A 14-YEAR-OLD boy who was serving a five-year imprisonment term for raping a four-year-old minor has been given a warrant of liberation by the High Court due to the unqualification of sentence to the teenager.
According to the law, a 14-year-old and below person cannot be given an effective jail term of up to five years.
The boy, who was not named for legal reasons, sought a review of his five-year effective prison term before Chinhoyi High Court judges Justices Bachi Muzawazi and Philda Muzofa.
According to the facts of the matter, the four-year-old minor was raped after she visited the convict’s room looking for her friend.
In his defence, the boy denied seeing the complainant on the day in question and also denied raping her.
Evidence which was placed before the trial court was that of the complainant, her sister and her grandmother.
The trial court was satisfied that, indeed, an offence was committed.
The medical report also confirmed that there were bruises, hymeneal tears and penetration on the victim.
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The teenage boy was convicted and sentenced.
However, on review, the judges noted that the unqualified sentence of an effective five year imprisonment on a 14-year-old child is in conflict with the law.
“To begin with, it was not much about the imprisonment period, but the fact that a court of law, can mero motu (voluntarily) send a child to a formal prison without considering or taking heed of the laws governing the sentencing of young persons, children or juveniles in conflict with criminal law.
“Further, the court did not state whether the juvenile, as it were, was sent for assessment before a probation officer as required by the law governing juvenile delinquents,” the judges noted.
“No proof of a probation report in respect to the accused was attached, but only that for the minor victim of the offence. In sentencing the accused, the trial court then made reference to the probation officer’s recommendation on counselling, which evidently was extracted from a report on the victim, not one specifically compiled for the accused.”
The judges said the trial court should have been vigilant to the dictates of the law governing the sentencing of children in conflict with the law.
“So in this case, there is no doubt that the accused person is a child. He was notably aged just 14 years when he was tried and convicted. He was born on the December 24, 2009. The offence took place on January 7, 2024. He was convicted and sentenced on April 20, 2024.
“... it was highlighted that the failure of the trial court to compute or to take into consideration the age of the child offender is gross misdirection,” Justices Muzawazi and Muzofa ruled.
“The law presumes a child under 14 to be doli incapax (incapable of knowing the difference between right and wrong). This does not mean unable to do wrong. It does not mean lacking the capacity to differentiate between right and wrong. It means that the child is regarded as incapable of formulating a criminal intent to break the law.
“He has not the maturity or knowledge to make up his mind to do something knowing it not only to be wrong, but also knowing that it is against the law and susceptible to criminal sanction.”
The judges said instead of imprisionment, the judicial officer should have considered placing the juvenile offender under the supervision of a probation officer or reformatory school.
The judges said imprisonment as a sentence imposed on a child is to be used as a last resort and then only for the shortest possible time.
“The implication is that, it treated a mere child who was in need of its protection through all the various statutory options open to it as instructed by the law.
“It exposed the 14-year-old teenager to the irreparably physically and emotionally damaging effect of adult prison vices.
“Indeed, the seriousness of the offence cannot be underplayed, especially on an equally vulnerable victim.
“That is the main reason why we did not find it appropriate to tamper with the trial court’s factual finding.
“We do not believe that sentencing a 14-year-old juvenile to an effective five-year imprisonment term without specifying that he should be detained in a juvenile detention centre is in accordance with real and substantial justice,” the judges ruled.
The High Court wholly suspended the sentence on condition of good behaviour and issued a warrant of liberation forthwith.
