Simon Takaruza v The State

1
                                                                                    HH 455-18
                                                                                   CON 173/18

SIMON TAKARUZA
versus
THE STATE



HIGH COURT OF ZIMBABWE
CHAREWA J
HARARE, 8 August 2018



Chamber Application - for condonation of late noting of appeal and leave to prosecute
the appeal in person


In Chambers


       CHAREWA J: The applicant was convicted on his own plea of 49 counts of robbery
and sentenced to 36 years imprisonment. The applicant committed the offences while armed
with a machete, a spear and catapults. In furtherance of the commission of the crime the
applicant perpetrated acts of violence on the victims, inflicting or intending to inflict serious
bodily harm to some of the victims, which includes trying to burn them alive, breaking bones
and teeth as well as throttling some of the victims and leaving others for dead. Some of the
victims have been left with permanent disability.
       The 49 counts were committed over a period spanning just over 2 months, from 24
May 2017 to 5 August 2017.
       In arriving at the sentence, the magistrate considered the following:
   a) That the applicant was a first offender who pleaded guilty and did not waste the
       court’s time
   b) That the applicant was a family man who should be given an opportunity to look after
       his family.
       However, the magistrate found the aggravating features to far outweigh the mitigatory
features in that the applicant went on a rampage, committing 49 counts of robbery wherein
violence was used to force victims to relinquish their property. The violence in some
instances caused permanent disability and terrorised the community such that the magistrate
considered a non-custodial sentence inappropriate. Further, on balance between the interests
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of the applicant, society and his victims, the magistrate felt that a lengthy custodial sentence
was called for, to keep society safe and particularly since applicant could not effect
restitution. However to lessen the severity of the sentence for someone he considered a first
offender, the magistrate decided to group the counts for purposes of sentence.
       Applicant was therefore sentenced as follows;
   1. Count 1 – 2      5 years imprisonment with 1 year suspended for 5 years on condition
       that applicant did not, within that period commit an offence involving dishonesty and
       or the use of violence for which he is sentenced to imprisonment without the option of
       a fine. Effective 4 years
   2. Count 2 -5       4 years imprisonment
   3. Counts 6 -10 4 years imprisonment
   4. Counts 11-16 4 years imprisonment
   5. Counts 17 -20 4 years imprisonment
   6. Counts 21-25 4 years imprisonment
   7. Counts 29-37 4 years imprisonment
   8. Counts 38-44 4 years imprisonment
   9. Counts 45-49 4 years imprisonment
       Total effective – 36 years imprisonment


       This matter came before me for review in September 2017. I found the conviction
proper. While I noted that it would have been more just and equitable for some of the
sentences to run concurrently, I did not consider that the magistrate erred or misdirected
himself substantially to warrant interference with the sentence. This was in view of the
charges preferred against the accused and the nature of the commission of the offences as
well as the trauma, both physical and mental, perpetrated on the victims.
       I am still of the same view and therefore do not consider that there are any prospects
of success on appeal to warrant the grant of condonation.
       The grounds of appeal raised by the applicant were all taken into account by the
magistrate viz, that the accused was a first offender and family man. In my view, in fact, this
approach by the magistrate was extremely generous to the applicant. The only reason that he
was taken as a first offender was because all the 49 counts pertain to a period between 24
May 2017 to 5 August 2017. However the fact that applicant committed 49 counts of robbery
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in a period of spanning just over 2 months belies that he was a first offender. The fact of the
matter is that he went on a rampage of criminal activity which fortunately for him, he was not
caught earlier for two counts of robbery committed on 18 and 19 November 2016, but for
which he would not have been a first offender.
       Such a rampage militates against the notion that applicant was susceptible to
rehabilitation. I can find no fault in the magistrate’s finding that the criminal conduct of the
applicant merited a lengthy custodial sentence to keep society safe from him as long as
possible. Applicant’s conduct cannot reasonably be ascribed to a moment of foolishness.
       That applicant is a family man ought to have put a brake on his rampant criminality
for fear of what would happen to his family if he was caught and imprisoned. That it did not,
indicates a lack of regard for his family which he cannot now claim. I did not, on review, and
do not now, consider the sentence so harsh as to induce a sense of shock having taken on
proper balance, the conduct of the applicant, the interests of justice and the interests of
applicant’s victims, some of whom suffered immense pain, permanent disability, emotional
trauma and pecuniary loss which they could not recover. Further, sentencing is in the
discretion of the trial court except where the court completely misdirects itself and acts in a
manner alien to sentencing principles. Clearly the magistrate did not find that applicant was
susceptible to rehabilitation in view of his rampart criminal conduct. Further a sentence of 36
years is not so shocking when regard is had to the automatic one third remission on good
behaviour and the applicant’s age at the time of sentencing juxtaposed against the nature and
extent of his criminal conduct. In the circumstances, an appellate court will not willy nilly
interfere with the sentencing discretion of the trial court in the absence of an unconscionable
misdirection.
       For these reasons, l confirmed the sentence and find in casu that this application ought
not to succeed.
       Application for condonation of late noting of appeal is dismissed.