The State v Esther Motsi

On 15 October 2020, Christopher Mubayiwa was collecting manure in Mvere Village, Chief Zvimba, when he discovered a baby near a hill. He alerted Alice Chirau who rushed to the scene and found a girl child approximately one week old wrapped in a yellow and brown blanket, abandoned near an anthill. The child was still alive. Alice reported the case to the headman and subsequently to the police. The baby was taken to Zvimba Clinic. Investigations led to the arrest of the accused, Esther Motsi, a 26-year-old unemployed woman with two children. The accused was charged with exposing an infant in contravention of s 108(1) of the Criminal Law (Codification and Reform) Act.

• Whether the sentence of 6 months imprisonment wholly suspended was appropriate in the circumstances
• Whether a second charge under s 108(2)(a) of the Criminal Code should have been preferred
• Whether the trial magistrate complied with the mandatory requirements of s 108(3) of the Criminal Code to consider the accused's personal circumstances arising from childbirth before sentencing
• Whether the trial court gathered adequate pre-sentencing information

The reviewing judge withheld the certificate of review, declining to confirm the sentence as being in accordance with real and substantial justice due to the trial court's failure to comply with mandatory sentencing requirements under s 108(3) of the Criminal Code.

Section 108(3) of the Criminal Law (Codification and Reform) Act uses peremptory language that makes it mandatory for courts sentencing an accused convicted of exposing an infant to consider the pressure or stress suffered by the accused arising from childbirth, including effects on social, financial or marital situation, difficulties in caring for the infant, inexperience or incapacity, and any other relevant circumstances. Failure to canvass these mandatory considerations constitutes a serious misdirection. A court must establish these circumstances either by questioning the accused in mitigation or referring the accused to a social worker for assessment, and where resources permit, obtaining medical reports. Sentencing based on conjecture or assumptions about medical conditions without evidence is impermissible. Adequate pre-sentencing information is essential to arrive at a just sentence that fits both the offender and the offense.

The court observed that it is trite law that the prosecution has unfettered discretion to prefer a charge against an accused person which it can prove beyond reasonable doubt, and the court's role is limited to inquiring on the appropriateness of the charge and delivering judgment on guilt. The court noted that s 108(2) does not create an offence but only provides options for alternative charges. The court commented that usually the State prefers a charge that provides for a stiffer sentence but this is not a rule. The judge noted that resources permitting, a medical report from a psychologist or medical doctor is necessary to establish the true nature of the effects of childbirth on the accused. The court also observed that postpartum depression is a medical condition whose effects vary from person to person, and courts cannot comment on it in the absence of medical evidence.

This case establishes important principles regarding sentencing in cases of infant exposure under s 108 of the Criminal Law (Codification and Reform) Act. It clarifies that courts must comply with the mandatory requirements of s 108(3) to investigate and consider the accused's personal circumstances arising from childbirth before sentencing. The judgment emphasizes that judicial officers cannot rely on conjecture or assumptions about medical conditions such as postpartum depression without evidence, and must make deliberate efforts to gather necessary information through social worker assessments, medical reports, or proper questioning of the accused. It reinforces that failure to comply with statutory sentencing requirements constitutes a gross misdirection warranting refusal of review certification. The case also clarifies prosecutorial discretion in charging under different subsections of s 108.