Judgment No. HB 131/04
Case No. HC 3758/04
CRB ENT 1690/03
THE STATE
Versus
RICHARD FIKIZOLO
IN THE HIGH COURT OF ZIMBABWE
NDOU J
BULAWAYO 21 OCTOBER 2004
Criminal Review
NDOU J: This matter was referred to me by the learned scrutinising Regional Magistrate for Western Region with a minute, inter alia, in the following terms –
“… The attached minute from Bulawayo Legal Project Centre is relevant. The trial magistrate in this case convicted the accused person of one count of contravening section 3(1)(a) of the Sexual Offences Act Cap 9.21 and sentenced him to imprisonment for 8 months. He suspended four of the 8 months and the accused person was left with an effective 4 months imprisonment …”
Paragraph 3 of the letter is particularly relevant. It reads as follows:
“He advises that he was given an option for community service sentence, but due to ignorance on his part as to what community service was all about, he opted for a custodial sentence. He has since discovered that community service would have been to his best advantage as he is employed and the only breadwinner in the family.
A perusal of the record of proceedings upon scrutiny indeed confirms the above quoted paragraph in toto. It also reveals the fact that the period of imprisonment imposed by the trial court was within the region stipulated in the guidelines for imposing community service …
On pages one and four of trial magistrate’s reasons for sentence, the trial magistrate repeatedly states that the accused person is not desirous of performing community service. I am not convinced that before sending the accused person to prison the trial magistrate took the care to properly explain to the accused person what community service was all about. The record of proceedings seems to confirm that fact as there is nowhere in the record of
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proceedings where it is indicated that community service and its objectives were explained to the accused person and he understood.”
The facts of this case are that the accused was not represented by a legal practitioner during the trial. He sought legal advice after the sentence was imposed. The legal practitioner, instead of filing a notice of appeal against sentence, embodied a written statement on review. This approach is sanctioned by section 57(1)(b)(ii) and (2) of the Magistrates’ Court Act [Chapter 7:10]. The use of such review procedure to attack the sentence is allowed- R v Pio & Anor 1967(1) RLR (G) at 107H; S v Runganga 1995 (2) ZLR 303 (H) at 306G-307E; S v Nyathi HB-90-03 and S v Class HB-43-04.
Although the legal practitioner embodied a very scant statement one can only assume that foregoing route was the intention. I should point out, however, that it is imperative for legal practitioners to state in such applications the legal authorities and statutory provision upon which the application is based.
Looking at the circumstances of the case and what the learned Regional Magistrate and the accused’s legal practitioner stated is there a basis for interference with the sentence imposed by the trial magistrate? I do not think so. My reasons will now follow.
The facts prove that the moral blameworthiness of the accused was high. He is aged 21 years at time of trial and was 20 years at time of the offence. On 21 June 2003 and at about 2000 hours the accused had extra marital sexual intercourse with a young person in contravention of the aforementioned provision of the Act. The girl was aged 15 years. The age difference between the accused and the girl is 5 years. He had unprotected sexual intercourse with the girl. She fell pregnant as a result. He disputed paternity from the time she approached him right up to the time of his
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conviction. She had to convince the police, the state and the court that there was indeed such sexual intercourse. The accused, even at this late stage, does not seem remorseful. He was afforded an opportunity to make submissions on the option of community service and he elected that he does not wish to perform such a form of sentence. I agree with the learned scrutiny Regional Magistrate that there is a need to carefully explain the concept of and meaning of community service to the accused and ensure that he understands the explanation. However, in casu, we have to take the trial magistrate’s word that this was done hence the above response from the accused. After the explanation the accused was unwilling to undertake community service so he could have been an unreliable risk – S v Matara HH-31-95 and S v Mukono HH-161-96. In my view, the sentence imposed is lenient so the question of interference with it does not even arise. Sexual abuse of children should be viewed very seriously especially when the conduct involves exposing children to unprotected sex in this day and age. Sexual abuse of young persons or children is prevalent.
In any event the question of sentence is pre-eminently a matter for the discretion of the trial court. The reviewing judges should be careful not to erode such discretion. I can only interfere when the sentence is disturbingly inappropriate – Ramushu & Ors v S SC-25-93; S v Matanhire HH-18-02; Mavhundwa vS HH-91-02;Musindo & Ors v S HH-25-02 and S v Ndlovu HB-66-03. The sentence imposed here is not disturbingly inappropriate. I do not believe that the sentence is not in accordance with real and substantial justice.
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Accordingly, by virtue of powers bestowed on me in terms of section 29(2)(a) and (5)(c) of the High Court Act [Chapter 7:06] I certify these proceedings as being in accordance with real and substantial justice.
Cheda J ………………………… I agree
