The State v Ubert Bare

On 9 March 2014 at approximately 1900 hours in Mwenezi, Masvingo, a 15-year-old juvenile accused (Ubert Bare), who was in Grade 4, was herding cattle with two other juvenile friends. As the complainant, a police officer, drove his private Honda CRV motor vehicle (Registration Number ADD 7733) along the Mwenezana gravel road, the accused and his friends "ambushed" the vehicle. The accused threw a stone at the moving vehicle, damaging the windscreen. The damage was valued at US$150.00. The accused was apprehended and charged with malicious damage to property in contravention of section 140 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. He pleaded guilty before the trial magistrate. The biological parent appeared and indicated they had agreed with the complainant to provide compensation.

• Whether corporal punishment was an appropriate sentence for a 15-year-old juvenile offender convicted of malicious damage to property
• Whether the trial magistrate conducted an adequate pre-sentence inquiry before sentencing the juvenile offender
• Whether the trial magistrate properly considered alternative sentencing options available for juvenile offenders, including referral to the Children's Court
• Whether the sentencing approach adopted was retributive rather than rehabilitative in nature

The conviction was confirmed. However, the sentence was not confirmed as being in accordance with real and substantial justice. The reviewing judge withheld his certificate in respect of the sentence. The court noted with regret that meaningful corrective measures could not be taken as the corporal punishment had already been administered (the deed was done).

When sentencing juvenile offenders, particularly those aged 16 years and below, courts must conduct a thorough pre-sentence inquiry to gather sufficient information to arrive at a just, proper and appropriate sentence. Courts must apply rehabilitative rather than retributive sentencing principles when dealing with children in conflict with the criminal law. Corporal punishment and imprisonment should be resorted to only as a last resort and only in very serious offences involving juvenile offenders. For non-serious offences, magistrates should consider alternative options including cautioning and discharging, postponing sentence, or referring the matter to the Children's Court in terms of section 19 of the Children's Act [Cap 5:06], where various sentencing options under section 20 are available. The Social Welfare Department through Probation Officers should be involved and utilized as a matter of practice in cases involving juvenile offenders. Children in conflict with the criminal law constitute a special category of offenders for which there are specific and peculiar legislative provisions designed to deal with such offenders.

The court expressed concern about the enthusiasm of quite a number of magistrates to sentence juvenile offenders to corporal punishment even for non-serious offences, suggesting this may be an easy way out in disposing of matters. The judge emphasized that in dealing with juveniles in conflict with the criminal law, the primary concern should be to safeguard the rights of these children rather than to complete proceedings as quickly as possible. The court noted that by rushing proceedings, courts may end up imposing retributive rather than rehabilitative sentences. The judge expressed amazement that after such a brief and unhelpful inquiry into mitigation, the trial magistrate believed sufficient information had been gathered to properly assess sentence. The court described as "chilling" the trial magistrate's statement that "the pain inflicted will punish the offender and the thought thereof would be deterrent," characterizing this as a "sadistic approach" that would not add value to the life of a poor 15-year-old rural boy. The judge remarked that it was "unfortunate and a sad day for our criminal justice system" if a judicial officer believes such an approach is appropriate. The court also observed that it is not possible to correct a misdirection on review where corporal punishment has already been imposed, except for academic purposes.

This case is significant in Zimbabwean criminal jurisprudence as it reinforces important principles regarding the sentencing of juvenile offenders. It emphasizes the rehabilitative rather than retributive approach required when dealing with children in conflict with the criminal law. The judgment serves as a strong rebuke to magistrates who too readily impose corporal punishment on juvenile offenders without proper inquiry and without considering alternative sentencing options. It highlights the importance of involving the Social Welfare Department and Probation Officers, and utilizing the Children's Court system which provides more appropriate options for dealing with juvenile offenders. The case underscores that corporal punishment should be a measure of last resort reserved for serious offences only, not for relatively minor property damage offences. It also demonstrates the practical limitation of the review process where corporal punishment has already been administered, making it impossible to provide meaningful corrective relief.