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HMT16-20 - PAUL MUHABE vs THE STATE

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Procedural Law-viz criminal appeal.
Fraud-viz section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentencing-viz fraud.
Sentencing-viz suspended sentence re repeat offenders.
Procedural Law-viz appeal re findings of fact made by the trial court.
Procedural Law-viz appeal re the exercise of discretion made by the primary court.
Procedural Law-viz rules of evidence re uncorroborated evidence iro single witness evidence.
Sentencing-viz community service re repeat offenders.
Procedural Law-viz rules of evidence re circumstantial evidence iro inferential reasoning.
Procedural Law-viz pleadings re abandoned pleadings.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Procedural Law-viz appeal re concession of an appeal by the State.
Sentencing-viz compensatory orders.
Sentencing-viz restitution.
Sentencing-viz sentencing discretion of the sentencing court.

Pleadings re: Approach, Amendments, Heads of Argument, Record of Proceedings and Off the Record Submissions


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

Fraud and Criminal Promise re: Approach and Misrepresentation


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

Corroborative Evidence re: Uncorroborated Evidence iro Single Witness, Cautionary Rule and Religious Indoctrination


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

Direct and Circumstantial Evidence, Causation, Inferential Reasoning, Confessions & the Principle of Evidence Aliunde


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

Appeal and Leave to Appeal re: Approach, Notice, Grounds and Right of Appeal, Concession & Withdrawal of Appeal by State


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

Sentencing re: Fraud and Criminal Promise iro Misrepresentation


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

Sentencing re: Approach iro Alternative Sentence, Suspended Sentences, Repeat Offenders and Previous Convictions


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

Sentencing re: Approach iro Sentencing Discretion of Trial Court & Judicial Interference By Appeal or Review Court


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

Sentencing re: Approach iro Community Service, Repeat Offenders and Considerations of Non-Custodial Sentences


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

Sentencing re: Approach iro Compensatory Orders or Restitution


The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

Criminal Appeal

MUZENDA J: The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour, of the remaining 20 months, 5 months imprisonment was suspended on condition that appellant restitutes complainant. In addition 2 months imprisonment suspended previously were brought into effect.

Appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the state closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the state to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant, by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the state outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare, complainant Cain Qongo resides in Chivhu, he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On unknown date, but during the same month, complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place. Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant who was desperately in need of a place warmed up to the appellant and asked for assistance to get a training place at the institution. The appellant indicated to the complaint that he would facilitate a training place for the complainant at the college. He told complainant that his place was automatic and that he should deposit $940-00 into appellant's Steward Bank Account so that appellant would tender the money to the college as school fees. The appellant asked for complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940-00 into appellant's account.

From that day the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940-00 and nothing was recovered.

The following aspects were on hearing of the appeal found to be common cause:

(1) appellant met complainant and complainant deposited an amount of $940-00 into appellant's account.

(2) after the payment of $940-00 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) the appellant admits that he did not refund the $940-00 to the complainant up to this date.

Although the appellant admits that he was paid $940-00 by complainant he denies that the money was for the facilitation of assisting complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant; we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry thus he decided to lodge a report with the police. Appellant in his heads of argument submitted that the complainant's evidence was packed with inconsistencies which were never clarified by the state. He further averred that the court a quo made a comparison between testimony of complainant and appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion that there were no inconsistencies allegedly perceived by the appellant at complainant's evidence.

Given the fact that there was no eye witness relating to what transpired between appellant and complainant, there is nothing untoward done by the trial court in adjudging the veracity of both appellant and complainant's version before reaching the decision the court did.

In any case the conduct of the appellant in this matter left a lot of issues unexplained more particularly as to why he avoided the complainant when he knew that he had not paid back the $940-00 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied that the appeal against conviction has no merit and the concession made by the state does not find favour with us and we reject it.

The appeal against conviction is dismissed.

As regards sentence, given the value of the prejudice in this matter being $940-00 and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware that the appellant is a repeat offender, but that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

Appellant's legal practitioner indicated during hearing that the appellant had already served three months imprisonment that would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940-00 through the clerk of court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the state.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

MWAYERA J agrees _________________



Mugadza Chinzamba & Partners, appellant's legal practitioners

National Prosecuting Authority, State's legal practitioners

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For with God All Things Are Possible (Matthew 19 v26)

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