THE State V George Mativenga

### Preamble
1
HH 46-18
CRB KADP 729/17
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THE STATE

versus

GEORGE MATIVENGA

HIGH COURT OF ZIMBABWE

CHITAPI & NDEWERE JJ

HARARE, 31 January 2018

Review judgment

CHITAPI J: The accused was convicted by the magistrate sitting at Kadoma for contravening s 70 (1) (a) of the Criminal Law Codification and Reform Act, [Chapter 9:23]. Section 70 (1) (a) aforesaid creates the offence of having sexual intercourse with a young person. The sentence provision upon conviction for the offence provides for a sentence of a fine not exceeding ten years or both a fine and imprisonment. Any consent given by a young person to sexual intercourse with the accused is not a defence. A young person is described in the Act as a boy or girl under the age of 16 years.

The accused in this case was aged 40 or 41 years old. The accused’s actual age was not investigated. He gave his age in mitigation as 40 years whilst the charge sheet indicates that he was 41 years old. Whilst in this case not much can be read into the different ages given because of their closeness, it is important in cases of this nature that the accused and the complainant ages are established or proven. The age gap between the complainant and the accused is a material factor which the trial court should consider in assessing an appropriate sentence following the conviction of an accused person on a charge of having sexual intercourse with a young person.

The complainant in this matter was a grade 5 pupil at a school in Kadoma. She was aged 14 years. The accused and the complainant are related in that the complainant is a young sister to the accused’s wife. The accused proposed to the complainant and the two fell in love in January, 2017. They were intimate over a period of time on several occasions until 12 July, 2017 when they were seen by one Kudakwashe Phiri at night whilst being intimate. Kudakwashe then reported the matter to the police. The accused was arrested and charged with the offence of contravening s 70 (1) (a) of the Criminal Law (Codification and Reform Act.)

When the accused appeared before the magistrate, he pleaded guilty. This was on 15 July, 2017. He was not sentenced until 2 August, 2017 after the results of the HIV tests done on the accused and the complainant were available. The complainant was also tested for pregnancy and the results were negative.

I have considered the record of the proceedings and noted that the magistrate correctly dealt with the matter on plea as required in terms of s 271 (2) (b) of the Criminal procedure and Evidence Act, [Chapter 9:07].The accused was properly convicted on the charge and nothing turns on the conviction. I however take issue with the sentence imposed by the magistrate

The magistrate sentenced the accused as follows:

“24 months imprisonment of which 2 months imprisonment are suspended for 5 years on condition that accused does not commit any offence which has a sexual element which upon conviction accused will be sentenced to imprisonment without the option of a fine. The remaining 22 months imprisonment effective.”

The jurisdiction of the presiding magistrate, being a junior magistrate in respect of punishment for any offence is 2 years or 24 months or a fine not exceeding level 7. On remittal by the Prosecutor General, the jurisdiction is increased to 4 years or 48 months or a fine not exceeding level 9. The magistrate in sentencing the accused person exercised his maximum jurisdiction on summary committal. To that extent no problem arises. The magistrate however suspended 2 months of the sentence for 5 years. It is the period of suspension of 2 months which presents a problem as it is difficult to appreciate its intended purpose or efficacy.

Section 358 of the Criminal Procedure & Evidence Act empowers any court which has convicted an accused person for any offence other than an offence listed in the Eighth Schedule to the said Act to pass a sentence and suspend the whole or portion of such sentence for a period not exceeding 5 years on such conditions as the court may impose. One of the conditions may relate to good conduct on the part of the accused. In the matter in casu, the condition for the suspension of 2 months was future good conduct within 5 years after accused’s release from imprisonment.

The issue which exercise the mind of the court which decides to suspend part of the sentence is the determination of the period of suspension. There is no fixed formula for determining the length of the period of suspension. The decision whether or not to suspend a portion of the sentence lies within the discretion of the court. The discretion must be exercised judiciously and it must be informed by a consideration of circumstances which the court should state.

In casu, the magistrate took into account that the accused had pleaded guilty, did not waste the court’s time and showed remorse and contrition. The magistrate also took into account that the accused was a first offender. The magistrate in this regard stated that “First Offenders should be spared from lengthy prison terms wherever possible”. The magistrate also took into account that the accused was a family man, married with five children and stated, “..hence its not desirable to send him to prison for a lengthy period.” The magistrate then took into account aggravating circumstances which included the fact that the offence was serious as it involved the abuse of a minor who was in school. The magistrate considered the age difference between the complainant and the accused which was put at 27 years. It could have been 26 years but this would not make a difference to a finding that the gap in ages was a substantial. The magistrate correctly reasoned that the accused could have qualified to be the complainant’s father. The magistrate cannot be faulted for the manner he dealt with the aggravating circumstances and the conclusions which he reached.

There are several reasons which influence a court in deciding whether or not to suspend a portion of a sentence. It is not possible to exhaustively list such reasons or considerations. What is critical is to appreciate that a suspended term of imprisonment is in effect as much a sentence as the effective term. The only difference is that the suspended term is premised upon a condition which must be fulfilled by the accused to avoid effectively serving it. If the accused fulfils the conditions of suspension, the suspended portion falls away. It follows in my view that the suspended portion should be of such a nature in length and conditions attaching to it that it acts as a deterrent on the accused from further offending. It must provide the accused person with an incentive to behave as a law abiding citizen and not further offend. The suspended sentence should therefore be such that it incentives the accused person to change his or her behaviour. In this way, the public is protected because the accused will reflect on the consequences of engaging in crime posed by the suspended sentence and the punishment he will undergo if he breaks the conditions of the suspension. In my judgment, once a court decides in its discretion to suspend a portion of a prison term, then the suspended period should be of such length and be premised on such conditions as would make the accused person refrain from offending in future.

Unfortunately, in this matter the magistrate did not state anything pertaining to the justification for suspending a portion of the prison term. In the reasons for sentence the magistrate only stated that

“community service will trivialize the offence. Only a custodial sentence will meet the 	ends of 	justice.”

It is important when recording the reasons for sentence where the court will suspend a portion of the sentence to indicate albeit briefly the factors which will have influenced the court to suspend a portion of the sentence.”

There is gainsaying that in this case the decision by the magistrate to suspend two months of the effective term was done perfunctorily if not as an afterthought. Resultantly, the two months bear no comparable relationship with the overall sentence and cannot quality as sufficiently deterrent of the accused engaging in future bad behaviour. Taken in the context of the overall effective sentence of 22 moths, 2 months is a drop in the ocean and negligible. If one were to use a factor of 60 days as representative of 2 months, the accused’s incentive not to offend is to simply avoid 40 days imprisonment if there is factored a one third remission from the 60 days. The 2 months imposed by the magistrate as the suspended portion hardly achieves the purpose of acting as a deterrent. The sentence imposed does not therefore accord with the tenents or criteria of real and substantial justice and needs revisiting.

I will in revisiting the sentence keep in mind all the mitigatory and aggravating circumstances which were considered by the magistrate. The accused clearly abused the special relationship which existed between him and the complainant. Instead of acting and behaving as a parent to the complainant who was of a tender age, the accused selfishly engaged in a love relationship with the complainant. He went further to engage in intimacy with her undoubtedly for his sexual gratification. Offences of this nature are prevalent and the legislature has legislated heavy penalties to be imposed on offenders.

It is however important that principles of sentencing be given effect to. The fact that the accused pleaded guilty and was a first offender must weigh heavily in his favour despite the aggravating factors which include the age disparity between him and the complainant. The discretion of the magistrate to suspend a portion of the sentence was justified. The length of the suspended term does not achieve the intended purposes of suspending portion of a prison term as discussed herein.

In terms of the review powers granted to this court specifically by s 29 (2) (b) (ii) of the High Court Act [Chapter 7:06] the sentence imposed by the magistrate upon the accused is set aside and substituted with the following sentence:

24 months imprisonment of which 8 months imprisonment is suspended for 5 years on condition that the accused is not within that period convicted of any offence of a sexual nature involving a young person as defined in s 61 of the Criminal Law (Codification & Reform) Act [Chapter 9:23] and for which upon conviction the accused is sentenced to an effective term of imprisonment without the option of a fine.

The accused is to be brought before the court a quo and advised of the substituted sentence and the records amended accordingly.

Ndewere J agrees …………………..