The appellant was convicted at Mutare for contravening section 93(1)(b), that is, kidnapping or unlawful detention; it being alleged, that, on Saturday 6 August 2019, at Zuva Service Station, near Mutare Polytechnic, Mutare, the appellant lifted and carried Pressly Tafara Mubaiwa, a juvenile, on shoulders and attempted to put him ...
The appellant was convicted at Mutare for contravening section 93(1)(b), that is, kidnapping or unlawful detention; it being alleged, that, on Saturday 6 August 2019, at Zuva Service Station, near Mutare Polytechnic, Mutare, the appellant lifted and carried Pressly Tafara Mubaiwa, a juvenile, on shoulders and attempted to put him in the boot of a Toyota Runx.
He had pleaded not guilty and he was sentenced to 24 months imprisonment; 6 months imprisonment was suspended for 5 years on the usual conditions of future good behaviour.
On 24 September 2019, the appellant noted an appeal against both conviction and sentence and spelt out his grounds of appeal as follows:
“Ad Conviction
1. The learned magistrate erred and misdirected himself both on facts and the law when he failed to consider and appreciate that the appellant, together with his co-accused, had paid an admission fee of guilty fine at the police station and thereby deserved to benefit and obtain protection from the concept of a plea of autrafois convict.
2. The learned magistrate further erred and misdirected herself at law and fact when he convicted only the appellant and acquitted his co-accused yet all the accused had faced the same charge and evidence.
3. The learned magistrate erred and misdirected himself at law when he convicted the appellant when the evidence against him was insufficient to found and support such a verdict.
4. The learned trial magistrate erred and misdirected himself at law when he injudiciously failed to accord the appellant a fair trial.
Ad Sentence
1. The learned magistrate misdirected himself at law when he failed to exercise his sentencing discretion appropriately and properly.
2. The learned magistrate misdirected himself at law when he failed to appreciate that the sentencing provision of the offended section reposed in a sentencing court the option of a fine.
3. The learned trial magistrate erred and misdirected himself at law when he failed to consider community service as an option when he had settled for a term of imprisonment of 24 months.”
The appeal is being opposed by the respondent.
Background
The appellant is aged 25 years and resides at No.79 Josiah Tongogara Street, Palmerstone, Mutare. The complainant is a male juvenile aged 12 years and resides at No.9437 Dream House, Chikanga 3, Mutare. He is a student at Mutare Junior Primary School, Mutare.
The complainant and appellant are strangers to each other.
On 6 April 2019, at around 0645 hours, the complainant and his school mate, Nyasha Chitashara, were on their way to school when suddenly upon their arrival at Zuva Service Station the appellant, who was in the company of three other colleagues, stopped their motor vehicle a couple of meters from where the complainant was.
The appellant opened the door of the motor vehicle from where the complainant was seated in the car and disembarked. The complainant saw him, the appellant broke an empty beer bottle and started running towards where the complainant was shouting “mbavha, mbavha” (thief, thief).
The complainant was shocked and overwhelmed by the fast unfolding of events; he tried to run away, but, unfortunately, he could not go far;,the accused caught up with him, grabbed hold of him, lifted him up, and placed the complainant to his shoulders and carried him away.
The complainant yelled out.
Meanwhile, Nyasha Chitashara ran towards Zuva Service Station.
The appellant took the complainant to where the car was parked, and tried to place the complainant into the boot of the car.
During that process, perchance, the complainant wittingly decided to sink his molars into the hand of the appellant; out of pain, the appellant fortuitously released the complainant, who dropped to the ground and escaped from the appellant.
When Nyasha Chitashara ran towards Zuva Service Station, he spotted a police detail who had gone to the filling station to get fuel; he alerted him. The police detail got into his car and drove to the scene, but he was late, the appellant's co-accused sped off at high speed.
Nyasha was convinced that his school mate was stashed in the boot of the appellant's motor vehicle.
In a Hollywood style, the police detail gave chase but could not apprehend the quartet.
The appellant and his colleagues were subsequently arrested and charged for public nuisance; they all paid a fine.
However, for kidnapping, they were referred to court.
They were prosecuted, and, at the conclusion of the trial, three other co-accused were acquitted and the appellant was convicted....,.
On the aspect of sentence, the appellant submitted, that, the court a quo failed to judiciously exercise its discretion.
We have had the opportunity to scrutinise reasons for sentence preferred by the learned magistrate; we fail to see where the alleged misdirection is.
Counsel for the appellant was asked by this court to fathom for a moment what was going on in the mind of the complainant when the appellant shouted “thief, thief” breaks a beer bottle and run after the complainant; grabbed him and ferry him towards a stationery motor vehicle; and attempted to place him in that boot.
For a child of twelve years, it was an emotionally-packed experience; deep apprehension and scary; which can lead to lifetime hallucinations and nightmares at night.
The conduct of the appellant was reprehensible and terrible to imagine.
Indeed, we agree that the trial court was correct in stating that community service would trivialise the granting of the offence - even if the unlawful detention was for a second. The hallmark of fear left on the complainant is unbearable in our view.
The sentence passed by the court a quo is appropriate and befits the crime.
The appeal against sentence has equally no basis.
