Sentencing re: Approach iro Co-Accused, Gender and Age Considerations & the Principle of Equality of Treatment

HMA04-18 : THE STATE vs REKAI MABONGA and SILENCE CHANDIREKERA
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and DHAURAMANZI

The 53-year-old Accused 1 and 27 years old Accused 2 resided in the same Mandivenga Village, Chief Mukanganwi, Bikita, Masvingo with the 50-year-old now deceased….,. In assessing the appropriate sentence we shall consider both the mitigatory and aggravating features in this case....,. In arriving at this appropriate sentence we did consider the personal circumstances of both accused persons. These ...

HMA10-18 : THE STATE vs BERNARD MAKUCHETE and RABSON MAKUCHETE
Ruled By: MAFUSIRE J and ASSESSORS: MUSHUKU and DHAURAMANZI

In the case of two or multiple offenders convicted for the same offence, individual circumstances are definitely taken into account, but not with such a pedantic or doctrinaire adherence as to upset the equilibrium.

HH165-15 : THE STATE vs HOWARD MOYANA and BHUKUCHAYI CHIPONGO
Ruled By: MUREMBA J and TAGU J

The two accused were charged with theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted on their own pleas. Nothing turns on the convictions. I thus confirm them. What causes disquiet are the different sentences that were imposed on the accused. Accused One was sentenced to 10 months imprisonment ...

What causes disquiet are the different sentences that were imposed on the accused.

Accused One was sentenced to 10 months imprisonment which was wholly suspended on condition of performance of 350 hours of community service. Accused Two was sentenced to three months imprisonment of which one month imprisonment was suspended on condition of good behaviour.

The accused are aged 21 and 23 years respectively. Both are not married and not employed. While Accused One has no children, Accused Two has two children. None of the two had money or savings.

On 28 December 2014, at 9am, the two went to Checheche Growth Point in Chipinge. They entered a shop which was unattended and stole two Nokia cellphones worth $120= which were on top of the table. They left the shop. These two cellphones were later recovered from the accused.

What is apparent is that the two accused committed the offence together. They only have an age difference of 2 years and their personal circumstances are more or less the same.

The magistrate imposed different sentences for the reason that while the first accused was a first offender the second accused was not. The second accused had a previous conviction of assault which he committed in 2012 and for which he paid a fine of $10=.

While this differentiation by the trial magistrate might be appreciated what is of concern is the huge difference in the sentences. A difference of 10 months and three months does induce a sense of shock even though the 10 months was then suspended on condition of performance of community service.

The other issue is that considering the youthfulness of the second accused, the value of the cell phones that were stolen, that these cell phones were later recovered, and that the previous conviction is not of a similar nature to the current offence the trial magistrate ought to have spared the second accused an effective custodial sentence. For the previous conviction of assault, the second accused was sentenced to pay a fine of $10=. This shows that it was a minor assault. Moreover, it was committed two years ago.

It has been said times without number that imprisonment is a rigorous form of punishment which should only be resorted to as a last resort. See S v Gumbo 1995 (1) ZLR 163 (HC).

JOHN REID ROWLAND, Criminal Procedure in Zimbabwe, 1997…, stated that:-

“Imprisonment should not be lightly imposed, particularly where the offence is relatively petty. The harm to the accused by a term of imprisonment may far outweigh the possible advantages.”

Surely, under the circumstances, it cannot be said that there were no other options available to the trial magistrate. Ordinarily, the offence that was committed by the accused persons calls for a fine. However, the accused had no savings at all making it difficult for the court to impose a fine. Accused One was sentenced to community service, which was quite appropriate, but, 10 months imprisonment for such a petty offence is too harsh and it induces a sense of shock.

I do not see why Accused Two was not also considered for community service even though he was a repeat offender. It is not a hard and fast rule that community service should be reserved for first offenders. It is just a general rule. A repeat offender can be considered for community service where there are special mitigatory features. Even where an accused has been previously sentenced to community service, it may still be appropriate, in some cases, for him to be given another chance to stay out of prison by performing further community service.

It is also not a hard and fast rule that repeat offenders have to be sentenced to imprisonment. The objective of community service is to keep non-serious offenders out of prison where they would be exposed to hardened criminals.

Each case should be treated according to its own merits. In deserving cases, a repeat offender can benefit from community service and the case of the second accused is one good example. It is a settled position that youthful offenders should not be sent to prison unless that is the only suitable form of punishment in the circumstances.

In casu, the previous conviction is irrelevant because it is totally unrelated to the current offence, it is trivial and it was committed a long time ago. The personal circumstances of the accused persons, being more or less the same, it was desirable for the trial magistrate to impose a uniform sentence for the two accused.

I cannot confirm the sentences as being in accordance with real and substantial justice.

Both sentences are set aside and substituted with the following:-

Each accused:

“Three months imprisonment of which one month imprisonment is suspended for five years on condition the accused does not within that period commit an offence involving dishonesty and for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining two months imprisonment is suspended on condition of performance of 70 hours of community service.”

It takes two weeks to complete 70 hours of community service.

The second accused has been in custody since 31 December 2014 which means that he has served for more than a month. If he had been sentenced to community service by now he would have completed performing the community service. So he should be entitled to his immediate release. A warrant of his liberation is hereby issued.

The first accused commenced his community service on 6 January 2015. I would like to believe that he has completed more than two weeks of community service by now. He should be called and advised of his altered sentence.

HMT12-18 : THE STATE vs RESPECT SITHOLE and SHAMISO MUNETSI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and RAJA

Although the second accused was customarily married to the first accused, the age estimation confirmed she was 17 at the time of trial which places her at 16 at the time of commission of the offence.The first accused was 18 at the time of commission of the offence and 19 ...

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

The accused is a young man and he indicated that he is an orphan. The court heard that he does not really have a family to talk about. He unfortunately found himself at the deep end, as was indicated by the State counsel, and, as clearly evident from the facts.It ...

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI
Ruled By: CHITAPI J

There appears to be no basis to differentiate the sentences of the two accused persons...,.

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

Accused 1 is 49 years old..., The second accused is 79 years old...,. Both accused pleaded guilty to culpable homicide...,. In spite of his old age, we found no reason why the second accused should be treated differently from the first accused on considering sentence.

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J and MOYO J

The appellant in this matter was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Provincial Magistrate sitting in Bulawayo.

He was sentenced to 48 months imprisonment with 12 months imprisonment suspended on the usual conditions.

Dissatisfied with both conviction and sentence he then approached this court.

At the hearing of the appeal, we dismissed the appeal against conviction and allowed the appeal against sentence with reasons to follow. Here are they:

In the Notice of Appeal, which I will not reproduce herein, the appellant is not satisfied with the manner with which the court a quo treated the evidence of the witnesses.

The appellant avers that the evidence of Absolom Hlupho was inadmissible as against the appellant as it was accomplice evidence. That the court a quo erred in finding that the warrant of liberation was fake and that the court a quo erred in finding that the cellphone call history was admissible. Also, that the learned magistrate erred in accepting Lilian Tapera's evidence and in finding that it had been adequately corroborated.

On the sentence, the appellant is of the view that the sentence imposed by the learned magistrate is unduly harsh and excessive.

The facts of this matter, in a nutshell, are that the appellant, a legal practitioner by profession, with the assistance of Absolom Hlupho, a prison officer, sought to cause the release of a convicted and serving prisoner through a misrepresentation that the prisoner had been granted bail pending an appeal and a warrant had thus been issued for his liberation....,.

On sentence, we noted that, Accused 1 (the appellant's co-accused) was sentenced to 36 months imprisonment with 12 months imprisonment suspended on the usual conditions.

The appellant himself was sentenced to 48 months imprisonment with 12 months imprisonment suspended on the usual conditions.

We then considered the reasons for sentence and noted that the appellant is also a young lawyer who was at the inception of his career; we then held the view that he should have been given a sentence that considers his immaturity as a lawyer.

It is for that reason that we interfered with the sentence....,.

(a)...,.

(b) The sentence by the trial court is set aside and substituted with the following:

The accused person is sentenced to 36 months imprisonment of which 12 months imprisonment is suspended for 5 years on condition the accused person does not within that period commit an offence involving dishonesty for which, upon conviction, he shall be sentenced to imprisonment without the option of a fine.

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

SentenceThe accused is 54 years old. She has been convicted of a serious offence. The court shall take into consideration the weighty mitigating features of the case as outlined by the accused's legal counsel.The accused is a first offender who has pleaded guilty to culpable homicide. The accused has shown ...

Sentence

The accused is 54 years old. She has been convicted of a serious offence. The court shall take into consideration the weighty mitigating features of the case as outlined by the accused's legal counsel.

The accused is a first offender who has pleaded guilty to culpable homicide. The accused has shown genuine remorse and contrition. She has taken full responsibility for her conduct. She has not sought to deny the charges even when she was aware that State witnesses were not readily available in this matter.

The court takes into account the fact that this case has taken an inordinate period of time before it was finalised. The delays are entirely not the fault of the accused person.

The court will not, however, lose sight of the fact that a juvenile aged three (3) years lost her life.

The accused acted violently against a young child. Even if the court were to accept that the accused acted out of anger, and not sheer vengeance, it is difficult to understand the accused's conduct.

The deceased was helpless. She was subjected to a brutal and sustained attack that left her with a skull fracture and subdural haematoma.

There is clear evidence that excessive force was used in the assault.

Parents stand in loco parentis to their children. The accused was expected to have protected the minor child and not to brutalise her. The accused's conduct is most reprehensible.

Had it not been that the accused is elderly and suffers from high blood pressure, a custodial sentence would have been appropriate: see State v Agnes Chipika HB129-17 and State v Sibanda HB67-15.

The remarks I made in those cases are relevant in the present case.

However, as I mentioned in the case of State v Mutopa HB127-17, nothing would be achieved by sending an elderly, female first offender to prison.

In State v Agnes Chipika HB129-17 and State v Sibanda HB67-15, the accused persons were aged 36 years and 23 years respectively. The court found it appropriate to impose custodial sentences in those cases after considering the ages of the accused.

In this matter, we find that an effective custodial sentence would be inappropriate.

The sentence imposed in every case must fit the offence and the offender. The sentence must meet the ends of justice.

In the result, and accordingly, it is ordered as follows:

“Accused is sentenced to 36 months imprisonment of which 24 months imprisonment is suspended for 5 years on condition accused does not within the period commit an offence involving violence and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

A further 12 months imprisonment is suspended on condition accused completes 420 hours community service at Batanai Old Peoples Home, Gweru on conditions set out by the Probation Officer.”

HB67-15 : THE STATE vs QINISO SIBANDA
Ruled By: MAKONESE J

The accused was found guilty..., of culpable homicide.

In assessing an appropriate sentence, the court took into account all the mitigating factors advanced on behalf of the accused by his legal counsel.

The accused was aged 23 years at the time of the offence.

The accused is married to the deceased's mother and they have one child together who is of a tender age of 1 year and 8 months. The accused is the sole breadwinner for his family who survives by performing part time piece jobs.

The accused pleaded guilty and showed some amount of regret.

He is a youthful offender and lacks maturity.

The accused's moral blameworthiness is however on the high side. He was left in the custody of the deceased. When he could not locate her, he searched for her and eventually found her at Monicah Sibanda's homestead. He was annoyed by the disappearance of the deceased, and, when he finally caught up with her, he was angry. He subjected to her to a brutal and sustained assault using a switch and an unknown object. He assaulted the deceased indiscriminately and used excessive force.

The post-mortem report, exhibit 2, confirms that the deceased had multiple bruises and abrasions all over the body. The deceased also suffered subarchnoid haemorrhage.

The child must have endured unimaginable pain.

It is unconscionable that someone could inflict such injuries on a child. This is the worst form of child abuse. This form of assault, on young children, goes against all Legal Instruments on the Rights of Children. The assault has no place in a modern society and is barbaric.

The courts have noted that cases of child abuse have become common place. Parents who are charged with the duty of looking after young children stand in loco parentis to the minor children.

The young girl's only crime was that she was not at home when the accused wanted to go and work.

The court must pass sentences that reflect the seriousness of this type of offence.

What is more disconcerting is that, upon realizing that the young girl was injured and motionless, the accused carried the child on his shoulder and dumped her at his mother's homestead. The accused did not bother to render first aid or alert other villagers about the injured girl. The accused fled the scene.

A young life was needlessly lost.

The court is of the view that a sentence that would fit the offence and the offender is as follows:

The accused is sentenced to seven (7) years imprisonment.

HB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused is guilty of murder with constructive intent....,.SentenceThis court takes into account the mitigating features of this case as against the aggravating factors.The accused is a mature man aged 64 years. He spent one month in prison before he was granted bail pending trial. He is a first offender ...

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused is found guilty of culpable homicide....,.SentenceThe accused was aged 56 years old at the time of the commission of the offence. Time has moved on. The accused is now aged 65 years. The accused appears old and frail. She is poor sighted. It has been submitted, on her ...

HH63-10 : THE STATE vs YOMENCE CHAITEZVI and NOTICE KIDA and OBERT MUCHEMWA and ZVIDZAYI MARUFU and JACOB KAGOGODA
Ruled By: PATEL J and ASSESSORS: CHIDYAUSIKU and TUTANI

All three accused..., are found guilty of the offence of conspiring to murder the deceased....,.All three accused are first offenders and breadwinners for their respective families. Their lengthy incarceration would certainly impact very badly on them and their families and may not serve to rehabilitate them. Moreover, after having undergone ...

All three accused..., are found guilty of the offence of conspiring to murder the deceased....,.

All three accused are first offenders and breadwinners for their respective families. Their lengthy incarceration would certainly impact very badly on them and their families and may not serve to rehabilitate them. Moreover, after having undergone three (3) months of pre-trial incarceration, they attended court regularly for the purpose of their trial and did not interfere with State witnesses.

Ordinarily, the crime of murder with legal or constructive intent attracts a relatively lengthy term of imprisonment.

As I have already indicated, the offence of conspiracy to murder is susceptible to the same penalty as applies to the principal offence.

In the instant case, however, the ordinary rules must be weighed against the inordinate and substantial delay in finalising this case.

The Court notes that the offence was committed in April 2000, almost 10 years ago, and that trial commenced in 2006 but was only concluded a few days ago because of the reasons outlined at the beginning of this judgment. The intervening delays were not occasioned by the accused but were entirely attributable to the State.

As was submitted by defence counsel, and conceded by State counsel, the accused have, over the past 10 years, undergone significant anguish. They have obviously agonised over their uncertain fate and the attendant psychological trauma constitutes a form of punishment in itself.

As against these mitigatory factors is the fact that the accused have been convicted of a very serious offence.

The attack on the deceased and his homestead took place at night and traumatised not only the deceased but also his entire family. Although the accused did not kill the deceased with their own hands, they conspired in conduct that entailed his death and did nothing to avert or alleviate that death.

Our courts have perennially declared that the sanctity of human life must be protected and preserved. Apart from the violent loss of life, the conduct of the accused is aggravated by the fact that it was politically motivated. In this context, it is especially incumbent upon the courts to make it abundantly clear that such conduct will not be favoured with impunity.

Sentence

In imposing sentence on the accused, it is necessary to have regard to the respective role and culpability of each accused.

Of the three accused, the second accused (Notice Kida) bears the greatest degree of culpability inasmuch as he not only circulated the letter convening the gathering but also participated directly in assaulting the deceased. The third accused (Obert Muchemwa) is less culpable as he was present but did not actively assault the deceased, while the fourth accused (Zvidzayi Marufu) is the least culpable having withdrawn from the planned attack at the last minute.

In the result, the accused are sentenced as follows:

(1) The second accused (Notice Kida) is sentenced to a term of 48 months imprisonment of which a period of 24 months imprisonment is suspended for 5 years on condition that he does not within that period commit any offence involving violence or bodily injury to another person and for which he is convicted and sentenced to a term of imprisonment without the option of a fine.

(2) The third accused (Obert Muchemwa) is sentenced to a term of 24 months imprisonment of which a period of 12 months imprisonment is suspended for 5 years on condition that he does not within that period commit any offence involving violence or bodily injury to another person and for which he is convicted and sentenced to a term of imprisonment without the option of a fine.

(3) The fourth accused (Zvidzayi Marufu) is sentenced to a term of 24 months imprisonment wholly suspended for 5 years on condition that he does not within that period commit any offence involving violence or bodily injury to another person and for which he is convicted and sentenced to a term of imprisonment without the option of a fine.

HH133-17 : THE STATE vs NAISON CHAYAMBUKA and MOSES MUSUSA
Ruled By: TSANGA J

The court, in both instances, returned a verdict of guilty to the lesser charge of culpable homicide as pleaded.

The defence counsels addressed the court on mitigation.

The first accused was said to be a family man with three children aged 6, 3, and 2. He was aged 24 at the time he committed the offence; he is also a young first offender, and, as such, it was urged that he should be treated with leniency. The cases of S v Mpofu 1985 (1) ZLR…, and S v Muchimikwa 1985 (2) ZLR…, were cited in support of this contention.

The fact that he did not waste the court's time in that he pleaded guilty to culpable homicide was also said to be a factor which should weigh in his favour when it comes to sentencing him; in that, in so doing, he facilitated the smooth administration of justice: S v Katsaura 1997 (2) ZLR…,.

Additionally, the fact that the offence was not premeditated but rather one that arose from an act of provocation was equally regarded as a factor to be stirred into the pot of leniency.

The court's attention was drawn to the case of S v Silent Kazembe HH378-15 in which the court held that provocation, or the lack of premeditation, should not be ignored when determining an appropriate sentence.

In that case, which had come on review from the lower court that the latter had imposed a sentence of seven years imprisonment. On review, the court, in analysing mitigatory factors, reduced the sentence to three years.

Counsel for the first accused highlighted, however, that, in that case, the accused had compensated the deceased's relatives and assisted at the funeral - factors which may have further nudged the court towards a more lenient altered sentence.

The accused herein was said not to have been in a position to render such assistance because he was in custody at the time of the funeral.

The case of S v Nhongo HH52-03, where the accused were sentenced to 7 years for each count for culpable homicide arising from a provoked assault was also drawn to this court's attention.

Accordingly, counsel for the first accused deemed a sentence of six years imprisonment with one year suspended on the usual conditions to be appropriate in the present circumstances.

Accused number two was equally said to be a family man with two minor children aged 8 and 5.

He was 25 at the time of the offence.

His 22 year old wife was said to be unemployed.

The court was asked to take judicial notice of the circumstances he grew up in order to explain his moral turpitude. He grew up in a farming community and was orphaned at an early age. He was employed as a tobacco grader at a farm where he lived with his family.

On the night in question, being New Year's Eve, he had revelled with members of the community and had imbibed a considerable amount of opaque beer. The resultant inebriation therefrom is said to have clouded his better judgement.

In the frenzy of the moment he had weighed violently in a dispute between the first accused and the deceased.

The spotlight was also placed on the fact that he had spent almost eight (8) months in custody before he had been released on bail. Following his indictment in November he has been in custody. It was highlighted that he has therefore effectively done almost a year of incarceration - a factor which it was said ought to be taken into account in sentencing him.

His plea of guilty to a lesser charge, though delayed by prevarication, was said to be one genuinely made. The case of S v Nhongo HH52-03 was equally drawn upon to highlight the sentence in that matter.

The case of S v Makombe HB110-15 in which the accused pleaded to culpable homicide and received a sentence of 36 months with 18 months suspended was also mentioned. He had slapped the deceased who had hit his head on a hard surface.

Additionally, the case of S v Matuke HB165-16 was said to be of relevance. Therein a 23 year old accused had committed an offence whilst still 20 when he had struck the deceased with a log.

In essence, counsel argued, on behalf of the second accused, that, the range of sentencing in cases of this nature was between 5 to 8 years with the actual sentence depending on the circumstances of each case.

A non-lengthy custodial sentence of six years with two suspended was urged.

The State, in turn, addressed the court on aggravation.

Counsel for the State highlighted the convergence of the personal circumstances of both accused in terms of age and family realities. The inebriation of the accused persons, as contributing to the offence, was noted, but, at the end of the day, he emphasised the sanctity of human life which had been lost.

In aggravation, he highlighted that the deceased had managed to make good his escape from the scene of the scuffle but had been followed in a determination to cause him harm.

The injuries he had sustained had been serious as evidenced by the fact that he had died almost instantly from the assault.

The post-mortem report also spoke to the gravity of the injuries being the cause of death.

As such, he placed emphasis on the fact that had it not been for the actions of the accused persons, death would not have occurred.

Equally aggravatory was deemed to be the absence of compensation of any sort paid to the deceased's family in keeping with cultural expectation where a loss of life has been inflicted. This was said to be indicative of a lack of contrition on the part of both accused persons.

Furthermore, no assistance had been rendered to the deceased following the assault. He was left still alive and died thereafter: S v Jaure 2001 (2) ZLR 393 was drawn on the need for assistance as an act of repentance.

Furthermore, as regards the second accused, counsel for the State argued, that, far from his time in custody justifying a somewhat lesser sentence to the first accused, his moral blameworthiness was said to be higher in that it was him who had struck the deceased with the metal fluorescent light pole and the jacaranda switch stick.

The first accused, on the other hand, assaulted him with booted feet.

He therefore argued, that, the two, at the end of the day, should still be treated equally even whilst taking into account the longer time spent in custody by the second accused.

Whilst a plea of guilty was acknowledged as a persuasive factor for a lenient sentence, he argued that both accused had started on the deep end of the pool.

In urging for a crisp penalty, counsel for the State argued, that, it behoves the courts to play their role in public order by meting out a sentence that maintains public confidence in the justice delivery system. Given the rising incidents of murder in society, and to dissuade the public from taking the law into their own hands, a rehabilitative stint in prison was inevitable.

The sentence he prayed for as sufficient to meet the justice of this case was 8 years with two suspended.

Reasons for sentence

When people are unlawfully killed, no doubt it aggravates the offence.

I am in agreement that the courts need to send a firm message about the dangers of resolving disputes through violence. The courts should not encourage a culture of violence as a dispute resolution mechanism. As stated in the case of State v Bonginkosi Sibanda HB91-12, sentences imposed must send a clear signal to society that violence of individuals against other human beings is not tolerated and that society needs to be protected against unlawful attacks on other persons.

When a lack of diligence to prevent or respond to interpersonal violence is apparent, then the courts, as organs of the State responsible for passing effective sentences, could be found wanting. Not only is inter-personal violence an obstacle to peace and security but it is also crucial that it be discouraged in the strongest terms as a considerable amount of resources, both legal and social, that could be used for constructive programmes, end up being diverted towards addressing issues arising from such violence.

Having said, there should always be a balancing act because it is still crucial that the punishment of any accused person fits the crime and the offender.

As stated in S v Shoriwa 2003 (1) ZLR 314 (H):

“Whatever the gravity of the crime and the interests of society, the most important factors in determining the sentence are the person, and the character and circumstances of the crime: S v Dualvani 1978 (2) PH, H176 (O).

The determination of an equitable quantum of punishment must clearly bear a relationship to the moral blameworthiness of the offender. However, there can be no injustice where, in weighing the offence, offender, and the interests of society, more weight is attached to one or the other of these, unless there is overemphasis of one which leads to disregard of the other…,.”

Also, in arriving at an appropriate sentence, this court cannot lose sight of the fact that culpable homicide is ultimately a crime in which the perpetrator is unaware of the substantial and unjustifiable consequences that will result from his actions.

As defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], a person who negligently fails to realise that death may result from his conduct is guilty of culpable homicide.

Also, even where a person realizes that death may result from his or her conduct, it is the negligent failure to guard against such conduct that gives rise to culpable homicide.

The point is, ultimately, in such circumstances, a person is less culpable.

I turn now to the State's counsel's proposition, that, in deciding on the appropriate sentence some weight should be attached to the fact that neither of the accused have paid any compensation to the deceased's family and neither did they assist in burying the deceased.

State prosecution is indeed at the core of the official criminal justice system in bringing those who commit crimes to book. It is just as true that criminal prosecutions, in the context of the official law, are not the sole determinants of justice. Influenced by deep-seated customs and traditions, people often draw on their own norms of compensation where there has been a killing. These norms centre on reparations rather than retribution: see S v Silent Kazembe HH378-15 where the accused had assisted at the deceased's funeral with cash and a beast and had also been charged three beasts as compensation.

There are clearly positive aspects in the conscious effort to incorporate aspects of the traditional justice system in the formal criminal justice system in the State's reasoning on sentence. It increases the legitimacy and relevance of the criminal justice system as a whole in a context where parallel systems of law in essence remain very real in the lives of the people.

But, there is also need to appreciate the fuller picture.

It is important to recognise that the wider family, as opposed to the accused, is often at the centre of these payments.

In casu, the accused were said to be young and would hardly have accumulated any assets of their own. No doubt, the harsh economic climate will have had an impact on the ability to pay. As such, poverty per se should not be a reason for imposing a harsher sentence. In any event, the payment of reparation under customary norms is not time bound. The sins of the father are said to affect generations.

Also, too lengthy an incarceration for culpable homicide, founded as it is on negligence and recklessness as opposed to actual intention to kill, would merely delay the accused's availability to put into motion that which the official justice system does not achieve.

In any event, in reality, neither the State nor the defence counsels are very far off from each other in their suggestion of the ultimate sentence to be imposed. There is, at most, a difference of two years. A comfortable medium between the two sentences would be accommodative of the genuine concerns raised by each side.

In imposing sentence, this court is also cognisant of the need not to pay lip service to the fact that the accused are first offenders.

I am in agreement with defence counsels as well as the State that the sentence range in such cases is indeed anything from 6-8 years.

I am in agreement with the State, that, on balance, there is no compelling reason for giving the second accused a lighter sentence at this point from the first accused when he in fact played a somewhat weightier role in negligently causing the death of the deceased.

In giving both the same sentence, this court shares the view, that, the year the second accused is said to have already served whilst awaiting trial, effectively compensates for his weightier role.

Accordingly, each of the accused are sentenced as follows:

Seven (7) years imprisonment of which 2 years is suspended for five years on condition accused is not within that period convicted of an offence of which violence is an element and for which he is sentenced to imprisonment without the option of fine.

Effective sentence: 5 years imprisonment.

HH435-16 : THE STATE vs WESTON MOMBESHORA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, ...

After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

The appellant and another, who is not a party to this appeal, appeared before the High Court sitting at Harare, charged with one count of murder.

After a contested trial, they were found guilty of murder with actual intent and were sentenced each to 25 years imprisonment.

It was the finding of the court a quo, that, on 11 March 2011, they had unlawfully and intentionally caused the death of one Alneshto Bayeta by pushing him down a steep slope into Marongora Game Park which is infested with wild animals.

This is an appeal against both the conviction and the sentence.

Background Facts

The appellant, then aged 20, and his co-accused, not much older, were working in Chirundu, digging trenches for a telecommunications corporation. When the contract ended, the two survived on odd jobs for some time thereafter. They soon ran out of money and planned to steal a vehicle.

On 11 March 2011, they approached the deceased, who was working as a taxi driver, driving a vehicle belonging to one Leonard Mhundwa, and purported to hire the vehicle to Chirundu Heights. This was around 9:00pm.

On the way to Chirundu Heights, they robbed the deceased of the vehicle and tied him up before placing him in the back of the vehicle. They then drove along the Harare-Chirundu Road, and, at a certain spot where the Marongora Game Park slopes steeply from the road, stopped the vehicle and there left the deceased.

When the deceased did not return with the vehicle at the appointed time, Leonard Mhundwa, the owner of the vehicle, lodged a report with the police. Investigations led to the arrest of the appellant and his co-accused who were found in possession of the motor vehicle.

After the arrest of the appellant and his co-accused, a search for the body of the deceased was conducted around the spot at which the appellant and his co-accused had left the deceased. The search was conducted with the assistance of armed Rangers from the Department of Parks and Wildlife who know the area to be infested with wild animals.

Some 20 metres down the slope, a spoor showing that something had been dragged along was observed going down the slope. Along the spoor, torn and blood-stained clothes and sandals belonging to the deceased were recovered.

The body of the deceased was not.

Presuming the death of the deceased, at the time of the trial, as the only reasonable inference that could be drawn from the facts, the court a quo found the appellant and his co-accused guilty of murder and sentenced them as stated above.

The Appeal

Aggrieved by the conviction and the sentence, the appellant noted this appeal raising five grounds of appeal.

In the first three grounds, he challenged the admissibility into evidence of a warned and cautioned statement that he made to the police upon his arrest.

It was his argument that the court a quo erred in admitting the statement into evidence in the face of clear evidence that he had not made the statement but that he was given the statement by the police to sign.

He further argued, that, the statement was irregular as it was “re-taken” on the orders of the confirming court after that court had declined to confirm the first statement.

In his view, apart from the confession in the statement, there was no evidence implicating him in the commission of the crime.

As against the conviction proper, the appellant challenged the sufficiency of the evidence against him arguing that the court a quo drew improper inferences that he had committed the crime.

Finally, he argued that the sentence imposed upon him was severe and induced a sense of shock.

From the above grounds, three issues arise for determination in this appeal. These are;

(i) Firstly, whether the appellant's warned and cautioned statement was correctly admitted into evidence;

(ii) Secondly, whether the appellant was properly convicted of murder; and

(iii) Finally, whether the sentence imposed on the appellant is severe and induces a sense of shock....,.

I now turn to the final ground of appeal in this matter.

It is the challenge to the severity of the sentence that was imposed on the appellant.

Whether the sentence imposed on the appellant was severe and induces a sense of shock

The ground of appeal attacking the severity of the sentence is framed as follows:

“Ad Sentence

The court a quo erred by imposing a sentence which was so manifestly severe as to induce a sense of shock considering the following:

(a) The learned judge erred in paying lip service to the vast mitigating factors proffered by the appellant.

(b) The learned judge erred by not discounting sentence after making a finding that the appellant was a youthful first offender.

(c) The learned judge erred in passing a sentence, which, instead of rehabilitating the accused persons, it breaks them.

(d) The learned judge erred by failing to consider that the accused person were youthful offenders who still need to explore vast opportunities in life if given proper rehabilitation, can be integrated into the society.”

The sentence that a court convicting an accused person of murder under section 47(1) of the Criminal Law (Codification and Reform) Act (the Code) has also been codified under subsection (4) which provides that:

“(4) A person convicted of murder shall be liable -

(a) Subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9.07], to death, imprisonment for life, or imprisonment for a period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3)….,.”

Sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07] provide for sentences following a conviction of murder and the persons upon which the death penalty may not be imposed respectively.

They are of no direct application in this appeal.

I note that no attempt was made to link the challenge to the sentence imposed on the appellant to the above provisions of the Criminal Law (Codification and Reform) Act (the Code).

Instead, the ground of appeal, and the oral argument, proceeded as if the sentencing discretion of the court a quo was at common law.

Thus, there was no argument before us that the murder of the deceased in this appeal was not committed in aggravating circumstances to warrant the sentence that the court a quo imposed.

Indeed, this would have been an untenable submission to make in the circumstances of this case where it is common cause that the murder was committed in the course of and to facilitate a robbery.

The law takes a very dim view of a murder committed during the course of a robbery.

In addition to the numerous case decisions on the matter, the Criminal Law (Codification and Reform) Act (the Code) lists murder committed during a robbery as murder committed in aggravating circumstances.

We thus have no basis for interfering with the sentence imposed by the court a quo as it falls within the provisions of section 47(4) of the Criminal Law (Codification and Reform) Act (the Code) for a murder committed in aggravating circumstances.

HH966-15 : THE STATE vs GARIKAI CHIPENI
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and GONZO

SENTENCEThe accused stands convicted of culpable homicide. He killed his friend with whom he was in a business partnership of selling juice cards.In assessing sentence, the court takes into account that the accused is a young first offender. He was only 21 years old at the material time. He is ...

SENTENCE

The accused stands convicted of culpable homicide. He killed his friend with whom he was in a business partnership of selling juice cards.

In assessing sentence, the court takes into account that the accused is a young first offender. He was only 21 years old at the material time. He is now 24 years of age.

He is married with one child to look after.

The accused is unemployed and has no valuable assets. He survives on buying and selling as a vendor.

The court also takes into account that the accused is remorseful and contrite.

He has been asthmatic since birth although he has now improved. It is feared that if he is sent to prison there might be a relapse.

The court will also take into account that the accused has spent two years in prison on remand pending trial.

His relatives have offered to pay compensation, but, it appears they have not taken any effective steps to effect compensation which remains outstanding.

The court also takes into account that there was severe provocation, in that, from the facts of this case, it appears the deceased wanted to defraud the accused.

On the other hand, the court takes into account, first and foremost, the sanctity of human life.

The accused's moral blameworthiness is aggravated by his failure to render assistance after he had seriously wounded the deceased.

The offence of culpable homicide, where life is needlessly lost, is always considered by the courts to be a serious offence which calls for severe and deterrent sentences.

In this case, although laboring under severe provocation, there was need for the accused to exercise self-restraint.

In the circumstances of this case, I am in agreement with submissions made by State counsel, that, a short and sharp sentence would meet the justice of this case.

In the result, the accused is sentenced to four years imprisonment of which two years imprisonment is suspended for a period of five years on condition the accused does not again within that period commit any offence involving the unlawful killing of a fellow human being.

SC37-14 : CLOUDIUS MUTAWO vs THE STATE
Ruled By: MALABA DCJ, GOWORA JA and GUVAVA JA

On 29 September 2004, the High Court found the appellant guilty of murder with actual intent to kill. The court a quo did not find extenuating circumstances and sentenced the appellant to death.

The appeal against conviction and sentence is, by operation of law, automatic.

The legal practitioner who represented the appellant at the trial submitted that he could not advance any facts as extenuating the appellant's moral blameworthiness. Counsel who represented the appellant on appeal also indicated that he could not advance argument on facts which could be said to have extenuated the appellant's moral blameworthiness.

The facts on which the High Court found the appellant guilty of murder with actual intent to kill and sentenced him to death are common cause.

The appellant was aged 19 years at the time of the commission of the offence. The deceased was his father. He was aged 71 years. They lived together at Maushe Village under Chief Njelele in Gokwe.

The appellant knew that his father had sold a beast belonging to his aunt for Z$14,000. He knew, that, on 3 November 2001, the deceased would leave home at 0100 hours to catch a bus to Bulawayo to deliver the money to the owner of the beast.

The deceased left his homestead at 0100 hours to walk 15km to the bus stop. Little did the deceased know that the appellant was following him as he walked along the footpath that night.

The appellant had decided to attack the deceased and rob him of the money he had on him.

He armed himself with an axe and stalked his father for three kilometers before he pounced on him and struck a severe blow with the axe on the centre (parietal region) of the head. The deceased fell to the ground and the appellant delivered further blows on the deceased's head.

When the deceased was rendered unconscious, the appellant searched his pocket and took Z$5,400 before disappearing into the bush.

The appellant hid the axe in the bush.

The axe weighed 1.350kg. Its blade was 12.5cm long and 8cm wide.

When he got home, he hid the money in the grass thatch in his bedroom.

The deceased did not die on the spot where the appellant attacked him. He remained there, spot, until 11am when he was found by two young girls who were on their way to the bus stop. The deceased died at his home that afternoon. He had been taken there in a scotch cart by his brother.

The post-mortem examination revealed that the deceased suffered the following bodily injuries:

(a) A compound fracture on the left parietal (centre) region of the skull.

(b) An open fracture on the left parietal region of the skull about 7cm wide.

(c) A depressed fracture on the left parietal region of the skull about 4cm long.

(d) A puncture wound on the right parietal region of the head about 3cm wide.

(e) Bruises on the left and right forearms.

The injuries on the head were delivered with severe force - they caused the deceased's death.

The appellant said he could not tell with which side of the axe he struck the deceased's head.

It is clear from the nature of the injuries that he used both the sharp edge of the blade and the back of the axe.

In the morning of 4 November 2001, the appellant joined a group of locals who followed the footprints of the assailant from the scene of the crime. When the foot prints ended at his homestead, suspicion grew that the appellant was the killer.

He confessed to relatives who gathered to ask him about the death of his father.

The appellant voluntarily indicated to the police where he had hidden the axe used to kill the deceased. He also indicated where he had hidden the money he took from the deceased's jacket pocket.

At the trial, the appellant suggested that he was in the company of the deceased, escorting him to the bus stop. He said he struck the deceased with the axe on the head because the deceased had struck him with metal rods which were wrapped in a paper. The reason for the alleged assault by the deceased was that he had refused to plough the fields with Tinashe Nyandoro.

On the money, the appellant said that when the deceased lay on the ground injured, he told him to take the money from the jacket pocket and give it to his sister.

The court a quo rejected the appellant's story as a fabrication.

The appellant had not mentioned Tinashe Nyandoro in the confirmed warned and cautioned statement recorded four days after the incident.

He could not say why he was armed with the axe if he was escorting the deceased to the bus stop. He could not say where on the body the deceased struck him with the metal rods. The alleged metal rods were never found.

As the appellant admitted, that, after the deceased was felled by his blows on the centre of the head with the axe, he was rendered powerless, the metal rods would have been found at the scene by the two young girls who found the deceased lying on his back.

Under cross-examination, the appellant said that the deceased told him to take the money to use as bus fare to go to his sister.

The trial court found, as a fact, that the appellant robbed the deceased of his money. It also found that he assaulted the deceased with actual intent to kill him.

Counsel for the appellant indicated that he was unable to point at any misdirection by the court a quo in its decision on the guilt of the appellant.

A perusal of the record of proceedings shows that the learned Judge carefully considered all the evidence and argument presented to the court. He evaluated the credibility of the witnesses and came to the conclusion that the State had proved, beyond reasonable doubt, that the appellant committed murder with actual intent to kill and robbery.

Counsel for the appellant also indicated that he was unable to point at any misdirection on the part of the court a quo in deciding that there were no extenuating circumstances justifying the imposition of a sentence other than death.

The court a quo adopted the two-pronged approach:

The learned Judge considered the mitigating factors and weighed them against those which aggravated the appellant's moral blameworthiness: see The State v Phinias 1973 (1) RLR 260; The State v Jaure 2001 (2) ZLR 393 (H).

The learned Judge took into account the fact that the appellant was aged 19 years at the time of the commission of the offence. He was aware of the principle that youthfulness is ordinarily regarded as an extenuating circumstance provided the acts committed are consistent with immaturity.

The learned Judge came to the conclusion that aggravating factors far outweighed mitigating features. He said:

“This was a brutal attack on the head using a big axe on a 71 year old defenceless man. Several blows were aimed and landed on the head. The motive was robbery. After the assault, the accused took the cash and left the deceased seriously injured, bleeding, and unable to walk on account of the injuries. This was a planned robbery and attack on his father in the early hours of the morning.”

The careful planning and the resolve to attack his own father in the manner he did, for money, and leaving him for dead, are factors which show that the actions of the appellant were not consistent with youthfulness.

There has to be very strong mitigating factors for a person who commits murder in the course of robbery to escape the death penalty.

The robbery always aggravates the accused's moral blameworthiness.

Not only is the violence perpetrated to overcome resistance to the taking of the deceased's property, the deceased is often beaten to death to avoid identification and detection of the crime.

The decision by the trial court, that there were no extenuating circumstances, cannot be faulted.

The appeal against conviction and sentence is dismissed.

HB19-17 : THE STATE vs HEROLD MOYO
Ruled By: MAKONESE J and ASSESSORS: HADEBE and MOYO

The accused is found guilty of murder with constructive intent.SentenceIn assessing an appropriate sentence, the court takes into consideration all the mitigating features of the case as highlighted by the accused's legal counsel.The accused is aged 26 years. He is not married. He has no children. He is not employed ...

The accused is found guilty of murder with constructive intent.

Sentence

In assessing an appropriate sentence, the court takes into consideration all the mitigating features of the case as highlighted by the accused's legal counsel.

The accused is aged 26 years. He is not married. He has no children. He is not employed and has no savings. He has no assets of value.

The court takes into account that the accused is a first offender and that he has remained in remand custody for the past nine (9) months. He has therefore served part of his sentence.

The court takes into account the fact that the accused admitted stabbing the deceased. He did not totally deny responsibility for his conduct. He did appear somewhat remorseful for his actions.

On the other hand, the court views, with a dim view, the fact that this was a barbaric and savage attack upon the victim.

After stabbing the deceased, the accused chased him around like a wounded chicken. There was no justification for such reprehensible conduct.

The court frowns upon persons who choose to use violence as a way of life. This primitive behaviour must be punished heavily by the courts. The court views, seriously, the loss of any life.

The accused was clearly the aggressor and yet he pretended to have played the role of a peace-maker who was wronged by the deceased.

The deceased, who was employed as a soldier, lost his life at a time when he was at the prime of his life.

These courts will continue to impose severe penalties on persons who act violently and recklessly towards others.

Bottle stores and bars are places where people are supposed to drink peacefully, and, yet, these places are turning to be dangerous battle grounds where people are stabbed and killed in violent fashion.

The moral blameworthiness of the accused is extremely high and that should reflect in the sentence imposed by this court.

The following sentence is appropriate in all the circumstances of this case and the following is ordered:

“Accused is sentenced to 25 years imprisonment.”

HB165-16 : THE STATE vs MUNYARADZI MATUKE
Ruled By: MOYO J

SentenceThe accused person stands convicted of the offence of culpable homicide. He is a first offender. He was aged 20 years at the material time and is currently 23 years old; he is married with a child; he did not waste the court's time, he pleaded guilty - a plea ...

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

Section 81(1) of the Constitution spells out the rights of a child which throws light on what the court should consider in upholding the best interests of a child. It provides as follows;“81(1) Every child, that is to say, every boy and girl under the age of eighteen years, has ...

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions....,.

As for the appeal against sentence, the appellant submitted, that, the sentence imposed against the appellant was manifestly excessive.

A sentence is excessive if it is considerably lengthier than the usual sentences imposed by the courts for a similar offence.

As indicated at the outset of this judgment, the appellant was sentenced to 14 years imprisonment of which 4 years was suspended on the usual conditions.

In his reasons for sentence, the learned magistrate emphasized the aggravating features in the matter before him and took into account the relevant mitigatory features of the case. He correctly found that the age of the complainant weighed heavily against any favourable consideration which the court might have decided to credit him with.

She was 11 years only.

Besides, he was her uncle and society naturally expected him to protect her rather than abuse her. He abused the trust that the complainant reposed in him both as an adult and a relative through consanguinity.

The sentencing court took into account the usual aggravating features and correctly weighed them against the mitigatory features in the case. It cannot, in my view, be said he erred in settling on the sentence that he eventually passed.

We were not referred to any case which could indicate the harshness complained of in this case.

The Criminal Law Code permits for the imposition of life imprisonment in deserving cases.

In an appeal against sentence, the test is whether the sentencing court, in the exercise of its sentencing discretion, erred or misdirected itself by taking into account irrelevant issues or failing to pay due regard to those issues it was obliged to consider. Such matters may take the form of exceeding the sentencing jurisdiction, omitting a statutorily provided step, and so on.

I did not hear counsel for the appellant argue that any of the above errors had been committed in the present matter.

The argument relied on the harshness of the sentence imposed.

I pose to observe, that, I do not find anything outstandingly unusual in the sentence imposed in this case. It is within the range imposed in similar cases. As such, there is no basis for this court to interfere with the sentence.

In light of this finding, the appeal against sentence is therefore dismissed.

HB35-15 : BENJAMIN MAFUSIRE vs THE STATE
Ruled By: MAKONESE J and TAKUVA J

The appellant was arraigned before a Zvishavane Magistrates Court on an alleged contravention of section 114(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that is to say, one count of stock theft.

Following his tendering of a plea of guilty, the appellant was convicted by the trial court in terms of the provisions of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The appellant was sentenced to a term of 9 years imprisonment which is the minimum mandatory penalty provided for in the penal provision of the section under which he was charged.

The court failed to find any special circumstances after going through a detailed explanation of what amounts to special circumstances.

The appellant must have come to terms with the gravity of the sentence and subsequently filed a Notice of Appeal against both conviction and sentence.

The appellant framed his grounds of appeal in the following terms:

“Notice of Appeal

The court a quo erred in:

1. Conducting a trial and convicting appellant using a defective State Outline. The State Outline lacks essential elements of the offence. (sic)

2. Conducting a trial and convicting the appellant without satisfying itself that unrepresented accused understand the nature of the offence and the defences he may tender. (sic)

3. Convicting appellant on his own plea of guilty without ascertaining that the accused had applied his mind to the true import of the charge and was properly aware that anything he may wish to say on his behalf could not constitute a defence.

The court a quo misguided itself treating a plea of guilty as a reason to be cursory in the explanation of essential elements.

The court a quo merely paraphrased the definition of the offence, but, that cannot assist accused to understand the important of the elements, moreso if they are of technical legal nature such as “intent to deprive the owner permanently.(sic)

4. Failing to satisfy the requirements of section 271(2)(b) of the CODE thus rendering the conviction unsafe.

The scanty information contained in the magistrate's questions was a complete failure to achieve the object of the enquiry envisaged by section 271(2)(b) of the CODE.

It must be remembered, that, the enquiry is a mechanism to ensure, that, prior to the conviction, the magistrate satisfies himself, beyond doubt, that the accused's plea of guilty or admission to the charge is an unqualified or unequivocal and genuine plea.

The magistrate merely stated section 271(2)(b) which amounted to lip service failing dismally to be bona fide and proper to the prejudice of the accused. (sic)

5. Failing to conduct any inquiry into the existence or otherwise of special circumstances.

The court a quo misdirected itself in only defining special circumstances which can be held to be just lip service.

That alone, was a glaring irregularity.

What is conspicuous is the absence of any evidence that he carried out an investigation on the question notwithstanding his restatement and paraphrasing of the definition thereof. It would appear that the magistrate was either unaware of the need to conduct an enquiry or was just a derelict of duty. Thus, without an enquiry into the existence or otherwise of the same, the trial court went on to sentence accused to the mandating minimum sentence. (sic)

Prayer

WHEREFORE, appellant prays that the conviction and sentence be set aside and he be found not guilty and acquitted.”

The brief allegations against the appellant, as borne out by the charge sheet, are that on a date unknown to the Prosecutor, but during the month of January 2013, and at village Chizvaure, Headman Shuku, Chief Masunda, Zvishavane, the appellant unlawfully took one bull knowing that the complainant was entitled to own, possess, or control the property or realising that there was a real risk or possibility that the complainant may be so entitled to own, possess, or control the property intending to deprive the owner permanently of his ownership, possession, or control of the said bull.

When the charge was put to the appellant, the following exchange took place between the trial magistrate and the appellant:

“Charge put and understood.

Plea – guilty section 271(2)(b).

Facts understood.

Q: Are the facts true and correct?

A: Yes.

Q: Any variations to make?

A: None.

Essential Elements

Q: Do you admit, that, on the date unknown to the Prosecutor, but during the month of January 2013, and at village Chizvaure, Chief Masunda, Zvishavane you stole complainant's bull in the alleged manner?

A: Yes.

Q: What did you want to do with the bovine?

A: To use it to plough.

Q: You admit that your intention was therefore to deprive the owner permanently of his bovine?

A: Yes.

Q: Any defence to tender?

A: None.

Verdict – Guilty as pleaded.

PP – He is a first offender.”

The transcript of proceedings indicates, that, immediately after the pronouncement of the guilty verdict, the trial magistrate recorded his explanation of the meaning of special circumstances in the following terms:

“Special circumstances means any extraordinary factor arising out of the commission of the offence or which is peculiar to the offence. A clear distinction must be drawn between special circumstances and mitigating features which are of general application, such as good character and peculiar hardship. The latter do not constitute special circumstances, nor co-operation on the part of the accused.

However, for example, the accused was forced by circumstances to commit the offence or was bona fide, ignorant of some statutory provision of the law, such factor could constitute not only mitigating factors but special circumstances.

Q: Have you understood my explanation?

A: Yes.

Q: Would you like to address the court on special circumstances?

A: I do not have anything to say except that I wanted to include the bull as part of my herd. I only have six bovines so I wanted to increase my herd.

Q: What I want you to address me on is whether there are any special circumstances in your case since I have explained the meaning of special circumstances to you.

A: No, there are no special circumstances in my case.

Q: You understand that a charge of stock theft involving the theft of a bovine carries a mandatory minimum sentence of nine years. You risk being incarcerated for that period if you fail to address the court on special circumstances.

A: I have nothing to say on special circumstances.”

The appellant was then asked to address the court in mitigation.

He indicated that he was 66 years old; he had seven children and was unemployed; he survived from peasant farming.

When asked why he had committed the offence, his final words were that he had erred. He wanted to use the beast for ploughing.

The allegations in the outline of the State case reveal, that, the appellant, had, upon stealing the bull, proceeded to castrate it and cut the tips of its horns thereby assuming full ownership of the bull.

I do accept, that, the appellant is an elderly man and that imprisonment would not be an ideal sentence for a man of his age.

The trial magistrate did take this into consideration.

HB42-15 : THE STATE vs VIOLET MOYO
Ruled By: KAMOCHA J

The 22 years old female accused told the court, on arraignment, that she admitted causing the death of a 10 months old baby but did not intend to kill him....,.I propose to find the accused guilty of murder with actual intent.SentenceThe defence and State counsel have summarized all that needed ...

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

This is an appeal against conviction and sentence.

The appellants were charged with contravening section 3(1) of the Gold Trade Act [Chapter 21:03] (the Act) “Possession of gold without a licence or permit.”

It was alleged, that, on the 26th day of June 2013, at around 23:00 hours, and at Mukombe Complex, Tsholotsho Business Centre the two were unlawfully found in possession of gold without a licence or permit contrary to the Gold Trade Act.

The facts are that the two appellants were at Mukombe Business Centre when the first appellant was searched and found in possession of a gold nugget which he intended to sell.

The first appellant was arrested and he implicated the second appellant as the owner of the gold.

The second appellant was arrested and admitted ownership of the gold.

The gold was assayed and found with gold concentrate of 0.0291g valued at $1=11.

Both appellants pleaded guilty and were found guilty as charged.

No special circumstances were found and they were sentenced to the mandatory five years imprisonment.

Aggrieved, the appellants appealed against both conviction and sentence. In their notice of appeal, they indicated the following to be grounds of appeal.

“Ad conviction: 2nd appellant

(1)The learned magistrate erred in finding the 2nd appellant guilty of the crime of possession of gold when 2nd appellant was in fact not in possession thereof and when a claim of ownership thereof did not and does not amount to possession.

(2)The learned magistrate erred in holding that there was common purpose in a crime of possession stricto.

Ad sentence 1st and 2nd appellant (sic)

(3) The learned magistrate erred in holding that there were no special circumstances to warrant imposing (sic) a lesser sentence than the statutory 5 years in that:

3.1 The value involved being that of US$1 ought to have been considered as a special circumstance.

3.2 The 1st appellant was clearly a youthful offender and this element of youthfulness being a special circumstance.

3.3 The appellants stated that they were looking for money for food, a clear sign that, albeit, working they were not being paid, and, if they were paid, they were not being paid enough to sustain themselves. The appellants committed the crime out of starvation and necessity to sustain their lives and produced it to buy food with it.

3.4 The cumulative effect of the mitigating factors amounts to a special circumstance sufficient to influence the court not to impose the mandatory minimum penalty.

(4) The learned magistrate erred, further, in failing to ask the appellants why they committed the offence and the circumstances surrounding the commission of the offence as this would have armed the court with enough knowledge to whether special circumstances did exist or not, or, alternatively, understood whether or not there were compelling reasons not to impose a minimum mandatory sentence.

(5) The learned magistrate erred in failing to enquire, after he summoned the appellant's employer to court, specifically to find out if there were any special reasons or not, if the employer was paying the appellants their salaries or not.

Wherefore, the appellants pray that:

(a) The conviction in respect of 2nd appellant be set aside. In the event that it is sustained;

(b) That the court finds that there were special circumstances in this case sufficient to warrant the setting aside of the sentence of 5 years and substituting it with that of a wholly suspended 5 year sentence, or, alternatively, community service or the payment of a fine.”…,.

Both appellants appealed against sentence....,.

It was argued, that, the first appellant is a youthful offender aged 22 years at the time of the offence.

It is our law that the age of an accused is a relevant factor when assessing an appropriate sentence.

However, for purposes of a finding of special circumstances, youthfulness, on its own, especially where the accused is above the age of 18 years, cannot amount to special reasons: see S v Mutowo HH458-88 where an 18 year old, in Form One, who found an automatic pistol while visiting Mozambique and intended using it for shooting birds, escaped the mandatory penalty after the court found that his age coupled with the purpose of possession of the gun amount to special reasons.

In casu, although the accused was 22 years old at the time the offence was committed, he is married with two children and employed at Hope Fountain. He also admitted that he had been a gold panner for many years and that was “his way of life.” He was fully aware of the consequences of possessing gold without a licence.

I do not find any evidence of immaturity in his conduct.

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

Section 48(2) of the Constitution states that:“(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and —(a) The law must permit the court a discretion whether or not to impose the penalty;(b) The penalty may be carried ...

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA
Ruled By: MAKONESE J

The accused has been convicted of culpable homicide which is a very serious offence.

She pleaded guilty and all the mitigating facts have been adequately canvassed by her legal counsel. These factors include the following:

That, she is a female, juvenile first offender. At the time of the commission of the offence she was aged 16 years. She lacked sufficient maturity to care for and look after another juvenile, the deceased, who was aged 6 years.

She was thrust with the onerous task of looking after another child, when she herself was a child.

She had no parental supervision herself and yet she was expected to cater for the needs of a young child aged 6 years, who usually requires tender loving care and attention.

This error is placed squarely on the doorsteps of both the deceased's and the accused's parents.

In assessing an appropriate sentence, the court must be mindful of the fact, that, the courts are very slow to commit juvenile offenders to prison.

A number of decided cases have settled the position, that, wherever possible, juvenile offenders must not be exposed to the polluting environment of prison. Care must be taken, that, the sentences imposed against juveniles are rehabilitative and reformative, rather than penal in that nature.

The aim and objective, when sentencing a juvenile, is to ensure that the juvenile is rehabilitated and re-intergrated into society.

It has been indicated, that, the accused has spent well over a year in Khami Prison.

This is not an ideal situation at all as that prison does not cater for juvenile offenders and is not a reformatory. The accused should not have been exposed to the harsh prison conditions which will have a long term effect on her social well being.

State counsel correctly pointed out, that, international legal instruments, such as the United Nations Convention on the Rights of the Child, which define a child as a person under the age of 18 years, call for non-custodial sentences, and non-penal sentences that offer rehabilitative forms of punishment in relation to juvenile offenders.

The African Charter on the Rights and Welfare of the Child (OAU) also provides similar protections on the rights of juvenile offenders.

See the cases of S v Zaranyika 1995 (1) ZLR 270; S v Malanga HH218-93; S v Lehnberg and Another 1976 (1) SA 214; and S v Muguti SC218-92.

The common thread that runs through the cases referred to, is that, as a general rule, juvenile offenders should be spared the agony of imprisonment, unless there is no suitable punishment for the particular offence.

I now turn to the present case.

A Probation Officer's report was tendered into the record. It reflects, that, the accused person's family has been living in the rural areas as long as the accused can remember. Their rural home is in Gokwe, in Chief Sahi's area.

During the time of the offence, the accused was co-habiting with her boyfriend, Enias Nduna.

The area where the accused was staying with her boyfriend is an area where a large number of people are into gold panning. The accused was exposed to an unfamiliar environment, and, her involvement with a boyfriend at her age, of 16 years, is indicative of the fact that she has lost moral direction.

The prognosis given by the Probation Officer was that the accused was a first offender who had admitted committing the offence and had shown remorse.

At the time of the offence, the accused was already pregnant. When she appeared in court she had given birth and had an eight month old baby to look after.

The recommendation was that she be placed in a reformatory or training institute in terms of the provisions of section 351(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

It is my considered view, that, whatever sentence the court shall impose must take into consideration the following factors:

(a) The seriousness of the offence.

(b) The interests of justice.

(c) The interests of the juvenile offender as well as the interests of the accused's 8 month old baby.

(d) The period spent in custody by the accused before trial.

I, accordingly, order that the following sentence is appropriate, taking into account all the circumstances of the case:

1. The accused is sentenced to 2 years imprisonment wholly suspended for 5 years on condition the accused is not within that period convicted of an offence involving violence and for which she is sentenced to a term of imprisonment without the option of a fine.

2. The accused shall forthwith be released from prison and transferred to an institution, namely, NORTHCOT, Harare for supervision for a period of 2 years.

3. Upon the expiration of the period of 2 years, the accused shall be discharged from the institution into the custody of her parents or a guardian.

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI
Ruled By: KAMOCHA J

The three accused persons were sentenced on 21 March 2014. The following are the reasons for the sentences imposed by the court.

These three accused were arraigned before a Provincial Magistrate in Gweru and all pleaded not guilty to 18 counts of contravening section 60A(3) of the Electricity Act [Chapter 13:19] as read with section 2(3)(b) of the Electricity Amendment Act published in Statutory Instrument Number 12 of 2007, S.I.12 of 2007 i.e. vandalise, cut, damaged, destroyed, or interfered with any apparatus for transmitting and distributing or supplying electricity.

They had been jointly charged with a fourth colleague who was found not guilty and acquitted of all the 18 counts at the end of the trial.

Accused Jacob Chibhunhe and James Mahachi were found not guilty and acquitted of one count but were found guilty as charged of 17 counts. Accused Masimba Chibhunhe was found guilty as charged of all the 18 counts.

The trial magistrate referred the matter to this court for sentence as she felt, that, in view of the penalty provided by the Electricity Act, and the number of counts involved, she lacked jurisdiction to sentence the accused properly.

After going through the record of proceedings, I held the view, that, the convictions were proper and accordingly confirmed them.

After special circumstances were explained to the accused persons, they all said they understood them and each one was invited to address the court if they had any such special circumstances.

Each one of them did address the court.

All of them raised their personal circumstances which did not amount to special circumstances. There was nothing extraordinary about what they said.

For instance, Masimba Chibhunhe said the reason why he committed the offences was to raise money for the hospitalization of his wife who had undergone an operation. The complication was, that, the stitches of the operation got broken. Further, he said he had two very young children aged 4 years and 10 months respectively. In addition, he has two of his late brother's small children to look after. They are school going. He also has the burden of looking after his mother who suffered a stroke.

Committing a crime due to financial hardships does not amount to special circumstances.

This court held, that, what the accused persons said did not amount to special circumstances.

Section 60A(3) of the Electricity Act [Chapter 13:19] provides thus:

“(3) Any person who, without lawful excuse, the proof whereof shall lie on him or her –

(a) Tampers with any apparatus for generating, transmitting, distributing or supply electricity with the result that any supply of electricity is interrupted or cut off; or

(b) Cuts, damages, destroys or interferes with any apparatus for generating, transmitting, distributing or supplying electricity; shall be guilty of an offence, and, if there are no special circumstances peculiar to the case, as provided for in subsection (4), be liable to imprisonment for a period of not less than ten years.”

A court sentencing a person where it is held, that, there are no special circumstances peculiar to the case, is not permitted to suspend any part of the sentence.

Subsection 5 of section 60A of the Electricity Act provides as follows:

“(5) A court sentencing a person to imprisonment under subsection (2) or (3) shall not order the suspension of any part of the sentence if the effect of such suspension is that the convicted person will serve –

(a) In the case of subsection (2), a period of less than one year; or

(b) In the case of subsection (3), a period of less than ten years.”

Jacob Chibhunhe and James Mahachi were found guilty of 17 counts out of the 18 counts they were facing while Masimba Chibhunhe was found guilty of all the 18 counts.

During the months of February to June 2013, the accused persons went on a spree of draining transformer oil in Gweru. They drained transformer oil from no less than 18 transformers. They drained a total of 11,530 litres of oil. The value of the oil and damage caused to the transformers was no less than $96,750.

Their gang operated under cover of darkness between the hours of 2000 hours and 0800 hours. They meticulously planned the executions of the crime.

Their actions had far reaching consequences to the community where the transformers were tempered with. Industries in the affected areas were not spared by the non-availability of electricity resulting in loss of production.

The level of sophistication of the accused persons was very high; that is why they were able to execute such perilous operations. There is high voltage at the transformers but they still managed to drain large quantities of oil.

They had ready market where they were able to dispose of the oil.

The offences were committed within short spaces of each other.

Jacob Chibhunhe and James Mahachi, who were convicted of 17 counts, would have been sentenced to 17 x 10 years = 170 years imprisonment while Masimba Chibhune would have been sentenced to 18 x 10 years = 180 years imprisonment.

These sentences, in my view, are draconian, abnormal, and excessive to the extreme, and induce an extreme sense of shock.

Even if one were to order that half of the sentences of the 17 counts run concurrently with the sentences of the second half at 10 years imprisonment per count and do the same with the sentences on the 18 counts, the end result would be effective sentences ranging from 80 years imprisonment to 90 years imprisonment which would, in my view, still be excessive to the extreme and draconian.

In the circumstances, I would hold, that, there are special circumstances peculiar to this particular case in so far as the total sentences are concerned.

The circumstances are out of the ordinary, in my view, and, I would, in the result, impose sentences which are less than the minimum mandatory sentence of ten years imprisonment on each count. The sentences will be ameliorated by making some of them run concurrently.

Jacob Chibhunhe and James Mahachi are each sentenced to 3 years imprisonment for each of the 17 counts. The sentences on count one and two shall run concurrently with the sentences on counts 3 to 17. Their total effective is 45 years imprisonment.

Masimba Chibhunhe is sentenced to 3 years imprisonment on each of the 18 counts. The sentences on counts 1 and 2 shall run concurrently with counts 3 to 18. His total effective is 48 years imprisonment.

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

An integral part of the adjudication process is the exercise of discretion. It is done judiciously.

Whim, caprice, impulse, irrationality, excitability, emotion, and all the other negative urges or passions of that nature have no role.

There are many instances when the court is called upon to exercise its discretion. But, it is mostly in sentencing, in criminal matters, that that function is so pronounced.

Ordinarily the doctrine of stare decisis ensures, that, like cases are treated alike. In appropriate situations, a precedent set in one case should be followed in all other subsequent cases of a similar nature. But, this is only to a degree. Every case is judged in accordance with the peculiarities of its own facts and circumstances; and strictly speaking, there are no two cases that are exactly alike.

That is why, in sentencing, for example, penalties may differ from case to case despite the similarities on the face of them. It is because of the subtle differences that may exist between seemingly similar cases and the exercise of judicial discretion by the trial court.

Because of that, the Appeal Court or Review Judge, exercises the greatest of restraint before interfering with the decision of the lower court. There are times when the Appeal Court or Review Judge feels that he could have imposed a different penalty from that of the trial court, but, nevertheless, refrains from interfering because of the realisation that the lower court is reposed with the power to exercise its own discretion. Only in instances where the exercise of that discretion by the lower court was not judicious would the Appeal Court or Review Judge interfere.

This particular case is a good example of an injudicious exercise of discretion.

It was an ordinary case of unlawful entry and theft. The accused was 21 years old. He “broke into” the complainant's residence. He did not “break in” in the sense of using force to break down any barrier. He simply pushed open the door and walked in. It was unlocked.

That was Count 1: “Unlawful entry into premises” as defined by section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

Inside the complainant's residence, the accused stole 5 kilogrammes of mealie meal, a pack of potatoes, a t-shirt, and a pair of shorts. The total value of all the items stolen was $53. The short was recovered. It was worth $10. Thus, $43 was the actual value of the prejudice to the complainant.

That was Count 2 of the charge: “Theft” as defined in section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The accused pleaded guilty to both counts. He was duly convicted. The conviction is proper. It is hereby confirmed.

On sentence, the trial court took both Counts as one.

The accused was sentenced to 16 months imprisonment; 4 months were suspended for 5 years on the usual condition of good behaviour; a further 2 months were suspended on condition the accused paid the complainant $40 restitution (it should have been $43).

That left him with an effective 10 months imprisonment.

An effective 10 months imprisonment for unlawful entry into premises and theft of items to the value of $53 seemed unduly excessive.

Ordinarily, offenders in similar circumstances escape with community service.

So, the record attracted my attention. I sought to find out what it is that had led the trial court to be so harsh. What could have been the peculiar circumstances of the case?

I found nothing other than plain misdirection by the court. Below are the details.

The accused was a first offender. The trial court made no mention of this.

He was married and had one child. The trial court said nothing about this either.

He was a pushcart operator earning $60 per month on average. His savings or assets amounted to just $15 and 5 goats. Asked why he stole, he said he had no money. Asked where he had put the items that he had stolen, he said he had used/consumed them, but, that he was willing to pay compensation.

By all accounts, the accused was a poor man. He stole the food items to eat. The clothes, he wore them. It was the pair of shorts that gave him away. He was putting them on when he was arrested. He had just been 8 months in the business of cart pushing.

Poverty does not justify crime.

If you are poor and you steal to feed or clothe yourself you are offending. The law will convict you. It will judge you. It will punish you.

But, your sentence should fit you and your crime. That is where judicial discretion comes in. That, partly explains why one sentence in one case may differ from the other in another case seemingly of a similar nature.

It was clear the accused did not steal out of greed or malice. He stole out of need. The problem is that the trial court took no account at all of any of his personal circumstances. Not in the least did it comment on them. So, there is no telling to what extent its sentence was influenced, if at all it was, by the fact that the accused was a first offender; that he had several mouths to feed; that he had pleaded guilty and saved time, and, above all, that he had shown contrition by offering to pay the complainant compensation.

That was part of the misdirection by the court a quo.

The other and more serious misdirection by the court a quo is what it took into account in arriving at the sentence.

Without commenting on the personal circumstances of the accused, the trial court went straight to express what should amount to its personal prejudices or whims. It said:

“The offence of unlawful entry is a threat to the security of home owners. Burglars are dangerous criminals. For unlawful entry, even first offenders can be sent to imprisonment. It's an offence which takes so much courage to commit. The complainant lost $40 worth of goods. It was only out of good fortune that he lost less. But, this does not take away the fact that accused must be sent to jail.”

The next bit of the court's judgment is rather shocking.

The accused was sent to prison because the court thought the approaching festive season would be so tempting for him as to re-offend. It said:

“The approach of [the] festive season is a time where most homes will be left unattended. During the festive season, the accused must be away from the neighbourhood. The court simply feels imprisonment is the most appropriate sentence.”

There is no principle like that.

It was wrong for the court to allow itself to be influenced by such a consideration, especially given, that, neither had there been any evidence of such placed before it, nor of the prosecutor having made such a submission.

Ordinarily, community service is to be considered in appropriate cases where the court imposes an effective prison term of 24 months or less.

The court a quo did consider it.

But, it ruled against it for reasons alien to precedence. The court thought community service is for immature juvenile offenders only. It said:

“I would have considered community service had the accused been 18–19yrs old. At the age of 21, the accused could not be said to be immature.”

That was wrong.

Community service is not determined by the age of the offender. Courts should follow precedence.

In conclusion, the court went back to its favourite theme of the approaching festive season. It said:

“The court has also taken note of the prevalence of the offence in this district. Deterrence is called for. Accused must be removed from society during this festive so that homes and homeowners property are safe; the accused may repeat offend during this festive season which is a tempting period for burglars.”

The wrongness of such an approach sticks out. There is no need to belabour the point. It is hoped the court a quo learns something from this.

Its sentence in this matter has to be quashed.

Even the sixteen months was excessive to begin with.

Admittedly, Count 1 (unlawful entry into premises) was committed in aggravating circumstances in the sense, that, the accused entered a dwelling house (section 131(1)(a) of the Code, as read with subsection (2)(a)) and that he committed some other crime, theft (section 131(1)(a) of the Code, as read with subsection (2)(e)).

The Criminal Law (Codification and Reform) Act (the Code) prescribes a sentence of a fine not exceeding level thirteen ($3,000), or not exceeding twice the value of any property stolen, destroyed, or damaged by the accused (in this case, $43), whichever is the greater; or imprisonment for a period not exceeding 15 years, or both.

For Count 2 (theft), the prescribed penalty is a fine not exceeding level 14 ($5,000), or, twice the value of the property stolen, whichever is the greater, or imprisonment for a period not exceeding 25 years (section 113(1) of the Code).

However, the court is empowered to suspend the whole or any part of the sentence of imprisonment on condition that the accused restores the property stolen by him or pays the complainant compensation.

In its discretion, the court a quo treated the two Counts as one for the purposes of sentence. It could properly do that.

Admittedly, the top ends of the prescribed penalties for both of these offences are very heavy. But, that is to cater for all the possible ranges of unlawful entry and theft.

Prison should not have entered the court's mind.

One cardinal principle of sentencing is to keep first offenders out of jail where possible, especially youthful ones such as the accused was.

And, as pointed out above, the court had the discretion to suspend the whole of the sentence for theft on condition of restitution.

Furthermore, where a statute allows the payment of a fine for an offence should be the starting point for the court.

Having combined the two Counts for the purposes of sentence, and given the value involved, and given all the other mitigating circumstances such as the accused's age; his family responsibilities; the fact that he pleaded guilty; that he was a first offender; and the contrition that he showed, the appropriate sentence should have been no more than 6 months imprisonment, with 3 suspended on condition of good behaviour, 2 suspended on condition of restitution and the remaining 1 month converted to community service.

Up to the time of this judgment, the accused had already served a month of his sentence. He should be entitled to his immediate release.

In the circumstances, it is hereby ordered and directed as follows:

(i) The conviction of the accused is hereby confirmed.

(ii) The sentence of the court a quo is hereby quashed and substituted with 6 months imprisonment, of which 3 months imprisonment is suspended for 5 years on condition that within that period, the accused is not convicted of an offence involving unlawful entry into premises, or dishonesty for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. A further 2 months imprisonment is suspended on condition that the accused pays the complainant restitution in the sum of $43 within 30 days of the date of this judgment.

(iii) Having already served one month of the prison sentence, the accused is entitled to his immediate release.

(iv) The court a quo is hereby directed to summon the accused and put into effect the aforesaid altered sentence.

HMA20-19 : THE STATE vs X
Ruled By: MAWADZE J and MAFUSIRE J

Prison sentences have long been regarded as undesirable in dealing with juvenile offenders.

CCC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

In retaining the death penalty, albeit, under very restricted circumstances, the new Constitution has laid out an elaborate procedure which must be meticulously followed, under section 48, which provides as follows:“FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS48 Right to Life(1) Every person has the right to life.(2) A law may permit the ...

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

This is an appeal in respect of both the conviction and sentence.The appellant was convicted, after a protracted trial, by the Magistrate sitting at Chivi on 1 July 2019 and he was represented by counsel for the appellant.The appellant was convicted of fraud, as defined in section 136 of the ...

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J

The 19-year-old accused, who was a first offender, was convicted of contravening section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to theft.

The agreed facts are that on 21 August 2019, at around 0300 hours, the 41-year-old complainant was involved in a road traffic accident at the 37km peg along the Chivu–Gutu road and got seriously injured. The accused, and one Jonathan Chikoromondo, witnessed the accident and rushed to the scene. The accused did not help any of the injured persons. Instead, the accused and his colleague, Jonathan Chikoromondo, opened the driver's door and stole US4,200= which they later shared.

Nothing was recovered.

The accused was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of good behaviour leaving an effective prison term of 18 months.

What pricked my judicial conscience is the fact that the 19-year-old accused is not only a youthful, first offender, but, is currently in Form Four at Chiriga Secondary School.

The implication of an effective prison term is that the accused is no longer attending school thus ruining his future. Currently, other pupils are busy writing their examinations.

There is no doubt that the accused's moral blameworthiness is very high. The accused exhibited a very high degree of cruelty. He decided not to help the injured complainant but to steal the money. Such conduct is immoral and deserves censure.

Be that as it may, some degree of leniency was required.

The accused is a youthful first offender. He is no longer attending school as he was incarcerated. There was an element of sudden temptation when he saw the cash.

It was not probed as to where exactly the cash was in the motor vehicle. It is not clear how much the accused got as his share of the loot. The trial court did not inquire as to how the accused used the money.

It is not clear as to who is older between the accused and Jonathan Chikoromondo in order to exclude the possibility of peer pressure.

The trial magistrate concedes, that, he did not carry out a proper inquiry into all these factors to enable him to properly assess the sentence.

This constitutes a misdirection.

Further, the sentence of 24 months imprisonment is rather severe in view of the accused's age, the amount involved, and other mitigatory factors.

This matter calls for my immediate intervention to enable the accused to continue with his education.

I shall direct the trial magistrate to immediately call the accused from prison and to carry out a proper inquiry into community service and sentence the accused to a sentence of community service.

The trial magistrate should take into account the period the accused has already served in prison from 9 September 2019 and also that he is attending school and possibly writing examinations in couching the community service order especially the period he would be expected to perform community service.

As he is still a school pupil, it is unwise to order restitution.

In the result, I make the following order;

1. The sentence of 24 months imposed by the trial court is set aside in its entirety and is substituted with the following;

“6 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving dishonesty for which he is sentenced to a term of imprisonment without the option of a fine.

The remainder of 3 months is suspended on condition the accused performs the equivalent hours of community service work at an appropriate institution on the usual conditions.”

2. The matter is remitted to the trial magistrate, or, in his absence, to any other magistrate to carry out an inquiry in compliance with paragraph (1) above. The period accused has already served should be taken into account in computing the hours of community service work to be performed for the 3 months.

The above order should be complied without delay to ensure the accused is not further prejudiced.

HMT19-20 : THE STATE vs CLAYTON DEKAURENDO
Ruled By: MWAYERA J and ASSESSORS: RAJAH and MAGOROKOSHO

The accused is..., found guilty of murder with constructive intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code).SentenceIn passing sentence, we have considered all mitigatory factors in your favour as advanced by counsel.You are a young, first offender who ...

The accused is..., found guilty of murder with constructive intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code).

Sentence

In passing sentence, we have considered all mitigatory factors in your favour as advanced by counsel.

You are a young, first offender who committed a grave offence at the age of 18.

You have been in custody since September 2018; that means you have been in for more than a year. The trauma of the pre-trial incarceration, coupled with the trauma brought about by the suspense of not knowing the outcome of the matter, cannot be under-estimated.

You will, for the rest of your life, live with the stigma of having killed two human beings.

It is humane to consider customarily appeasing the bereaved family; however, clearly, no amount of compensation will bring back the needlessly lost precious human life.

In aggravation, as advanced by the State counsel, is the fact that your moral blameworthiness is high. Passers-by lost their life for no reason. You displayed hooliganism of the worst kind by attacking a 31 year old woman strapping a 3 year old toddler on her back.

There was no provocation or retaliation, but, you mercilessly, and in an unrelenting manner, struck the deceased severally, and severely, on the head thereby causing death.

You displayed no sense of responsibility and respect for elders, as evidenced by you taking it upon yourself to attack your uncle who is older than your father.

It is accepted there was a family feud, but, you, as a child, had no business in trying to resolve brothers issue. Your uncle was at his mother's house and you had no business chasing him away.

The matter, besides being criminal, shows the moral decadence which is now rampant among youths in their lack of respect for elders. Such indiscipline, based on bragging on physical prowess, cannot go unpunished.

No one has a right to take away another's precious human life. The right to life is a God-given and constitutionally enshrined right.

Violence should never be resorted to for dispute resolution.

The courts should express their displeasure in the much increasing loss of life due to violence by passing appropriate sentences.

In seeking to match the offence to the offender, while at the same time ensuring that the societal interests are met, we will temper justice with mercy in due recognition of your age. It is hoped, that, during the time you will spend at Correctional Services you will be rehabilitated and moulded into a more responsible citizen. You are sentenced as follows:

18 years imprisonment.

HMT43-19 : THE STATE vs MICHAEL MUNAPO
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

The accused is..., found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].SentenceIn assessing sentence, we have taken into account all mitigatory factors and aggravatory factors submitted by the defence and State counsels.The accused is a youthful first offender who committed ...

The accused is..., found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

In assessing sentence, we have taken into account all mitigatory factors and aggravatory factors submitted by the defence and State counsels.

The accused is a youthful first offender who committed the offence at the age of nineteen (19).

We have considered that the accused was affected by growing up in a broken family where sins of the father and mother were visited on him. The accused clearly lacked parental guidance as the father was not staying with him but staying at another home with another woman. The mother was away at her workplace.

We have also considered the background of the accused and the beliefs in witchcraft as reducing the moral blameworthiness; moreso, upon considering the attitude of the accused's father.

He took issue with the accused being legally represented, and, immediately after testifying, largely in a malicious way, sought to be excused to attend to his own business.

Such parenting, when given the age of the accused, clearly displays that the accused lacked parental guidance and love.

In aggravation, we have considered all submissions made by the State counsel.

Precious human life was needlessly lost over a petty issue. The accused indeed carried on like a bully as he posed to show his fiscal process, not only in snatching the deceased's girlfriend but physically assaulting and stabbing the deceased.

The accused used a lethal weapon, a knife, on a delicate part of the body, and cost the life of the complainant at a tender age.

That life can never be replaced.

After the commission of the offence, the accused went into hiding, and, such conduct is unacceptable.

It is important, in passing sentence, for all the circumstances to be considered and seek to match the offence to the offender while at the same time tempering justice with mercy.

The maturity of the accused is quite central in mitigation and ought to be reflected by departure from lengthy imprisonment term.

However, the youthfulness should not be over-emphasized to the detriment of the justice delivery system.

The society has to get fair and just decisions so as to continue to have confidence in the justice delivery system.

An appropriate sentence, which reflects that the courts frown at use of violence on others, especially intentionally, occasioning death has to be passed. A custodial term is called for.

10 years imprisonment.

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J

On 21 November 2018, we outlined reasons for dismissal of the appeal. The written reasons are captured herein.

Both appellants were convicted of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted, on their own plea of guilty, for having assaulted the complainant with fists and booted feet several times all over the body for having worn a ZANU PF t-shirt.

The facts informing the charge, as discerned from the Outline, are that, on 4 July 2018, at 1600 hours, at Sedze Bottle Store, Chief Mutasa, Mutasa the complainant, who was wearing a ZANU PF t-shirt was approached by both appellants who questioned why he was wearing a ZANU PF t-shirt. Thereafter, the appellants teamed up and subjected the complainant to assaults till he fell to the ground and they persisted with the assault, kicking him with booted feet before the complainant made good his escape.

The complainant sustained injuries as follows: painful chest, painful teeth, and swollen face.

The appellants were each sentenced to 12 months imprisonment of which 4 months imprisonment was suspended for five years on the usual conditions of good behaviour.

Dissatisfied with the sentence imposed on them, both appellants lodged an appeal against sentence. The four (4) grounds of appeal are as follows:

“1. The learned magistrate in the court a quo erred in not considering community service or the payment of a fine as competent sentence.

2. The court a quo erred in holding imprisonment as the only deterrent punishment and failing to consider other forms of punishment, considering that both appellants were first offenders who pleaded guilty to the offence.

3. Further, the learned magistrate erred by ignoring the general principle of keeping first offenders out of prison, especially if there are no compelling reasons for the imposition of a custodial sentence.

4. The court a quo erred by failing to accord a plea of guilty sufficient weight it must be accorded.”

The respondent opposed the appeal, arguing that the sentence imposed was appropriate in the circumstances of a politically-motivated assault.

From the grounds of appeal, what falls for determination in this case is whether or not the court a quo, in sentencing the appellants, judiciously applied its mind to the general sentencing principles in the exercise of its sentencing discretion.

It is trite law, that, the determination of sentence, in criminal matters, is pre-eminently a matter for the discretion of the trial court: see S v Mungwenhe and Another 1991 (2) ZLR 66; S v Matanhire and Others HH18-03; and S v Mundowa 1998 (2) ZLR 395.

In S v Mundowa 1998 (2) ZLR 395 it was held, that, a superior court will not lightly interfere with a court's sentence unless the discretion was not judiciously exercised; that is, unless sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court would have imposed it.

In the present case, the sentencing court reasoned, that, any other form of sentence would trivialise an otherwise serious politically motivated assault which occasioned serious injuries on the complainant as per the medical evidence.

The sentencing court took into account that the nation was in an election mode and that there was need to pass a deterrent sentence so as to promote peace and political tolerance.

The court took note, that, the appellants were first offenders who pleaded guilty and gave credit for that by suspending a portion of the prison term.

The question that begs for an answer is: given the circumstances of the matter, and the assessment of sentence, was there an error committed by the sentencing court in determining and/or applying facts and sentencing principles in a bid to come up with an appropriate sentence?

If there was an error, then, it amounts to a misdirection warranting interference; but, if there was no error, then, there is no basis and justification for interfering with the sentencing discretion of the court.

It is important to bear in mind, that, in an appeal against sentence, the question for the Appeal Court is not what sentence it would have imposed, but, whether or not the sentencing discretion was improperly exercised and whether the sentence imposed is so outrageous as to induce a sense of shock.

In the case of S v Berliner 1967 (2) SA 193 AD…, the court explained, elaborately, what falls for consideration in an appeal against sentence when it held that:

“As the essential inquiry in an appeal against sentence, however, is not whether the sentence is right or wrong, but whether the court imposing it exercised its discretion properly and judiciously.

A mere misdirection is not, by itself, sufficient to entitle the Appeal Court to interfere with the sentence; it must be of such a nature, degree, or serious that it shows directly, or indirectly, that the court did not exercise its discretion at all or exercised it improperly or unreasonably.

Such a misdirection is usually termed one that vitiates the court's decision on sentence.

That is the type of misdirection that the dictates of justice clearly entitle the Appeal Court to consider the sentence afresh.

The enunciated stance clearly shows, that, an Appeal Court does not lightly interfere with the sentencing discretion and only does so when the sentence so imposed shows an improper exercise of discretion, and sentencing discretion which is contrary to the interests of administration of justice.”

CHINHENGO J, in S v Mutemi 1999 (2) ZLR 290 H…, adopted this approach, albeit, in a review, when he had this to say:

“I will therefore, despite the failure by the magistrate, in principle, to adopt the correct approach to sentence in this matter, confirm proceedings as having been in accordance with real and substantial justice.”

Also on point is section 38(2) of the High Court Act [Chapter 7:06]. It provides:

“Notwithstanding that the High Court is of the opinion that any point raised might be decided in favour of the appellant, no conviction or sentence shall be set aside or altered unless…, the High Court considers that a substantial miscarriage of justice has actually occurred.”

In the present case, the fact that the court a quo did not give detail on discarding the option of a fine and community service cannot be said to vitiate the proper exercise of sentencing discretion; moreso, given the reasoning that the court took it other forms of sentence would trivialise an otherwise serious offence.

The court did not take that assault as an ordinary assault, but a politically-motivated assault which involved violation of the Constitutional rights of freedom of participation and aligning one to a party of their own choice.

The court, in its reasoning, considered the politically motivated assault as a serious offence for which community service was not appropriate.

In the case of S v Chiweshe 1996 (1) ZLR 425 it was held, that, it is not every case where an accused is sentenced to a short sentence of imprisonment that community service is imposed.

See also S v Chikomo HH107-94 in which the court remarked, that, there is need for caution in imposing community service on offenders lest there be risk of adverse public reaction.

In this case, the sentencing court was mindful of the fact, that, the politically motivated assault occurred at the backdrop of a politically charged environment with a clarion call for need to maintain political maturity, tolerance, and so as to conduct the national election in peace.

I am alive to the fact, that, the sentencing provisions for assault, as provided for in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provide for the option of a fine up to level fourteen or imprisonment for a period not exceeding 10 years or both.

It is also settled, that, where the penalty provision provides for the option of a fine, that should be the starting point before resorting to the rigorous sentence of imprisonment.

In the case of State v Matanhire 1982 (1) ZLR 139 McNALLY J…, had this to say:

“When sentencing first offenders, the court should consider very carefully whether to send them to prison. The courts should resort, more frequently, to fines than they have done in the past, if the circumstances of the case allow it…,.. This does not mean a blanket rule that criminals only lose their amateur status after their second offence. The court should, in each case, ask itself 'is it necessary to send this man to prison for the offence?' Only if the answer is 'yes' should a term of imprisonment be imposed.”

See also S v Ngombe HH04-87 and S v Mugande HB132-17.

In S v Mugande HB132-17, the court had this to say in respect of a prison sentence:

“It is trite a principle of our law that prison sentences are reserved for serious offence. The principle is well established that custodial sentences are only to be imposed as a last resort where a non-custodial sentence would tend to trivialise the case. The guiding principle is, however, that, the sentencing court must exercise its discretion, and, where such discretion is not used judiciously, a higher court has untethered right to interfere with such sentence in the interests of justice.”…,.

What is clear in all these cases is that the sentencing court has to properly exercise its sentencing discretion.

The circumstances of each case come into consideration holistically. The thought process and reasoning ought to be visible in the reasons for sentence.

In this case, the sentencing court did not consider the assault as an ordinary assault but a politically-motivated one which called for deterrence.

The trial magistrate reasoned, that, other forms of sentence would trivialise the matter and imposed a prison term with a portion suspended.

The failure to record details of the thought process, given the reasons for sentence, in my view, does not vitiate the exercise of the sentencing discretion to the detriment of the interest of administration of justice.

The circumstances of the case warranted imposition of imprisonment.

The sentencing court sought to match the offence to the offender and decided on an appropriate sentence which cannot be described as outrageous.

In S v Mark Tekwane HH204-01 and S v David Pedzisa HH184-02 effective prison terms were imposed for politically-motivated assaults.

The sentencing court, in this case, was mindful of other sentencing options which it discounted and gave reasons for imposing a custodial term.

The sentence of 12 months with 4 months suspended on usual conditions of good behaviour for a politically motivated assault, in the circumstances, was befitting. The sentencing discretion was properly and judiciously exercised such that there is no basis for interference with the findings of the court a quo.

Consequently, the appeal against sentence is dismissed.

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

Both accused are found not guilty of murder and are found guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act.SentenceIn reaching at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused and counsel for the ...

Both accused are found not guilty of murder and are found guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act.

Sentence

In reaching at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused and counsel for the second accused.

Both accused are first offenders who have family responsibilities, wife and children, respectively, dependant on them.

Both accused have been waiting anxiously, from 2014 to today, for the matter to be finalised. Even though the accused were admitted to bail, the trauma and pressure that goes with having a serious criminal charge of murder hanging on one's head cannot be understated.

Also mitigatory for the first accused is the fact that he co-operated with the police from the onset and tendered a plea of guilty to culpable homicide. A plea of guilty ought to be credited for what it is worth and that should be reflected in the sentence.

The first accused also showed regret of his conduct by compensating, customarily, by paying beasts and goats to the bereaved family.

We are alive to the fact, that, no amount of compensation can bring back life but the gesture is a way of respecting humanity.

Both accused persons stand convicted of a serious offence.

Precious human life was unnecessarily lost because of the accused's negligence. The degree of negligence, given the protracted, several, and indiscriminate assault was high. The accused's blameworthiness is high as this was a team assault interchangeably directed on a man who was hopeless and not retaliating.

The negligence borders on recklessness when one considers that the deceased was said to be very drunk.

As correctly stated by counsel for the State, the Constitutionally given right to life cannot just be whisked away.

The court has to express its displeasure at people who resort to violence to resolve disputes.

In this case, the accused persons unreasonably took the law into their own hands when they sought to chastise a suspected thief. Precious human life was lost in a painful manner going by the cause of death and the fact that the deceased could not make it home after the assault.

He died at the shopping centre.

I am alive to the cases suggested for guidance in sentence, and, indeed, they remain for guidance as it is imperative that the sentencing court has to properly and judiciously exercise its sentencing discretion taking into account the circumstances of the case beforehand.

To suggest the option of a fine and/or community service is clearly not according the right to life the status as provided in the Constitution.

Community service sentence is a noble form of sentence for minor offences and one cannot say, generally, assaulting another by two adult men occasioning death is a minor offence.

Consideration of community service would not only put into disrepute the noble sentence for minor offences but will make society lose confidence in the justice delivery system.

In passing sentence, the court has to seek to strike a balance between the offence and the offender while at the same time tempering justice with mercy in such a manner as not to undermine the interest of administration of justice.

The offence is deserving of a custodial term.

We will however suspend a portion in due recognition of the mitigatory factors and that the matter has taken too long to be brought up for prosecution and finalisation.

In this case, different sentences for the accused will be justified because of the first accused's plea of guilty and that he compensated the bereaved family. The credit for the plea of guilty and remorse should be reflected in the suspended period.

The accused are sentenced as follows:

Accused 1

4 years imprisonment of which two and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Accused 2

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor ...

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Law Portal Zimbabwe

Sentencing re: Approach iro Co-Accused, Gender and Age Considerations & the Principle of Equality of Treatment

HMA04-18 : THE STATE vs REKAI MABONGA and SILENCE CHANDIREKERA Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and DHAURAMANZI

HMA10-18 : THE STATE vs BERNARD MAKUCHETE and RABSON MAKUCHETE Ruled By: MAFUSIRE J and ASSESSORS: MUSHUKU and DHAURAMANZI

HH165-15 : THE STATE vs HOWARD MOYANA and BHUKUCHAYI CHIPONGO Ruled By: MUREMBA J and TAGU J

HMT12-18 : THE STATE vs RESPECT SITHOLE and SHAMISO MUNETSI Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and RAJA

HH528-16 : THE STATE vs PATRICK MOYO Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI Ruled By: CHITAPI J

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MAKONESE J and MOYO J

HB30-20 : THE STATE vs ESTHER MOYO Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB67-15 : THE STATE vs QINISO SIBANDA Ruled By: MAKONESE J

HB124-17 : THE STATE vs FREDDY SHAVI Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB127-17 : THE STATE vs GLADYS MUTOPA Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HH63-10 : THE STATE vs YOMENCE CHAITEZVI and NOTICE KIDA and OBERT MUCHEMWA and ZVIDZAYI MARUFU and JACOB KAGOGODA Ruled By: PATEL J and ASSESSORS: CHIDYAUSIKU and TUTANI

HH133-17 : THE STATE vs NAISON CHAYAMBUKA and MOSES MUSUSA Ruled By: TSANGA J

HH435-16 : THE STATE vs WESTON MOMBESHORA Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH966-15 : THE STATE vs GARIKAI CHIPENI Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and GONZO

SC37-14 : CLOUDIUS MUTAWO vs THE STATE Ruled By: MALABA DCJ, GOWORA JA and GUVAVA JA

HB19-17 : THE STATE vs HEROLD MOYO Ruled By: MAKONESE J and ASSESSORS: HADEBE and MOYO

HB165-16 : THE STATE vs MUNYARADZI MATUKE Ruled By: MOYO J

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT Ruled By: UCHENA J

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO J

HB35-15 : BENJAMIN MAFUSIRE vs THE STATE Ruled By: MAKONESE J and TAKUVA J

HB42-15 : THE STATE vs VIOLET MOYO Ruled By: KAMOCHA J

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE Ruled By: KAMOCHA J and TAKUVA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA Ruled By: MAKONESE J

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI Ruled By: KAMOCHA J

HMA03-19 : STATE vs JOHANIS MUKWENA Ruled By: MAFUSIRE J and MAWADZE J

HMA20-19 : THE STATE vs X Ruled By: MAWADZE J and MAFUSIRE J

CCC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE Ruled By: MAWADZE J and WAMAMBO J

HMA49-19 : THE STATE vs TAMBAOGA DOVI Ruled By: MAWADZE J and WAMAMBO J

HMT19-20 : THE STATE vs CLAYTON DEKAURENDO Ruled By: MWAYERA J and ASSESSORS: RAJAH and MAGOROKOSHO

HMT43-19 : THE STATE vs MICHAEL MUNAPO Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE Ruled By: MUSAKWA J and MWAYERA J

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT54-19 : CHIVHARANGE TONGI vs THE STATE Ruled By: MWAYERA J and MUZENDA J

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Zimbabwe

HMA04-18 : THE STATE vs REKAI MABONGA and SILENCE CHANDIREKERA
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and DHAURAMANZI

HMA10-18 : THE STATE vs BERNARD MAKUCHETE and RABSON MAKUCHETE
Ruled By: MAFUSIRE J and ASSESSORS: MUSHUKU and DHAURAMANZI

HH165-15 : THE STATE vs HOWARD MOYANA and BHUKUCHAYI CHIPONGO
Ruled By: MUREMBA J and TAGU J

HMT12-18 : THE STATE vs RESPECT SITHOLE and SHAMISO MUNETSI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and RAJA

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI
Ruled By: CHITAPI J

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J and MOYO J

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB67-15 : THE STATE vs QINISO SIBANDA
Ruled By: MAKONESE J

HB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HH63-10 : THE STATE vs YOMENCE CHAITEZVI and NOTICE KIDA and OBERT MUCHEMWA and ZVIDZAYI MARUFU and JACOB KAGOGODA
Ruled By: PATEL J and ASSESSORS: CHIDYAUSIKU and TUTANI

HH133-17 : THE STATE vs NAISON CHAYAMBUKA and MOSES MUSUSA
Ruled By: TSANGA J

HH435-16 : THE STATE vs WESTON MOMBESHORA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH966-15 : THE STATE vs GARIKAI CHIPENI
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and GONZO

SC37-14 : CLOUDIUS MUTAWO vs THE STATE
Ruled By: MALABA DCJ, GOWORA JA and GUVAVA JA

HB19-17 : THE STATE vs HEROLD MOYO
Ruled By: MAKONESE J and ASSESSORS: HADEBE and MOYO

HB165-16 : THE STATE vs MUNYARADZI MATUKE
Ruled By: MOYO J

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

HB35-15 : BENJAMIN MAFUSIRE vs THE STATE
Ruled By: MAKONESE J and TAKUVA J

HB42-15 : THE STATE vs VIOLET MOYO
Ruled By: KAMOCHA J

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA
Ruled By: MAKONESE J

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI
Ruled By: KAMOCHA J

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

HMA20-19 : THE STATE vs X
Ruled By: MAWADZE J and MAFUSIRE J

CCC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J

HMT19-20 : THE STATE vs CLAYTON DEKAURENDO
Ruled By: MWAYERA J and ASSESSORS: RAJAH and MAGOROKOSHO

HMT43-19 : THE STATE vs MICHAEL MUNAPO
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J