Alex Chivandire v The State

### Preamble
1
HH 132/2013
B1120/2012
---------


ALEX CHIVANDIRE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 07 FEBRUARY 2013

Miss S. B. Dhliziyo, for the applicant

F.I  Nyahunzvi, for the respondent

Bail Application

MWAYERA J:	The applicant was convicted by the provincial magistrate Gweru after a protracted trial on a charge of theft as defined in section 113 of the Criminal Law Codification Reform Act [Cap 9:23]. He was sentenced to 12 months imprisonment of which 3 months imprisonment were suspended on condition of good behaviour and a further 2 months were suspended on conditions of restitution. The brief facts of the case are that the applicant was a school development chairperson and that he was disposed of school property that is bricks without following the laid down procedures.

It is quite evident from the trial court record of proceedings that there is evidence that the applicant took school bricks without authorisation and that the school was prejudiced by his actions. The fact that he has started to mould some bricks in a bid to compensate the school does not cover to the fact that he unlawfully and with intent to deprive school permanently took the bricks in the first place. The trial magistrate meliculously and carefully assessed evidence leading to the conviction of the applicant. The state in its response agreed with the court’s finding of conviction but did not agree with the sentence imposed. The state like the applicant was of the view that a non custodial sentence ought to have been imposed on the applicant and the respondent held the view that there were prospects of success on appeal as regards sentence.

The court after going through the written submissions was not inclined to agree with the concession by the applicant and the respondent on likelihood of interference with sentence. In fact the court as earlier mentioned concluded that there were no prospect of success on appeal in respect of both conviction and sentence.

The conviction was centered on evidence adduced. The trial magistrate in exercise sentencing discretion properly assessed mitigatory factors and aggravating factors. She properly considered the offender, the offence, the societal interests and the interest of justice. For abuse of trust by a school development chairperson, to the prejudice of a school it is clear moral blame worthness was high. The sentence imposed is not outrageous as it matches the offence and the offender. The applicant abused his position of trust to the detriment of the school.

Having said the trial magistrate properly exercise the sentencing discretion it follows therefore that there are no prospects of success on appeal. Both the conviction and sentence are not likely to be interfered with an appeal and that on its own can act as an inducement to the applicant to abscond and not prosecute the appeal to its logical conclusion. Cumulatively taken the salient factors for bail pending appeal do not favour the placement of applicant on bail. I am alive to the fact that appeals take long to be prosecuted that factors cannot be viewed in isolation but in conjuction with the prospects of success on appeal and likelihood of abscondment. It is with these considerations in mind that I held the concession by the state, which of course is not binding but valuable guide to be in appropriate in the circumstances.

Accordingly the application for bail pending appeal against both conviction and sentence is dismissed.