THE State V Jonathan Mugari

### Preamble
1
HH 59/18
CRB G 223/13
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THE STATE

versus

JONATHAN MUGARI

HIGH COURT OF ZIMBABWE

BERE J

HARARE 10 JUNE 2013 & 7 FEBRUARY 2018

Review Judgment

BERE J:	When I got seized with this matter for review, I conferred with my brother Judge and with his concurrence I instructed my then clerk to arrange for the immediate release of the accused.  The following are the reasons which informed my decision.

The brief facts of this matter are that the 18 year old accused who claimed to have been in love with the 13 year old complainant had consensual sexual intercourse on diverse occasions.  When the complainant’s mother discovered what was happening she quickly made a report leading to the arrest of the accused person who was subsequently charged with the offence of contravening section 70 (1) (a) of the Criminal Law (Codification and Reform) Act Chapter 9:23.

At the conclusion of the hearing of the matter in the lower court, the accused was sentenced to 8 months imprisonment of which 3 months were suspended for 3 years on the usual condition of future good conduct.

When the matter was sent for scrutiny, the learned magistrate who dealt with the matter commented as follows:

“Accused who is 18 years old had consensual sex with a 13 year old girl.  He was convicted and sentenced to an effective 5 months imprisonment.

In my view the effective sentence of 5 months imprisonment is harsh considering the youthful of the accused who pleaded guilty and is a first offender.  The trial magistrate did not even consider community service.

In response to my query the trial magistrate indicated that he considered the prevalence of the offence in his jurisdiction hence an effective term of imprisonment.”

I entirely agree with the observations made by the learned Regional Magistrate.

It occurs to me that many magistrates attempt to take refuge in the prevalence of the offence in an attempt to justify custodial sentences.  This is a wrong approach because there are many other considerations which call for attention before one opts for a prison term – which term authorities are in agreement that it must only be resorted to as a last desperate option.  See S vs Gumbo; S v Scheeper and S v Mugwenhe & Anor.

On average, in this country an 18 year old would have just completed his ordinary level and the lack of maturity coupled with youthfulness of such offenders cannot be missed by any fair minded judicial officer.  To treat such individuals as mature individuals merely because they have attained the age of majority is clearly a miscarriage of justice.

I am reminded of the views expressed by BARTLETT J captured in the headnote to the case of S v Zaranyika & Ors which is to the following effect:

“There are of course degrees of maturity.  No teenager has the maturity of an adult.  Youthfulness denotes immaturity, lack of experience of life, thoughtlessness and a tendency to being influenced, especially by adults.  A person of 19 is immature, even if he has left school and is working or at university.”

Given that both the accused and the complainant were clearly immature in this case, there would be no societal benefits derived from imprisoning the accused person, more so given the fact that this was consensual sex.

As correctly observed by the scrutinizing Regional Magistrate, the approach to sentence by the court a quo was further compounded by the failure to consider community service.

It was for these reasons that I ordered the immediate release of the accused person which I now expand by the following complimentary order.

The sentence of the court a quo is set aside and substituted by the following one.

“The accused is sentenced to 12 months imprisonment wholly suspended for 3 years on condition the accused does not within that period commit an offence involving sexual assault where upon conviction the accused shall be sentenced to a term of imprisonment without the option of a fine.

In view of the time which this offence was committed and the time the order was made the period of suspension must be deemed to have commenced running on the date the order to release the accused was given”.

Musakwa J ……………………………………. I agree