Passmore Mahwanda v The State

### Preamble
1
HCC57/24
HCCC403/24
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PASSMORE MAHWANDA

Versus

THE STATE

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 25 June 2024

Chamber Application

MUZOFA J: This application for condonation of late noting of appeal and extension of time within which to note an appeal against conviction and sentence has no merit and is dismissed.

I decided to write a short judgment for the applicant who is unrepresented to appreciate the reasons.

In such an application where the applicant seeks condonation the court considers a number of factors which include the extent of the delay and the reasons thereof. An unreasonably long delay in filing the application for condonation coupled with an unreasonable explanation may disqualify the application.  The court also considers the prospects of success on appeal. See Kombayi v Berkhout 1998 (1) ZLR 53 (5). Although the factors must be taken cumulatively the prospects of success is central to the determination. If the appeal is hopeless it becomes unnecessary to allow the appeal to be heard at all.

The State opposed the application chief among the basis of opposition is that there are no prospects of success on appeal. It then traversed what transpired in the trial Court.

The applicant’s explanation is that he had no one to assist him to secure the record of proceedings for a period of 3 years. Although the explanation is unverified it occurs to me that a period of 3 years is very long.

Even if the applicant is given the benefit of doubt as regards the extent of delay and the reasons thereof, the appeal has no prospects of success. As against conviction, the applicant pleaded guilty to the three counts of robbery. His one and only intended ground of appeal is that his responses to the essential elements raised a defence of robbery without aggravating circumstances. It is unclear from the ground of appeal whether it relates to all the counts or some of the three counts.

Besides being meaningless the ground of appeal is not supported. The record of proceedings shows that the applicant and his co-accused used force to subdue the complainants. The following exchange is relevant:

Count 1

Q.	Did you use violence to take the complainant’s vehicle after hiring him?

Accused1:	Yes.

Accused 2:	Yes.

Q.	Do you have any defence or excuse?

Accused 1:	Have no defence. It’s because of hard times.

Count 2

Q.	Did you use violence to take the complainant’s motor vehicle?

A.	Yes.

Q.	When you took the motor vehicle did you intend to deprive the complainant permanently?

A.	We wanted to take it somewhere and dump it.

Count 3

Q.	Did you use violence to take the complainant’s vehicle after hiring him?

Accused1:	Yes.

Accused 2:	Yes.

Q.	Do you have any defence or excuse?

Accused 1:	Have no defence. It’s because of hard times.

That exchange shows that the applicant used force. The State outline in all the counts show that the applicant and his co-accused used a screw driver and a spanner to subdue the complainants. The applicants denied that they used these weapons. The State accepted the pleas, it did not controvert the position. In its judgment the Court did not treat the offences as committed in aggravating circumstances. It simply related to the trust and fear the applicant exerted on the complaints. There is no misdirection by the court aquo the convictions were properly entered.

In respect of sentence. There is no misdirection. Robbery is a serious offence that involves pre meditation and a resolve to interfere with another’s property rights. In the Madondo v The State 1989 (1) ZLR 300(H) Greenland J as he then was aptly described the audacity and extent of the criminal resolve in robbery cases as follows,

“The starting point is to accept that robbery is an inherent serious offence. It may properly be regarded as iniquitos as it usually involved premeditation, criminal resolve and purpose brazen execution, and attack on a human victim with the attendant disregard of that person’s right to personal security and forceful dispossession of whatever property the victim has for the victim is often terrifying and degrading experience. He is injured in his person and property. The perpetrator acts with contempt and callousness. It is therefore proper to regard robbery as particularly reprehensible form of criminal behaviour and that attitude should be reflected in the sentence.”

The sentence provided under s126 (2) (b) of the Criminal Code is a fine or imprisonment of up to fifty years. Contrary to the applicant’s ground of appeal, the Court did not make a finding that the offence was committed in aggravating circumstances. The applicant and his co accused indicated that they did not use any weapons and the State accepted the plea, that is the reason the matter proceeded as a plea matter.

In assessing sentence the Court considered that the applicants mislead the complainants that they intended to hire their cars. The complainants had trusted them and in return the applicant robbed them. They admitted having used force. One of the complainants sustained some injuries. The applicant had a relevant previous conviction which he admitted to. The applicant even indicated that he commits crimes since he has no alternative means to survive. The applicant benefited once from a suspended sentence but it seems it did not deter him. The sentences cannot be said to induce a sense of shock. Robbery of a motor vehicle is a serious offence. A custodial sentence was appropriate.

The sentence is in line with decided cases, in Kambudzi v The State HH111/23 the appeal court confirmed a sentence of 12 years for each of the three counts for robbery where the accused used an axe, bolt cutter and had entered into the complainants’ houses. In S v Mukambachaza v The State HMT 7/21 the court upheld a sentence of 12 years where a firearm was used in the commission of the robbery.

Accordingly, the application is dismissed.