Men jailed for bedding minors get fresh sentences

 Fidelis Munyoro-Chief Court Reporter

After the High Court reviewed sentences imposed by different magistrates on six men aged 20 to 35 who had been intimate with underage teenage girls, with the sentences varying between community service and six years jail, three of the sentences were set aside with the magistrates ordered to use the new sentencing guidelines when they re-sentence them.

While the guidelines do not overtake the existing laws such as the Criminal Law Code and the Criminal Procedure and Evidence Act, they were to be used in conjunction with these to obtain similar sentences in similar cases committed under similar circumstances.

Sentencing guidelines are a system of recommended sentences based upon offence and offender characteristics.

 The offence and offender characteristics are placed on a sentencing grid or are assigned points on a worksheet, and the recommended sentence is derived from those sources.

 The recommended sentences are generally believed to be appropriate for all “typical” cases sharing the same or similar offence and offender characteristics.

 The ruling last week, comes after six cases of Blessed Sixpence, Tatenda Kuyazwa, Trust Gudhu, Tapiwa Siravhe, Brendon Chirewo and Michael Mandeya were brought to the High Court on automatic review.

 The offenders’ ages ranged from 20 years to 35 years, while the girls’ ages were between 13 and 15.

 All the six were sentenced to penalties ranging from as lenient as community service to as severe as six years’ imprisonment. 

 The magistrates who dealt with the cases were of different ranks. 

One is a magistrate, another is a senior magistrate, two are provincial magistrates and two others are regional magistrates.

Out of the six, three of the men were sentenced before August 8 before the guidelines, while the other three were sentenced after the introduction of the new guidelines.

On review, Justice Munamato Mutevedzi quashed the sentences that had been imposed on Kandeya, Sixpence and Kuyazwa and referred their cases back to the trial magistrates for sentencing each of them afresh using the new guidelines.

Justice Mutevedzi held certificates on the cases of Gudhu, Siravhe and Chiwero on the grounds they were sentenced before the new guidelines came into effect.

 Recent trends in sentencing showed that the discretion accorded to trial courts had been subject to misappropriation and abuse. 

As a result, the purposes of sentencing had been distorted and there were increasing inconsistencies in sentencing. 

 The legislature saw it necessary to introduce sentencing guidelines to achieve consistency and uniformity in sentencing. 

Consistency and uniformity require that offenders convicted of the same offence committed in similar circumstances must essentially be punished in the same way.

 In his judgment last week, Justice Mutevedzi pointed out that the purpose of the guidelines was to ensure rational and consistent sentencing practices in Zimbabwe. 

“The unacceptably wide disparities shown in the sentences above imposed on similar offences committed in comparable circumstances by offenders who are almost similarly placed make sad reading,” he said.

“They call into question the so-called exercise of discretion by judicial officers. They unmask the disguise called judicial discretion and reveal that what lies at the core of the entire process may be nothing but judicial arbitrariness.” 

 Justice Mutevedzi said judicial officers should endeavour to find punishments which are suitable for the crime, the offender and society.

 Despite these constant reminders when sentences of such widely varying severity, the public’s concerns that there is no objectivity whatsoever in the sentencing process are vindicated, said Justice Mutevedzi.

 In sentencing, he said the judge, a court should always bear in mind that one of the primary purposes of the criminal law is retribution and that the purpose of punishment must be blended with all the others to come up with a sentence which serves the interests of all. 

He emphasised that the guidelines did not supplant the existing legislation governing sentencing, saying the Criminal Law Code and the Criminal Procedure and Evidence Act remained the primary sources of sentencing law in the country. 

“Those two, constitute the manufacturing plant and the guidelines are simply a tool-box within that factory,” he said. “The guidelines must, therefore, be taken as a weapon which complements the existing statutes. I view them as regulations intended to bring order into the somewhat haphazard sentencing processes which are apparent in many proceedings.

“If the six records of proceedings in the present case and this court’s experiences in the past are anything to go by, I would be forgiven for describing the current sentencing trends as chaotic. The guidelines envisage a binding and formal procedure which every sentencing court is required to follow.”

The trial magistrates in the three cases did not follow the new sentencing guidelines. They based their sentences on the precedents. 

Government recently enacted the new guidelines that seek to promote consistency in the sentencing of offenders. 

 The guidelines reduce the wide differences in sentences that are imposed on offenders convicted for the same offence and in similar circumstances.