This is an appeal filed by the appellant against both conviction and sentence reached and passed by the magistrate sitting at Mutare on the 8th of January 2020 where the appellant was convicted for a charge of un-authorised borrowing or use of property as defined in section 116 of the ...
This is an appeal filed by the appellant against both conviction and sentence reached and passed by the magistrate sitting at Mutare on the 8th of January 2020 where the appellant was convicted for a charge of un-authorised borrowing or use of property as defined in section 116 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and was sentenced to 14 months imprisonment of which 5 months imprisonment was suspended for 5 years on the usual conditions, 3 months imprisonment was further suspended on conditions the appellant pays a fine of $1,000 and the remaining 6 months were further suspended on condition of restitution.
The appellant's grounds of appeal are as follows:
“1. AS AGAINST CONVICTION
1.1 The Learned Magistrate erred by convicting appellant of the offense of unauthorised borrowing when such an offense was not proved against him beyond reasonable doubt.
1.2 The Learned Magistrate erred by convicting appellant on the evidence of the complainant which was not clear and satisfactory on every material respect and was thoroughly discredited during her cross examination and the entire court proceedings.
1.3 The Learned Magistrate erred in rejecting appellant's defence of authorisation which was reasonably true and probable and was not proved to be palpably false.
1.4 The Learned Magistrate erred in suggesting, that, the appellant ought to have proven his own defence or call witness to corroborate his defence when clearly the law did not put such an onus on the appellant.
2. AGAINST SENTENCE
2.1 The fine imposed by the Learned magistrate was manifestly excessive and induces a clear deep sense of shock considering the circumstances of the offence and that of the appellant which were highly mitigatory.
2.2 The Learned Magistrate erred in her assessment of the sentence when she over-emphasized issues of aggravation turning a blind eye on the otherwise compelling mitigatory factors in favour of the appellant.
2.3 The Learned magistrate erred in imposing excessive restitution on appellant and thereby failing to take into account the type of the motor vehicle and its value and also that the complainant's vehicle is still there and was not damaged beyond repair.”
BACKGROUND
The complainant and the appellant used to be friends. On the 21st of October 2018, the complainant went to the United Kingdom and asked the appellant to drive her Honda Fit motor vehicle from Harare to Mutare and directed the appellant to go and park the vehicle at her house in Murambi, Mutare.
The appellant complied as per the complainant's instruction and he handed over the car keys to one Bobo Moyana, a security guard at the complainant's place of residence.
On the 27th day of October 2018, the appellant went to the complainant's residence and took the Honda Fit from Bobo Moyana, without the complainant's consent, and drove away.
Sometime in November 2018, whilst the complainant was still in the United Kingdom, she received information, from her sister, to the effect, that, her vehicle was involved in a road traffic accident at Rutenga.
On the 11th of March 2019, the complainant returned to Zimbabwe and reported the case to the police.
The value of the stolen property is given by the State as US$5,500. The appellant was charged for theft as defined in section 113(1)(a) of the Criminal Law (Codification and Reform) Act (the Criminal Code); alternatively, the State charged the appellant with un-authorised borrowing or use of the property as defined in section 116 of the Criminal Code.
The appellant pleaded not guilty to the main and alternative charge. He was found guilty to the alternative charge.
He now notes an appeal against both conviction and sentence.
