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

HH47-12 : THE STATE vs CASPER MANUWA
Ruled By: HUNGWE J and MAVANGIRA J

It is trite that sentencing discretion is generally the trial court's. The authorities are clear that an Appeal Court may only interfere in circumstances where the lower court has misdirected itself or where the sentence appealed against is unduly harsh or so severe as to induce a sense of shock. In his comments to the notice and grounds ...

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA
Ruled By: CHEDA J and MATHONSI J

It is trite law that decisions regarding sentences of inferior courts are discretional and can only be interfered with by superior courts when they are of the view that the said courts have not judiciously exercised their discretion; see Attorney General v Bvuma 1987 (2) ZLR 96 (SC). While this is the legal position, triers of ...

While this is the legal position, triers of facts should bind their consciences in the decision and determination of sentences to be imposed bearing in mind that justice must not only be done but be seen to be done. This court can do no more than disapprove sentences which are either manifestly excessive or lenient and further guide triers of facts as to the correct approach to sentencing. While I cannot advocate a tariff approach to sentencing, triers of facts should adhere to laws regarding sentencing and at the same time strictly adhere to precedents of higher courts.

On the issue of the tariff approach, this was discouraged and criticised in S v Mugwenhe and Another 1991 (2) ZLR 66 (S) where EBRAHIM JA said….,-

“An examination of cases of assault with intent to cause grievous bodily harm lead me to the conclusion that a term of imprisonment is invariably imposed, particularly where the assault causes serious injury and/or disfigurement. The 'tariff' approach to sentence is gaining wider currency, if it is not already firmly ensconsed on our judicial benches. This approach to sentence, while commendable, is not without its drawbacks; the principle one being that it ignores the fact 'that the determination of a sentence in a criminal matter' is preeminently a matter for the discretion of the trial court.

'In the exercise of this discretion, the function of the trial judge has a wide discretion in deciding which factors – I here refer to matters of fact and not of law – should influence him in determining the measure of punishment:' per VAN WINSEN AJA in S v Fazzie and Others 1964 (4) SA 673 (A) at 684A.'”

The above case captures all the important principles regarding the approach to sentencing….,.

HB79-10 : THE STATE vs PRINCE TIRIVAVI
Ruled By: CHEDA J

While sentencing is invariably the domain of the trial court, sight should not be lost that the court has a duty to impose a sentence that should be viewed by society as just in order to avoid society desperately resorting to self-help. The universally accepted test in our jurisdiction is that justice should not ...

HB93-10 : REGINA MLISA vs THE STATE
Ruled By: CHEDA J and NDOU J

Coming to the sentence, it is trite that this is the domain of the trial court – S v Ramushu SC25-93. I do not see any misdirection on the part of the trial magistrate. The trial magistrate exercised her sentencing discretion judiciously. The appellant must realize that she is being punished for her criminal conduct. She ...

HB140-10 : MANDLA MKOMBO vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

It was argued, on behalf of the appellant, that the sentence imposed induces a sense of shock regard being had to the fact that the appellant is a young first offender who had pleaded guilty to the charge and therefore should have been given a sentence other than imprisonment. Counsel for the appellant suggested that ...

Counsel for the appellant suggested that a sentence of imprisonment suspended on condition the appellant completes hours of community service would meet the justice of the case.

The position of our law is that in sentencing a convicted person, the sentencing court has a discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and in aggravation. For an appellate tribunal to interfere with the trial court's sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H)….,.; S v Ramushu and Others SC25-93.

It is not enough for the appellant to argue that the sentence imposed is too severe because that alone is not a misdirection and the appellate court would not interfere with a sentence merely because it would have come up with a different sentence. In S v Nhumwa SC40-88…, it was stated that -

“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severe than one that the court would have imposed sitting as a court of first instance, this court will not interfere with the discretion of the sentencing court.”

See also S v Mundowa 1998 (2) ZLR 392 (H)…., and S v De Jager and Another 1965 (2) SA 616 (A)…,.

As already stated, the court has the sentencing discretion and the appeal court does not have a general discretion to modify the sentences of trial courts. It will only interfere where the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have come up with it.

In the case before us, the trial magistrate considered all the factors in mitigation and concluded that they were outweighed by the aggravation, namely, that the appellant was employed to guard the employers' property but chose to steal the very same property he was employed to guard. I do not consider that the effective sentence of 2 ½ years is too severe either.

The appellant has failed to show any irregularity or misdirection as would vitiate the sentence imposed by the trial court. I therefore come to the conclusion that the appeal is without merit. Accordingly, it is dismissed.

HH39-13 : THE STATE vs VITER MAKUMBE
Ruled By: HUNGWE J and MAVANGIRA J

While appeal courts are reluctant or slow to interfere with a trial court's sentencing discretion, they will readily do so in circumstances where the sentence imposed is disturbingly inappropriate or the sentencing discretion has been exercised capriciously or upon the wrong principles. S v Ncube Anor 1983 (2) ZLR 1; S v Gono ...

In casu, as the appellant was convicted of a statutory offence, the trial court ought to have been guided in its assessment of an appropriate sentence by the penalty provisions of the contravened Act. The sentence imposed by the trial court does not fall within the range of sentences stipulated by the relevant provision of the Road Traffic Act [Chapter 13:11]. As the appellant was not driving a heavy vehicle or a commuter omnibus, even if imprisonment might have been found to be appropriate, he ought not to have been sentenced to a period of imprisonment that exceeds 6 months. In S v Harington 1988 (2) ZLR 344…, DUMBUTSHENA CJ stated -

“The Legislature prescribed a sentence of twenty-five years' imprisonment as a maximum penalty for contravening s3 of the Official Secrets Act. It is the ceiling of a range of sentences which a court may impose for a contravention of the section.”

At 359H he also stated:

“Fairness and justice exclude a passionate approach to sentencing. Courts should also, when assessing sentence, avoid insensitivity to one side or an exaggerated sense of the wrong done to society.”

He proceeded at 360c:

“Fairness does not exclude the element of mercy and it does not also exclude a robust approach to sentencing.”

DUMBUTSHENA CJ further stated…., that what had gone wrong in that case was that the leaned Judge President in the court below had pitched his sights too high and scanned sights far beyond the ambit of section 3.

In casu, the learned trial magistrate passed an incompetent sentence. She erred and the sentence must, and, therefore, will, for that reason be set aside.

In her reasons for sentence, the learned trial magistrate said that she attached “little weight to the (appellant's) plea of guilty which is not a sign of contrition but rather had no other option but to so plead because the negligence was so gross and glaring.” In S v Sidat 1997 (1) ZLR 487 (S) McNALLY JA said…, -

“…, a plea of guilty must be recognised for what it is - a valuable contribution towards the effective and efficient administration of justice. It must be made clear to offenders that a plea of guilty, while not absolving them, is something which will be rewarded. Otherwise, again, why plead guilty?”

Further, in S v Mpofu (2) 1985 (1) ZLR 285 REYNOLDS J stated.., -

“…,. What a plea of guilty does accomplish, though, is to contribute to the smooth and efficient administration of the system of criminal justice…,. But, in the first respect mentioned, the plea merits recognition and credit to an extent. It is a fact that a significant portion of offenders, although knowing full well that they are guilty of a crime charged, still hotly protest their innocence. It is by no means uncommon for such persons to attack the bona fides and veracity of the most honest and impartial of witnesses, to prolong trials extensively and unnecessarily, to concoct specious and spurious defences, and generally to cause a considerable waste of public time and money. This is against public interest. I believe that it is more for this reason than any other, such as the so called automatic right based on a supposed declaration of contrition, that the courts generally allow an offender some mitigation of sentence if he pleads guilty. In this way, such an offender is encouraged to adopt the more honest and laudable procedure of making a clean breast of his culpability and of facing up to the consequences of his misconduct.”

In casu, the trial magistrate appears to have unduly minimised the value of or the weight to be attached to the appellant's plea of guilty. This led to a miscarriage of justice, moreso when viewed in light of her imposing a sentence that is not only outside, but also in excess, of the permissible maximum in matters where imprisonment is found to be appropriate.

It appears that the trial magistrate gave excessive devotion to the need for the court to “register its displeasure by imposing stiffer penalties and in the process further proceeded to not only impose an unduly harsh sentence but also went on to irregularly “outshoot” the applicable and pertinent penalty provision.

As rightly submitted by the State, the offence as well as the conviction of the appellant occurred in 2008 and whatever the message was intended to get to the appellant has been received by now.

HB31-11 : MPHOKUHLE NCUBE vs THE STATE
Ruled By: NDOU J and CHEDA J

It is a settled principle of our law that the Appeal Court will not normally interfere with the sentence of a court a quo unless the sentence imposed is manifestly excessive so as to induce a sense of shock or is vitiated by irregularity or misdirection. See S v Ramushu SC25-93. The fact ...

HB53-13 : THE STATE vs RODRICK DUBE
Ruled By: MAKONESE J AND CHEDA AJ

In S v Nhumwa SC40-88, KORSAH J…, said:“It is not for the appeal court to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severer than ...

HB75-11 : HUSSEIN NOOR vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

The sentence might have been on the steep side. This court may have imposed a somewhat different sentence had it been the trial court. That, however, is no reason for this court to interfere with judicial discretion properly exercised. The appellant did not suggest that the sentence was excessive so as to warrant interference by this ...

HB156-11 : SIPHIWE MAPHOSA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

The appellant has asked this court to disturb the sentence imposed as she views it as being unduly harsh in the circumstances. The general rule with regards to sentences is that, the appeal court is slow to upset a sentence by the court a quo as that is the domain of the trial court unless ...

HB161-11 : JAMPION MPANDE vs THE STATE
Ruled By: NDOU J and MATHONSI J

The sentencing court has a discretion in assessing sentence and the appeal court will only interfere with that sentencing discretion where there is a misdirection or the sentence imposed is manifestly excessive. S v Chiweshe 1996 (1) ZLR 425 (H)…,; S v Ramushu SC25-93; S v Nhumwa SC40-88; and Mkombo v The State HB140-10. In ...

HB172-11 : CAIN NCUBE vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

The sentence that was imposed falls squarely within the trial magistrate's sentencing discretion. It is not for the appeal court to interfere with the sentencing discretion of the trial court merely on the ground that it might have come up with a different sentence. If the sentence complies with relevant principles, even if it ...

HH84-15 : EDMORE CHAGONDA vs THE STATE
Ruled By: HUNGWE J and BERE J

In order for this court to interfere with the sentence imposed, an appellant must show that there are good grounds to do so. The mere fact that the sentencing court did not consider an alternative such as community service, standing alone, cannot be good ground to interfere if the sentence imposed is within the general discretion ...

SC54-15 : COLGATE DUFFEN MUDENDA vs THE STATE
Ruled By: MALABA DCJ, GUVAVA JA and TAKUVA AJA

The task of the Appellate Court is to determine the question whether the court a quo misdirected itself in the finding of facts and application of the law in terms of which it was required to act at the time of sentencing.

HB250-16 : ANANIAS MANJORO vs THE STATE
Ruled By: MAKONESE J

It is trite law that sentencing discretion is that of the court a quo and the Appellate Court is reluctant to interfere with that discretion in the absence of a misdirection. See the case of S v Nhumwa SC40-88.

HH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

The grounds for review are set out in section 27(1) of the High Court Act [Chapter 7:06] as follows: “(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned; (b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the ...

The grounds for review are set out in section 27(1) of the High Court Act [Chapter 7:06] as follows:

“(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

The issue that falls for consideration…, is; what are the circumstances in which it is appropriate to interfere with the exercise of discretion by a judicial officer (in this case sentencing discretion), on the basis of gross irregularity in the proceedings or decision?

The following dicta of the Supreme Court related to the exercise of judicial discretion in a civil appeal. In my view, any exercise of judicial discretion, whether on review or appeal, which is brought up for assessment of propriety by a higher court, should be held up to the following standard:

“The exercise of this discretion may only be interfered with on limited grounds. It is not enough that the Appellate Court thinks that it would have taken a different course from the trial court. It must appear that some error had been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant considerations to affect its decision, making mistakes of facts or not taking into account relevant considerations.” Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S).

In order for us to interfere with the sentence we must find a misdirection on the part of the trial court….,.

We are not at liberty to substitute the exercise of discretion by the trial court with our own discretion just because we would have come to a different conclusion. There is nothing in the record of proceedings that was placed before us which convinces us that there were any gross irregularities in the exercise of sentencing jurisdiction by the trial magistrate.

HB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

It is trite that sentencing is the prerogative of the sentencing court and the Appellate Court is generally loathe to interfere unless there exists a clear injustice or misdirection.

HB54-15 : DAVID SIBANDA vs THE STATE
Ruled By: KAMOCHA J and MOYO J

In the case of S v Sibanda HB37-10…, the learned judge in that case commented thus:- “It is trite law that decisions regarding sentences of the inferior courts are discretional and can only be interfered with by superior courts when they are of the view that the said courts have ...

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was charged with the crime of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] together with one Stanley Musendo (“Musendo”).During the trial, the appellant was the second accused. Despite their pleas of not guilty, they were both convicted as charged ...

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

The applicants apply for bail pending appeal against both conviction and sentence.The applicants were convicted of “murder with constructive intention” as defined in section 47(1)(b) of the Criminal Law Codification and Reform Act [Chapter 9:23] by MWAYERA J sitting with Assessors on 31 May 2017 in the High Court, Harare….,.As ...

HH218-15 : THE STATE vs MUSIIWA MUNINGA
Ruled By: MWAYERA J

The record was referred for review by the Regional Magistrate who held the opinion that the sentence imposed by the trial magistrate was too lenient for the offence of assault where an axe was used.

The accused was properly convicted on his own plea by the trial magistrate.

The accused was charged with assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged, by the State, that on 7 November 2014, at Chinditi Village in Gutu, the accused unlawfully struck Sinodia Mugauri once with an axe on the left hand palm intending to cause bodily harm or realizing that there was a real risk or possibility that bodily harm might result.

It is apparent from the Statement of the Agreed Facts that the accused is a son in law to the complainant. It is common cause that on the day in question the accused, who had partaken of alcohol, was argumentative. He did not set out primarily to attack his mother-in-law but that when he failed to catch up with Olonzia Maguira and Tafadzwa Shata, who was trying to restrain him, that is when he struck the complainant, who was standing on the doorway, in the palm.

Given the circumstances of the case, the fact that the accused pleaded guilty, and the part of the body struck, the trial magistrate correctly considered mitigatory factors.

What is outstandingly aggravatory in this matter is the fact that the accused struck his mother in law for no apparent reason and that he used a lethal weapon - an axe. Also, as per the medical report, although it was one blow, the force was severe and the complainant sustained severe permanent injuries.

Given these aggravatory factors and mitigatory factors, I find no fault in the exercise of sentencing discretion by the trial magistrate. Indeed, a custodial term was called for.

The trial magistrate sentenced the accused to eight months imprisonment of which three months imprisonment was suspended for 5 years on the usual conditions of good behavior. This leaves an effective sentence of five months imprisonment.

The Regional Magistrate opinioned that the sentence is too lenient.

I must hasten to point out that only when the sentencing discretion is improperly exercised should the trial court's decision be tempered with.

In the circumstances of this case, where the accused, in a drunken state, struck his mother in law once because the person he was chasing had fled and the accused pleaded guilty showing contrition, I find no reason for implying misdirection on the sentencing discretion by the trial court.

The trend of this court has been to discourage the tendency to regard all cases of violence as deserving of imprisonment. See the State v Dangarembwa ZLR (2) 2003…,.; S v Matiza HH599-08; S v Hondokanayakunda & Ors HH58-89; and S v Simbarashe Chaendera & Ors HH114-14.

It is important to note that in cases where there is use of violence on the person of another the sentencing court has to, inter alia, consider the nature of assault, whether or not there was a weapon used, the degree and extent of force, the part of the body to which the assault was directed together with the nature and extent of injury.

In the present case, the distinguishable aspect is that a lethal weapon, an axe, was used albeit blow was directed on the palm. The injuries were serious and the offence indeed deserving of a custodial term. The trial court properly weighed the mitigatory and aggravatory factors to come up with an appropriate sentence.

In any event, given the totality of the circumstances of the matter, the courts, in administering justice, should not be seen to further widen the gap in relationships which ought to be cordial. The accused and the complainant are son-in-law and mother in law respectively. Room for forging ahead has to be given.

The trial magistrate properly weighed the nature of offence, the offender, the societal interests, and the interests of justice. The sentencing court should endeavor to rehabilitate an offender as opposed to breaking him....,.

I find no reason to interfere with the trial court's decision. The proceedings are in accordance with real and substantial justice and are accordingly confirmed.

HB158-17 : EDDY RUZIVE vs THE STATE
Ruled By: MATHONSI J and MAKONESE J

On 4 November 2016, the appellant, who at the time was a teacher at Simana Primary School in Silobela, must have seen people sleeping at a Bank queue outside CABS Building in Gweru and lost his senses in anger.

As the complainant, a police officer, was passing by, and in police uniform, the appellant vented his anger on him.

He grabbed the police officer from behind, and, when the officer turned, he held him by the collar while saying a few unkind words. For his troubles the appellant was charged with assaulting a Peace Officer in contravention of section 176 of the Criminal Law Code [Chapter 9:23].

When he appeared before a magistrate at Gweru, on 10 November 2016, he had already apologized to the complainant who had then submitted an affidavit withdrawing charges against the appellant.

The State, and indeed the trial magistrate, would have none of it. They proceeded with the criminal prosecution of the appellant as if nothing had happened.

He pleaded guilty to the charge. Upon conviction, the appellant was sentenced to 12 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition of future good behaviour, leaving him with an effective imprisonment term of 6 months.

Even after settling for that term of imprisonment the trial magistrate did not see the wisdom of conducting an inquiry into the suitability of community service. In fact, the phrase “community service” does not appear anywhere in the record and is only mentioned for the first time in his response to the grounds of appeal.

The appellant has appealed against the sentence on the grounds, inter alia, that the sentence is manifestly excessive and induces a sense of shock, the court a quo overlooked the fact that the penal provision for such an offence provides for the imposition of a fine and that the court a quo paid lip service to the weighty mitigating factors that existed.

The State has conceded that the sentence was inappropriate and that it should be interfered with giving valid reasons.

This is a case in which the trial magistrate got completely carried away, allowed emotions to get the better of him and to cloud his judgment, and, in the process, the dispassionate, and indeed, objective approach to sentencing expected of him as a judicial officer became the biggest causality.

This is what he said as he succumbed to flights of fancy;

“However, in aggravation, I will consider that this offence is on the increase and there is need for personal and general deterrence. Police are becoming targets of citizens' pent up unjustified provocation. The complainant was in police uniform. He was ridiculed and impaired his dignity and self-esteem in public. Accused knew he was a police officer but throttled him. It should be a taboo to our citizens that police officers should not be targets for assault as they have become endangered species at the instance of restless citizens who are intoxicated not only with liquor but unjustified anger.”

Don't ask me where the magistrate got the notion that assaults on police officers is on the increase, or that they are becoming targets of unjustified provocation, or, indeed, that police officers are now an endangered species because I also do not know.

It is certainly not in the record, and it is not a matter that is in the public domain. In fact, it may be safe to say that those are factors stored in the mind of the court itself.

In addition, the allegation that the citizens of this country are restless is something the court may have done well to explain and justify before using it against the appellant.

I am also unable to reconcile the aspect of holding a person by the collar and throttling. If that was the court's understanding of the facts perhaps it should have called for evidence to be led by the witnesses in order to gather sufficient pre-sentencing information instead of using imagination to fill in gaps that existed in the State Outline.

Whichever way, it is accepted that a judicial officer is entitled to express disapproval of an accused person's conduct in assessing an appropriate sentence, but, that must not only be guarded, it must always be relevant and based on substantive facts not imaginary circumstances. The kind of extravagant and emotional language employed by the trial court is certainly inconsistent with the dispassionate and objective approach to sentencing expected of a court of law; see S v Mahati 1988 (1) ZLR 190 (H).

More importantly, it betrays a glaring misdirection calling for interference with the sentence because, clearly, the appellant was subjected to an injustice when the court exaggerated the seriousness of the offence and then imposed a sentence that was disproportionate to the offence.

Apart from that, it is the sentencing policy of the courts in this jurisdiction that where the court settles for a sentence of imprisonment which is 24 months and below, the court is required, as a matter of principle, to conduct an inquiry into the suitability of community service as an option. This has been stated on times without number but magistrates always turn a blind eye to it. The sooner magistrates appreciated that they have no discretion in that regard the better for everyone. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Mbizvo and Others HB258-16; S v Mpofu HB45-17.

It is a misdirection not to consider community service in those circumstances.

Further to that, it has also been stated over and over again that where a statute provides for a sentence of a fine, or, alternatively, imprisonment, the court must give serious consideration first and foremost to the imposition of a fine and reserve imprisonment for the most serious infractions or repeat offenders. See S v Chawanda 1996 (2) ZLR 8 (H)…,.; S v Zuva 2014 (1) ZLR 15 (H)…,.; S v Sikhosana and Others HB25-17.

This cannot be said to be one of those serious offences of assaulting a police officer.

The appellant only held him by the collar. Whatever injury he suffered must have taken the form of injuria or wounded pride and nothing more. Therefore, the infraction could not possibly attract a prison term. A moderate fine would meet the justice of the case.

In the result, it is ordered that:

(1) The appeal against sentence is hereby upheld.

(2) The sentence of the court a quo is set aside and substituted with the following sentence:

“A fine of $50, or, in default of payment, 1 month imprisonment. In addition, 2 months imprisonment which is wholly suspended for 3 years on condition the appellant does not commit an offence involving assaulting a police officer for which, upon conviction, he is sentenced to imprisonment without the option of a fine.”

HB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

The appellant, a parent at Mawaba Primary School in Bulawayo, was convicted by the Magistrates Court sitting at Western Commonage, on 21 October 2015, of contempt of court in contravention of section 182(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He was sentenced to 9 months imprisonment of which 4 months imprisonment was suspended for 5 years on condition of future good behaviour.

He was aggrieved by that outcome and noted an appeal to this court against both conviction and sentence.

In respect of conviction, he took the view that the court a quo erred in returning a verdict of guilty when the evidence did not establish that a crime had been committed. The decision of the court a quo was so grossly unreasonable in its defiance of logic that a reasonable court could not have possibly arrived at it. The decision exhibits bias on the part of the court a quo against the appellant. The decision infringes upon his constitutional right to freedom of speech and association.

Regarding sentence, the appellant challenged it on the basis that it induces a sense of shock and is out of line with the general sentencing trends for the offence in question especially as the justice of the case called for the imposition of a sentence other than a custodial one.

On 6 November 2014, the appellant, as first respondent, had appeared before a magistrate sitting at Western Commonage in an application for a binding over order made by Morrinah Dhlamini, the headmistress of the school, in terms of section 388 of the Criminal Procedure and Evidence Act [Chapter 9:07] against the appellant and three other people. The court issued a peace order against them to wit;

“It is ordered that 1st, 2nd and 3rd respondents:

1. Should keep peace towards applicant.

2. Should not disturb school activities at Mawaba Primary School.

3. Should not hinder the applicant from running or exercising her duties as the headmistress of Mawaba Primary School.

4. Threaten applicant in any way.

4th respondent;

5. To keep peace towards the applicant.”

While that court order was still operational, the applicant attended a meeting at the school convened by the headmistress for parents on 23 September 2015. The State alleged that during that meeting the appellant ignored the agenda of the meeting and started to air his grievances complaining bitterly as to why himself and the other three persons had been insulted by being taken to court. He allegedly insulted the chairperson. This led to a chaotic situation as a result of which the meeting was aborted.

For his troubles, the appellant was dragged before the Magistrates Court for breaching section 182(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Penal Code). Paragraph (e) of subsection (2) provides that a person may impair the dignity, reputation, or authority of a court by knowingly contravening or failing to comply with any order of a court which is given during or in respect of judicial proceedings and with which it is his or her duty to comply.

It is trite that the subject has a duty to bow to the decision of the court, and, where there exists a remedy, to then pursue that remedy in court. This is proper for the administration of justice. The dignity of the courts of law should never be demeaned or undermined.

The State led evidence at the trial from Morrinah Dhlamini, the headmistress at Mawaba Primary School, who told the court that she is the one who convened the meeting. During deliberations, the appellant started shouting at the chairperson saying he should tell the parents why he and his colleagues had been taken to court for a Peace Order. He told the chairperson that he should not hide behind the Bible. In the process, the appellant disrupted the meeting which could not continue after that. According to Morrinah Dhlamini, the appellant took a tangent casting aside the agenda to complain about the Peace Order that had been taken against him and others.

Nkosana Mazibisa, who was chairing the meeting, also testified on behalf of the State. He stated that during deliberations the appellant deviated from the field of discourse and started attacking him saying he was lying to parents and accusing him of having dragged him to court. That way he violated the Peace Order.

Counsel for the appellant submitted that the appellant was entitled to attend the meeting as a parent and made contributions during the meeting at the invitation of the chairperson. For that reason he did not commit an offence.

I do not agree.

The evidence showed that the appellant was not interested in the items on agenda but was bent on fighting the court order which had been made against him. What he said was not on the agenda. He verbally abused the chairperson accusing him of being a liar.

This is a meeting which had been called by the headmistress of the school with a Peace Order in her favour. His conduct was disruptive and had the effect of disturbing a school activity. He was contemptuous of a court order made against him. We are therefore unable to find any misdirection on the conviction which was proper as the State managed to prove its case beyond a reasonable doubt.

It is however the sentence of imprisonment, without the option of a fine, which was a misdirection.

The concession made by counsel for the State, that the failure by the court a quo to consider any non-custodial sentence because contempt of court is a serious offence was a misdirection of monumental proportions, was properly made.

The moment the court a quo settled for an effective imprisonment of five (5) months, that brought the matter within the community service grid. The court was therefore required to embark on the exercise of inquiring into the suitability of community service as an option. It had no discretion in that regard. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Mbizvo and Others HB258-16.

In addition, the penal provision in section 182 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a fine not exceeding Level 6 or imprisonment.

Subsection (1) of section 182 of the Criminal Law (Codification and Reform) Act provides:

“Any person who, by any act or omission, impairs the dignity, reputation or authority of a court —

(a) Intending to do so; or

(b) Realizing that there is a real risk or possibility that his or her act or omission may have such an effect;

shall be guilty of contempt of court and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.”

This court has repeatedly stated that where the statute provides for a sentence of a fine or alternatively imprisonment, the court must give serious consideration to the option of a fine and reserve imprisonment for the most serious infractions or repeat offenders. See S v Zuva 2014 (1) ZLR 15 (H)…,; S v Chawanda 1996 (2) ZLR 8 (H)…,; S v Sikhosana and Others HB25-17.

The appellant is a first offender who is married with three children. He should have been sentenced to a fine.

We have been told that he was in prison for a period of two weeks before being granted bail pending appeal. Taking into account all those factors, it is ordered that:

(1) The appeal against conviction is hereby dismissed.

(2) The appeal against sentence is upheld and the sentence of the court a quo is quashed and in its place is substituted the following sentence:

“The appellant shall pay a fine of $20, or, in default of payment, 10 days imprisonment.”

HB25-17 : THE STATE vs ZIBUSISO SIKHOSANA and BRIAN MBEWE and MARVELLOUS NDLOVU
Ruled By: MATHONSI J and TAKUVA J

The three youthful accused persons were arraigned before a Provincial Magistrate at Western Commonage on two counts of extortion in contravention of section 134(1)(a) and (b) of the Criminal Law Code [Chapter 9:23].

They pleaded guilty to the charge, and, upon conviction, they were each sentenced to 5 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition of future good behaviour. Of the remaining 4 years imprisonment, 1 year was suspended on condition they jointly and severally, the one paying the others to be absolved, restituted the complainants the sums of $50 and $20 respectively on or before 31 January 2017.

There is nothing wrong with the conviction which will be confirmed. It is the sentence which induces a sense of shock and should be interfered with.

The facts are that on 2 November 2016 the three had masqueraded as police officers at the intersection of Masiyephambili Road and Nketa Drive in Bulawayo and extorted $50 from the complainant in Count One and $20 from the complainant in Count Two, while threatening to impound their motor vehicles.

In arriving at the sentence, the court accepted that all three of them were first offenders, they were drunk, and had pleaded guilty.

In my view, the learned trial magistrate however misdirected himself in reasoning that:

“This is a clear act of dragging the Zimbabwe Republic Police through mud as the nation will lose confidence in the force.”

These were not police officers but criminally-minded civilians.

The nation cannot possibly lose confidence in the police force because of their conduct. In reasoning that way, the court unwittingly sentenced the accused persons as police officers and not as ordinary civilians - which explains the unduly harsh sentence that it settled for.

In terms of section 134(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23];

“Any person who —

(a) Intentionally exerts illegitimate pressure on another person with the purpose of extracting an advantage, whether for himself or herself or for some other person, and whether or not it is due to him or her, from that other person, or causing that other person loss; and

(b) By means of the illegitimate pressure, obtains the advantage or causes the loss;

shall be guilty of extortion and liable to —

(i) A fine not exceeding level thirteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or

(ii) Imprisonment for a period not exceeding fifteen years or both.”

It is now settled in this jurisdiction that where the statute provides for a sentence of a fine or alternatively imprisonment, the court must give serious consideration to the option of a fine and reserve imprisonment for the most serious of such an offence or repeat offenders. See S v Zuva 2014(1) ZLR 15 (H)…,; S v Tshuma HB302-16.

That point is succinctly stated by MALABA J…, in S v Chawanda 1996 (2) ZLR 8 (H)…, where the learned judge said:

“The authority for the proposition that where a statute provided for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to the imposition of a fine, particularly on a first offender, is found in the case of S v Muhenyere HB03-92 cited by the accused's legal practitioner.

At page 3 of the judgment in Muhenyere's case supra BLACKIE J, with the concurrence of CHEDA J, quoted with approval from the decisions in the cases of S v Rutsvara SC02-89 and S v Van Jaarsveld HC110-90.

The learned judge said:

'It is trite that where the statute lays down a monetary penalty as well as a period of imprisonment the court must give consideration to the imposition of a fine. It would normally reserve imprisonment for bad cases…,. In statutory offences permitting the imposition of a fine, the normal sentence for a first offender is a fine unless the offence is particularly serious or prevalent or there would be serious consequences if the deterrent of imprisonment is not used.'”

I completely associate myself with the foregoing pronouncements.

I must also add that the economic realities of this country, at the moment, demand that there should be strict adherence to those sentencing guidelines - especially where first offenders are concerned. This is because it is a fact that prisons are overcrowded; prisoners are afflicted by disease and the State is struggling not only to maintain the prisoners but also feed inmates as it has no money. For that reason, it only makes sense, in cases involving first offenders convicted of minor offences, to lean in favour of other sentencing options.

Sentencing courts should not approach sentencing with a closed mind.

This is a case in which the penal provision being applied allowed the sentencer to impose a fine.

The offenders were youthful first offenders who committed the offence under the influence of intoxicating liquor. They only extorted a total of $70 which is no doubt a very small amount. Of that amount, $50 had already been repaid to the complainant at the time of their conviction.

Taking into account the totality of those factors, the accused persons should have been sentenced to a fine or community service.

The sentence imposed by the trial court does not fit the offence neither does it fit the offenders. It is unduly harsh and uncalled for, and, in arriving at it, the trial court misdirected itself as already stated.

Considering that the accused persons have already served almost three (3) months which they should not have been subjected to, and with the gracious concurrence of my brother TAKUVA J, the sentence will be altered in order for them to be released immediately.

In the result, it is ordered that;

1. The conviction of the three accused persons is hereby confirmed.

2. The sentence is hereby set aside and in its place is substituted the following sentence:

“Each of the 3 accused persons is sentenced to 12 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition they do not, during that period, commit any offence involving dishonesty for which upon conviction they are sentenced to imprisonment without the option of a fine. Of the remaining 6 months imprisonment, 3 and a half months is suspended on condition they jointly and severally restitute the two complainants of the total sum of $70 on or before 28 February 2017.”

2. As the three accused persons have already served 2 and a half months, they are entitled to their immediate release.

HB302-16 : THE STATE vs LAMECK TSHUMA
Ruled By: MATHONSI J and MOYO J

This matter was placed before me for automatic review in terms of section 57(1) of the Magistrates Court Act [Chapter 7:10].

In undertaking that exercise, the reviewing judge and the trial magistrate are a tag team serving the same purpose, that of ensuring that justice is done and that the accused person receives fair treatment. See S v Mhondiwa HB193-11; S v Shava HB200-11.

The process of review benefits both the accused person and the trial magistrate as the reviewing judge is expected, in the process of correcting errors that may be committed by the trial magistrate in the agony of the moment, to give guidance to the magistrate. In that regard, both judicial officers should take the exercise seriously in order to achieve a “win-win” situation as opposed to a “win-lose” or “lose-lose” situation.

Automatic review is not designed to render the business of adjudication by magistrates a serious professional hazard or a ruinous undertaking. Neither is it supposed to be hazardous to the reviewing judge because one of the actors decides to be impervious to the discourse.

The 52 year old accused person was convicted of poaching, in contravention of section 59(2)(a) of the Parks and Wildlife Act [Chapter 20:14]. He put up 35 snares at Dollar Block Range Farm in the Inyathi area of Matabeleland North and caught an impala.

He was arraigned before a magistrate on circuit at Inyathi and pleaded guilty to the charge, and, upon conviction, he was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition of future good behaviour. This left him with an effective 18 months imprisonment which presented some disquiet to me when the matter came for review.

I queried the sentence in a letter to the trial magistrate dated 27 September 2016 which reads, in relevant part, thus:

“Subsection (5) of section 59 is the penal provision and it reads:

'Any person who contravenes subsection (2) or (3) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.'

Clearly, therefore, the sentence of 24 months is incompetent.

I would have simply interfered with the sentence, but, I would like the trial magistrate to comment on the following issues:

1. There is more than sufficient case law that where a statute provides for a sentence of a fine and imprisonment, the court must first and foremost give effect to the sentence of a fine and reserve imprisonment for the most serious aberrations and/or repeat offenders.

The accused, having been a very poor first offender who caught an impala, why could he not be given the lighter sentence?

2. There is again more than sufficient case law that where the effective imprisonment sentence is less than 2 years, the court must consider community service as an alternative to imprisonment.

Where, after considering community service, the court is of the view that it is inappropriate, it must record both the inquiry and the reasons for rejecting it.

There is nothing in the record to suggest that the exercise was undertaken.”

Perhaps I should not have bothered raising that query with the trial magistrate.

Either, because he did not bother to read the query or if he did he did not apply his mind to the issues raised, his response, which unfortunately was penned almost a month later, on 25 October 2016, is exceedingly unhelpful.

He stated:

“REVIEW MINUTE: STATE V LAMECK TSHUMA: CRB INY 286-16

Kindly place the record of proceedings before the learned Mathonsi J.

I acknowledge receipt of your minute dated 27 September 2016. I found a sentence of imprisonment appropriate due to the prevalence of poaching cases which are a national concern.

Also aggravatory was that accused had set 35 other wire snares which could have led or had a potential to the poaching of 35 other animals. Surely, if our heritage were poached at this rate they would face extinction.

I did not consider community service as it would have trivialized the offence accused is facing.

I found that a custodial sentence would deter like minded elements of the society which could be a measure in preserving our heritage. However, I always stand guided by the learned judge.”

Apart from the fact that the argument advanced by the trial magistrate, that a deterrent sentence or exemplary sentence is just as the court must make an example of the accused person by punishing him more severely than he deserves so as to persuade others to desist from acting in a similar manner, is specious and fallacious in the extreme - that argument did not address the issues raised in my query.

For a start, the penal section provides for a maximum imprisonment sentence of 12 months, but, the magistrate settled for 24 months and an effective sentence of 18 months.

As much as it is settled in our jurisdiction that the determination of sentence is eminently a matter for the discretion of the trial court, that principle does not repose a discretion in the trial court which is outside the provisions of the enabling statute.

In its wisdom, the legislature which criminalized the act of poaching under section 59 imposed an imprisonment term not exceeding 12 months. There is no way the trial court can exercise jurisdiction not given to it by the enabling statute.

Secondly, the trial magistrate completely ignores the issue that where a statute provides for a sentence of a fine or imprisonment the court must first give effect to a fine.

In S v Zuva 2014 (1) ZLR 15 (H)…, I made reference to the judgment of MALABA J…, in S v Chawanda 1996 (2) ZLR 8 (H)…, where the court remarked:

“The authority for the proposition that where a statute provided for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to the imposition of a fine, particularly on a first offender, is found in the case of S v Muhenyere HB31-92 cited by the accused's legal practitioner.

At page 3 of the judgment in Muhenyere's case supra BLACKIE J, with the concurrence of CHEDA J, quoted with approval from the decisions in the cases of S v Rutsvara SC02-89 and S v Van Jaarsveld HC110-90. The learned judge said:

'It is trite that where the statute lays down a monetary penalty as well as a period of imprisonment the court must give consideration to the imposition of a fine. It would normally reserve imprisonment for bad cases…,.

In statutory offences permitting the imposition of a fine, the normal sentence for a first offender is a fine unless the offence is particularly serious or prevalent or there would be serious consequences if the deterrent of imprisonment is not used.'”

In a country afflicted by a devastating elnino-induced drought and widespread unemployment owing to a debilitating economic meltdown, where people have been reduced to hunter-gatherers, poaching an impala may be the ultimate activity for one to irk out a living or to survive.

It remains an offence which must be penalized; but, one cannot say that society has a sense of revulsion for such an offence and courts of law should not elevate it to a status not accorded to it by both statute and society.

Thirdly, there is the issue of community service.

The trial magistrate must attempt to grasp the guidelines on that type of sentencing given in a line of cases coming out of the superior courts instead of just groping in the dark when there is case law which binds him which has settled the issue. See S v Mabhena 1996 (1) ZLR 134 (H)…,; S v Antonio and Others 1998 (2) ZLR 64 (H); S v Chireyi & Others 2011 (1) ZLR 254 (H)…,.

These authorities make it mandatory for a trial magistrate who has settled for an effective prison term of 24 months or less to inquire into the suitability of community service as a sentencing option in respect of a first offender. The magistrate simply has no choice and cannot be heard to say he did not consider community service as it would have trivialised the offence. The inquiry is mandatory and it must appear on the record.

This is not to say that the magistrate may not opt out of the imposition of community service but that anyone reading the record must be able to see that an inquiry was conducted.

If, following such an inquiry, the magistrate comes to the conclusion that it is inappropriate, and that imprisonment is the proper sentence, he or she must give proper reasons for the decision which must also appear ex facie the record. See S v Ndlovu HB267-16.

There was therefore a misdirection because, by his own admission, the magistrate did not bother to consider community service even though he settled for an effective imprisonment sentence of 18 months.

Having said that, I must state that there is this readiness on the part of magistrates to jump for imprisonment sentences - which is shocking indeed. It would appear that for some magistrates justice can only be achieved by sending an offender to prison even for the smallest of crimes. It is a kind of habit which is at variance with the needs of society and does not even respond to the economic realities of this country.

The fact that prisons are hopelessly overcrowded, prisoners are afflicted by disease, the State is struggling to maintain prisons and feed inmates and simply has no money, are factors which have gained notoriety.

Against that background it is therefore surprising that we have a magistracy which is impervious to decisions of superior courts calling for alternative sentences, but remain rooted in one place.

This is a matter in which the accused person should have been given community service because the sentence should not have exceeded 12 months; he is a first offender who should be kept out of prison; he pleaded guilty and should have been rewarded for the guilty plea.

More importantly, he was shown to be very poor and committed the offence out of need as opposed to greed.

A prison term served no useful purpose.

Considering that he has been in prison since 12 August 2016 that should be enough punishment. I will therefore alter the sentence to an effective 2 months imprisonment in recognition of the period he has served.

In the result, it is ordered that:

1. The conviction of the accused person is hereby confirmed.

2. The sentence is set aside and substituted with the following sentence:

“12 months imprisonment of which 10 months imprisonment is suspended for 3 years on condition the accused does not within that period commit any offence involving illegal hunting for which, upon conviction, he is sentenced to imprisonment without the option of a fine.

In addition, the snares are forfeited to the State for destruction.”

HB267-16 : NJABULO NDLOVU vs THE STATE
Ruled By: MATHONSI J

The applicant is a 36 year old school teacher at Gwanda High School. He was caught red-handed by his wife while in a compromising position with another woman at the family A1 Stand in Matshetsheni, Gwanda on 5 June 2016.

When he left his wife at their residence, at Gwanda High School, he had claimed to be going to town when in fact he was going on a tryst with a girlfriend. Upon being accosted by his wife, Semziwe Mafu, there was an altercation as the applicant shielded his girlfriend by locking her in the house. He then pushed his wife sending her reeling to the ground where she fell on a stone and sustained injuries. He is said to have also assaulted the complainant although he denied it initially.

Whatever the case, he took advantage of the incapacitation of the complainant to take his girlfriend in a motor vehicle before driving off.

The applicant was charged with physical abuse in contravention of section 3(1)(a) as read with section 4 of the Domestic Violence Act [Chapter 5:16].

When he appeared before a magistrate at Gwanda he pleaded guilty.

Upon conviction, he was sentenced, on 15 September 2016, to 24 months imprisonment of which 4 months imprisonment was suspended for 5 years on condition of future good behaviour, despite the fact that he is a first offender who pleaded guilty, a family man, and the sole breadwinner for his wife and two minor children.

He was so sentenced even though he had apologized profusely to his wife and even paid compensation in the form of a beast for his indiscretions.

He was also footing her medical bills.

The applicant has appealed against both conviction (despite the guilty plea) and sentence.

The appeal against sentence is grounded, inter alia, on the fact that the trial court did not bother to consider community service even though he qualified for community service.

He now approaches this court seeking his admission to bail pending appeal.

In pleading his case, the applicant has stated that, as a family person and a teacher who was on bail pending trial and sentence, he is unlikely to abscond. This is particularly so considering that his appeal has good prospects of success. In light of the now well documented bottlenecks and delays in appeal procedure, he may serve the entire sentence or a good part of it before the appeal is heard which will be prejudicial to him should the appeal succeed.

The application is strongly opposed by the State on essentially two grounds, namely;

(i) That there are no prospects of success on appeal; and

(ii) That the applicant is likely to abscond.

While I agree that the appeal against conviction enjoys no prospects of success given the guilty plea, I do not agree that the sentence may not be interfered with.

I must add that, to his credit, counsel for the applicant abandoned the appeal against conviction.

The concern of the court, in a bail application of this nature, is to ensure that the due administration of justice will not be prejudiced. If a real possibility exists that the administration of justice would be prejudiced by the admission of the applicant to bail, bail should be denied.

Usually, there a risk to the administration of justice associated with a readiness to abscond where the chances of success of the appeal are dim. An applicant for bail who knows he is unlikely to succeed may be inspired to take flight in order to avoid serving a term of imprisonment.

In the present matter, the sentencer settled for an effective imprisonment term of 20 months against what was clearly a contrite first offender who had done everything to appease his wronged wife.

Having settled for such sentence, the sentencer was required, in terms of a series of authorities from this court which are binding on magistrates, but which they studiously ignore quite often, to consider the suitability of community service as a sentencing option. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Mabhena 1996 (1) ZLR 134 (H)…,; S v Chireyi and Others 2011 (1) ZLR 254 (H)…,.

If, following an inquiry into the suitability of community service, the sentencer forms an opinion that it is inappropriate, and that imprisonment is the proper sentence, he or she must record the inquiry and give proper reasons for that decision which must appear on the record. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Chinzenze and Others 1998 (1) ZLR 470 (H); S v Silume HB12-16.

No inquiry was carried out and reasons for rejecting community service are not apparent from the record.

Instead, the magistrate appears to have been emotional about the matter going on and on about the applicant not having been “remorseful” that as a teacher his behaviour “sends a bad message” to the community and that the injuries suffered by the complainant “are life threatening” - a finding not supported by the facts, and, indeed, the medical evidence.

In view of that, I am satisfied that there was a misdirection on sentence. The Appeal Court will therefore be at large to interfere with the sentence.

Therein lies the applicant's bright prospects of success on appeal. There is therefore merit in the application for bail pending appeal.

Accordingly, it is ordered that:

1. The applicant be and is hereby admitted to bail pending appeal on the following conditions; that

(a) He deposits a sum of US$100 with the Registrar of the High Court in Bulawayo.

(b) He resides at House Number L Gwanda High School until the appeal is finalized.

(c) He reports once every fortnight at ZRP Gwanda on Fridays between 0600 and 1800 hours.

SC114-21 : TONGAI JINDU vs THE STATE
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018. At the conclusion of hearing of the appeal we dismissed ...

This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018.

At the conclusion of hearing of the appeal we dismissed the appeal against both conviction and sentence. We indicated that reasons will follow in due course. These are our reasons.

FACTUAL BACKGROUND

The appellant was arraigned before the High Court (court a quo) sitting at Bulawayo facing two counts of murder committed in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the Code) in aggravating circumstances.

The allegations were, that, in January 2017, on two separate dates, the appellant shot and killed Mboneli Joko Ncube and Cyprian Kadzurunga who were his friends.

In the first Count, on 12 January 2017, the appellant picked up his neighbour Mboneli Joko Ncube and one Terence Kajese outside Alasko Supermarket at the corner of Robert Mugabe Way and 11th Avenue in Bulawayo. The appellant was driving his Nissan Gloria motor vehicle registration number ACV 8914. The appellant drove with the two to Burnside where he dropped off Terence after which he drove to Hillside Shopping Centre with Mboneli. The two thereafter drove to number 13 West Mount Road, Burnside, Bulawayo, where, upon arrival, the appellant drew an Optima shotgun serial number 13752 from his motor vehicle and shot Mboneli Joko Ncube twice on the chest.

The deceased died on the spot

After gunning down the deceased, the appellant mutilated his body into various parts before burying some of the dismembered parts in four different shallow graves at that property. He took some of the parts away.

On the second Count, the allegations were that, on 29 January 2017, in the afternoon, the appellant visited the deceased at his home in Queenspark, Bulawayo. The two then left that home on a walk as friends. As the two were walking along a footpath linking Glengary and Queenspark East in Bulawayo, the appellant, again, armed with the same Optima shotgun which he used to shoot Mboneli Joko Ncube, shot Cyprian Kadzurunga twice on the head and abdomen causing his death.

Thereafter, the appellant robbed the deceased of his LG cell phone and Asus laptop which items he later tasked another individual to sell.

The appellant then ferried the body of the deceased in a wheelbarrow to his motor vehicle where he bundled the body into the boot of his motor vehicle before driving to number 13 West Mount Road, Burnside, Bulawayo. When he arrived there, he again buried the body at that address after hiring two individuals to dig a shallow grave which he misled them to believe was for other innocuous purposes. The appellant also took some body parts before burying the body in the shallow grave.

The appellant's defence was to the effect, that, when he killed both deceased persons, he was drinking alcohol, injecting himself with heroine, and also taking crystal meth. It was his defence that he was intoxicated during the commission of the offences.

In the first Count, as he was in the company of the deceased he felt an urge to kill someone and he was of the belief that if he did so he would get crazy. He also indicated, that, after committing the second offence, under the alleged intoxication, he later became sad and regretful for what he had done.

In its detailed analysis of the evidence, the court a quo found, that, the appellant had given contradictory testimony.

In respect of the first Count, the account given in his Defence Outline differed materially from the one he gave in his evidence in chief.

In his evidence in chief, he stated, that, he went to the shops to meet a drug dealer from whom he got heroine and crystal meth. He wanted a convenient, discreet place to take the drugs and the deceased advised him to go to Number 13 West Mount Road, Burnside, Bulawayo where he claimed he then took the drugs and got high.

He claimed, that, after taking the drugs, he started seeing “Lucifer” who then instructed him to kill the deceased, cut up the body, and consume the liver.

He went on to say, that, he did a number of things upon Lucifer's command. It was no longer his own desire to get crazy upon killing someone - per his Defence Outline.

Similar contradictions were noted in respect of the second Count.

He now said he was working under the command of Lucifer - yet this was not in his Defence Outline.

The court a quo also noted, that, under cross examination, the appellant refused to answer critical questions alleging that he had made a pact with Lucifer never to tell anyone.

The court a quo also noted, that, it was not in dispute that the appellant shot and killed the two deceased persons. His only defence was that he did it upon the devil's instruction and he was under the influence of drugs hence his claim that he was mentally unstable at the material time.

The insanity defence was thrown out on the basis, that, the appellant was examined, on 16 November 2017, at the instance of the court itself, and the medical practitioners who examined him concluded that he was fully alert and oriented in all aspects; and that he was mentally stable and fit to stand trial.

The court a quo threw out the appellant's defence and found him guilty of murder with actual intent.

It found, that, the murders were committed in aggravating circumstances that immensely outweighed the mitigatory circumstances. It sentenced him to death in terms of section 47(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as read with section 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07]....,.

The appellant's appeal also related to the sentence imposed by the court a quo.

The court a quo sentenced the appellant to death after considering the manner in which he executed the crimes....,.

In Muhomba v The State SC57-13…, MALABA DCJ…, reiterated that:

“On the question of sentence, it has been said, time and again, that, sentencing is a matter for the exercise of discretion by the trial court. The Appellate Court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the Appellate Court to interfere with the sentence and assess it afresh. The allegation, in this case, is that the sentence imposed is unduly harsh and induces a sense of shock.”

It is not enough for the appellant to argue, that, the sentence imposed is too severe because that alone is not misdirection and the Appellate Court would not interfere with a sentence merely because it would have come up with a different sentence.

In S v Nhumwa SC40-88 (unreported)…, this court stated that:

“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is more severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.”

In casu, the appellant has not shown that the court a quo did not exercise its discretion judiciously.

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions....,.

As for the appeal against sentence, the appellant submitted, that, the sentence imposed against the appellant was manifestly excessive.

A sentence is excessive if it is considerably lengthier than the usual sentences imposed by the courts for a similar offence.

As indicated at the outset of this judgment, the appellant was sentenced to 14 years imprisonment of which 4 years was suspended on the usual conditions.

In his reasons for sentence, the learned magistrate emphasized the aggravating features in the matter before him and took into account the relevant mitigatory features of the case. He correctly found that the age of the complainant weighed heavily against any favourable consideration which the court might have decided to credit him with.

She was 11 years only.

Besides, he was her uncle and society naturally expected him to protect her rather than abuse her. He abused the trust that the complainant reposed in him both as an adult and a relative through consanguinity.

The sentencing court took into account the usual aggravating features and correctly weighed them against the mitigatory features in the case. It cannot, in my view, be said he erred in settling on the sentence that he eventually passed.

We were not referred to any case which could indicate the harshness complained of in this case.

The Criminal Law Code permits for the imposition of life imprisonment in deserving cases.

In an appeal against sentence, the test is whether the sentencing court, in the exercise of its sentencing discretion, erred or misdirected itself by taking into account irrelevant issues or failing to pay due regard to those issues it was obliged to consider. Such matters may take the form of exceeding the sentencing jurisdiction, omitting a statutorily provided step, and so on.

I did not hear counsel for the appellant argue that any of the above errors had been committed in the present matter.

The argument relied on the harshness of the sentence imposed.

I pose to observe, that, I do not find anything outstandingly unusual in the sentence imposed in this case. It is within the range imposed in similar cases. As such, there is no basis for this court to interfere with the sentence.

In light of this finding, the appeal against sentence is therefore dismissed.

HB55-15 : SURPRISE NCUBE vs THE STATE
Ruled By: MUTEMA J and MOYO J

Sentencing is the prerogative of the trial court and appeal courts would intervene sparingly with such prerogative only in those cases where the trial court would clearly have misdirected itself.

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

An integral part of the adjudication process is the exercise of discretion. It is done judiciously.

Whim, caprice, impulse, irrationality, excitability, emotion, and all the other negative urges or passions of that nature have no role.

There are many instances when the court is called upon to exercise its discretion. But, it is mostly in sentencing, in criminal matters, that that function is so pronounced.

Ordinarily the doctrine of stare decisis ensures, that, like cases are treated alike. In appropriate situations, a precedent set in one case should be followed in all other subsequent cases of a similar nature. But, this is only to a degree. Every case is judged in accordance with the peculiarities of its own facts and circumstances; and strictly speaking, there are no two cases that are exactly alike.

That is why, in sentencing, for example, penalties may differ from case to case despite the similarities on the face of them. It is because of the subtle differences that may exist between seemingly similar cases and the exercise of judicial discretion by the trial court.

Because of that, the Appeal Court or Review Judge, exercises the greatest of restraint before interfering with the decision of the lower court. There are times when the Appeal Court or Review Judge feels that he could have imposed a different penalty from that of the trial court, but, nevertheless, refrains from interfering because of the realisation that the lower court is reposed with the power to exercise its own discretion. Only in instances where the exercise of that discretion by the lower court was not judicious would the Appeal Court or Review Judge interfere.

This particular case is a good example of an injudicious exercise of discretion.

It was an ordinary case of unlawful entry and theft. The accused was 21 years old. He “broke into” the complainant's residence. He did not “break in” in the sense of using force to break down any barrier. He simply pushed open the door and walked in. It was unlocked.

That was Count 1: “Unlawful entry into premises” as defined by section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

Inside the complainant's residence, the accused stole 5 kilogrammes of mealie meal, a pack of potatoes, a t-shirt, and a pair of shorts. The total value of all the items stolen was $53. The short was recovered. It was worth $10. Thus, $43 was the actual value of the prejudice to the complainant.

That was Count 2 of the charge: “Theft” as defined in section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The accused pleaded guilty to both counts. He was duly convicted. The conviction is proper. It is hereby confirmed.

On sentence, the trial court took both Counts as one.

The accused was sentenced to 16 months imprisonment; 4 months were suspended for 5 years on the usual condition of good behaviour; a further 2 months were suspended on condition the accused paid the complainant $40 restitution (it should have been $43).

That left him with an effective 10 months imprisonment.

An effective 10 months imprisonment for unlawful entry into premises and theft of items to the value of $53 seemed unduly excessive.

Ordinarily, offenders in similar circumstances escape with community service.

So, the record attracted my attention. I sought to find out what it is that had led the trial court to be so harsh. What could have been the peculiar circumstances of the case?

I found nothing other than plain misdirection by the court. Below are the details.

The accused was a first offender. The trial court made no mention of this.

He was married and had one child. The trial court said nothing about this either.

He was a pushcart operator earning $60 per month on average. His savings or assets amounted to just $15 and 5 goats. Asked why he stole, he said he had no money. Asked where he had put the items that he had stolen, he said he had used/consumed them, but, that he was willing to pay compensation.

By all accounts, the accused was a poor man. He stole the food items to eat. The clothes, he wore them. It was the pair of shorts that gave him away. He was putting them on when he was arrested. He had just been 8 months in the business of cart pushing.

Poverty does not justify crime.

If you are poor and you steal to feed or clothe yourself you are offending. The law will convict you. It will judge you. It will punish you.

But, your sentence should fit you and your crime. That is where judicial discretion comes in. That, partly explains why one sentence in one case may differ from the other in another case seemingly of a similar nature.

It was clear the accused did not steal out of greed or malice. He stole out of need. The problem is that the trial court took no account at all of any of his personal circumstances. Not in the least did it comment on them. So, there is no telling to what extent its sentence was influenced, if at all it was, by the fact that the accused was a first offender; that he had several mouths to feed; that he had pleaded guilty and saved time, and, above all, that he had shown contrition by offering to pay the complainant compensation.

That was part of the misdirection by the court a quo.

The other and more serious misdirection by the court a quo is what it took into account in arriving at the sentence.

Without commenting on the personal circumstances of the accused, the trial court went straight to express what should amount to its personal prejudices or whims. It said:

“The offence of unlawful entry is a threat to the security of home owners. Burglars are dangerous criminals. For unlawful entry, even first offenders can be sent to imprisonment. It's an offence which takes so much courage to commit. The complainant lost $40 worth of goods. It was only out of good fortune that he lost less. But, this does not take away the fact that accused must be sent to jail.”

The next bit of the court's judgment is rather shocking.

The accused was sent to prison because the court thought the approaching festive season would be so tempting for him as to re-offend. It said:

“The approach of [the] festive season is a time where most homes will be left unattended. During the festive season, the accused must be away from the neighbourhood. The court simply feels imprisonment is the most appropriate sentence.”

There is no principle like that.

It was wrong for the court to allow itself to be influenced by such a consideration, especially given, that, neither had there been any evidence of such placed before it, nor of the prosecutor having made such a submission.

Ordinarily, community service is to be considered in appropriate cases where the court imposes an effective prison term of 24 months or less.

The court a quo did consider it.

But, it ruled against it for reasons alien to precedence. The court thought community service is for immature juvenile offenders only. It said:

“I would have considered community service had the accused been 18–19yrs old. At the age of 21, the accused could not be said to be immature.”

That was wrong.

Community service is not determined by the age of the offender. Courts should follow precedence.

In conclusion, the court went back to its favourite theme of the approaching festive season. It said:

“The court has also taken note of the prevalence of the offence in this district. Deterrence is called for. Accused must be removed from society during this festive so that homes and homeowners property are safe; the accused may repeat offend during this festive season which is a tempting period for burglars.”

The wrongness of such an approach sticks out. There is no need to belabour the point. It is hoped the court a quo learns something from this.

Its sentence in this matter has to be quashed.

Even the sixteen months was excessive to begin with.

Admittedly, Count 1 (unlawful entry into premises) was committed in aggravating circumstances in the sense, that, the accused entered a dwelling house (section 131(1)(a) of the Code, as read with subsection (2)(a)) and that he committed some other crime, theft (section 131(1)(a) of the Code, as read with subsection (2)(e)).

The Criminal Law (Codification and Reform) Act (the Code) prescribes a sentence of a fine not exceeding level thirteen ($3,000), or not exceeding twice the value of any property stolen, destroyed, or damaged by the accused (in this case, $43), whichever is the greater; or imprisonment for a period not exceeding 15 years, or both.

For Count 2 (theft), the prescribed penalty is a fine not exceeding level 14 ($5,000), or, twice the value of the property stolen, whichever is the greater, or imprisonment for a period not exceeding 25 years (section 113(1) of the Code).

However, the court is empowered to suspend the whole or any part of the sentence of imprisonment on condition that the accused restores the property stolen by him or pays the complainant compensation.

In its discretion, the court a quo treated the two Counts as one for the purposes of sentence. It could properly do that.

Admittedly, the top ends of the prescribed penalties for both of these offences are very heavy. But, that is to cater for all the possible ranges of unlawful entry and theft.

Prison should not have entered the court's mind.

One cardinal principle of sentencing is to keep first offenders out of jail where possible, especially youthful ones such as the accused was.

And, as pointed out above, the court had the discretion to suspend the whole of the sentence for theft on condition of restitution.

Furthermore, where a statute allows the payment of a fine for an offence should be the starting point for the court.

Having combined the two Counts for the purposes of sentence, and given the value involved, and given all the other mitigating circumstances such as the accused's age; his family responsibilities; the fact that he pleaded guilty; that he was a first offender; and the contrition that he showed, the appropriate sentence should have been no more than 6 months imprisonment, with 3 suspended on condition of good behaviour, 2 suspended on condition of restitution and the remaining 1 month converted to community service.

Up to the time of this judgment, the accused had already served a month of his sentence. He should be entitled to his immediate release.

In the circumstances, it is hereby ordered and directed as follows:

(i) The conviction of the accused is hereby confirmed.

(ii) The sentence of the court a quo is hereby quashed and substituted with 6 months imprisonment, of which 3 months imprisonment is suspended for 5 years on condition that within that period, the accused is not convicted of an offence involving unlawful entry into premises, or dishonesty for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. A further 2 months imprisonment is suspended on condition that the accused pays the complainant restitution in the sum of $43 within 30 days of the date of this judgment.

(iii) Having already served one month of the prison sentence, the accused is entitled to his immediate release.

(iv) The court a quo is hereby directed to summon the accused and put into effect the aforesaid altered sentence.

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

This is an appeal in respect of both the conviction and sentence.

The appellant was convicted, after a protracted trial, by the Magistrate sitting at Chivi on 1 July 2019 and he was represented by counsel for the appellant.

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 4 years imprisonment of which 1 year imprisonment was conditionally suspended for 5 years on the usual conditions of good behaviour. A further 1 year was suspended on condition the appellant paid restitution in the sum of US$471 and RTGS133=21 through the Clerk of Court at Chivi on or before 31 August 2019.

The appellant has to serve an effect sentence of 2 years imprisonment....,.

The appellant was jointly charged with three other accomplices Cordination Magavhe, aged 28 years, residing at Chivi Growth Point; Babra Masvosvere, aged 20 years, residing in Beitbridge; and Shelter Ezra, aged 28 years, residing at Chivi Growth Point.

The other three accomplices, Cordination Magavhe, Babra Masvosvere and Shelter Ezra pleaded guilty to the charge and each was sentenced in the same manner as the appellant....,.

In relation to sentence, the court a quo gave very cogent reasons as why an effective custodial sentence was appropriate.

I share the same view, that, the option of community service is wholly inappropriate in this case.

All the four culprits were given similar sentences in line with the principle of uniformity in treating accomplices in the absence of any objective factors to distinguish their sentences or to treat them differently.

The moral blameworthiness of the appellant is very high in this case and deserves severe censure.

This was a well-planned and executed criminal act of fraud. There was an element of planning and premeditation. A number of people were involved who played different roles to ensure success of the criminal enterprise. It was a gang offence, involving team work. The appellant derived benefit from his criminal conduct and was properly degorged of such benefit by being ordered to pay restitution.

As a first offender, part of his sentence was suspended on condition of good behaviour.

Even after deciding to exercise his rights, by pleading not guilty to the charge, unlike his accomplices, he was not treated differently.

The company from which the appellant and his colleagues stole from provides an invaluable service to the general public and well-being of our economy.

At the end of the day, a proper balance of the mitigatory and aggravating factors shows, that, the sentence of community service was wholly inappropriate. It would send wrongful and harmful signals to persons of like mind and put the whole criminal justice system into disrepute.

Clearly, the appeal against sentence lacks merit.

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J

The 19-year-old accused, who was a first offender, was convicted of contravening section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to theft.

The agreed facts are that on 21 August 2019, at around 0300 hours, the 41-year-old complainant was involved in a road traffic accident at the 37km peg along the Chivu–Gutu road and got seriously injured. The accused, and one Jonathan Chikoromondo, witnessed the accident and rushed to the scene. The accused did not help any of the injured persons. Instead, the accused and his colleague, Jonathan Chikoromondo, opened the driver's door and stole US4,200= which they later shared.

Nothing was recovered.

The accused was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of good behaviour leaving an effective prison term of 18 months.

What pricked my judicial conscience is the fact that the 19-year-old accused is not only a youthful, first offender, but, is currently in Form Four at Chiriga Secondary School.

The implication of an effective prison term is that the accused is no longer attending school thus ruining his future. Currently, other pupils are busy writing their examinations.

There is no doubt that the accused's moral blameworthiness is very high. The accused exhibited a very high degree of cruelty. He decided not to help the injured complainant but to steal the money. Such conduct is immoral and deserves censure.

Be that as it may, some degree of leniency was required.

The accused is a youthful first offender. He is no longer attending school as he was incarcerated. There was an element of sudden temptation when he saw the cash.

It was not probed as to where exactly the cash was in the motor vehicle. It is not clear how much the accused got as his share of the loot. The trial court did not inquire as to how the accused used the money.

It is not clear as to who is older between the accused and Jonathan Chikoromondo in order to exclude the possibility of peer pressure.

The trial magistrate concedes, that, he did not carry out a proper inquiry into all these factors to enable him to properly assess the sentence.

This constitutes a misdirection.

Further, the sentence of 24 months imprisonment is rather severe in view of the accused's age, the amount involved, and other mitigatory factors.

This matter calls for my immediate intervention to enable the accused to continue with his education.

I shall direct the trial magistrate to immediately call the accused from prison and to carry out a proper inquiry into community service and sentence the accused to a sentence of community service.

The trial magistrate should take into account the period the accused has already served in prison from 9 September 2019 and also that he is attending school and possibly writing examinations in couching the community service order especially the period he would be expected to perform community service.

As he is still a school pupil, it is unwise to order restitution.

In the result, I make the following order;

1. The sentence of 24 months imposed by the trial court is set aside in its entirety and is substituted with the following;

“6 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving dishonesty for which he is sentenced to a term of imprisonment without the option of a fine.

The remainder of 3 months is suspended on condition the accused performs the equivalent hours of community service work at an appropriate institution on the usual conditions.”

2. The matter is remitted to the trial magistrate, or, in his absence, to any other magistrate to carry out an inquiry in compliance with paragraph (1) above. The period accused has already served should be taken into account in computing the hours of community service work to be performed for the 3 months.

The above order should be complied without delay to ensure the accused is not further prejudiced.

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellants lodged the present appeal against sentence imposed by the court a quo.

The appellants were both convicted of two counts of assault as defined in section 189 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; and, secondly, convicted of indicating a witch or wizard as defined in section 99 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

For assault, the accused were each sentenced to 12 months imprisonment of which 3 months were suspended on usual conditions of good behaviour.

The salient facts of the State case were that the appellants and other relatives at a funeral resisted the traditional way of passing condolences by shaking hands. The complainant stretched her hand to console the appellants at a funeral and was rebuffed; following which, the appellants labelled the complainant a witch responsible for causing the death of their niece.

After indicating the complainant a witch, the appellants went outside and retrieved a log with which to assault the complainant.

The complainant escaped to a nearby bush but was followed by the appellants. The first appellant struck the complainant with an iron bar on the brow bone causing injuries and bleeding from the eye, nose, and mouth. The second appellant also struck the complainant on the back collarbone. The two then dragged the appellant back to the yard where there was a crowd and they wanted to throw the complainant in the fire. The complainant was rescued by other women and made good her escape.

The appellants were further charged and convicted of assaulting Christopher Magaya, the husband of the complainant in Count 1 and 2, when he sought to intervene and rescue his wife.

For imputation as a wizard or witch, in contravention of section 99 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the appellants were each sentenced to pay a fine of $200, or, in default of payment, 30 days.

They did not raise any qualms.

For the two counts for which an effective prison term was imposed, the appellants raised two (2) grounds of appeal as follows:

“1. The trial magistrate erred and misdirected herself in exercise of her sentencing discretion by failing to conduct an inquiry into the appropriateness of community service in circumstances where she settled for a prison term of less than 24 months.

2. The court a quo erred and misdirected itself in its approach to the issue of community service, a real and substantial form of punishment. The trial court misdirected itself by sentencing the appellants to a custodial sentence.”

A perusal of the record of proceedings from the court a quo reveal the trial court did consider community service but discarded it as inappropriate given the nature of assault.

To the extent that community service and a fine were not viewed as appropriate, the trial court cannot be said to have erred in not considering the other sentencing options.

The first ground of appeal seems to suggest, that, the court had to carry out the community service placement enquiry because the sentence imposed is less than 24 months.

That the sentences fall within the community service grid should not be misconstrued to take away the court's sentencing discretion.

The trial court is, however, expected to judiciously exercise its sentencing discretion and come up with an appropriate sentence.

It is not for the Community Service's Officer to come up with the final decision of whether or not community service is appropriate in the circumstances. The Community Service Officer may recommend the suitability or otherwise of a probationer, but remains his opinion, and, it's not binding on the sentencing court.

What is important, though, is that, in the exercise of the sentencing discretion, the trial court, upon considering an appropriate sentence, must, and shall, give reasons for discarding one form of sentence given the circumstances.

The court a quo cannot be faulted for not requesting the carrying out of a community service enquiry for it did not consider community service as appropriate given the nature of the assault visited on an elderly woman by the two appellants - who used an iron bar and log interchangeably.

However, the trial court's failure to outline reasons for not imposing community service is an anomaly which amounts to a misdirection.

The second ground of appeal speaks to improper exercise of sentencing discretion, whereby, the court a quo is said to have misdirected itself by imposing an effective prison custodial sentence where circumstances warranted imposition of other sentencing options, like a fine and/or community service.

The penalty provisions for the offence of assault provides for the option of a fine.

It is settled, that, where the penalty provisions provides for the option of a fine, then, imprisonment should only be considered as a last resort for the very bad cases.

It would be a misdirection to start off at the deep end and impose imprisonment without giving due weight to the sentencing option so provided by statute.

There has to be clear, compelling reasons justifying imprisonment.

MATHONSI J, in S v Mulauzi HB159-16 emphasised, that, where a statute provides for a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration first and foremost to a fine.

See also S v Ncube 1989 (2) ZLR 232 in which it was held that:

“Whenever possible ,and more particularly, where the imposition of a fine is a permissible penalty, a fine should be considered before imprisonment. Only when the facts are such that a fine is inappropriate should imprisonment be considered. First offenders, in particular, should be kept out of prison as much as possible…,.”

See also S v Dzotizei HH126-14.

In this case, both accused are first offenders who pleaded guilty to an offence of assault, in which, according to the penalty provisions, a fine is permissible.

The complainant, an old woman, was seriously injured, but, the medical evidence is clear that there was no potential danger to life and there was no permanent injuries or disabilities occasioned.

The nature of injuries occasioned, when viewed together with the plea of guilty and the motive or reasons behind the commission of the offences, in this case, ought to have exercised the mind of the court a quo in considering the appropriate sentence.

In this case, the court a quo did not give regard to the circumstances surrounding the commission of the offence; whereas, it is not a defence to have a strong belief in witchcraft, the mitigatory nature of such deep rooted belief, especially amongst the rural folk, cannot be whisked away as it goes to the centre of the motive to commit the crime.

The belief in witchcraft, in the circumstances, although not reducing criminal liability, in that the belief is not a defence, it certainly qualifies as mitigatory and as a factor reducing the moral blameworthiness of the appellants.

The belief in witchcraft is what motivated the appellants to commit the crime, and, given the rural set-up, such belief is not foreign and would appropriately weigh in as mitigatory: see S v Techu and Others HH271-15 and S v Misimo and Others HH358-17.

Cultural beliefs can motivate commission of offences, and, where such is the case, the sentencing court should not ignore the impact on reduction of the moral blameworthiness of the appellants.

Such reduction of moral blameworthiness, brought about by the belief in witchcraft, ought to have been considered as mitigatory, together with the plea of guilty and the fact that the appellants are first offenders ,cumulatively considered, ought to have weighed heavily in favour of upholding the option of a fine as provided for by the penalty provision.

On belief in witchcraft being mitigatory, section 101 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is instructive. It states:

“It shall not be a defence to murder, assault, or any other crime, that, the accused was actuated by a genuine belief that the victim was a witch or wizard, but, a court convicting such person may take such belief into account when imposing sentence upon him or her for the crime.”

See also S v Hamunakwadi ZLR (1) 2015 392 and S v Musimo and Others HH358-17.

In my view, the underpinning principle in considering the belief in witchcraft as mitigatory emanates from the general trend, that, witchcraft accusations are almost always preceded by tension and conflict within the family, village, and on community at large. Emotions and tempers flare in communities in which witchcraft beliefs are deep rooted.

In my view, it would not be proper to ignore the background while at the same time not condoning the criminal infringement.

The belief tends to minimise the moral blameworthiness – albeit, not reducing the criminal liability.

In the present case, therefore, the sentencing court, in exercising its sentencing discretion, misdirected itself by not giving regard to the sentencing provision which is clear.

Section 189(1)(a) of the Criminal Law (Codification and Reform) Act reads:

“Any person who commits an assault upon another person intends to cause that other person bodily harm, or realising there is a real risk or possibility that bodily harm may result, shall be guilty of assault and liable to a fine up to exceeding level fourteen (14) or imprisonment for a period not exceeding ten years or both.”

That sentencing provision, when considered together with the circumstances of the commission of the offence, and all the other mitigatory factors, speaks loudly of the need to explore other sentencing options and not imprisonment.

The sentencing discretion was not properly exercised thus warranting interference by this court.

It is accordingly ordered that:

1. The appeal against sentence in respect of Count 2 and 3 be and is hereby upheld.

2. The custodial sentence imposed by the court a quo is set aside and substituted as follows:

Both counts as one for sentence. Each accused is to pay RTGS$500 or in default of payment 3 months imprisonment.

In addition, 6 months imprisonment wholly suspended for 5 years on condition accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

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Law Portal
Zimbabwe

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

HH47-12 : THE STATE vs CASPER MANUWA
Ruled By: HUNGWE J and MAVANGIRA J

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA
Ruled By: CHEDA J and MATHONSI J

HB79-10 : THE STATE vs PRINCE TIRIVAVI
Ruled By: CHEDA J

HB93-10 : REGINA MLISA vs THE STATE
Ruled By: CHEDA J and NDOU J

HB140-10 : MANDLA MKOMBO vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HH39-13 : THE STATE vs VITER MAKUMBE
Ruled By: HUNGWE J and MAVANGIRA J

HB31-11 : MPHOKUHLE NCUBE vs THE STATE
Ruled By: NDOU J and CHEDA J

HB53-13 : THE STATE vs RODRICK DUBE
Ruled By: MAKONESE J AND CHEDA AJ

HB75-11 : HUSSEIN NOOR vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HB156-11 : SIPHIWE MAPHOSA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

HB161-11 : JAMPION MPANDE vs THE STATE
Ruled By: NDOU J and MATHONSI J

HB172-11 : CAIN NCUBE vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HH84-15 : EDMORE CHAGONDA vs THE STATE
Ruled By: HUNGWE J and BERE J

SC54-15 : COLGATE DUFFEN MUDENDA vs THE STATE
Ruled By: MALABA DCJ, GUVAVA JA and TAKUVA AJA

HB250-16 : ANANIAS MANJORO vs THE STATE
Ruled By: MAKONESE J

HH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

HB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

HB54-15 : DAVID SIBANDA vs THE STATE
Ruled By: KAMOCHA J and MOYO J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

HH218-15 : THE STATE vs MUSIIWA MUNINGA
Ruled By: MWAYERA J

HB158-17 : EDDY RUZIVE vs THE STATE
Ruled By: MATHONSI J and MAKONESE J

HB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

HB25-17 : THE STATE vs ZIBUSISO SIKHOSANA and BRIAN MBEWE and MARVELLOUS NDLOVU
Ruled By: MATHONSI J and TAKUVA J

HB302-16 : THE STATE vs LAMECK TSHUMA
Ruled By: MATHONSI J and MOYO J

HB267-16 : NJABULO NDLOVU vs THE STATE
Ruled By: MATHONSI J

SC114-21 : TONGAI JINDU vs THE STATE
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

HB55-15 : SURPRISE NCUBE vs THE STATE
Ruled By: MUTEMA J and MOYO J

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

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Law Portal Zimbabwe

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

HH47-12 : THE STATE vs CASPER MANUWA Ruled By: HUNGWE J and MAVANGIRA J

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA Ruled By: CHEDA J and MATHONSI J

HB79-10 : THE STATE vs PRINCE TIRIVAVI Ruled By: CHEDA J

HB93-10 : REGINA MLISA vs THE STATE Ruled By: CHEDA J and NDOU J

HB140-10 : MANDLA MKOMBO vs THE STATE Ruled By: KAMOCHA J and MATHONSI J

HH39-13 : THE STATE vs VITER MAKUMBE Ruled By: HUNGWE J and MAVANGIRA J

HB31-11 : MPHOKUHLE NCUBE vs THE STATE Ruled By: NDOU J and CHEDA J

HB53-13 : THE STATE vs RODRICK DUBE Ruled By: MAKONESE J AND CHEDA AJ

HB75-11 : HUSSEIN NOOR vs THE STATE Ruled By: KAMOCHA J and MATHONSI J

HB156-11 : SIPHIWE MAPHOSA vs THE STATE Ruled By: KAMOCHA J and CHEDA J

HB161-11 : JAMPION MPANDE vs THE STATE Ruled By: NDOU J and MATHONSI J

HB172-11 : CAIN NCUBE vs THE STATE Ruled By: KAMOCHA J and MATHONSI J

HH84-15 : EDMORE CHAGONDA vs THE STATE Ruled By: HUNGWE J and BERE J

SC54-15 : COLGATE DUFFEN MUDENDA vs THE STATE Ruled By: MALABA DCJ, GUVAVA JA and TAKUVA AJA

HB250-16 : ANANIAS MANJORO vs THE STATE Ruled By: MAKONESE J

HH167-15 : STATE vs ALLEN GUDYANGA Ruled By: CHIGUMBA J

HB89-15 : EDNA SIBANDA vs THE STATE Ruled By: MUTEMA J and MOYO J

HB54-15 : DAVID SIBANDA vs THE STATE Ruled By: KAMOCHA J and MOYO J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE Ruled By: HUNGWE J and BERE J

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA Ruled By: CHITAPI J

HH218-15 : THE STATE vs MUSIIWA MUNINGA Ruled By: MWAYERA J

HB158-17 : EDDY RUZIVE vs THE STATE Ruled By: MATHONSI J and MAKONESE J

HB45-17 : MBONGENI MPOFU vs THE STATE Ruled By: MATHONSI J and TAKUVA J

HB25-17 : THE STATE vs ZIBUSISO SIKHOSANA and BRIAN MBEWE and MARVELLOUS NDLOVU Ruled By: MATHONSI J and TAKUVA J

HB302-16 : THE STATE vs LAMECK TSHUMA Ruled By: MATHONSI J and MOYO J

HB267-16 : NJABULO NDLOVU vs THE STATE Ruled By: MATHONSI J

SC114-21 : TONGAI JINDU vs THE STATE Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO J

HB55-15 : SURPRISE NCUBE vs THE STATE Ruled By: MUTEMA J and MOYO J

HMA03-19 : STATE vs JOHANIS MUKWENA Ruled By: MAFUSIRE J and MAWADZE J

HMA48-19 : PROSPER CHITANGA vs THE STATE Ruled By: MAWADZE J and WAMAMBO J

HMA49-19 : THE STATE vs TAMBAOGA DOVI Ruled By: MAWADZE J and WAMAMBO J

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

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Zimbabwe

HH47-12 : THE STATE vs CASPER MANUWA
Ruled By: HUNGWE J and MAVANGIRA J

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA
Ruled By: CHEDA J and MATHONSI J

HB79-10 : THE STATE vs PRINCE TIRIVAVI
Ruled By: CHEDA J

HB93-10 : REGINA MLISA vs THE STATE
Ruled By: CHEDA J and NDOU J

HB140-10 : MANDLA MKOMBO vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HH39-13 : THE STATE vs VITER MAKUMBE
Ruled By: HUNGWE J and MAVANGIRA J

HB31-11 : MPHOKUHLE NCUBE vs THE STATE
Ruled By: NDOU J and CHEDA J

HB53-13 : THE STATE vs RODRICK DUBE
Ruled By: MAKONESE J AND CHEDA AJ

HB75-11 : HUSSEIN NOOR vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HB156-11 : SIPHIWE MAPHOSA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

HB161-11 : JAMPION MPANDE vs THE STATE
Ruled By: NDOU J and MATHONSI J

HB172-11 : CAIN NCUBE vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HH84-15 : EDMORE CHAGONDA vs THE STATE
Ruled By: HUNGWE J and BERE J

SC54-15 : COLGATE DUFFEN MUDENDA vs THE STATE
Ruled By: MALABA DCJ, GUVAVA JA and TAKUVA AJA

HB250-16 : ANANIAS MANJORO vs THE STATE
Ruled By: MAKONESE J

HH167-15 : STATE vs ALLEN GUDYANGA
Ruled By: CHIGUMBA J

HB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

HB54-15 : DAVID SIBANDA vs THE STATE
Ruled By: KAMOCHA J and MOYO J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

HH218-15 : THE STATE vs MUSIIWA MUNINGA
Ruled By: MWAYERA J

HB158-17 : EDDY RUZIVE vs THE STATE
Ruled By: MATHONSI J and MAKONESE J

HB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

HB25-17 : THE STATE vs ZIBUSISO SIKHOSANA and BRIAN MBEWE and MARVELLOUS NDLOVU
Ruled By: MATHONSI J and TAKUVA J

HB302-16 : THE STATE vs LAMECK TSHUMA
Ruled By: MATHONSI J and MOYO J

HB267-16 : NJABULO NDLOVU vs THE STATE
Ruled By: MATHONSI J

SC114-21 : TONGAI JINDU vs THE STATE
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

HB55-15 : SURPRISE NCUBE vs THE STATE
Ruled By: MUTEMA J and MOYO J

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J