Criminal
Appeal
MUZENDA
J:
The
appellant was convicted at Mutare for contravening section 93(1)(b)
that is kidnapping or unlawful detention, it being alleged that on
Saturday, 6 August 2019 at Zuva Service Station, near Mutare
Polytechnic, Mutare, the appellant lifted and carried Pressly Tafara
Mubaiwa, a juvenile, on shoulders and attempted to put him in the
boot of a Toyota Runx.
He
had pleaded not guilty and he was sentenced to 24 months
imprisonment. 6 months imprisonment was suspended for 5 years on the
usual conditions of future good behaviour.
On
24 September 2019 the appellant noted an appeal against both
conviction and sentence and spelt out his grounds of appeal as
follows:
“Ad
Conviction
1.
The learned magistrate erred and misdirected himself both on facts
and the law when he failed to consider and appreciate that the
appellant together with his co-accused had paid an admission fee of
guilty fine at the police station and thereby deserved to benefit and
obtain protection from the concept of a plea of autrafois
convict.
2.
The learned magistrate further erred and misdirected herself at law
and fact when he convicted only the appellant and acquitted his
co-accused yet all the accused had faced the same charge and
evidence.
3.
The learned magistrate erred and misdirected himself at law when he
convicted the appellant when the evidence against him was
insufficient to found and support such a verdict.
4.
The learned trial magistrate erred and misdirected himself at law
when he injudiciously failed to accord the appellant a fair trial.
Ad
Sentence
1.
The learned magistrate misdirected himself at law when he failed to
exercise his sentencing discretion appropriately and properly.
2.
The learned magistrate misdirected himself at law when he failed to
appreciate that the sentencing provision of the offended section
reposed in a sentencing court the option of a fine.
3.
The learned trial magistrate erred and misdirected himself at law
when he failed to consider community service as an option when he had
settled for a term of imprisonment of 24 months.”
The
appeal is being opposed by the respondent.
Background
Appellant
is aged 25 years and resides at No.79 Josiah Tongogara Street,
Palmerstone, Mutare. The complainant is a male juvenile aged 12 years
and resides at No.9437 Dream House, Chikanga 3, Mutare. He is a
student at Mutare Junior Primary School, Mutare. Complainant and
appellant are strangers to each other.
On
6 April 2019 at around 0645 hours the complainant and his school mate
Nyasha Chitashara where on their way to school when suddenly upon
their arrival at Zuva Service Station the appellant who was in the
company of three other colleagues stopped their motor vehicle a
couple of meters from where the complainant was. The appellant opened
the door of the motor vehicle from where the complainant was seated
in the car and disembarked. The complainant saw him, appellant broke
an empty beer bottle and started running towards where complainant
was shouting “mbavha, mbavha” (thief, thief).
Complainant
was shocked and overwhelmed by the fast unfolding of events, he tried
to run away but unfortunately he could not go far, accused caught up
with him, grabbed hold of him, lifted him up and placed complainant
to his shoulders and carried him away. Complainant yelled out.
Meanwhile
Nyasha ran towards Zuva Service Station.
Appellant
took the complaiant to where the car was parked, and tried to place
complainant into the boot of the car.
During
that process perchance, the complainant wittingly decided to sink his
molars into the hand of the appellant, out of pain appellant
fortuitously released complainant, who dropped to the ground and
escaped from the appellant.
When
Nyasha ran towards Zuva Service Station he spotted a police detail
who had gone to filling station to get fuel, he alerted him. The
police detail got into his car and drove to the scene, but he was
late, the appellant's co-accused sped off at high speed.
Nyasha
was convinced that his school mate was stashed in the boot of the
appellant's motor vehicle.
In
a Hollywood style the police detail gave a chase but could not
apprehend the quartet.
The
appellant and his colleagues were subsequently arrested and charged
for public nuisance, they all paid a fine.
However
for kidnapping they were referred to court.
They
were prosecuted and at the conclusion of the trial, three other
co-accused were acquitted and the appellant was convicted.
Mr
C
Ndlovu,
who appeared for the appellant, in his heads, correctly admitted that
the appellant detained the complainant albeit briefly but argued that
the facts of the matter best present all features of the de
minimis
principle and relates to matters of time and also space and other
factors, he pictorially portrayed the entire scenario to the
children's game of kutamba
chikudo
(“baboon play”) in other words he argued the court not to wary
itself over children's play.
Baboons
are social animals which guard jealously against strangers, even from
another baboon group, they will cooperate to light the intruder or
stranger from their affiliate, it therefore necessarily means the
game of chikudo
is played by friends or acquaintances, socially close associates not
between or among strangers.
Equally
so it is played by people known to each other and during leisure time
not at a fuel station or in the streets.
The
appellant stays in Palmerstone, a low density suburb, in Mutare the
complainant stays in the High density suburb of Chikanga 3. The two
are not peers they are total strangers; even their age difference is
so wide that the type of game alluded to by the appellant could not
be played between the two, worse between strangers, and further could
not be ideal between a drunken adult stranger and a school pupil.
When
appellant uplifted the complainant, the latter cried out apparently
showing his displeasure about appellant's conduct, and bit the
appellant when complainant realised that he was going to be stashed
in a boot of a motor vehicle.
We
are not convinced by appellant that we should treat this offence as a
de
minimis.
Section
93(1)(a) or (b) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23]
incorporates the requirements of an accused's realisation of real
risk or possibility that what he or she will be doing will be
unlawful.
When
complainant ran away from the appellant, yelled when lifted him up,
and bit appellant, the appellant ought to have realised that
complainant did not like what appellant was doing. Worse one would
pose a further question what would have happened if the appellant had
managed to place complainant into the boot?
The
appellant wants to bury his head in the sand and throw a red herring
to the court by pleading intoxication, he failed to convince the
trial court and worse still could not pursue it before us in any case
that aspect is only but mitigatory, it is not a defence to the charge
of kidnapping.
In
any case most facts of what happened on the day in question are to us
common cause and from the defence papers they admit so.
We
are thus satisfied that the conviction of the appellant is
unassailable and the appeal against conviction has no merit.
On
the aspect of sentence, the appellant submitted that the court a
quo
failed to judiciously exercise its discretion.
We
have had the opportunity to scrutinise reasons for sentence preferred
by the learned magistrate, we fail to see where the alleged
misdirection is.
Counsel
for the appellant was asked by this court to fathom for a moment what
was going on in the mind of the complainant when the appellant
shouted “thief, thief” brakes a beer bottle and run after
complainant, grabbed him and ferry him towards a stationery motor
vehicle and attempted to place him in that boot.
For
a child of twelve years, it was an emotionally packed experience,
deep apprehension and scary which can lead to lifetime hallucinations
and nightmares at night.
The
conduct of the appellant was reprehensible and terrible to imagine.
Indeed
we agree that the trial court was correct in stating that community
service would trivialise the granting of the offence even if the
unlawful detention was for a second, the hallmark of fear left on the
complainant is unbearable in our view. The sentence passed by the
court a
quo
is appropriate and befits the crime.
The
appeal against sentence has equally no basis.
Accordingly
the appeal is dismissed in its entirety, it is so ordered.
MWAYERA
J agrees ________________
Mupindu
Legal Practitioners,
appellant's legal practitioners
National
Prosecuting Authority,
State's legal practitioners
