John Mugova v The State

### Preamble
1
HH 692-18
CA 508/17
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JOHN MUGOVA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 5, 19 & 26 June 2018 and 17 October 2018

Criminal Appeal

G Tavenhave, for the appellant

E Nyazamba, for the respondent

WAMAMBO J:  Appellant was convicted on his own plea of guilty to contravening s 131 (1) (a) as read with s 131 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 9 years imprisonment of which 6 months were suspended on condition of restitution. A further 12 months were suspended for 3 years on condition of good behaviour.

The notice of appeal reflects that appellant was appealing against both conviction and sentence. Before us Ms Tavenhave assumed agency on 4 June 2018 and successfully sought a postponement to prepare adequately for the appeal. When Ms Tavenhave made oral submissions she conceded that she could not fault the conviction but  directed her arguments only against sentence.

The facts of the matter as admitted by appellant are that appellant opened complainant’s locked door using keys which complainant had hidden when she left to assist a neighbour. Before complainant’s return, appellant stole an echo radio, solar invertor, 12 volts battery, a smadal cellphone handset, nokia dual sim cellphone, Samsung E250 cellphone and an adaptor. The total value of the goods is US$153.00 of which goods worth US$20.00 were recovered.

Upon complainant’s return from assisting the neighbour she found appellant inside her house. Appellant ordered her to strip and bend over touching the bed in an attempt to rape her.

The offence of unlawful entry in aggravated circumstances is a serious crime. Although the facts reveal attempted rape and indeed appellant confirmed the facts amounting to that offence, it was not charged as a separate offence. It is however an aggravating feature which should be considered in sentence.

The appellant in a cunning premeditated and calculated criminal enterprise stole complainant’s key so as to enter her house, stole goods therefrom and attempted to rape her.

Although the value of goods at US$153 is not very high, sight should not be lost of the usefulness of solar accessories and cellphones  in a rural setting.

The sentence however is totally out of the range of sentences passed in related cases.

The trial magistrate clearly forgot to temper justice with mercy and passed a clearly excessive sentence in the circumstances.

The State conceded that the sentence was excessive and cited the matter of S v Phiri HH 116/15. The State proposed a sentence of 24 months imprisonment of which 6 months is suspended on condition of restitution and a further 6 months is suspended on condition of good behaviour.

A consideration of the following cases clearly reflects that the sentence in this case is excessive. See S v Olaushe John Maimba HH 293/14, S v Delan Kambanje & Omega Bishi

HH 729/17. The State v Tapiwa Mambanga, The State v Elias Zhuwao HH 631/17. Paul Khida v The State HH 560/16.

Juxtaposed with sentences in casu of unlawful entry in aggravated circumstances is an interesting case of attempted rape which MUREMBA J dealt with on review. It is the matter of S v Trymore Kamudzangu HH 215/17. The facts in summary are that accused in that case followed two women. He tripped one of the women, held her by the throat, pulled up her skirt and pulled her panty aside; unzipped his trousers, took out his penis and attempted to insert it into her vagina and stopped after seeing a cotton cloth inside the panty. At the same time another person and a woman who had been in complainant’s company and approached the scene. Complainant was injured as a result of the attempted rape.

Accused had also robbed complainant of a bottle of cooking oil after the attempted rape. On the charge of attempted rape he was sentenced to 3 years imprisonment of which 1 year was suspended on conditions.

MUREMBA J was of the considered view that a sentence in the vicinity of 8 to 10 years imprisonment would meet the justice of the case and that the 3 year sentence was effectively a travesty of justice.

In consideration of the circumstances of this case, the offender and the interests of society we are of the considered view that the sentence passed by the trial court is excessive and should be set aside.

We hereby order as follows:

The sentence passed by the trial court is hereby set aside.

In its place the following sentence is substituted:

36 months imprisonment of which 6 months imprisonment are suspended on condition appellant restitutes complainant the sum of $133.00 through the Clerk of Court. A further 6 months is suspended for 5 years on condition appellant is not during that period convicted of an offence of which unlawful entry is an element and for which he is sentenced to imprisonment, without the option of a fine.

HUNGWE J agrees ………………..

Tavenhave & Machingauta, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners