Funny Mafara v The State

### Preamble
1
HH466 -13
CA 1130/12
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FUNNY MAFARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU, MUREMBA JJ

HARARE, 19 November 2013

Criminal Appeal

I Gonese, for the appellant

I Makoto, for the respondent

TAGU J: This is an appeal against sentence. The appellant was convicted of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act[ Cap 9:23] by a Harare Regional Court and was sentenced to 36 months imprisonment of which 10 months imprisonment was suspended for 5 years on the usual conditions of future good behaviour. He remained with an effective sentence of 26 months imprisonment. The facts are that the appellant who was employed as a driver at Marase Estate was tasked to supervise a group of women who were collecting firewood in exchange for services they had rendered at the farm. He had 5 vicious dogs which were not on leash. He saw the now deceased who was in the company of two other men each carrying a log. The appellant then set the dogs on these three men. The dogs caught and bit the now deceased severely all over the body. The now deceased was taken to Epworth Poly-clinic where he was pronounced dead on arrival. At the time of the attack the appellant did not restrain the dogs but instead ran to the farm house to collect another farm worker and a gun. Nothing turns on the conviction and it is hereby confirmed.

Aggrieved with the sentence imposed the appellant now appeals to this Honourable Court. He is on bail pending appeal that was granted 4 days after his sentence was passed. The grounds of appeal are:-

“1. The learned trial Magistrate misdirected himself when after rejecting a fine as a possible sentence he failed to consider other options of non-custodial sentences in particular community service. The appropriate approach was for the court to consider this option and if it deemed it inappropriate, give reasons for rejecting it.

2. The learned trial Magistrate also misdirected himself by disregarding the delay of 4 years in bringing the Accused to trial on the basis that he was only in custody for 2 weeks and thereafter was out on bail. The length of time between the event and the trial was long and the delay was not of the accused’s making and there was no sensible reason to initially charge the appellant with murder and this factor should have been taken into account in the assessment of sentence.

3. The learned trial Magistrate erred by failing to take into adequate account the fact that the rationale for punishment in a case of culpable homicide based on negligence is not to punish evil or malicious intent (which is non-existent) but rather to ensure that others exercise caution.

4. In view of the numerous mitigatory factors which the court itself accepted in its judgment and reasons for sentence such as the fact that deceased himself was engaged in an unlawful activity, that there had been previous incidents of theft and attacks on guards at the farm, and appellant is a family man who had not fallen foul of the law before, the sentence imposed is so outrageous and manifestly excessive so as to induce a sense of shock.”

The appellant prayed that the sentence of 36 months of which 10 months are conditionally suspended, be substituted with “Appellant be sentenced to 24 months imprisonment of which 12 months are suspended on condition that the Appellant is not convicted of an offence of which negligence is an element to which he is sentenced to imprisonment without the option of a fine and the remaining 12 months suspended on condition that Appellant performs community service.

The lawyer for the respondent did not oppose the appeal. He is of the view that the sentence imposed is on the harsher side. He proposed a sentence of 24 months imprisonment of 12 months is suspended for 5 years on condition of future good behaviour. However when asked by this court to justify why such a lenient sentence should be imposed, the respondent’s lawyer conceded that this is a serious offence that calls for a severe sentence given how the now deceased met his death. He conceded further that the case he had cited of State v Mlambo HH 373/86 is distinguishable from the present case in that in the Mlambo  case supra the guard shot a firewood thief who had attacked him yet in the present case the now deceased was actually running away when the appellant set dogs on him.

The penalty provision for contravening s 49 of the Criminal Law (Codification and Reform) Act [Cap 9.23] is imprisonment for life or any shorter period or a fine up to or exceeding level fourteen or both.

In casu the question of a fine did not arise given the seriousness of the offence. Here human life was lost as a result of appellant’s negligence in setting 5 vicious dogs on the now deceased and taking no steps to restrain the dogs. The issue of community service did not arise here since the sentence did not fall within the 24 months guideline. See State v Antonio and Others 1998 ZLR (2) 64. Although the matter took about 4 years to finalise the reason was that the appellant was initially facing a murder charge.

The sentence imposed actually is on the lenient side. It does not induce a sense of shock at all.

The appeal is dismissed.

MUREMBA J Agrees…………………………………………………………….

Gonese, Jessie Majome & Co, appellant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners.