Prince Mandimutsira and Tendai Godfrey Chitima v The State

### Preamble
1
HH 239-13
CA 327/11
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PRINCE MANDIMUTSIRA

and

TENDAI GODFREY CHITIMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE AND MAVANGIRA JJ

HARARE, 9 and 7 August 2013

Criminal Appeal

Ms M.T. Majome, for the appellants

C. Manhiri, for the respondent

MAVANGIRA J: The appellants were on their own pleas of guilty convicted of contravening s 184(g) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. They were each sentenced to 12 months imprisonment of which 2 months imprisonment was suspended on condition of future good conduct.

The appellants now appeal against sentence only. They pray that the custodial sentence be set aside and substituted with a non-custodial sentence.

The allegation against the appellants was that on 1 April 2011 they were drinking beer at Dangamvura Hotel together with another person who was wanted by the police for robbery. The police arrived and approached the wanted person whom they advised of the allegations that he was facing and attempted to arrest him. The appellants acting in common purpose, declared to the police that they would not arrest the wanted person. They blocked the police and attempted to prevent them from handcuffing the wanted person. The appellants were however overpowered and were then arrested for obstructing or defeating the course of justice. Two police officers were as a result of the appellants’ conduct, injured on the knees and on the right elbow respectively.

The appellants are both youthful first offenders aged 24 and 26 years respectively. The first appellant is married and has one child. The second appellant is married and has two children. They both do not have assets. They both pleaded guilty to the offence thereby showing contrition. The person who the police wanted to arrest was eventually subdued.

The relevant penalty provision for the offence with which the appellants were convicted, provides for a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

Mr Makoto, for the respondent rightly in our view, conceded that the trial court overemphasised the need for deterrence in deciding to impose a custodial sentence. Imprisonment as a form of punishment must be sparingly used as a last resort where no other forms of punishment are appropriate. S v Shariwa 2003(1) ZLR (H). A fine is a permissible option for the offence for which the appellants were convicted. Furthermore, as the trial court passed sentence of less than 24 months imprisonment, it ought to have considered community service as a sentencing option – S v Gumbo 2003(1) ZLR 408(H) at 410B-C.

Mr Makoto also cited the case of Mudeveri v S SC 127/94, an apposite case in which the accused persons hindered police officers from arresting a suspect by standing in front and at the back of the police vehicle therein was sentenced to 12 months imprisonment of which 6 months was suspended on condition of future good behaviour. On appeal, it was held that whilst their conduct was undoubtedly unacceptable and a breach of the law, it did not however warrant a prison sentence. The sentence imposed by lower court was thus set aside and substituted with a fine. This case further justifies the respondent’s stance in this matter in not supporting the sentence imposed by the trial court.

A non-custodial sentence in the form of a fine can meet the justice of this case. The sentence imposed by the trial court is hereby set aside and substituted with the following:-

“Each accused: - US$100-00 or 1 month imprisonment”.

HUNGWE J:  agrees……………………