The State v Aribeto Everson

### Preamble
1
HH 461-12
CRB 308/12
---------


THE STATE

versus

ARIBETO EVERSON

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 14 December 2012

Criminal Review

MUTEMA J: The accused person is 20 years old. He pleaded guilty to two counts of having sexual intercourse with his 15 year old girlfriend in contravention of s 70(1)(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The trial magistrate treated both counts as one for sentence and sentenced him to 12 months imprisonment 2 of which were suspended for 5 years on condition of good behaviour.

The scrutinising regional magistrate opined that in view of the age difference of the parties and that the relevant statute provides for a penalty of a fine not exceeding level twelve or imprisonment or both, the sentence is open to include community service. What can be gleaned from the above sentiments is that the accused should not have been given an effective custodial sentence. The scrutinising regional magistrate cited the case of S v Nyirenda 2003 (2) ZLR 70 where a 37 year old appellant had consensual sexual intercourse with a 15 year old complainant. In that case the appellant was sentenced to 2 years of which 16 months were suspended for a period on condition of good behaviour – the court holding that while the disparity in the ages of the parties was an aggravating factor, the complainant’s closeness to 16 years of age was mitigating.

In casu the complainant’s date of birth is not given and her birth certificate was not produced. It is just stated that she is 15 years of age. It is not stated whether she attends school. In his reasons for sentence the trial magistrate stated that generally courts are expected to keep first offenders out of prison but this was not law but instead a matter of policy. He justified the incarceration in these words:-

“where a first offender jump (sic) into crime at a deeper end the same must also expect to be treated by the courts more severely. In my view accused entered into crime at a deeper end. The offence he stand (sic) convicted of is serious and prevalent in Kariba. Young females must be protected from heartless adults who devour them before time. Accused ruined the life of this useless young child …. In my view a fine trivialises the offence. C/s would send a wrong message to the society. A term of imprisonment is called for to deter accused and other would be offenders”.

While it is accepted that the trial magistrate enjoys unfettered discretion in settling upon a particular sentence, that discretion must be exercised judiciously otherwise it becomes trammelled. The trial magistrates alluded to prevalence of the offence in Kariba as aggravating but no statistics to that effect were quoted. He also said accused “entered crime at a deeper end” but this offence, given the age difference of the parties, cannot be categorised as being at the deep end of crimes. That the complainant’s life was ruined was not based on any substantiation.

S v Mutowo 1997(1) ZLR 87 (HC) profers some guide pertaining to assessing sentence in cases of this nature. The headnote reads:-

“The sentencing of persons found guilty of “statutory rape” is a difficult matter because of the wide range of differing circumstances that can attend this crime. The factors that should be considered include, inter alia, the age, appearance and character of the complainant, the age of the accused and the circumstances of the offence. The complainant’s age is relevant because the younger she is the more seriously will the court regard the exploitation of her youth, while the closer she is to 16 the less justified will be any presumption of her incapacity to make an informed decision about sexual intercourse. Her appearance is important because the moral blameworthiness of the man will be less if he wrongly believes from her appearance, that she is older than she actually is. Similarly, the girl’s character – whether she be virgin or promiscuous, a flirt or demure – must have a like bearing on whether the accused was knowingly preying on the innocent or merely risking the consequences of lying with an under-age but worldly-wise girl. In no case, though, can the girl’s sexual experience be a defence. The accused’s age is important because of the relevance to his moral blameworthiness of his own experience or lack of it and any disparity in ages of the parties. Apart from the accused’s age, it is also important to determine whether the accused was in a position of responsibility to the girl.  A careful investigation of these and other relevant factors by the trial court is essential”.

In that case, a 27 year old man whose wife had recently died had sexual intercourse with a 131/2 year old girl. Because of an inadequate investigation into the factors relevant to sentence, the review court was obliged to give the accused the benefit of the doubt and treat the accused as a mature widower who, recently bereaved, sought release, if not comfort, with a willing and experienced teenager, who he took to be fifteen. Having been sentenced to 24 months imprisonment 10 of which were suspended on condition of good behaviour, the review court altered the sentence to a fine of $300-00 or one month imprisonment.

In the instant case, I also find that an inadequate investigation into the factors relevant to sentence must affect the sentence that was imposed. Complainant’s exact age was not investigated, her physical appearance, though not a defence, was not revealed to gauge accused’s moral blameworthiness, her character, whether she was a virgin or not was not delved into. All these are factors relevant in the assessment of a condign sentence in cases of this nature.

Failure to investigate such factors among others amounts to a misdirection. The trial magistrate’s sentence was just plucked from the air. It cannot be allowed to stand. The accused was clearly not supposed to have gone to gaol.

Accused was sentenced on 17 August, 2012. He has already served 4 months which he was not supposed to. The trial magistrate’s sentence is set aside and substituted with one of $400-00 or in default of payment, 4 months imprisonment. The accused has already served the alternative 4 months. He is accordingly entitled to his immediate release.

MWAYERA J agrees………………………..