Criminal
Appeal
MUZENDA
J:
This
is an appeal filed by the appellant against both conviction and
sentence reached and passed by the Magistrate sitting at Mutare on
the 8th
of January 2020 where the appellant was convicted for a charge of
unauthorised borrowing or use of property as defined in section 116
of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
and was sentenced to 14 months imprisonment of which 5 months
imprisonment was suspended for 5 years on the usual conditions, 3
months imprisonment was further suspended on conditions appellant
pays a fine of $1,000-00 and the remaining 6 months were further
suspended on condition of restitution.
The
appellant's grounds of appeal are as follows:
“1.
AS AGAINST CONVICTION
1.1
The Learned Magistrate erred by convicting appellant of the offense
of unauthorised borrowing when such an offense was not proved against
him beyond reasonable doubt.
1.2
The Learned Magistrate erred by convicting appellant on the evidence
of the complainant which was not clear and satisfactory on every
material respect and was thoroughly discredited during her cross
examination and the entire court proceedings.
1.3
The Learned Magistrate erred in rejecting appellant's defence of
authorisation which was reasonably true and probable and was not
proved to be palpably false.
1.4
The Learned Magistrate erred in suggesting that the appellant ought
to have proven his own defence or call witness to corroborate his
defence when clearly the law did not put such an onus on the
appellant.
2.
AGAINST
SENTENCE
2.1
The fine imposed by the Learned magistrate was manifestly excessive
and induces a clear deep sense of shock considering the circumstances
of the offence and that of the appellant which were highly
mitigatory.
2.2
The Learned Magistrate erred in her assessment of the sentence when
she over-emphasized issues of aggravation turning a blind eye on the
otherwise compelling mitigatory factors in favour of the appellant.
2.3
The Learned magistrate erred in imposing excessive restitution on
appellant and thereby failing to take into account the type of the
motor vehicle and its value and also that the complainant's vehicle
is still there and was not damaged beyond repair.”
BACKGROUND
Complainant
and appellant used to be friends. On the 21st
of October 2018 complainant went to United Kingdom and asked the
appellant to drive her Honda Fit Motor Vehicle from Harare to Mutare
and directed appellant to go and park the vehicle at her house in
Murambi, Mutare.
Appellant
complied as per complainant's instruction and he handed over the
car keys to one Bobo Moyana a security guard at complainant's place
of residence.
On
the 27th
day of October 2018 the appellant went to complainant's residence
and took the Honda Fit from Bobo Moyana without complainant's
consent and drove away.
Sometime
in November 2018 whilst complainant was still in United Kingdom she
received information from her sister to the effect that her vehicle
was involved in a road traffic accident at Rutenga.
On
the 11th
of March 2019 the complainant returned to Zimbabwe, and reported the
case to the police.
The
value of the stolen property is given by the State as US$5,500-00.
The appellant was charged for theft as defined in section 113(1)(a)
of the Criminal Code alternatively the State charged appellant with
unauthorised borrowing or use of the property as defined in section
116 of the Criminal Code.
Appellant
pleaded not guilty to the main and alternative charge. He was found
guilty to the alternative charge.
He
now notes appeal against both conviction and sentence.
As
against conviction the appellant submitted that complainant's
evidence as well as the other State witnesses evidence was glaringly
inconsistent. The totality of the State's evidence did not prove
that appellant did not have authority to use the complainant's
motor vehicle. Appellant further contends that the complainant had
previously granted him authority to administer her taxis which
included the car in question.
Appellant
also pointed out that the evidence of Bobo and Tawona conflicted with
that of the complainant.
The
appellant went on to submit that complainant's evidence was gravely
discredited during cross examination and as a result it was no longer
worthy to be relied upon.
Appellant
added that the court a
quo
displayed a complete bias towards complainant's version.
A
lot of criticism was placed on the evidence of the State witnesses
and appellant urges this court to believe appellant's version,
because complainants was an afterthought.
At
the centre of appellant's submission is that he was authorised to
use the vehicle in question especially at the particular time he was
instructed to manage the complainant's fleet of taxis. Appellant
submitted that on the day in question he was given the car keys by
Bobo Moyana. Given the foregoing the court a
quo
misdirected itself in placing onus on the appellant to prove his own
defence or call witnesses to corroborate his defence.
The
question for this court to decide is whether the appellant was
authorised by the complainant on 27 October 2018 to drive Honda Fit
registration number AEW 7016?
Bobo
Moyana told the court that though he gave the appellant the keys, he
assumed that appellant has been granted permission.
That
evidence was controverted by appellant.
The
complaint was consistent throughout that she did not authorise
appellant to drive her car on 27 October 2018.
On
that aspect she never prevaricated nor stammered.
The
defence of the appellant of an assumed previous authorisation is
totally misplaced to the facts of the matter.
The
court a
quo
had the opportunity to assess the demeanour of complainant during
trial and it accepted her version. I fail to see any misdirection or
erring on the part of the trial on that aspect.
When
the court a
quo
remarked that the appellant had a duty to prove his defence, it does
not amount to shifting of onus at all, the court is simply stating
that the version of the appellant required clarification or
explanation that is supported by other evidence other than the sole
side of the appellant.
The
onus still lies on the State.
However
more credence is added to the fort of the accused's defence if more
supportive evidence is added to the recipe and such evidence would
assist the trial court to reach at a fair decision whether for or
against the accused.
The
apparent and undisputed truth proved by the State was that on 27
October 2018 appellant did not get authority to drive complaint's
car, the authority ought to have come explicitly from complainant in
no uncertain terms, not from Bobo Moyana nor any other agent.
Appellant should not have just assumed that because he had previously
been granted permission then it would follow whether complainant be
there or not he would drive her car, appellant would be found guilty
of unauthorised use or borrowing.
The
appeal against conviction has no merit and it ought to be dismissed.
As
regards sentence the appellant strongly contended that the Learned
Magistrate over-emphasised aggravating issues and paid lip service to
the highly mitigatory factors. He submitted that the court a
quo
ought
to have exercised leniency.
Appellant
went on to submit that the restitution imposed by the court a
quo
was too excessive given the model of the motor vehicle in question.
He added that the damaged vehicle is still there and repairs can be
effected to it, the value imposed by the court is allegedly that of a
new Honda Fit.
On
this note the appellant urged this court to remit the case to the
court a
quo
for a proper assessment.
A
close analysis of the reasons for sentence by the court a
quo
reflects that the court factored in the submissions by counsel of
accused's circumstances. Appellant's counsel in mitigation before
the court a
quo
submitted that the motor vehicle was write off and urged the court to
order restitution.
When
such a submission is made by a legal practitioner in mitigation there
are two possibilities: either the legal practitioner is urging the
trial court to order restitution in the form of the value of the
property amplified in the State Outline, which in this case is
US5,500-00 or assist the court by proposing value for the repair of
damages.
Appellant's
legal practitioner left the trial court with no choice.
The
value for the loss of the complainant was US$5,500-00 and this value
was not contested by the appellant during trial.
This
court is bound by the corners of the record of proceedings in appeal
matters.
I
see no misdirection on the part of the trial court which would
justify interference in its penultimate sentence.
Appellant
had a duty to put before the court a
quo
the reasonable amount of damages for this “write-off” car and
proceed to convince the trial court during mitigation as regards
restitution. He did not.
There
is nothing peculiar for the appellant to pay restitution of
US$5,500-00 in RTGS currency pegged against the legalised bank rate
of the US$ to RTGS.
The
sentence passed by the court a
quo
in our view does not induce a sense of shock at all.
It
is because of these reasons that we are unable to agree with the
concession made by the State.
The
appeal against both conviction and sentence is dismissed.
Messrs
Mugadza Chinzamba & Partners,
legal practitioners for the appellant
National
Proscecuting Authority,
for the respondent
