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 un-authorised 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 the appellant pays a fine of $1,000 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.”...,.
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.
The 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 the accused's circumstances. The appellant's counsel, in mitigation before the court a quo, submitted that the motor vehicle was a 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:
(i) 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 US$5,500; or
(ii) Assist the court by proposing value for the repair of damages.
The appellant's legal practitioner left the trial court with no choice.
The value for the loss of the complainant was US$5,500 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.
The 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$5,500 in RTGS currency pegged against the legalised Bank rate of the US$ to RTGS.
The sentence passed by the court a quo, in our view, does not induce a sense of shock at all.
