but had to be gagged by having her
mouth tied with a cloth to ensure she would not raise alarm while she
was being raped. The appellant's conduct cannot be described as
some boyish prank.
It
is not a rule cast in stone that all accused persons below the age of
18 years should be sentenced to corporal punishment for committing an
offence like rape regardless of the circumstances of each case. There
is nothing to suggest that the trial court improperly exercised its
discretion in this matter.
It
is for these reasons that we found that the appeal in respect of
sentence lacked merit. Accordingly, we dismissed the appeal.
