Liberty Magureyi v The State

The applicant, aged 24 years, was convicted on his own plea of guilty to contravening section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (having sexual intercourse with a young person). He had consensual sexual intercourse once with a 15-year-old and 2-month-old complainant. The complainant fell pregnant as a result. The applicant was sentenced by the Guruve Magistrates Court on 22 July 2016 to 3 years imprisonment with 1 year suspended on conditions of good behaviour. On 26 October 2016, Mushore J granted the applicant leave to note an appeal against sentence out of time. The applicant was gainfully employed and stood to lose his employment through incarceration. He applied for bail pending the determination of his appeal against sentence.

• Whether the applicant should be admitted to bail pending appeal against sentence
• Whether it is in the interests of justice to grant bail pending appeal in terms of section 115C(2)(b) of the Criminal Procedure and Evidence Act
• Whether the applicant satisfied the onus of showing on a balance of probabilities that bail should be granted
• Whether the appeal against sentence had good prospects of success
• Whether the magistrate properly exercised sentencing discretion and considered all relevant factors
• Whether courts should adopt a tariff or minimum sentencing approach for offences under section 70 of the Criminal Law (Codification and Reform) Act

The application for bail pending appeal was granted. The following conditions were imposed: (1) The applicant is granted bail pending determination of appeal No. CA 718/16; (2) The applicant shall deposit US$100.00 with the Clerk of Guruve Magistrates Court; (3) The applicant shall reside at 22 Umvukwes Flats Farm, Mvurwi until his appeal is determined; (4) The applicant shall report once a month on the first day of each month at Mvurwi Police Station pending determination of his appeal.

The binding principles established are: (1) Under section 115C(2)(b) of the Criminal Procedure and Evidence Act (as amended), a convicted person applying for bail pending appeal bears the burden of showing on a balance of probabilities that it is in the interests of justice to be released on bail; (2) The considerations for bail pending appeal include: prospects of success on appeal, risk of absconding, likely delay before appeal is finalized, and the applicant's right to freedom; (3) Courts must not adopt tariff or minimum sentencing approaches that fetter judicial discretion, as this is contrary to legislative intent where Parliament has prescribed a range of sentences; (4) Each case must be sentenced on its own facts and circumstances; (5) In exercising sentencing discretion, courts must consider all relevant factors including: the person/offender, the character and circumstances of the offence, the interests of society, and must not allow the seriousness and gravity of the offence to overly influence the judicial officer to fail to consider other less important but relevant factors; (6) Relevant mitigating factors in sexual offences against young persons may include: consensual nature of the act, age disparity between parties, the complainant's proximity to the age of consent, whether the accused is a first offender, youthfulness of the accused, and employment status.

The court made several important non-binding observations: (1) While respectfully disagreeing with Charewa J's approach in State v Shepherd Banda, the court noted that the judgment was persuasive but required full ventilation and argument on the issues raised before being adopted as binding precedent; (2) The court observed that a tariff approach to sentencing has disadvantages, notably that it focuses more on the offence rather than all circumstances relevant to sentencing; (3) The court commented that excessive adherence to deterrence as a sentencing consideration can obscure other relevant factors; (4) The court noted that while consent is not a defense to charges under section 70, it is nonetheless a relevant factor in mitigation, particularly where there may be differences in how the offence was committed (e.g., sweet-talking versus force); (5) The court observed that the behavior and attitude of the complainant in the process of commission of the offence is relevant to sentence; (6) The court suggested that there should be full argument on whether minimum sentencing guidelines for section 70 offences are appropriate before courts adopt such an approach; (7) The court acknowledged that society needs to appreciate that courts will not countenance child sexual abusers, but this must be balanced against individualized justice.

This case is significant in Zimbabwean criminal procedure and sentencing jurisprudence for several reasons: (1) It clarifies the application of the amended section 115C(2)(b) of the Criminal Procedure and Evidence Act regarding bail pending appeal; (2) It firmly rejects the adoption of tariff or minimum sentencing approaches in favor of individualized sentencing based on the specific facts and circumstances of each case; (3) It emphasizes that judicial discretion in sentencing must not be fettered by prescriptive guidelines or benchmarks; (4) It provides guidance on the proper exercise of sentencing discretion, requiring consideration of all relevant factors including the offender, the character and circumstances of the offence, and the interests of society; (5) It cautions against allowing the seriousness of an offence to obscure other relevant mitigating factors; (6) It addresses sentencing in cases involving sexual offences against minors under section 70 of the Criminal Law (Codification and Reform) Act, balancing protection of children with individualized justice.