Sentencing re: Approach iro Juvenile and Youthful Offenders, Juvenile Justice & Administration of Corporal Punishment

HMA38-18 : THE STATE vs LIBERTY MUTEKURE
Ruled By: MAWADZE J and ASSESSORS: CHIKUKWA and GWERU

The offence of culpable homicide arising from violent conduct is a very serious offence and invariably attracts a custodial sentence unless there are special mitigatory factors. This is so because the sanctity of human life cannot be over emphasised. Human blood is sacred, hence, once life is lost, whether intentionally or through negligence, it cannot be replaced. This court ...

Human blood is sacred, hence, once life is lost, whether intentionally or through negligence, it cannot be replaced.

This court is saddened by the fact that offences of this nature are alarmingly prevalent in Masvingo Province. A lot of lives are needlessly lost over minor disputes like a game of snooker. It is unfortunate that these offences are being committed by our young persons who are the future of this country. The mind boggles why young persons easily resort to violent conduct using lethal weapons, like knives, to settle very petty disputes. Our nation has the onerous task to incalculate some sense of moral responsibility within the young generation so that they value human life.

It is clear from the facts of the case that the accused used severe force. An okapi knife is a lethal weapon. Three stab wounds were inflicted targeting the neck, one of the stab wounds pierced through the chest wall to the lung. The attack was vicious, barbaric and unfeeling. In the circumstances, the degree of negligence is extremely high…., It borders on intention to kill.

The accused's conduct, after fatally injuring the now deceased, deserves severe censure. The accused saw if fit to flee from the scene. He did not render any assistance to the now deceased. Instead, he decided to avoid the long arm of the law by deserting his residence, concealing the weapon used after wiping it of blood. The moral blameworthiness of the accused is very high. In such circumstances our courts can only play their role by handing down deterrent sentences.

We are alive to the mitigatory factors in this case.

The accused is married with two children said to be 6 years old and 8 months old respectively. We just wonder whether the accused had his first child at 16 years of age as he is 22 years old. At that age, the accused is fairly youthful. The accused is unemployed and the family relies on his manual labour.

As a first offender the accused deserves some measure of leniency.

Further, he did not waste the court's time and resources by admitting to the charge without raising flimsy defences. To that extent he exhibited contrition. This matter has been finalised in a short space of time.

It is in the accused's favour that his family assisted in the burial of the now deceased. They provided a coffin and the food consumed at the funeral.

We take note that the now deceased was the aggressor. He is the one who followed the accused, was in possession of the okapi knife, and was ready to use it. To that extent his was the author of his demise.

In the circumstances, we believe the following sentence will meet the justice of the case;

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

Effective term; 8 years imprisonment.”

HH05-06 : NOLLAN KAWADZA vs THE STATE
Ruled By: GARWE JP and UCHENA J

We, after hearing counsel's submissions on sentence and hearing the appellant's father's evidence in mitigation, set aside the appellant's conviction on armed robbery and substituted it with one of receiving stolen property knowing it to have been stolen. We also set aside the Regional Magistrate's sentence of 10 years imprisonment with 1 year and 1 and a half years suspended on conditions of good behaviour and restitution and substituted it with one of 7 years imprisonment with 2 suspended on conditions of good behaviour….,.

On the question of sentence, counsel for the respondent having urged the court to substitute the conviction for robbery with that of receiving the stolen motor vehicle knowing it to have been stolen submitted that the appellant still deserved a custodial sentence. He submitted that there should be little difference between the sentence imposed on a motor vehicle thief and the receiver, as, in both cases, the victim is grounded. He submitted that the offence becomes serious and is more reprehensible if the motor vehicle is received with the intention of smuggling it out of the country for commercial gain.

He referred us to the cases of Gabriel Manyika v S SC175-93; Cephas Chimanga v S SC51-93; and Chimbwanda v S SC110-93.

In the case of Gabriel Manyika v S SC175-93 the appellant was convicted of receiving a stolen motor vehicle knowing it to have been stolen. He was found in possession of the motor vehicle in 1991 after it had been stolen in 1988. He bought the motor vehicle in circumstances which revealed that it could have been stolen. His sentence of 7 years, 2 suspended was reduced to 5 years imprisonment of which two years imprisonment was suspended on appropriate conditions.

In the present case, the appellant had the motor vehicle hours after the robbery. He immediately thereafter drove it to an illegal exit into Mozambique for gain. He said he was to be paid for driving it into Mozambique and handing it over to an Indian on behalf of Mike Zengeya.

In the case of Cephas Chimanga v S SC51-93 the appellant was convicted of theft of motor vehicle. He had surrendered it to the police saying he suspected it could have been stolen. Evidence proved he had dealt with the motor vehicle in a manner showing he knew it was stolen. On appeal, his conviction of theft was set aside and substituted with one of receiving the motor vehicle knowing it to have been stolen. The sentence of 7 years, 2 suspended which had been imposed by the magistrate was not interfered with.

In Chimbwanda v S SC110-93 the appellant received a truck knowing it to have been stolen; a sentence of 6 years imprisonment with 2 and a half years suspended was considered to be on the lenient side. He had acquired the vehicle in exchange for his Peugeot truck and twenty head of cattle and it had been re-registered in his name. He therefore had bought a stolen motor vehicle distinguishing the case from the appellant's case on the basis that the appellant received the motor vehicle for purposes of smuggling it out of the country.

Counsel for the appellant, in the Heads of Argument dated 3 October 2005 suggested a sentence of 7 years imprisonment with 2 years suspended on conditions of good behaviour. In his supplementary heads dated 9^th November 2005 he suggested a sentence of 7 years of which 4 years could be suspended.

The appellant's father gave evidence and told this court that his son's conduct, in committing this offence, was out of character. He told the court that his son was managing a family business before he was imprisoned and that he was a good and humble young man. He believes that the appellant may have been tempted into committing the offence.

The appellant is a first offender. He is 28 years old. He is married with two children aged 6 and 4 years. His parents are high blood pressure patients. He himself suffers from migraine headaches, and, since May 2004 when he was admitted into remand prison, he suffers from swollen legs. He spent 10 months in remand prison prior to his being sentenced.

He has now been convicted of receiving a stolen motor vehicle knowing it to have been stolen.

The motor vehicle was fortuitously recovered. If it had not been stuck in Mukumbura River he would have smuggled it into Mozambique where he was to hand it over to an Indian man as instructed by his principal, Mike Zengeya.

The motor vehicle was not damaged. This was obviously in the appellant and his principal's interest as the motor vehicle had to be delivered in good condition. The complainant however fortuitously benefits from the un-damaged state of the motor vehicle.

In assessing sentence afresh I have been guided by case law and counsel for both parties whose submissions were to the effect that a sentence of 7 years with 2 or 4 years suspended would be appropriate.

In arriving at the sentence of 7 years 2 suspended, I considered the accused's age and his status as a first offender and weighed this against the gravity of the offence. I considered it aggravating that the appellant received the motor vehicle for the purposes of smuggling it out of the country to Mozambique. He almost succeeded. He failed because it got stuck in mud at the crossing point in Mukumbura River.

After he got stuck in the mud he lied about his identity and that of the motor vehicle to Constable Muchira. He obviously still intended to smuggle the motor vehicle out of the country. He travelled back to Harare so that the motor vehicle could be removed from the mud and be smuggled to Mozambique. It is only the timeous reaction of the police which prevented him and Mike Zengeya from achieving their purpose. They had brought a Nissan Sunny to the scene but were intercepted by the police.

The appellant was therefore determined to smuggle the motor vehicle out of the country. He was acting with conscious deception to cover his tracks. He used someone else's driver's licence with a picture which could have passed as his when he was younger. This shows careful planning on his part. His deception succeeded to the extent that the police at Kamutsenzere accommodated him overnight and Cst. Muchira travelled with him on the bus up to Mount Darwin. He had carefully planned the offence.

It is his determination, deception, and careful planning which aggravates the offence and diminishes his status as a youthful first offender.

When the appellant's case is compared to the cases referred to above it becomes more serious because he intended to smuggle the motor vehicle out of the country. When the appellant was arrested he attempted to escape by running away from police custody. This was after he had indicated Mike Zengeya to the police. As Mike Zengeya got off the bus, the appellant ran away from the police. In the confusion, Mike Zengeya shot and killed a police officer. This demonstrates the appellant's determination to avoid arrest even after he had been positively identified by Cst. Muchira and had himself told the police that Mike Zengeya was the owner of the stolen motor vehicle he had driven to Mukumbura River. He clearly was not remorseful for the offence he had committed.

Though no statistics were given on the prevalence of motor vehicle thefts, the facts of this case proves that organised motor vehicle thefts and robberies are still to be deterred. Two complainants were robbed of their vehicles the same night within four hours of each other - in the same neighbourhood. The robbers and thieves are encouraged by the receivers who provide a market and outlets for the stolen motor vehicles.

In this case, the appellant had taken the motor vehicle to the illegal exit point in less than a day after the robbery.

It is for these reasons that we suspended only 2 years of the sentence of 7 years imprisonment which counsels for both parties had urged us to impose. The sentence had to be one with a deterrent effect in spite of the appellant's status as a young first offender.

The portion of the sentence suspended against restitution could not be retained as a receiver of stolen property cannot be held responsible for property stolen by the thief which was not passed on to him.

These then are our reasons for…, reducing his sentence to 7 years imprisonment of which 2 years imprisonment are suspended for 5 years on condition the appellant does not during that period commit any offence involving dishonesty.

HMA53-18 : THE STATE vs JULIUS DABETI
Ruled By: MAWADZE J and ASSESSORS: DAURAMANZI and MUTOMBA

SENTENCE It is really disheartening that serious offences like murder are being committed by fairly young persons who are the future of the country. The mind boggles why such young people want to spend the bigger part of their lives within the four walls of prison. This is another matter where a life was needlessly lost. We shall ...

SENTENCE

It is really disheartening that serious offences like murder are being committed by fairly young persons who are the future of the country. The mind boggles why such young people want to spend the bigger part of their lives within the four walls of prison. This is another matter where a life was needlessly lost.

We shall endeavour to balance the mitigatory and aggravating factors of this case.

The accused is fairly young, at 26 years of age, and is still single although he has a 3-year old child. As a single parent this child looks at the accused for support and guidance. However, the accused will now have to outsource the upbringing of this child to other people.

We have noted that the accused is of no means as he is unemployed without any savings nor assets. The two cattle and $500 paid to the now deceased's family as compensation was most probably sourced from other family members. We nonetheless acknowledge such a valuable gesture although it means nothing compared to the loss of precious life.

The accused deserves some measure of leniency as this is his first brush with the law.

It is unfortunate that he started on the deep end and is likely to drown. Since his arrest the accused has been in custody and he has suffered from pre-trial incarceration of about one and half years. We appreciate the agony and anxiety the accused went through awaiting the finalisation of this case. The accused shall forever live with the stigma that he has human blood on his hands. This is further worsened by the threats of an avenging spirit made by the now deceased before he breathed his last. In our African culture the fear of an avenging spirit is indeed a reality which would not only torment the accused but also his close family members.

There are indeed mitigatory factors surrounding the commission of this offence.

It is a fact that the accused was intoxicated and this may explain his foolish behaviour of provoking other beer patrons for no apparent reason. We really wonder why the accused found it prudent to take a knife to the bar, let alone to waive such a knife threatening other merry makers.

The now deceased cannot be said to be an angel either.

Had the now deceased controlled his temper and acted with restrain this tragedy might have been avoided. Indeed, the now deceased was an aggressor. It is the now deceased who first assaulted the accused. This was despite the fact that the accused was armed with a knife and drunk. Even after the accused fell down, the now deceased kicked him several times forcing the accused to stab the now deceased on the leg. The now deceased was unperturbed at all. Even after the now deceased had been injured on the leg, and the accused had fled out of the bar, the now deceased nonetheless chased after him. This was despite the fact that the accused was still armed with a knife. Indeed, the now deceased was, to some extent, unnecessarily aggressive and reckless in how he handled himself. It was foolhardy for him to pursue the accused who had not only injured him but was armed with a knife.

This court has said, time without number, that cases of murder are increasingly prevalent in Masvingo Province. The rate of which young persons resort to use of dangerous weapons, like knives or axes, at the slightest opportunity is a serious cause of concern. This calls for deterrent and exemplary sentences.

The sanctity of human life cannot be over-emphasised.

As already said, there was no real dispute between the accused and the now deceased. Places like bars are there for entertainment and merry making not slaughter houses. We are amazed that the accused was not remorseful at all and was unwilling to shed light on how the now deceased was fatally stabbed. The accused's conduct deserves censure.

In the result, the accused is sentenced as follows;

“16 years imprisonment.”

HMT02-18 : THE STATE vs INNOCENT MUTAYI
Ruled By: MWAYERA J and ASSESSORS: RAJA and SANA

Sentence In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors advanced by counsel for the accused. We are indebted to both counsels for their submissions on principles of sentencing, personal circumstances of the accused and circumstances of the matter. Both counsels referred us to fairly old cases in the 60s in bringing ...

Sentence

In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors advanced by counsel for the accused. We are indebted to both counsels for their submissions on principles of sentencing, personal circumstances of the accused and circumstances of the matter. Both counsels referred us to fairly old cases in the 60s in bringing to light what the court should consider in passing sentence. The cases, although old, were not irrelevant as clearly the universal nature of sentencing principles has not changed. We must mention reference to recent cases and cases of circumstances of similar nature would, however, be appreciated in assisting the court to exercise its sentencing discretion in a manner that will balance the interests of the criminal, matching these to the crime, and, at the same time, be fair to society whose interests is anchored on the administration of justice.

We have considered that the accused pleaded guilty to culpable homicide thus showing remorse and genuine penitence. As correctly stated by the defence counsel…, the accused will forever live with the stigmatisation of having killed someone. The accused has been in custody for about seven (7) months while awaiting the finalisation of this matter. For that period the accused had the charge of murder hanging above his head and the trauma that goes with facing such serious allegations cannot be ignored.

In considering an appropriate sentence to impose it was further submitted that the accused is a young adult aged 27.

Although an adult, he is fairly young, and, at the time of commission of the offence, fell into the bracket of youthful offender cannot be ignored as it is a mitigatory factor.

The accused, further, has a young wife and two (2) young children who are all dependent on him for sustenance.

The defence counsel, at length, urged the court to consider a short imprisonment term for deterrence as opposed to a long imprisonment term. See S v Teburo HH517-87; S v Wood 1973 (1) RLR 11. The State counsel agreed with the defence counsel that a long imprisonment term was unwarranted.

However, in aggravation, counsel for the State emphasized, correctly, the sanctity of human life. On that point, he referred us to an old South African case, R v Branard 1960 SA (1) 552. It is clear in the Zimbabwean Constitution, section 48(1), that every person has a right to life. As such, the court has a duty to protect the said right. Therefore, a person who unlawfully takes away another's life deserves to be punished adequately not only to deter the offender and like-minded people but to ensure that the society retains confidence in the justice delivery system.

As correctly pointed out by counsel for the State, the court, in considering the personal circumstances of the accused, should not lose sight of the attendant personal circumstances of the deceased whose loss of life will occasion undue hardship on his own family and dependents. The deceased lost life at a tender age of 38 in circumstances where it could have been avoided given the accused had earlier been restrained by one Amos Makuyana who acted as a pacifier - but the accused persisted on the violence.

The sentence has to reflect that resolution of disputes by resorting to violence is not acceptable in a civilised society.

We are not blind to the fact that the accused was under attack from three people and that this was at a beer drink. This reduces the accused's moral blameworthiness. However, the accused, having been restrained, was negligent when he picked a brick and struck the deceased on the head which is a vulnerable part of the body. The deceased died as a result of a head injury as outlined in the post-mortem report by Dr Tapi.

Upon considering all the mitigatory factors and aggravatory factors we agree that a short imprisonment term will meet the justice of the case. The universal principle is that the punishment should fit the criminal as well as the crime and be fair to society while at the same time being reflective of a blend of a measure of mercy given the circumstances of the case.

Accordingly, the accused is sentenced as follows;

4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the 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.

HH516-17 : STATE vs ARNOLD JERI
Ruled By: TSANGA J and ASSESSORS: MTAMBIRA and MHANDU

Mitigation The convicted is a first offender. He was aged 21 at the time of the offence. He is said to have been orphaned at a young age and was living with an uncle in Mudzi. He has also since been ostracised by his family as well as his wife and child. He has also ...

Mitigation

The convicted is a first offender. He was aged 21 at the time of the offence. He is said to have been orphaned at a young age and was living with an uncle in Mudzi. He has also since been ostracised by his family as well as his wife and child. He has also been stigmatised by his community at large for the murder.

The fact that he was intoxicated is said to be a factor that ought to be seriously considered especially as the drink that he consumed that night was in fact prohibited because of its high alcohol content.

The court is also urged to take into account that he had ultimately surrendered. He is said to be repentant and is now a church-goer in prison.

Aggravation

The State, on the other hand, emphasised the seriousness of the offence and that a human life had been lost. The deceased was aged 25. Furthermore, the convicted had been relentless in the attack which could have been avoided as there were clear attempts to stop him before the fatal stab. He was also the aggressor.

Also emphasized was the need to send a clear message on the lack of tolerance for violence in general and gender-based violence.

Whilst he had surrendered, he was said to have done so because the net was closing in.

In terms of sentence, the State pointed to the case of S v Chimbira HH558-15 in which the accused was sentenced to 25 years imprisonment under similar circumstances. It also drew on the case of S v Siziba HB244-16 in which a 19 year old received a 20 year sentence for murder.

However, as counsel for the defence correctly pointed out the sentence was for murder committed in the course of robbery.

The court is cognisant of the fact that a key purpose of sentencing is to also give an accused a shot at rehabilitation.

The accused's relative youthfulness cannot be ignored. Whilst still youthful he was however an adult in terms of the law.

His inebriation has also been considered, but, again, sight should not be lost that he wilfully consumed a drink which he knew to be prohibited.

The sentence, in my view, ought to be one that gives the convicted a real chance at changing his views about women. It cannot, and should not be curtailed to unreasonable levels simply on account of his age. As an abusive youth he risks the real possibility of morphing into an abusive adult if his sentence is taken lightly. In fostering respect for women, much will depend on whether there are any conscious efforts directed at rehabilitating him in this regard whilst he is in prison.

Balancing all factors placed before this court, the accused is sentenced to 15 years imprisonment.

HH89-12 : THE STATE vs PIKIRAI MAMBODO
Ruled By: BERE J and ASSESSORS: DAURAMANZI and MUSHUKU

SentenceThere is no specific formula prescribed to the sentencing approach. It is a question of a value judgment borrowing heavily from a given set of facts as coloured by both the mitigating and aggravating factors. These must be carefully balanced to enable the Court to arrive at what it perceives ...

Sentence

There is no specific formula prescribed to the sentencing approach. It is a question of a value judgment borrowing heavily from a given set of facts as coloured by both the mitigating and aggravating factors. These must be carefully balanced to enable the Court to arrive at what it perceives to be an appropriate sentence.

In sentencing the accused, the court accepts that he is a youthful first offender, 17 years of age at the time of the commission of the offence but now is 19 years old.

The accused did not himself mastermind the assault in question and was not in control of the proceedings leading to the assault of the deceased. He is being punished for joining in the assault that led to the death of the deceased.

It is also highly mitigatory that he took the initiative to dissuade his late cousin from continuing with the deceased's assault.

The accused's conduct led to the death of a close relative and we have no doubt this will probably haunt him for the rest of his life. That is some form of punishment.

We accept, in aggravation, that the accused demonstrated no respect at all by assaulting his aunt who was 69 years old at the time - and almost 52 years older than him.

The conduct exhibited by the accused was barbaric to say the least. The elders have invested so much in the youth and the youth are expected to demonstrate a reciprocal obligation by rendering maximum respect.

It is not the responsibility of young persons, like the accused, to mete out punishments on their parents but the inverse is true.

Whilst accepting the accused is a youthful first offender, our concern, as a court, is that it is these youth who are at the centre of committing these violent crimes in our society. The message must go loud and clear that this Court will not fold its hands and allow disorderly conduct out there.

The sentence imposed must send the message to other like-minded youth, and, at the same time, assist in the rehabilitation of the accused person.

It must be stated, and re-emphasized, that it is animals which quarrel and fight but people must find civilised methods of resolving their differences.

The conduct of some of our traditional healers and self proclaimed profits has not escaped our attention. So much confusion and hatred are sometimes as a result of the conduct of such traditional healers.

The issues which led to the death of the deceased should have been handled in a better way than the conduct resorted to by the accused person.

The accused is sentenced as follows:-

8 years imprisonment, 2 years of which is suspended for 5 years on condition the accused does not within this period commit any offence involving violence upon the person of another and for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine.

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

SentenceIn reaching at an appropriate sentence we have considered all mitigatory and aggravatory circumstances advanced by the respective counsels. We have also considered the Probation Officer's report and recommendations therein.It is important to point out that we requested for a Probation Officer's report given the second accused's age of 17 ...

Sentence

In reaching at an appropriate sentence we have considered all mitigatory and aggravatory circumstances advanced by the respective counsels. We have also considered the Probation Officer's report and recommendations therein.

It is important to point out that we requested for a Probation Officer's report given the second accused's age of 17 years - thus a juvenile. 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 at the time of completion of the trial.

Counsel for the first accused…, pointed out, in mitigation, that the court should consider the youthfulness of the first accused.

Indeed, the first accused is an immature adult whose moral blameworthiness, when one considers the circumstances leading to the commission of the offence, is not high. The deceased was aggressive and violent on the night in question and he showed no respect at all for his in-laws as he hacked the first accused's mother who was the deceased's inlaw.

Again, on the second encounter with the two accused, and one Nomatter Sithole, the accused was still armed with a machete. The deceased was more to blame for the violence that ensued leading to this unfortunate loss of life.

Counsel for second accused submitted that the accused is a juvenile first offender. She has the disadvantage of having grown up as an orphan since both her parents passed on when she was at a tender age. She seems to have found solace in early marriage to the first accused as a way of having a family.

The childhood pressure of joining in the fracas is understandable given the relationship between her and the first accused. The immaturity and lack of appreciation of the gravity of the offence is visible going by the manner she testified.

Both accused, although they pleaded not guilty to murder, were sincere on their involvement in the physical attack on the now deceased. Both accused are first offenders who stand convicted of negligently causing the death of another. The trauma that attaches and the stigma of having caused the death of another will live with the two accused for the rest of their life.

In mitigation, we have also considered that both accused have been in custody for about 9 months awaiting the finalisation of the matter. The period of incarceration is not an easy period moreso with the tension brought about by the suspense of not knowing the outcome of such a grave charge.

In aggravation, as correctly pointed out by the State counsel…, is the fact that precious human life was lost as a result of the negligence of the accused. The accused teamed up with one Nomatter Sithole and assaulted the deceased - severely injuring the latter. The accused, on realizing the severity of injuries caused on the deceased, who had been immobilised, left the deceased unattended which culminated in the deceased bleeding to death.

The offence is deserving of a custodial sentence.

It is our considered view that although the second accused is a juvenile there is no justification in differential treatment between herself and the first accused, her husband. Both accused's involvement in the commission of the offence speaks volumes of their partnership in crime.

The circumstances of the matter and the fact that the second accused is married to the first accused militates against the suggestion of placing the second accused at a training institution. She has lived as a married person for more than two (2) years and for her to be lumped up with juveniles at the training institution would be detrimental to the other juveniles who are regarded as children in need of care.

The recommendations by the Probation Officer, that the second accused be sentenced like an adult, is sound as it appears to have been carefully thought.

Given the age difference of the two accused, their relationship as husband and wife, and the manner in which the offence was committed, this is a case where differential treatment for sentence would not only be unjust but uncalled for.

Having considered the circumstances of the offence, the mitigatory and aggravatory factors the offence is deserving of a custodial term.

In seeking to balance the offence to the offender and tempering justice with mercy, while at the same time considering the societal interests, a wholly suspended prison term will be appropriate.

Each accused is sentenced to 3 years imprisonment the whole of which is suspended for 3 years on conditions 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.

HB169-17 : THE STATE vs EVERTON MOYO
Ruled By: TAKUVA J

We take into account that the accused is 21 years old according to a dentist's age estimation. This means that in January 2015 he was 19 years old. We accept that youthfulness is a mitigatory factor in that youthful offenders lack maturity and sophistication....,.What is aggravating in this matter is ...

HB114-15 : THE STATE vs MELI MBANO
Ruled By: MAKONESE J

SentenceIn assessing sentence, the court shall have regard to all the mitigating features of the case as outlined by defence counsel. The court shall have particular regard to the youthfulness of the accused. He was aged 17 years at the time of the commission of the offence. He was not ...

Sentence

In assessing sentence, the court shall have regard to all the mitigating features of the case as outlined by defence counsel. The court shall have particular regard to the youthfulness of the accused. He was aged 17 years at the time of the commission of the offence. He was not mature and possibly acted hastily and at the spur of the moment.

However, in most cases of this nature, the crimes are not committed after careful planning. The accused's moral blameworthiness is measured on the nature of his response and reaction to a given set of circumstances.

The accused and the deceased had a minor dispute. There was provocation on the part of the accused. Had it not been for that provocation the situation might have been different. The court takes into cognizance that the accused has shown a great deal of contrition and remorse. He has pleaded guilty and has not sought to absolve himself of liability.

The sentence imposed must be rehabilitative in nature. The accused is still young and he should reflect on his conduct and correct his mistakes.

It is of critical importance to consider, on the other hand, the impact of the offence on the victim's family.

A young life was needlessly lost. The courts have a duty to guard jealously the sanctity of human life. The courts will impose custodial sentences as a mark of displeasure at the use of violence in resolving petty disputes.

The accused, who was only 17 years old at the time, threw himself at the deep end by using deadly violence to cause the death of another human being. The court must, however, strive to strike a balance between the interests of justice and those of the accused person. A sentence of community service in this case would tend to trivialize the offence and the public will lose faith in the justice delivery system. The sentence to be imposed in this case must be just and fair.

In the result, the accused is sentenced as follows:

“6 years imprisonment of which 3 years is suspended for 5 years on condition accused is not within that period convicted of any offence of which violence is an element and for which he is sentenced to imprisonment without the option of a fine.

Effective sentence: 3 years imprisonment.”

HB68-15 : THE STATE vs PROSPER HABATSHUSI NKOMO
Ruled By: MAKONESE J

In assessing an appropriate sentence, the court took into account that the accused, who is a first offender, and at aged 23, is still youthful.

The accused is now a widower. His wife, the mother of the deceased, died in December 2014. The accused person is not formally employed. He performs part time jobs for survival. It is not in dispute that prior to the assault upon the deceased there was no misunderstanding between the accused and his wife. He had no ulterior motives to bring about the death of the deceased. Those are the factors weighing in his favour.

The accused's moral blameworthiness is high in that after the death of the deceased he fled to Botswana and only came back to Zimbabwe in December 2014. The delay in the finalization of the case was brought about by the conduct of the accused.

The accused recklessly caused the death of the juvenile. He must have exerted excessive force upon the head of the deceased when he assaulted him. The deceased's only crime was that e was crying. This must have annoyed the accused whose reaction was totally disproportionate.

The court takes into account that at the time of the commission of the offence the accused was immature and lacked the experience of life and did not possess the wisdom normally associated with mature men.

This tragic death of his minor child will forever traumatise him. The courts do have the duty to uphold the sanctity of human life. The assault on the child on the head was senseless and was reckless. The post mortem report indicates that the child sustained intractranial haemorrhage. There is no doubt that the force applied was rather excessive. The conduct of the accused is reprehensible.

Parents are in loco parentis to their children. They are expected to care and look after their children. Parents who physically abuse their children should not expect lenient sentences from the courts. Indeed, time has come for courts to protect children from physical abuse by their parents or those charged with the duty to look after them.

In the instant case, the court has carefully weighed the mitigating circumstance against the aggravating circumstances and has considered that a prison sentence is the only appropriate sentence. A non-custodial sentence would trivialize the offence.

I accordingly consider the following to be an appropriate sentence:

The accused is sentenced to 5 years imprisonment of which 2 years is suspended for 5 years on condition the 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 a fine.

Effective sentence: 3 years imprisonment.

HH233-16 : THE STATE vs BRIGHTON MUKWACHA
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and CHAGUGUDZA

Having satisfied itself that the deceased died from the stab wound caused by the accused, the court asked the accused's counsel to address the court in mitigation of sentence.

He submitted a written statement in terms of section 27(4)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The court accepted the statement in evidence as “Annexure B”.

Counsel for the accused, in his submissions, argued for a sentence of community service on the basis that the accused was a first offender who pleaded guilty thus exhibiting remorse and that the deceased was the aggressor. He also cited a number of past decisions of this court on the courts' approach to sentence. He sought to persuade the court to follow those decisions.

Basically, his argument was that punishment must be blended with a measure of mercy and that its purpose is not to break criminals; see S v Sparks & Anor 1972 (3) SA 396; S v Moyo HH63-84; R v Zuze RLR (incomplete citation); and R v David & Anor 1964 RLR Z.

The court takes note of the points he has made and the dicta in those cases.

Counsel for the accused further cited the cases of S v Sibanda HB102-06 to the effect that prevalence of an offence should not be the overriding factor in sentencing and S v Moyo & Ors HB116-06 which outlines certain considerations which should guide the sentencing court.

The court takes the helpful guidelines into account and will not repeat them as they are set out in the submissions.

The court was further referred to the cases of S v Mpofu 1985 (2) ZLR 285 on the need to keep first offenders out of prison as a general rule and that imprisonment should be resorted to when absolutely essential; see S v Mudzimba HH150-87.

In response to questions from the court, counsel for the accused submitted that the accused was 25 years old and would have been 23 years old when he committed the offence. He emphasized that the unfortunate death of the deceased would not have eventuated but for the deceased's aggression.

Pursuant to section 271(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the court asked the accused certain questions relevant to sentence. He answered the questions under oath. The prosecutor and defence counsel did not have any questions to put to the accused following questions by the court - albeit having been given opportunity to put any question.

In answer to questions by the court, the accused stated that he was not friends with the deceased although they were neighbours. He, the accused, was friends with John Silimoyo, who was, in turn, a friend of the deceased. The accused's parents are deceased and he stays at his late parents' residence (the scene of the offence) with his brothers and sisters. He completed O levels (Form 4) in 2007. He is not married and has no children. He survives through vending and operates a vending stall.

He got the knife which he used to stab the deceased from the sink which was outside the house. He did not run away to escape the attack upon him by John Silimoyo and the deceased although he could have done so. It never occurred to him to run away from the two attackers. He did not think of using other means of defence other than to use the knife.

He does not enjoy a good relationship with the deceased's family and his family is broken. The siblings often quarrel over rental money which is paid by tenants or lodgers at the house. He looks after his two brothers who are mentally challenged but he has a sister who works for a hotel.

He was in custody for 10 months before being released on bail.

The prosecutor addressed the court in aggravation. He submitted that the court should take into account that when the incident took place, the accused was sober whilst the deceased and John Silimoyo were drunk.

Whilst it could not be concluded with certainty as to what caused or who started the fight, he submitted that the deceased joined the fight after his friend, John Silimoyo, was on the receiving end from the accused. The accused had a chance to escape from the attack upon him but he, instead, armed himself with a knife. The facts of the matter, according to the prosecutor, were borderline between culpable homicide and murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act.

The prosecutor further submitted that the accused used severe force when stabbing the deceased and that the stab wound extended to the heart. He also submitted that the accused was a known bully in the area and was an alcohol and drug abuser although this bad behaviour manifested itself after the offence was committed. Prior to committing the offence, the accused was God-fearing and attended church.

The accused skipped bail conditions and was imprisoned and then released and arrangements were made for him to stay with a relative in Masvingo - but he caused havoc there as well.

The prosecutor advocated for a sentence in the region of 12 years as such a sentence, with part suspended, would be deterrent and rehabilitative.

The court sought an explanation from the accused as to allegations made by the prosecutor that he had suddenly changed in character from being God fearing into an outright bully. The accused denied the allegations that he was incorrigible and averred that these were lies peddled by his siblings, especially his sister, who wanted to make sure that the accused remained in prison whilst she enjoyed the rentals from the house.

In the view of the court, and after considering all the circumstances surrounding the commission of the offence, the mitigating factors and aggravating features, as submitted respectively by the accused's counsel, the prosecutor, and those elicited from questions by the court, it is beyond doubt that this is a very bad case of culpable homicide in which the accused's degree of negligence was very high. Indeed, the court is in agreement with the submission by the prosecutor that the circumstances of the commission of the offence make it borderline between murder and culpable homicide.

The starting point, in assessing an appropriate sentence, is to keep in mind that the right to life is God-given and section 48(1) of the Constitution provides, as a fundamental human right, that every person has a right to life. That being, life should be jealously safeguarded. It should only be lost by operation of law or natural occurrences.

The second point to keep in mind is the seriousness with which the offence of culpable homicide is viewed by the law.

In terms of the penalty section under section 49 of the Criminal Law (Codification and Reform) Act, culpable homicide attracts a sentence ranging from life imprisonment or any shorter term or a fine of up to or exceeding Level 14. Level 14 is the highest level on the standard scale of fines and is set at USD$5,000. The court is allowed, in the exercise of its discretion, to impose a fine in excess of the highest level or to impose both a fine and imprisonment.

The accused, in this case, was not cornered. He was indeed the victim of an unlawful attack by John Silimoyo with the deceased joining in. He appreciated that the two assailants were drunk whilst he was sober. The nature of the attack upon the accused did not justify his use of a dangerous weapon.

From a reading of the agreed facts, the accused managed to escape from the unlawful assault upon him. He removed from the assailants only to return to attack the deceased after arming himself with a deadly or lethal weapon.

The accused clearly allowed his emotions to get the better of him.

Whilst it has been argued that the deceased and John Silimoyo were the aggressors, such a conclusion, left unqualified, is inaccurate.

In the court's view, the correct factual analysis is that, initially, the deceased and John Silimoyo were the aggressors. However, once the accused had managed to escape from the assault upon him, he returned, armed with a knife and became the aggressor.

The accused was the proximate cause of the tragedy. He was in the best position to avert the tragedy. He simply decided to use a dangerous weapon after the assault upon him and not during the assault. The accused, instead of putting an end to the assault upon him which he had managed to escape from, decided to retaliate in a dangerous fashion. Therefore, contrary to the submission by the defence counsel that but for the deceased's aggression, the tragedy could have been avoided, the correct conclusion is that, but for the accused's decision to retaliate after the assault on him had ended, and his unnecessary use of a dangerous weapon, the tragedy could have been avoided.

It is a pity that there has been an upsurge in cases of violence resulting in death. People no longer respect the sanctity of human life. If the courts do not curb the unnecessary upsurge in homicide cases by playing their part through passing deterrent sentences, where circumstances warrant it, the courts would be failing in their duty.

The public needs to have confidence in the criminal justice system. Once society loses confidence in the criminal justice system, a risk of anarchy arises. Persons who unnecessarily and negligently cause the loss of human life must be visited with exemplary sentences so that would-be offenders are deterred. If a deterrent sentence is meted out it has the effect of making people think twice before they act.

In this case, life was needlessly lost because of the accused's self-ego.

The accused's attack upon the deceased can be described as one of great determination involving the use of a lethal or dangerous weapon. The blow with the knife was delivered with determined force upon a dangerous area of the body. The moral heinousness or blameworthiness of the accused was extremely high.

The accused, whilst he pleaded guilty, did not really have a choice. The facts were clear that he acted out of proportion to the assault perpetrated upon him.

Section 254 of the Criminal Law (Codification Reform) Act [Chapter 9:23] is very clear that where a person purporting to act in self-defence, as provided for in section 253 of the Criminal Law (Codification Reform) Act exceeds the bounds of self defence, by using means which are disproportionate to avert the attack upon him, he will be found guilty of culpable homicide.

The court has already observed that there was no justification, after the assault upon him, for the accused, after escaping from the assault, to arm himself with the knife and return to the stage. The fact that the accused pleaded guilty should therefore not be over-emphasized though it is a relevant consideration.

The accused did not, in the court's view, express any remorse for his actions. He did not state that he was sorry for nor regretted his conduct. The accused's attitude appears to be that he deserved sympathy because he had been attacked first and was only retaliating.

The court will be failing in its duty if it was seen to be encouraging retaliation. The law recognises not retaliation but defending one's self or another within limits set by law. The two concepts are different. Retaliation is inclined towards an eye for an eye doctrine which is not part of our law.

Having made the above observation, comments, and conclusions, the court still remains alive to the difficult task which faces it is assessing the appropriate sentence.

The accused still remains a member of the society - albeit a bad apple because of what he did. He needs to be punished and reformed in the process so that he can reintegrate in the society and lead an exemplary life. Despite the enormity of his conduct, and the loss of life which he caused, the court should not be retributive, lest it also ends up falling into the same basket as the accused.

Courts should temper justice with mercy and the most appropriate sentence in any given case is one that fits the crime and the offender. The balancing process is a delicate one. Ultimately, sentencing is a discretion to be exercised by the Judge in this case and it will invariably please others and disappoint others. What is critical is that the court's discretion has been exercised on justifiable principles.

In assessing sentence, apart from what has been alluded to, the rest of what has been submitted in mitigation, on behalf of the accused, and the aggravating circumstances submitted by the State, though not specifically repeated in the written reasons for sentence, have been given due consideration.

The conduct of the accused, of becoming a bully ex post facto the commission of the offence, will not influence the assessment of sentence and it is accepted that the accused's conduct was an out of character happen stance. If the accused, thereafter, decided to behave as an animal, he is doing a disservice to himself. He will however be punished for the crime for which he has been convicted and not for other unconnected wrongs which he committed.

In passing, it is necessary to comment that the submission by counsel for the accused, that the court should consider community service as an appropriate sentence, is outrightly rejected as being inappropriate given the objective circumstances of the case and the character of the accused.

Community service would trivialise a serious offence. Such a sentence would engender, in the public, a sense of revulsion. The public interest outweighs the individual interests of the accused in this case.

In the view of this court, given the serious view it has taken of the accused's conduct, only a custodial sentence will be appropriate.

The prosecutor has suggested a sentence of 12 years imprisonment with a portion suspended. Counsel for the accused, relying on S v Robert Nyoni HB201-15, a judgement of MAKONESE J submitted that a sentence of 3 years imprisonment with 1 year suspended would be appropriate.

Contrary to counsel for the accused's submission, that the facts in S v Robert Nyoni HB201-15 and in casu are almost similar, the facts are easily distinguishable, and, most notably, in S v Robert Nyoni HB201-15, the deceased is the one who first attacked the accused with a beer bottle and the latter retaliated there and then by striking the deceased once with a plank above the right ear.

The accused, in this case, decided to retaliate disproportionately, and well after he had managed to make good his escape, and he also used a lethal weapon.

What the court finds instructive in S v Robert Nyoni HB201-15 is the learned Judge's pronouncement that;

“These courts have, time and again, indicated that members of the public must be reminded that violence has no place in a modern and democratic society as a means of dispute resolution. In cases of this nature imprisonment is the only appropriate sentence.”

This court associates itself with the learned Judge's dicta.

The sentence which this court will impose is hopefully one which will reform the accused, deter others from resorting to violence to resolve disputes, and to entrench in the public's mind the fundamental right to life of every person as guaranteed by the Constitution.

The court will not suspend any portion of the sentence because if the accused is not reformed into a good citizen by the lengthy sentence which will be imposed, a suspended portion is unlikely to do the trick.

In all the circumstances of this case, the accused is sentenced to imprisonment of 9 years.

HB216-15 : THE STATE vs CALLUP SIBANDA
Ruled By: TAKUVA J and ASSESSORS: DAMBA and SOBANTU

Accused 2 – guilty of assault i.e. contravening section 89 of Criminal Law (Codification and Reform) Act [Chapter 9:23]...,.Sentence in respect of Accused 2As regards Accused 2, we took into account the following mitigating factors:(a) Youthfulness – the accused was aged 18 years at the time. It is trite that ...

Accused 2 – guilty of assault i.e. contravening section 89 of Criminal Law (Codification and Reform) Act [Chapter 9:23]...,.

Sentence in respect of Accused 2

As regards Accused 2, we took into account the following mitigating factors:

(a) Youthfulness – the accused was aged 18 years at the time. It is trite that young people act irrationally and are easily influenced.

(b) The fact that the accused is a first offender is mitigatory in that first offenders should be kept out of prison where possible.

(c) The plea of guilty – the accused did not waste the court's time.

(d) The accused has been in custody for eight (8) months pending trial through no fault of his.

(e) That he is remorseful.

Against these mitigating factors we found the following aggravating features;

(i) The accused assaulted the deceased for no apparent reason as the deceased was lying down posing no threat at all to the accused.

(ii) The accused used dangerous weapons i.e. a catapult and a stone.

(iii) The accused intended to assault the deceased.

(iv) He inflicted bodily harm in the form of a wound on the deceased's left leg.

(v) Instead of stopping Accused 1 from further assaulting a helpless man, he joined in the unlawful attack.

Weighing these two, we find that the aggravating factors far outweigh the mitigating features. In terms of section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the court can impose a fine or a term of imprisonment as punishment for assault.

In casu, we are of the view that a fine will trivialize the offence and will not send the correct message to would-be offenders.

The accused is a man of straw and if ordered to pay a fine, his parents will most likely pay on his behalf and he will not be punished personally.

As regards community service, we disregarded it for the simple reason that in the rural areas it is difficult to supervise these offenders.

We have decided therefore to impose a custodial sentence.

However, in determining the length of this sentence, we will take into account the period the accused spent in custody awaiting trial. It is common cause that the accused spent eight (8) months in custody pending trial.

We strongly feel that there is need to deter young people from committing offences involving violence through the use of dangerous weapons. In most cases, as indeed in casu, the victims of such assaults are elderly innocent citizens. The only way the court can deter would-be offenders is through stiff penalties.

Accordingly, the accused is sentenced to 6 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition accused is not within that period convicted of an offence of which violence is an element.

HH114-14 : THE STATE vs SIMBARASHE CHAENDERA and TIMOTHY CHOMERA and COLLINS BINDU and GIFT MULILA and TINASHE MAPIRAWANA
Ruled By: MWAYERA J and MUSAKWA J

The review judgment deals with four records which are presided over by the same magistrate at different sittings.

In the four records, the accused persons were charged with assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The four records of proceedings which were dealt with by the same magistrate raise the same issue, hence, for expediency, we have decided to issue one review judgment. The sentences imposed were outrageous and too severe given the nature and extent of assault. They must be set aside and substituted with those in keeping with precedent.

Simbarashe Chaendera, a 20 year old youthful offender, had a misunderstanding with the complainant at a Take Away shop. The accused alleged the complainant had pushed him and he then assaulted the complainant with open hands, booted feet, head butt, and an iron bar.

No medical report was obtained, and, thus, at the time of the plea, the extent and nature of injury was not given.

He was sentenced to 3 years imprisonment of which 6 months imprisonment is suspended on usual condition of future good conduct.

Timothy Chomera, a 19 year old youthful offender, assaulted the complainant and queried why the complainant did not respect him yet he was married to the accused's sister. The accused then struck the complainant with a stone on the mouth causing a swollen mouth.

The accused was sentenced to 3 years imprisonment of which 1 year was suspended for 5 years on the usual conditions of good behavior.

There is no medical report attached to the record.

Collins Bindu, a 24 year old youthful offender, had a misunderstanding on two occasions with the complaint over a friend's girlfriend. On the first occasion, the accused struck the complainant with a small axe and the complainant managed to block the attack and thus did not sustain injuries. On the second occasion, the accused struck the complainant with fists, twice, and the complaint did not sustain injuries.

There is no medical report attached.

The accused was sentenced to 18 months of which 6 months were suspended for 5 years on conditions of good behavior.

Gift Mulila and Tinashe Mapirawana, aged 30 and 24 respectively, were at a beer drink when they had a misunderstanding with the complainant which culminated in the two assaulting the complainant with booted feet on the face. The complainant sustained a cut on the cheek.

The nature and extent thereof was not given, again, because there is no medical report.

The two were sentenced to each 16 months imprisonment of which 6 months is suspended for 5 years on the usual conditions of good behavior.

Of interest, in respective of the four records, is the fact that the trial magistrate imposed imprisonment terms for assault whose nature and extent of seriousness was not medically supported.

In fact, going by the nature of assaults and described injuries, none of the cases can lead one to deduce potential danger to life having been occasioned by the assaults.

Community service or fines ought to have been considered.

In our view, the sentences imposed were too severe and out of sync with sentences imposed by this court, on review, in kindred offences. Cases decided in this court have discouraged the tendency to regard all cases of violence as deserving of imprisonment; see S v Dangarembwa 2003 (2) ZLR 87 H.

In S v Chitsu HH429-87, the accused hit a fellow patron in a night club on the head with a beer bottle. The sentence of 6 months imprisonment imposed was reduced to a fine of $150, or, in default of payment, 28 days in imprisonment with an additional wholly suspended sentence of 3 months imprisonment.

Also S v Matiza HH599-08, the accused hit the complainant on the head with an empty 750ml cooking oil bottle. The sentence of 6 months imprisonment of which 4 months was suspended was reduced, on review, to a fine of $50 or 1 month imprisonment. In addition, 4 months imprisonment was suspended on appropriate conditions of good behavior.

In S v Hondokanayakunda and Ors HH58-89, one of the four (4) accused persons, Fernando Chakona, struck the complainant with the beer bottle on the forehead for proposing to his wife. The complainant sustained a long cut on the forehead which was stitched in hospital. The sentence of 12 months of which 3 months was suspended was substituted, on review, with a fine of $300 or 30 days imprisonment plus an additional 2 months wholly suspended for 3 years on conditions of good behavior.

It is instructive to note, from the approach of this court, in the few examples of cases given, is that it does not necessarily follow that every case where there is use of violence on another imprisonment is appropriate.

The nature of assault, whether there was a weapon used, the degree and extent of force and the part of the body to which the assault was directed together with the nature and extent of injury are quite pivotal in considering the appropriate sentence.

The sentences imposed in respect of the cases which form the subject of this review are certainly out of line with sentences imposed by this court for offences of a similar nature and must be set aside for they are excessively harsh. The sentences imposed are accordingly set aside and substituted with the following;

Simbarashe Chaendera: $400 or 2 months imprisonment. In addition, 2 months imprisonment is wholly suspended for 3 years on condition the accused does not within the 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.

Timothy Chomera: $200 or 1 month imprisonment. In addition, 2 months imprisonment wholly suspended for 3 years on condition the 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.

Collins Bindu: both counts as one for sentence, $400 or 2 months imprisonment. In addition, 2 months imprisonment wholly suspended for 3 years on condition the 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.

Gift Mulila and Tinashe Mupirawana: each $400, or, in default of payment, 2 months imprisonment. In addition, 2 months imprisonment wholly suspended for 3 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.

All the accused have been in custody for more than two (2) months, and, as such, are entitled to their immediate release. We have accordingly issued warrants of their liberation.

The Registrar is directed to bring this review judgment to the attention of the Chief Magistrate.

HMT16-18 : THE STATE vs CHARLES HOFISI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and RAJA

It has been submitted, in mitigation, that the accused is a first offender. He is a fairly young man aged 28 years old...,.In aggravation, as correctly stressed by counsel for the State, is the fact that precious human life was unnecessarily lost in circumstances where this could have been avoided. ...

HH17-18 : STATE vs JAMES CHISHAKWE
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHAGONDA

The few factors that I find mitigatory include the fact that..., you are aged 24 years....,.But..., there is nothing more one could have said in your favour because this crime lacks rhyme or reason for it. From the evidence that was led in court, it would appear that your nephew ...

HH221-15 : THE STATE vs PAIDAMOYO MABVIRE
Ruled By: MWAYERA J and TSANGA J

The accused was properly convicted of malicious damage to property as defined in section 140 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

On 17 September 2014, at Mudzingwa Village, Gutu, the accused knowingly burnt a hut and household goods belonging to Ephraim Mudzingwa.

The accused, a 16 year old Form 4 pupil, set the hut on fire after the complainant had forcefully retrieved a cell phone from her. The accused, in fury, set the hut on fire destroying property worth $950.

She pleaded guilty to the charge and regretted the offence.

A Probation Officer report was compiled and placed before the trial magistrate. Although the Probation Officer's report is not binding on the magistrate, the opinion raised therein should be taken into consideration when passing sentence.

The report recommended that she be given a rehabilitative sentence which would allow her to complete her education without “upsets”. The report further suggested that she be discharged with a strong reprimand.

The trial magistrate sentenced the accused to 12 months imprisonment of which 10 months imprisonment was suspended on condition the complainant restitutes the complainant by paying $900 through the Gutu Clerk of Court on or before 3 January 2015. The remaining 2 months imprisonment was suspended on the usual conditions of good behaviour.

The Regional Magistrate correctly queried the logic of sentencing a 16 year old to pay restitution as there was high possibility of her failing to raise the money and then serve the 10 months imprisonment.

Furthermore, there was no basis for the trial magistrate to reject the Probation Officer's report on the need for the sentence to be rehabilitative. The case of S v Tendai 1998 (2) ZLR 423 is instructive.

Restitution cannot be described as rehabilitative in the circumstances. It, in fact, would cause the kind of angst in a 16 year old which the Probation Officer was keen to guard against hence the suggestion of a reprimand.

In the circumstances of this case the sentence imposed by the trial magistrate is unduly harsh and it ought to be set aside and substituted as follows:

The accused is cautioned and discharged. The trial magistrate is directed to recall the accused and explain the new sentence.

If the complainant has paid part or all of the money to the Clerk of Court it should be refunded. In the event that the accused is already in prison serving the alternative sentence a warrant of her liberation is issued.

HB215-15 : THE STATE vs EVIDENCE RUZIVE and ADVENTURE RUZIVE and HABSON CHAMATUNGWA and SURPRISE MASHAVIRA
Ruled By: TAKUVA J and ASSESSORS: MATEMBA and BAYE

In assessing an appropriate sentence, the court will take into account the mitigating factors advanced by the accused persons' defence counsels..., In particular, the court will consider the following factors as weighty mitigating factors;(1) The accused persons are first offenders. (2) They are youthful offenders....,.As regards circumstances surrounding, the commission ...

HB25-17 : THE STATE vs ZIBUSISO SIKHOSANA and BRIAN MBEWE and MARVELLOUS NDLOVU
Ruled By: MATHONSI J and TAKUVA J

The three youthful accused persons were arraigned before a Provincial Magistrate at Western Commonage on two counts of extortion in contravention of section 134(1)(a) and (b) of the Criminal Law Code [Chapter 9:23].

They pleaded guilty to the charge, and, upon conviction, they were each sentenced to 5 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition of future good behaviour. Of the remaining 4 years imprisonment, 1 year was suspended on condition they jointly and severally, the one paying the others to be absolved, restituted the complainants the sums of $50 and $20 respectively on or before 31 January 2017.

There is nothing wrong with the conviction which will be confirmed. It is the sentence which induces a sense of shock and should be interfered with.

The facts are that on 2 November 2016 the three had masqueraded as police officers at the intersection of Masiyephambili Road and Nketa Drive in Bulawayo and extorted $50 from the complainant in Count One and $20 from the complainant in Count Two, while threatening to impound their motor vehicles.

In arriving at the sentence, the court accepted that all three of them were first offenders, they were drunk, and had pleaded guilty.

In my view, the learned trial magistrate however misdirected himself in reasoning that:

“This is a clear act of dragging the Zimbabwe Republic Police through mud as the nation will lose confidence in the force.”

These were not police officers but criminally-minded civilians.

The nation cannot possibly lose confidence in the police force because of their conduct. In reasoning that way, the court unwittingly sentenced the accused persons as police officers and not as ordinary civilians - which explains the unduly harsh sentence that it settled for.

In terms of section 134(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23];

“Any person who —

(a) Intentionally exerts illegitimate pressure on another person with the purpose of extracting an advantage, whether for himself or herself or for some other person, and whether or not it is due to him or her, from that other person, or causing that other person loss; and

(b) By means of the illegitimate pressure, obtains the advantage or causes the loss;

shall be guilty of extortion and liable to —

(i) A fine not exceeding level thirteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or

(ii) Imprisonment for a period not exceeding fifteen years or both.”

It is now settled in this jurisdiction that where the statute provides for a sentence of a fine or alternatively imprisonment, the court must give serious consideration to the option of a fine and reserve imprisonment for the most serious of such an offence or repeat offenders. See S v Zuva 2014(1) ZLR 15 (H)…,; S v Tshuma HB302-16.

That point is succinctly stated by MALABA J…, in S v Chawanda 1996 (2) ZLR 8 (H)…, where the learned judge said:

“The authority for the proposition that where a statute provided for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to the imposition of a fine, particularly on a first offender, is found in the case of S v Muhenyere HB03-92 cited by the accused's legal practitioner.

At page 3 of the judgment in Muhenyere's case supra BLACKIE J, with the concurrence of CHEDA J, quoted with approval from the decisions in the cases of S v Rutsvara SC02-89 and S v Van Jaarsveld HC110-90.

The learned judge said:

'It is trite that where the statute lays down a monetary penalty as well as a period of imprisonment the court must give consideration to the imposition of a fine. It would normally reserve imprisonment for bad cases…,. In statutory offences permitting the imposition of a fine, the normal sentence for a first offender is a fine unless the offence is particularly serious or prevalent or there would be serious consequences if the deterrent of imprisonment is not used.'”

I completely associate myself with the foregoing pronouncements.

I must also add that the economic realities of this country, at the moment, demand that there should be strict adherence to those sentencing guidelines - especially where first offenders are concerned. This is because it is a fact that prisons are overcrowded; prisoners are afflicted by disease and the State is struggling not only to maintain the prisoners but also feed inmates as it has no money. For that reason, it only makes sense, in cases involving first offenders convicted of minor offences, to lean in favour of other sentencing options.

Sentencing courts should not approach sentencing with a closed mind.

This is a case in which the penal provision being applied allowed the sentencer to impose a fine.

The offenders were youthful first offenders who committed the offence under the influence of intoxicating liquor. They only extorted a total of $70 which is no doubt a very small amount. Of that amount, $50 had already been repaid to the complainant at the time of their conviction.

Taking into account the totality of those factors, the accused persons should have been sentenced to a fine or community service.

The sentence imposed by the trial court does not fit the offence neither does it fit the offenders. It is unduly harsh and uncalled for, and, in arriving at it, the trial court misdirected itself as already stated.

Considering that the accused persons have already served almost three (3) months which they should not have been subjected to, and with the gracious concurrence of my brother TAKUVA J, the sentence will be altered in order for them to be released immediately.

In the result, it is ordered that;

1. The conviction of the three accused persons is hereby confirmed.

2. The sentence is hereby set aside and in its place is substituted the following sentence:

“Each of the 3 accused persons is sentenced to 12 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition they do not, during that period, commit any offence involving dishonesty for which upon conviction they are sentenced to imprisonment without the option of a fine. Of the remaining 6 months imprisonment, 3 and a half months is suspended on condition they jointly and severally restitute the two complainants of the total sum of $70 on or before 28 February 2017.”

2. As the three accused persons have already served 2 and a half months, they are entitled to their immediate release.

SSC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

In Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632 (CC)…, it was held:“…,. The constitutional injunction that '[a] child's best interests are of paramount importance in every matter concerning the child' does not preclude sending child offenders to jail. It means that the ...

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.

HB21-15 : THE STATE vs TALENT BANGO
Ruled By: KAMOCHA J

The accused is a young woman aged 23 years who pleaded not guilty to the murder of her 1 year 8 months old child:...,.SentenceThe accused's legal representative put forward all that needed to be said on her behalf. She has been in custody ever since she was arrested on 28 ...

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.

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.

HMA01-16 : THE STATE vs KINGDOM HLAHLA
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and GWERU

The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

HMA57-18 : THE STATE vs BEN CHITALU
Ruled By: MAWADZE J and MAFUSIRE J

It is important for magistrates to appreciate the current harsh and difficult conditions in our prisons. In the premises, only deserving persons should be sent to prison.

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 ...

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.

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.

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

This review judgment has been occasioned by the need to assist judicial officers, especially Magistrates, in sentencing juveniles convicted of criminal offences in light of the decision of the Constitutional Court in the case of State v Willard Chokuramba & 4 Ors CC10-19.

The Constitutional Court outlawed corporal punishment administered on male juveniles as was provided for in section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07]. This was with effect from 3 April 2019.

Male juvenile offenders convicted of any criminal offence cannot be sentenced to receive corporal punishment.

Consequently, Magistrates are now enjoined to resort to other forms or methods in dealing with juveniles in conflict with the criminal law - especially those convicted of such offences.

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

In the case of S v Ncube and Ors 2011 (1) ZLR 608 (H) I discussed in some detail on other forms of punishment or options open to judicial officers in dealing with such juveniles. The guiding principle is that, in dealing with juveniles in conflict with the criminal law, is to impose a rehabilitative rather than a retributive sentence. This is in line with the international best practices and international instruments which include, inter alia, Article 40 of the United Nations Convention on Rights of the Child (1990) and Article 17 of the African Charter on the Rights and Welfare of the Child (1999).

I should applaud the trial magistrate in this matter for attempting to adhere to these principles. The only problem which arises in this case is that the trial magistrate did not fully adhere to the proper procedure.

The bare bones of the case is that a 15-year old male juvenile was convicted on his own pleas of guilt of 10 counts. Five counts relate to unlawful entry into premises as defined in section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the other five counts relate to theft as defined in section 113(1) of the Criminal Law (Codification and Reform) Act.

The agreed facts are that between the period extending 28 February 2019 and 15 March 2019 in and around Chivi Growth Point, Masvingo, the 15 year old juvenile broke into five different premises from which he stole various goods all valued at $548=50 of which goods valued at $395 was recovered; this causing actual prejudice of $153=50.

The matter proceeded in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and the male juvenile was convicted on his own pleas of guilty in all the 10 counts.

A detailed Probation Officer's report was compiled and produced.

It was recommended, that, the male juvenile be found to be a child in need of care as defined in section 2(c), (d) and (g) of the Children's Act [Chapter 5:06]. The recommendation was that the male juvenile be placed in a Training Institute at Kadoma in terms of section 20(1)(b)(vi) of the Childrens Act [Chapter 5:06].

This recommendation was informed by a number of reasons:

(i) The male convicted juvenile is described, in the Probation Officer's report, as an habitual truant. His biological father is unable to exercise proper care and control over him.

(ii) Secondly, as already said, the male juvenile is facing and had been convicted of 10 counts which clearly shows his propensity to crime.

(iii) Thirdly, the convicted male juvenile has a relevant previous conviction for contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as per CRB CH275/18 dated 28 August 2018. In that case, passing of sentence was suspended for 5 years on the usual conditions of good behaviour.

Clearly, the said male juvenile has failed the test in less than a year.

The trial Magistrate proceeded, in this case at hand, to place the convicted male juvenile at Kadoma Training Institute for 3 years.

The first anomaly in this matter is that the trial Magistrate did not deal with the convicted male juvenile's previous conviction on CRB CH 275/18 in which passing of sentence had been conditionally suspended for 5 years.

The convicted male juvenile, as already said, breached the said conditions by committing these offenses at hand.

To his or her credit, the trial Magistrate, in the reasons for sentence, suggested that it would be prudent to further postpone the passing of sentence on CRB CH 275/18.

However, the misdirection is that this remained a wish on the part of the trial Magistrate as it was not captured on the ultimate sentence imposed.

The trial Magistrate profusely apologised for this oversight and implored this court to rectify the omission.

I am of the view that the convicted male juvenile should be afforded the proverbial second chance to reform hence the need to further postpone the passing of sentence on CRB CH 275/18 for another period of 5 years on the same conditions.

The second anomaly in this matter is that the trial magistrate did not comply with the provisions of section 351(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provide as follows;

“Section 351 Manner of dealing with convicted juveniles

(1) Irrelevant

(2) Any court before which a person under the age of nineteen years has been convicted of any offence may, instead of imposing a punishment of a fine or imprisonment for that offence, subject to subsection (1) of section three hundred and thirty-seven —

(a)…,. (irrelevant)

(b) After ascertaining from the Minister responsible for social welfare that accommodation is available, order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic of South Africa for the period specified in subsection (1) of section three hundred and fifty-two.”

After I raised a query with the trial magistrate, as to whether he or she had complied with the provisions of section 351(2)(b) of the Criminal Procedure and Evidence Act, by ascertaining that that there is indeed accommodation at Kadoma Training Institute before committing the convicted male juvenile to that institution, the response by the trial magistrate was rather perfunctory.

The trial magistrate said he or she simply complied with the recommendations of the Probation Officer as per the Probation Officer's report.

This is incorrect.

The Probation Officer had suggested that the convicted male juvenile be referred to the Children's Court and dealt with in terms of section 20(1) of the Children's Act [Chapter 5:06].

The trial magistrate, although placing the convicted male juvenile at the said training institute, he or she did not do so sitting as a Children's Court and was not exercising the powers outlined in section 20(1) of the Childrens Act [Chapter 5:06].

The truth of the matter is that the trial court simply proceeded in terms of section 351(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Be that as it may, whether the trial Magistrate had exercised the powers outlined in section 20 of the Children's Act, sitting as Childrens Court, or acted in terms of section 351(2)(b) of the Criminal Procedure and Evidence Act, the bottom line is that the trial magistrate was enjoined to first ascertain from the responsible authority whether there is accommodation at Kadoma Training Institute before committing the convicted male juvenile to the institution.

The trial Magistrate, in a bid to explain this omission, said he or she telephonically contacted the said institution and was advised, telephonically, that there was such accommodation.

I have no reason to doubt the integrity of the trial Magistrate. His or her ability to think on his or her feet is remarkable!

However, the fact remains, that, a Magistrate Court is a court of record. This means, that, inquiries made in compliance with the law cannot be sufficient if they are made telephonically only. There is need for written documents or proof.

How will this court, in exercising its review powers, ascertain compliance with the law where such compliance has purportedly been made telephonically?

The proper way to comply with the provisions of section 351(2)(b) of the Criminal Procedure and Evidence Act is to simply obtain and attach such proof. This may be in the form of a letter of confirmation from the head of such a training institute that accommodation for the convicted juvenile is available.

The need for this confirmation is obvious.

In my view, it matters not whether such an inquiry is done by the trial magistrate or the Probation Officer. The bottom line is that such proof of confirmation should be part of the record of proceedings.

I am inclined to condone this omission by the trial magistrate in the interest of the convicted male juvenile.

This court would be not acting in the best interests of the said convicted male juvenile if it was to decline to confirm these proceedings by withholding its certificate, worse still by setting aside the order imposed.

This court, as the upper guardian of minor children, should always, and at all times, act in their best interests.

Be that as it may, my exhortation is that trial magistrates should nonetheless comply properly with the provisions of the law.

I shall, however, confirm the proceedings as in accordance with real and substantial justice, but, nonetheless, seek the concurrence of my brother MAFUSIRE J as I have made an addition to the order made by further suspending the passing of sentence in CRB CH 275/18 for 5 years on the usual conditions.

In the result, I make the following order;

1. The proceedings are confirmed as in accordance with real and substantial justice.

2. The order of placing the convicted male juvenile at Kadoma Training Institute for 3 years be and is hereby confirmed.

3. The passing of sentence on the said convicted male juvenile on CRB CH 275/18 is further postponed for 5 years on condition the said male juvenile does not commit any offence involving dishonesty within the said period for which he is sentenced to a term of imprisonment without the option of a fine.

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.

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Sentencing re: Approach iro Juvenile and Youthful Offenders, Juvenile Justice & Administration of Corporal Punishment

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HB169-17 : THE STATE vs EVERTON MOYO Ruled By: TAKUVA J

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HB68-15 : THE STATE vs PROSPER HABATSHUSI NKOMO Ruled By: MAKONESE J

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HH17-18 : STATE vs JAMES CHISHAKWE Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHAGONDA

HH221-15 : THE STATE vs PAIDAMOYO MABVIRE Ruled By: MWAYERA J and TSANGA J

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HB25-17 : THE STATE vs ZIBUSISO SIKHOSANA and BRIAN MBEWE and MARVELLOUS NDLOVU Ruled By: MATHONSI J and TAKUVA J

SSC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

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

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

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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

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

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