Criminal
Appeal
MWAYERA
J:
The
appellant was convicted and sentenced for contravention of section
78(1) of the Forest Act [Chapter
19:05].
The appellants were convicted of having removed 32 gum trees by
cutting them down unlawfully and without authority from Forestry
Commission of Zimbabwe.
The
appellants were sentenced to 24 months imprisonment of which 4 months
imprisonment were suspended on condition of restitution of the
complainant.
Aggrieved
by both conviction and sentence both the appellants lodged the
present appeal with this court.
The
respondent partly opposed the appeal in that it conceded the sentence
imposed was unduly harsh, whilst it opposed the appeal against
conviction.
The
appellants raised grounds of appeal as follows:
“Add
Conviction
1.
The trial Court erred in disregarding the fact that there was no
evidence linking the accused person to the cutting of the trees.
2.
The trial Court erred in disregarding the fact that there was no
evidence showing any transport system to ferry the logs from the
alleged crime scene.
3.
The trial Court erred in placing credence in witness evidence of
Artwell who had a peculiar interest to safeguard his job by ensuring
that anyone was charged and convicted as the trees has been cut under
his watch.
4.
The trial Court erred in accepting that the Appellants were the
persons who cut down the trees whilst not giving due weight to the
fact that no tool, cart or any material was discovered that had been
used in the commission of the alleged crime.
5.
The trial Court erred by finding the accused persons guilty based
only on circumstantial evidence.
6.
The trial Magistrate erred by ignoring evidence which tended to be in
favour of the accused person.
Add
Sentence
7.
The trial Court erred by failing to give due weight to the following
mitigatory factors which would have resulted in a lessor sentence….”
The
brief facts informing the charge are that both accused persons on 10
February 2019, cut down gum trees and hid the poles in their village.
The appellants were seen by Artwell Mushowe who then laid an ambush
for the appellants. The accused later came to collect the poles and
as they tied the poles for collection they were intercepted and then
arrested.
It
is clear from the grounds of appeal against conviction that the
appellants are questioning the finding of the court and its reliance
on the witness evidence.
It
is apparent in this case that gum poles were removed from the forest
and that both appellants were apprehended at/or close to the pile
while tying the poles.
The
court a
quo
had to decide on whether or not from the evidence adduced the State
had discharged the required onus of proving the case beyond
reasonable doubt.
The
court a
quo
did not hold the appellants explanations to be probable and
reasonably possibly true given the evidence adduced by the State.
The
first appellant denied all allegations pointing out his attention was
drawn to the scene by people talking. The second appellant denied
saying the poles were not at his residence and that on the day in
question he was with his wife.
The
findings of the court a
quo
were based on credibility.
The
court was impressed by the State witnesses and not appellants.
It
is settled that credibility or otherwise of witnesses is a domain of
the trial court. The findings of fact are not lightly interfered
with. It is only when the factual findings are at variance with the
facts on record that the appellate court can interfere with the
findings of the trier of fact who for the obvious reasons has the
opportunity to hear, observe and assess the witnesses.
The
main witness Artwell Mushowe gave clear evidence of how the
appellants were found in the vicinity of the stolen poles securing
same for purposes of ferrying the poles away.
The
appellants themselves do not dispute being in the vicinity of the
stolen poles.
The
witness was well known to both appellants and as such no question of
mistaken identity. In fact at the time of arrest the witness
conversed with the appellants who were apologetic.
It
is also on record that the witness and appellants enjoyed cordial
relations hence the trial court found no reason why the witness would
have falsely incriminated the appellants.
That
the witness Artwell Mushowe was a security guard cannot be held
against him given the totality of evidence.
The
bare denials by the appellants and the fact that they were found
bundling the poles for purposes of later ferrying supports the
finding of the court a
quo.
The
conviction was therefore well-founded on evidence anchored on the
record. The findings of the court a
quo
on both facts and law can therefore not be faulted.
Turning
to the sentence imposed it is apparent the court a
quo
did not give due weight to the circumstances of the commission of the
offence, mitigatory and aggravatory factors.
Lip
service was paid to the laid out sentencing principles of seeking to
strike a balance between the offence and the offender while at the
same time tempering justice with mercy.
A
reading of the penalty provision of the relevant charge provides for
the option of a fine.
It
has been said on countless times by this court that to consider
imprisonment were the penalty provision gives the option of a fine
without cogent reasons is a misdirection. Imprisonment is a preserve
for the very bad and serious cases not minor infractions.
In
casu both appellants were first offenders, family men with
dependants. The value of the poles forming the subject of the offence
was given as $320-00 most of which were recovered. The court opted
for imprisonment of which no portion was suspended on conditions of
good behaviour. There are no reasons recorded why first offenders
were not granted the opportunity to have a suspended prison term act
as a deterring factor.
Punishment
is not meant to break the individual but should be appropriately
considered so as to have the positive effects of rehabilitating the
offender.
The
reasons for sentence are devoid of the thought process of how the
trial court discarded the other sentencing options namely a fine
and/or community service.
To
this end therefore the court a
quo
did not properly exercise its sentencing discretion. We are at large
to interfere with the sentence which in the circumstances is viewed
as unduly harsh.
In
the result the appeal against conviction is dismissed and the appeal
against sentence is upheld.
Accordingly
it is ordered that:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence succeeds. The sentence imposed by the
court a
quo
is set aside and substituted as follows:
Each
accused is to pay a fine of RTGS$500-00 or in default of payment 3
months imprisonment. In addition 3 months imprisonment is suspended
for 3 years on condition accused does not within that period commit
any offence involving dishonesty for that he is sentenced to
imprisonment without the option of a fine.
MUZENDA
J agrees_____________________
Chiwanza
& Partners,
appellants legal practitioners
National
Prosecuting Authority,
State's legal practitioners
