The State v Chengetai Madhora and Admire Muusha

### Preamble
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HH 208-2012
CRB NO. RMU 56-7/12
THE STATE
versus
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THE STATE
versus
CHENGETAI MADHORA
and
ADMIRE MUUSHA

HIGH COURT OF ZIMBABWE
MATHONSI J
HARARE 23 May 2012

MATHONSI J: The first accused person is a 17 year old pupil at Dora Secondary School in Mutare where he is doing form 4 while the second accused person is a 16 year old pupil at Dangamvura High School in Mutare where he is doing form 3.

The two were arraigned before a regional magistrate in Mutare on charges of incitement to commit aggravated indecent assault in breach of section 187 (1) (a) as read with section 192 of the Criminal Law (Codification and Reform) Act [Cap 9:23] it being alleged that on 10 March 2012 at Bvirindi Village, Chief Zimunya, Mutare, they unlawfully and intentionally incited the 4 complainants aged 12, 11, 11, and 9 to have anal sexual intercourse without their consent.

The two accused persons pleaded guilty to the charges and were promptly convicted by the trial court. The matter was then referred to a probation officer for investigation and recommendation of an appropriate sentence given the ages of the accused persons who are both juvenile first offenders. The probation officer for Mutare District did a thorough investigation and compiled a report which was submitted to the trial court before sentence.

In that report, the probation officer stated, in relevant, part as follows;-

“ They both agreed they forced complainants to have anal intercourse with each other. During an interview with the probation officer both apologized and showed sense of regret to their actions. They said they were not aware it was an offence. Both juveniles are first offenders and are both unlikely to commit a similar offence since they were ignorant that what they did was a serious offence. In view of the above facts, it is respectfully recommended that both juveniles be given 5 strokes and strong verbal warning considering a jail term if they repeat the same offence next time as a deterrent measure.” (The underlining is mine)

In mitigation both the accused persons confirmed their personal circumstances I have alluded above. They both implored the court to be lenient to them by allowing them to return to school to continue with their education. They stated that they thought they were just playing with the complainants not knowing that they were committing a serious offence.

Their pleas did not find favour with the trial court which sentenced them each to 8 years imprisonment of which 4 years imprisonment were suspended for 5 years on condition of future good behaviour leaving them each with an effective prison term of 4 years. The sentence was imposed on 4 April 2012.

When the matter came before me for automatic review in terms of section 57(1) of the Magistrates Court Act [Cap 7:01] on 10 May 2012 I ordered the immediate release of the accused persons and stated that the reasons for doing so would follow. These are they.

In arriving at the sentence imposed, the trial magistrate navigated the following route:

“ Both accused are young juvenile first offenders aged 17 and 16 respectively. Both are at school doing form 4 and form 3 respectively. Their ages are strong mitigatory factors. Youthfulness played a roll in their conduct in this case. I have had the benefit of the assistance of the Social Services Department in the form of a probation officer’s report, exhibit 2. I am grateful to the department. The second accused was dealt with first in that report. The second accused has both parents who are looking after him well. The first accused is being brought up by a grandmother. He may be lacking effective parental supervision since both his parents are deceased. Generally however both of them are being brought up well and are going to school. On the other hand, they both stand convicted of very serious offences. There is no truth when the accused persons say they did not know that they are committing an offence. The threats they made to the complainants show that they knew that what they were doing was unlawful and wrong. The offences were accompanied with the use of violence. The first accused is about to become an adult. The second accused is aged 16. I have seriously considered corporal punishment coupled with wholly suspended prison sentences. But it is my view that public indignation and deterrence should be the predominant factors in the assessment of penalty. Society does not condone what the accused persons did. Their conduct cannot be condoned. It must be viewed with the seriousness it deserves and I take the view that no other penalty but an effective custodial one is called for.”

The learned trial magistrate paid lip service to the probation officers report and the above excerpt betrays emotional, extravagant and flowery language completely at variance with the dispassionate and objective approach to sentencing which should be the badge of all judicial officers. S v Mahati 1988 (1) ZLR 190 (H). The heavy term of imprisonment imposed on these young offenders suggests that the magistrate treated them like adults.

The sentencing policy of our courts in respect of male juveniles is guided by the provision of section 353(1) of the Criminal Procedure & Evidence Act [Cap 9:07] which provides;

“Where a male person under the age of 18 years is convicted of any offence, the court which imposes sentence upon him may;

(a) in lieu of any other punishment; or
(b) in addition to a wholly suspended sentence of a fine or imprisonment; or
(c) in addition to making an order in terms of subsection (1) of section 351 sentence him to receive corporal punishment, not exceeding 6 strokes.”

Our courts have, in deference to this provision generally sentenced male juveniles to corporal punishment in recognition of their age, it being accepted that youthfulness reduces the moral blameworthiness of an accused person and corporal punishment is correctional and gives the offender the chance to reform.


In *casu*, the probation officer recommended corporal punishment. Although the trial magistrate acknowledged his indebtedness to the probation officer, he went on to completely ignore the recommendations of that professional person. In doing so he did not give reasons for disregarding the views of the probation officer thereby falling into grave error. There is no benefit in sending youngsters to prison and in the process turn them into hardened criminals.

The accused persons should have been given a wholly suspended sentence together with a sentence of strokes with a ratten cane. They have served a prison term of more than one month which in my view equates to the strokes they should have received. It is for that reason that they are entitled to their immediate release.

In the result I make the following order that;

1. The conviction of both accused persons is confirmed.
2. The sentences imposed on the 2 of them are hereby set aside and in their place is substituted the sentences of 30 days imprisonment for each accused person.
3. In addition, each accused person is sentenced to 2 years imprisonment which is wholly suspended for 5 years on condition they do not, during that period commit an offence of a sexual nature for which they are sentenced to imprisonment, without the option of a fine.
4. As both accused persons have already served the 30 days imprisonment, they should be released immediately.

MAWADZE J: agrees
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