Alert Sibanda v The State

### Preamble
1
HB 18/21
HCB 28/21
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ALERT SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 10 FEBRUARY 2021

Bail Pending Appeal

B Masamvu, for the applicant

B Maphosa, for the respondent

KABASA J:		This is an application for bail pending appeal.  I did not hear the parties as I decided to dispose of the matter on the papers in terms of Practice Direction 2/2021, a Practice Direction put in place in an effort to contain the spread of the corona virus.

The applicant appeared before a Provincial Magistrate sitting at Entumbane charged with one count of unlawful entry committed in aggravating circumstances as defined in section 131 (1) (a) as read with section 131 (2) (e) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  He pleaded guilty to the charge and was duly convicted and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on the usual conditions of good behavior, a further 6 months was suspended on condition of restitution, leaving him with an effective 14 months to serve.

The facts of the matter are these: - The applicant in the company of 2 others, one of whom is yet to be accounted for, went to the complainant’s place of residence on 10th January 2020 at around 0130 hours.  The applicant used an unknown object to force open the window before he and the other two entered the complainant’s house.  They proceeded to take 2 cellphones valued at RTGS 13 500.  The complainant woke up and managed to identify the applicant who ran away on realising that he had been seen by the complainant.  The 2 cell phones were not recovered.

The applicant appeared in court with one of his accomplices who also pleaded guilty and received the same sentence.

In arriving at the sentence the court a quo considered that the applicant, at 23 years old is a youthful first offender who pleaded guilty.  As such some measure of leniency was called for.  6 months was discounted from the sentence the learned Magistrate intended to impose thereby settling for 24 months as the starting point.  Since the applicant benefited from the offence the court a quo decided to suspend a portion of the sentence on condition of restitution.

In aggravation the trial court had this to say:-

“It is aggravatory that the offence has become prevalent and people cannot live in peace but in fear.  Despite their ages I find a community service would not send the desired message to other would be offenders as it trivialises the offence (sic).  A custodial sentence will thus be befitting.”

In seeking bail pending appeal the applicant argues that a non-custodial sentence was appropriate and the court a quo failed to give due weight to the mitigatory factors.  There was over emphasis on the issue of prevalence and general deterrence resulting in a sentence that is wholly destructive.

The applicant further argued that the sentence induces a sense of shock.

In opposing the application, the respondent contended that the appeal has no prospects of success.  The offence committed is a serious one and the court a quo considered the mitigatory and aggravatory factors before arriving at the sentence it imposed.  The exercise of discretion by the court a quo is not afflicted by a misdirection and in the absence of such misdirection an appeal court cannot interfere with the sentence merely because the sentence appears to be somewhat harsh.

In considering this application it is accepted that the presumption of innocence no longer applies.  (State v Kilpin 1978 RLR 282, State v Manyange HH 01-03, State v Poshai HH 89-03).  The applicant’s guilt is also not in issue as the conviction was based on his own plea of guilty.

The factors to be considered in an application for bail pending appeal are these:-

a)	The prospects of success.

b)	The likelihood of the accused absconding in the light of the sentence imposed.

c)	The right of the individual to liberty.

d)	The likely delay before the appeal can be heard.  (State v Dzawo 1998 (1) ZLR 536).

Are there positive grounds in casu to admit the applicant to bail?  Sight must not be lost of the fact that an appeal court ought not to lightly interfere with the discretion reposed in the court a quo when considering sentence.  An appeal court can only interfere if the exercise of discretion is afflicted by a misdirection and not to substitute its own discretion for the court a quo’s.

In casu the ground of appeal attacks the sentence on the basis that it is excessive.

In State v Ramushu and Others SC 25-93 GUBBAY CJ had this to say:-

“But in every appeal against sentence, save where it is vitiated by irregularity or misdirection, the guiding principle to be applied is that sentence is pre-eminently a matter for the discretion of the trial court, and that an appellate court should be careful not to erode such discretion.  The propriety of a sentence, attacked on the ground of being excessive, should only be altered if it is viewed as being disturbingly inappropriate.”( my emphasis.)

Counsel for the applicant suggests a sentence of 24 months with 10 months suspended on condition of good behavior, a further 6 months on condition of restitution and the remaining 8 months on condition of performance of community service.

It is important to note that counsel does not regard the starting point of 24 months as excessive and the sentence suggested as an alternative to the court a quo’s reduces the court a quo’s sentence by 6 months.

Barring the issue of community service, can it be said this is reflective of a sentence that is ‘disturbingly inappropriate’ warranting interference and therefore indicative of bright prospects of success on appeal?  I think not.  Such interference is tantamount to substituting the appellate court’s discretion for the court a quo’s.

Restitution is a factor that palliates the sentence.  But the aspect of restitution ought not to be allowed to overshadow all other considerations.

In State v Zindoga 1980 ZLR 86 MacDONALD CJ had this to say:-

“… restitution is always a mitigating factor.  Its exact weight will of course depend upon the surrounding circumstances.  Generally speaking it will be given considerable weight where the accused is a first offender.  The weight to be given to it, however, must be carefully balanced against the need in the public interest for deterrent sentences.  If too much weight were to be given to the fact of restitution and in the result very light or wholly suspended sentences were to be habitually imposed, crimes against property would almost certainly increase sharply.”

In casu the court a quo looked at restitution and suspended a portion of the term of imprisonment thereby reducing the sentence.

However the learned Magistrate observed that due to the prevalence of the offences of unlawful entry people are living in fear and there is need to send a clear message that such a situation cannot be countenanced.  The court a quo therefore decided against community service.

In doing so the learned Magistrate demonstrated that he was aware that for a sentence that is within the range of 24 months, community service must be considered and if not reasons must be given for not going for that option.  There was therefore no misdirection on this score.

It is not trite that first offenders are entitled to a non-custodial sentence or to a suspension of part or the whole of a term of imprisonment.  (State v Moyana 1980 ZLR 460).

In casu the learned Magistrate considered the mitigatory factors and explained why despite the plea of guilty and the youthfulness of the offender, an effective term of imprisonment was called for.

Whilst the aspect of prevalence should not be allowed to overshadow all other considerations, the court a quo’s reasons for sentence weighed all the factors before arriving at what it considered as an appropriate sentence.

In State v Mupasa AD 93-87 and State v S.M HH 282-82 the court held that youthfulness should not be allowed to obscure the seriousness of the offence and where the offence committed is serious, courts should not shirk from sending youthful first offenders to jail.

The offence in casu was committed in the dead of night, at around 0130 hours and the applicant was in the company of 2 others.  The complainant woke up and saw the intruders.  One can only imagine the fear that must have gripped her.

Such an invasion of people’s private spaces for the sole purpose of depriving them of their property is what the court a quo considered and decided that an effective term of imprisonment was called for.

The court a quo’s approach to sentence can hardly be faulted.  It therefore cannot be said the applicant’s prospects of success on appeal are bright.

Granted that appeals take considerable time to be heard and to that end GWAUNZA J (as she then was) had this to say in State v Hollington and Another HB 75-2000.

“The question of delays in processing appeals is one that is not disputed and the likelihood is high that the appeal may not be heard before the end of the year.  In my view, it would not be in the interests of justice to have an applicant continue serving sentence that may on appeal be interfered with, perhaps significantly.”

It must be borne in mind that these remarks would be apposite were the prospects of success bright and the sentence likely to be interfered with.

The factor of the liberty of the applicant must also be looked at in light of the prospects of success.

It is my considered view that where the prospects of success are dim, the issue of the individual’s liberty and the delay in appeals processing pale into insignificance.

This leaves the factor of abscondment.  I hold the view that given that the other factors are not in the applicant’s favour, the fact that he is not likely to abscond does not tip the scales in favour of the grant of bail pending appeal.

I am of the considered view that the applicant ought to prosecute his appeal whilst serving his sentence.

In State v Tengende 1981 ZLR 445 at 448 quoted with approval by GWAUNZA JA (as she then was) in Russel Wayne Labuschagne v the State SC 21-03, the court had this to say:-

“But bail pending appeal involves a new and important factor, the appellant has been found guilty and sentenced to imprisonment.  Bail is not a right.  An applicant for bail asks the court to exercise its discretion in his favour and it is for him to satisfy the court that there are grounds for so doing.  In the case of bail pending appeal, the position is not, even as a matter of practice, that bail will be granted in the absence of positive grounds for granting bail, it will be refused.”

I find no such positive grounds in casu.  I am consequently not persuaded to accede to the applicant’s application for bail pending appeal.

In the result, the application for bail pending appeal is hereby dismissed.

Mutatu, Masamvu& Da Silva-Gustavo Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners