adminHe was sentenced to 12 years of which three years were conditionally suspended for five years.
In passing sentence, the court had taken into consideration the fact that the boy was not a first time offender having been convicted for aggravated indecent assault and sentenced to receive cuts.
When the matter was taken to the High Court on appeal, senior Bulawayo High Court judge, Justice Nicholas Ndou with Justice Lawrence Kamocha agreeing said the magistrate erred by not taking the advice of a probation officer.
In their recommendation, the probation officer had stated; “It is respectfully recommended that L.S. be referred to a psychiatrist for examination to determine if he is not neurotic or even suffering from mild psychosis.”
Despite the recommendation, the prosecutor, Mr Tinashe Dzipe had advised the court that from the boy’s conduct during the trial, the only befitting punishment would be a custodial one.
“It was misdirection on the part of the regional magistrate to lightly dismiss the probation officer’s recommendation without hearing him or her,” said Justice Ndou before confirming the conviction and referring the matter to the regional courts.
The boy was brought before Mrs Mthombeni and his case is now being dealt with in terms of the Children’s Act.
He will be taken to the Juvenile Court and from there referred to an institution.
It was the State case that on 4 August 2010, at about 2pm, the juvenile called a 12-year-old girl and had anal sex with her once.
derick.khumalo