MANGOTA
J: The appellant, a 34 year old, first offender, was convicted, on
his own plea, of contravening s 174(2) of the Customs And Exercise
Act [Cap
23:02].
The
facts which gave rise to the charge were that, on 4 June 2014 and at
the 106 km peg along the Harare-Mutare Road, he was found to have had
in his possession:
-
331
kgs of second hand clothes – and
-
40
kgs of second hand shoes
in
circumstances where he could not give an account of his possession of
the same. The state placed the value of the clothes and shoes at $2
290-00.
The
court a
quo
sentenced the appellant to 2 years; 6 months of which were suspended
for five years on condition of good future conduct.
The
applicant's appeal was against sentence. He insisted that the
sentence was not only harsh but was also excessive. He prayed that it
be substituted with that of a fine or community service.
The
respondent opposed the appeal. It, however, conceded that the
sentence was harsh and excessive. It prayed that the sentence be
reduced to 18 months imprisonment with 6 months being suspended for a
period of time so that it would act as a check on the appellant's
future conduct.
The
court noted, with some disquiet, that the appellant's instructing
attorney Messrs Laita And Partners Legal Practitioners, did a
considerable disservice to the appellant. The grounds of appeal and
the Heads of Argument which they prepared for the appellant were, to
all intents and purposes, the same as the ones which they prepared
for, and on behalf, of another appellant, one Leonard Ndombo whose
appeal they filed with the court under case number CA 522/14. What
the legal practitioners did was simply to copy and paste, with such
minor variations as related to the names and ages of the two
appellants, their written submissions in respect of one appellant
onto the papers of the other appellant and vice-versa. There is no
doubt that the legal practitioner's conduct in this regard
constituted a very high degree of dishonesty which the court finds
difficult to condone let alone accept.
Case
authorities which the legal practitioners cited centred more on
generally accepted and settled sentencing principles than they did on
the appeal itself. They, in that regard, missed the target which the
appellant intended to achieve.
Mr
Mahuni
of Messrs Mahuni and Mutatu Legal Practitioners whom Messrs Laita And
Partners instructed did have a torrid time when he appeared before
the court on behalf of the appellant. He had to contend with the
unpalatable situation into which his instructing attorneys had placed
him as stated above. He had, as it were, to think on his feet and
salvage a situation which was already unpalatable, so to speak. The
court commends him for what he did under very difficult
circumstances. He spoke with some convincing eloquency in his effort
to persuade the court to interfere with the sentence which had been
imposed upon the appellant.
With
the respondent who, as it were, played the devil's advocate in the
appeal, the court was eventually convinced that the appellant's
mitigating factors did, in a large measure, outweigh matters which
militated against him. It, in that regard, became alive to the fact
that the appellant:
-
was
a family man; - and
-
a
first offender who
-
did
not waste the court's time or the state's limited resources when
he was convicted on his own plea – and
-
did
not benefit from the crime which he committed.
The
only matter which remained aggravatory against the appellant was that
his
conduct
constituted a potential prejudice to the state. There was, therefore,
need on the part of the court to punish the appellant for what he did
as well as to correct him in his future conduct so that he does not
continue to cause actual or potential prejudice to the state as he
did in
casu.
Having
been convinced of the need to strike what may be regarded as a happy
medium between the sentence which the court a
quo
imposed and nothing, the court settled for the same sentence of 24
months imprisonment the whole of which had to be suspended on two
conditions which were or are:
-
good
future conduct – and
-
performance
of community service by the appellant.
The
court has considered all the circumstances of the present appeal. It
is satisfied that
the
sentence which the trial court imposed was harsh and, therefore,
induces a sense of shock. That sentence is set aside and is,
accordingly, substituted with the following:-
The
appellant is sentenced to 24 months imprisonment, 12 months of which
are suspended for 5 years on condition the appellant does not, within
that period, commit any offence involving buying, receiving or
possessing goods not accounted for in forms of the Customs and Excise
Act for which he is sentenced to imprisonment without the option of a
fine. The remaining 12 months imprisonment are suspended on condition
the appellant performs 420 hours of community service at Dangamvura
Clinic between the hours of 8 am to 1 pm and 2 pm to 4 pm on Mondays
to Fridays which are not public holidays. The community service
performed shall be carried out to the satisfaction of the supervisor
of Dangamvura Clinic. The supervisor may grant leave of absence for
hours or days on good cause shown. Such leave of absence shall not
form part of the community service performed. The community service
shall commence on Monday, 26 January, 2015 and must be completed
within a period of 8 ½ weeks.
CHATUKUTA
J: agrees ………………..
