July 25, 2016

CHATUKUTA AND MANGOTA JJ

Criminal procedure - Sentence - Offences under the Criminal Law (Codification and Reform) Act [Chapter 9:23], s 70 (1)(a) - Extra-marital sexual intercourse with a young person - Factors to be taken into account - Age difference between accused and complainant - Importance in assessing sentence.

The appellant a young adult aged 22 at the time of the offence, pleaded guilty to having had sexual relations once with the complainant, whose age was around 13 years old. He was sentenced to an effective term of imprisonment. He appealed against the severity of the sentence.

Held, that when assessing sentence in cases involving extra-marital sexual intercourse with a young person in contravention of s 70 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the age difference between the accused person and the complainant must be given consideration. It is an aggravatory factor where the age disparity is substantial.

Cases cited:

S v de Jager and Another 1965 (2) SA 616 (A), referred to

S v Five 1988 (2) ZLR 168 (S), referred to

S v Gono 2000 (2) ZLR 63 (H), referred to

S v James 1998 (1) ZLR 424 (S), referred to

S v Mlambo HB 100-92 (unreported), referred to

S v Mundowa 1998 (2) ZLR 392 (H), referred to

S v Mutowo 1997 (1) ZLR 87 (H), referred to

S v Nare 1983 (2) ZLR 135 (H), referred to

S v Ncube 2013 (2) ZLR 268 (H), referred to

S v Nhumwa SC 40-88 (unreported), referred to

S v Pillay 1977 (4) SA 531 (A), referred to

S v Sidat 1997 (1) ZLR 487 (S), referred to

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 70 (1)(a)

High Court Act [Chapter 7:06], s 38 (2)

F Murisi, for the appellant

S Fero, for the respondent

CHATUKUTA J:

The appellant and the complainant were lovers. The appellant was 22 years old. The complainant was estimated to be ±13 years old. On 26 May 2013, they had consensual sexual intercourse once. The complainant's aunt made a report to the police when she became aware of the sexual escapade. The appellant was charged with and was convicted, on his own plea of guilty, of contravening s 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 24 months imprisonment of which six months was suspended on condition of future good behaviour.

The appellant was not satisfied with both the conviction and sentence, hence the appeal against both. The appellant, however, abandoned the appeal against conviction and in my view, rightly so given the facts of the case. The appellant persisted with the appeal against sentence.

The main grounds were that the court a quo:

(a) passed a sentence that was excessive and induced a sense of shock and is not consistent with sentences imposed by the court in similar cases;

(b) did not give sufficient weight to the mitigating factors and circumstances of the case and that it did not assist an unrepresented accused in mitigation;

(c) did not consider the other sentencing options such as the imposition of a fine or community service and failed to give adequate reasons for the sentence imposed.

The appeal was opposed with the respondent contending that the court a quo did not misdirect itself.

It is trite that an appeal court does not generally interfere with the sentencing discretion of the trial court. It can only interfere with the sentence where the trial court did not judicially exercise its discretion resulting in an irregularity or a sentence so severe that no reasonable court could have imposed such a sentence (See S v Mundowa 1998 (2) ZLR 392 (H), S v de Jager and Another 1965 (2) SA 616 (A) at 628H-629B, S v Nhumwa SC 40-88 (unreported)).

The reasons for sentence by the court a quo are contained in two full pages. The trial magistrate considered the mitigating factors with emphasis on the factors that the appellant was a first offender who had pleaded guilty. He further considered that the complainant was not pregnant.

He proceeded to consider the aggravating factors. The court considered that the age of the complainant and the disparity between the ages of the appellant and the complainant was an aggravating factor. He observed at page 5 that:

"In this case the complainant was at the material time estimated to be a mere ±13 years old school going child. Accused was alive to this fact. As a neighbour he knew that complainant was a mere minor. Accused had no reason to prey on the child. He is an adult aged 22. It is apparent that their age difference cannot be slight. The cut off age of 12 years is perilously close to the age of the complainant for which the accused could have been visited with a more serious charge of rape."

He then weighed the mitigating factors against the aggravating factors. The scale was tilted by the aggravating factors. What was even more aggravating in the present case is that the appellant expressed his desire to marry a child.

Having addressed the age of the complainant and the disparity between the appellant and the complainant's ages, the trial magistrate proceeded to consider the sentencing options. At page 6 he observed that:

"Further in the case of S v Dube & Ors (supra) the High Court rejected the suggestion that non-custodial sentences are the norm for this type of offence where it stated:

'The trial magistrate said that he was of the view that incarceration would have been harsh since, for such offence, courts normally impose a fine or a wholly suspended custodial sentence. I cannot agree with the trial magistrate that that is the normal sentence imposed'"

The trial magistrate continued:

"It is clear that when the offence is aggravated as is this one, a custodial sentence cannot be averted. Legislation is a purposive activity and the law passed must be implemented in such a way that achieves the purpose of the law concerned. The purpose of this law is to protect immature girls from the trepidations of mature males as was held in S v Nare 1983 (2) ZLR 135. Gubbay J (as he then was), set out the reasons why the legislature created the offence in question. He expressed it as follows at 137 H:

'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. The 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.'

So, when this offence is trivialised this purpose would not be achieved."

I cannot agree more with the reasoning of the trial magistrate and the sentiments expressed in the cases he cited. The appellant cited a plethora of cases in a bid to persuade the court that the sentence imposed by the court a quo was not similar to the sentences imposed in those cases. The following are the cases:

(1) S v Mlambo HB 100-92 (unreported) - a 23 year old man who had impregnated a 13 year old girl was on appeal sentenced to pay a fine of ZWD 400 or four months imprisonment.

(2) S v Mutowo 1997 (1) ZLR 87 (H) - a 27 year old man who had sexual intercourse with a 13 ½ year old girl was made to pay a fine of ZWD 300 or one month imprisonment.

(3) S v Ncube 2013 (2) ZLR 268 (H) - a 30 year old man who had sexual intercourse with his wife's sister aged 15 was sentenced to 24 months imprisonment of which 16 months were suspended on condition of future good behaviour.

(4) S v Five 1988 (2) ZLR 168 (S) - a 19 year old male who had sexual intercourse with a 14 year old girl was sentenced to pay a fine of ZWD 150 or six weeks' imprisonment with labour.

(5) S v Nare 1983 (2) ZLR 135 (H) - a 22 year old man who had sexual intercourse with a 15 year old girl had a sentence of 18 months with five months suspended on condition of future good behaviour imposed by the magistrate court substituted with a fine of ZWD 750 or five months imprisonment.

(6) S v James 1998 (1) ZLR 424 (S) - a 20 year old man who had sexual intercourse with a 11 year old girl. A fine in the sum of ZWD 600 or one month's imprisonment was held to be appropriate.

What is apparent from the cases cited by the appellant is that the abuse of minor children has continued unabated. The conclusion that can be arrived at is that the sentences have not had the desired effect of protecting minor children.

The court a quo was also criticised for not considering the imposition of community service or a fine as sentencing options. However, it can be implied from the above reasons of the court a quo that the court was mindful of the other sentencing options and it discounted those options. As stated in S v Gono 2000 (2) ZLR 63 (H), a failure to mention the other non-custodial sentences does not mean that the sentencing court would have erred. BLACKIE J at 66F quoted with approval Trollip JA in S v Pillay 1977 (4) SA 531 (A) at 535 that:

"... merely because a relevant factor has not been mentioned in the judgment on sentence, it does not necessarily mean that it has been overlooked, for 'no judgment can ever be perfect and all-embracing'..."

Assuming that in failing to mention the other sentencing options and particularly community service, the court a quo misdirected itself (which I do not believe it did) the misdirection is not in my view so substantial as to warrant interfering with the sentence. In terms of s 38 (2) of the High Court Act [Chapter 7:06] a sentence can only be set aside where there is substantial miscarriage of justice. (See S v Gono (supra) and S v Sidat 1997 (1) ZLR 487 (S)).

I find that, given the extensive reasons by the court a quo, I am of the view that there was no substantial miscarriage of justice.

The appeal is accordingly dismissed.

MANGOTA J concurred.

Murisi and Associates, appellant's legal practitioners

National Prosecuting Authority, respondent's legal practitioners