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HMA 26-17

HC/CA 9/17

ANESU MHARAPARA                                                      

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO, 21 March 2017 & 2 June 2017

Appeal against refusal of bail pending appeal

Mr L. Mhungu, for the appellant

Mr B.E. Mathose, for the respondent

MAFUSIRE J: This was an appeal from the magistrate’s court against the refusal of bail pending appeal.

At trial, the appellant was unrepresented. He was convicted on his own plea of guilty for having sexual intercourse with a young person in contravention of s 70[1][a] of the Criminal Law [Codification and Reform] Act, Cap 9:23 [“the Code”]. He was sentenced to 36 months imprisonment. 6 months imprisonment was suspended on the usual condition of good behaviour. That left him with an effective 30 months imprisonment.

Shocked by the sentence, the appellant engaged counsel and appealed. Pending the appeal, he applied for bail. It was refused. He again appealed. I heard the bail appeal on 21 March 2017. Following several concessions by the State, I allowed the appeal and granted bail in the sum of $100, with some reporting conditions. I gave my reasons ex tempore but said I would reduce them to writing upon any written request received within a reasonable time. The appellant has written to request the reasons. These are they.

At the time of the offence the appellant was 21 years old. The complainant was a girl aged 15 years. They were lovers. Sexual intercourse happened on several occasions. The complainant fell pregnant and subsequently gave birth. 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. The arrangement was acceptable to the parents. Thus, the appellant was the sole breadwinner for the three children, a wife and the complainant. All these were common cause.

The magistrate justified the sentence, and his refusal of bail, largely on the review judgment in Banda v State, Sate v Chakamoga HH 47-16. 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/Chakamoga judgment assumed overriding importance in arguments by both parties. Mr Mhungu, 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, Mr Mathose, 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.

Mr Mhungu 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, Mr Mathose, 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[1], 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. Mr Mathose also conceded that the Banda/Chakamoga 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/Chakamoga 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 s 70[1] of the Code[2]. 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/Chakamoga, 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 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 underdeveloped 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 [supra][3], 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.”

Sentencing is a complex exercise. It is a balancing act. From time to time jurists have espoused brilliant philosophies around it. Guidelines have been developed. The legislature sometimes weighs in with mandatory minimum sentences for certain offences. There are certain basics. 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[4] GUBBAY J, as he then was, 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 rational is much broader. Having sexual intercourse with a young person falls under a section of the Code that is titled “Sexual crimes and crimes against morality” [my emphasis]. 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[5], 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[6]. 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 misdeeds, but is at the same time careful to avoid destroying the offender, unless the offence is one that calls for capital punishment.

Under s 70[1][a] of the Code, 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/Chakamoga 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[7], 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[8] 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[9]  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.

2 June 2017

Mhungu & Associates, legal practitioners for the appellant

National Prosecuting Authority, legal practitioners for the respondent