S v Sibanda (HB 28 of 2017; HCAR 244 of 2017; XREF CRB GWP 117 of 2017) [2017] ZWBHC 28 (23 February 2017)

THE STATE

versus

ABUNDANCE SIBANDA

HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO 23 FEBRUARY 2017

Review Judgment

BERE J: I got seized with this matter by way of automatic review.

The accused, an 18 year old boy appeared before a Provincial Magistrate sitting at Gweru on 25 January 2017 and was charged with the offence of kidnapping or unlawful detention in violation of Section 93 (1) (B) (ii) of the Criminal Law Codification and Reform Act¹. After conviction the accused was sentenced to a straight term of imprisonment of 15 months 6 months of which were suspended on the usual conditions of good behavior compelling the accused person to serve an effective prison term of 9 months.

It is the approach to sentence which has caught my attention and given me much discomfort.

To understand my concerns one must first grasp the full facts of this case which can be summarized as follows:

The accused who appeared himself before the Provincial Magistrate was charged with kidnapping or unlawful detention is 18 years old. The accused and the girl victim whose age was given as 16 years were in love. The girl is attending school in Gweru. On 21 January 2017 and after school the victim went to meet the accused in Gweru town and the two stayed together until evening. The two then decided to go to the accused’s place of residence in Mkoba 16, Gweru where they stayed until about 1200 hours on 23 January 2017.

1. ^{Chapter 9:23}

The two parted with the accused intending to go to Shangani whilst the victim intended to go back home to her parents’ place. There was no evidence of the accused having sexually assaulted the victim. Even if it were true that the accused and the victim had indulged in sexual intercourse, while this could have been morally reprehensible, no criminal offence would have been committed by the accused.

Upon his arrest the accused was charged with the aforesaid charge of kidnapping or unlawful detention and sentenced as already referred to.

When the Magistrate was canvassing the elements of the charge the accused indicated to him that the victim was refusing to go back to her parents and suggested that she would leave on a Sunday in the morning which is precisely what she eventually did. The accused’s further uncontroverted assertion was that during their stay together, no sexual intercourse occurred.

It was accepted by the court a quo inter alia that the accused was a young first offender who had tendered an unequivocal plea of guilty. The magistrate went on to deal with the other factors in both mitigation and aggravation.

The record of proceedings will show that contrary to the evidence recorded by the learned magistrate that no sexual intercourse took place the Court unfairly went into overdrive emphasizing that the accused had cohabited with the victim.

It is in this regard that the learned magistrate then allowed himself to drift towards a misdirection by considering as aggravatory factors which his own record of proceedings did not support. If the learned magistrate had been alert to the youthfulness of both the victim and the accused, whose ages were given as 16 years and 18 years respectively, he would have come up with a more rational sentence as opposed to the one he imposed.

It has been stated time and again that youthfulness and a plea of guilty are important considerations in the assessment of sentence particularly when dealing with youthful offenders. Ironically, the learned magistrate noted this by making specific reference to the eloquently expressed observations by McNALLY JA in the case of S v Sidat² but went on to depart from or paid lip service to the guidelines laid down in that case.

2. ^{1997 (1) ZLR 487}

As correctly observed by BARTLETT J in the case of S v Zaranyika and Others

“Youthfulness is always, where the person does not act out of inherent wickedness, a strong mitigatory factor for all crimes. It would be wrong to impose on a youthful offender the same penalty as would be imposed on a mature one. The punishment on a youth must be geared principally towards correcting him, in the hope of preventing him from ruining his life. With regards to mature offenders, the sentence is directed more towards retribution and deterrence than any hope of correction. --- No teenager has the maturity on an adult. Youthfulness denotes immaturity, lack of experience of life, thoughtlessness and a tendency to being influenced, especially by adults. A person of 18 or 19 is immature, even if he has left school and is working or at university.”³

See also the following cases S v Zhou⁴, S v Madzomba ⁵ and S v Chitiki⁶

The common denominator in all these cases is to underline the need to treat youthful offenders with a measure of extreme mercy and to differentiate their treatment from those of mature individuals.

The penalty provision in the charge preferred against the accused person in this case does in fact provide for a fine or imprisonment where the kidnapping or unlawful detention was committed in mitigating circumstances. See section 93 (1) (B) (3) (ii) of the Code under which the accused was charged.

It is clear from this case that the accused did not use violence in unlawfully detaining the victim who was more or less of his age. It is equally true that despite her age, the victim appeared to have prevailed over the accused by deliberately refusing to go back to her place and opting to go back after the week-end. It cannot escape the mind of the court that despite her age the victim showed signs of maturity that went beyond her age. Despite being a mere form two girl of 16 years of age, the girl persuaded the accused to take her to his place.

It is my well-considered view that if the learned magistrate had properly considered all these factors he would certainly have settled for a sentence other than the harsh prison sentence which he imposed.

3. ^{1995 (1) ZLR 270}

4. ^{1995 (1) ZLR 329}

5. ^{1999 (2) ZLR 214}

6. ^{1986 (1) ZLR 60}

Where there is a provision for a fine in a statute, it is wrong for a sentencing court to start by opting for a prison term without first seriously exploring the possibility of the imposition of a fine. In this case, by alleging non-existent cohabitation the learned magistrate appeared to have been playing to the gallery. This in turn informed the sentence that he eventually imposed. I must hasten to say that the office of the magistrate occupies a central role in the administration of both the civil and criminal justice system. Magistrates are regarded as little “kings and queens” in their areas of operation. Because this court is usually the court of first instance, the magistrate yields so much influence and power which if not properly used can result in the corruption of the whole system. It is therefore important that magistrates exercise extreme restraint and caution in executing their duties to avoid the possible abuse of the power they hold especially when dealing with unrepresented accused persons or litigants. The restrained approach is even more demanding when one is dealing with a youthful and unrepresented accused as in the instant case.

The court in this case is clearly at large as regards sentence. The court a quo’s sentence is set aside and the following is substituted taking into account the fact that the accused has already been partially punished by the prison term he is currently serving.

“The accused is sentenced to pay a fine of $150 in default of payment to undergo 20 days imprisonment”.

The accused, having already served a period in excess of the alternative period of imprisonment is entitled to an automatic release

Takuva J …………………………………….. I agree