Tapiwa Kazunga v The State

### Preamble
1
HH 693-18
CA 966/12
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TAPIWA KAZUNGA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHATUKUTA & MANGOTA JJ

HARARE, 21 October, 2015 & 25 October, 2018

Appeal

Ms R Maposa, for the appellant

E Makoto, for the respondent

MANGOTA J: We heard this appeal on 21 October, 2015. We delivered an ex tempore judgment in which we allowed the appeal, set aside the sentence of the court a quo and substituted it with a reduced term of imprisonment a portion of which we suspended for a period of time on condition of future good conduct.

Because the ex tempore judgment was not on tapes, it is only appropriate that we give full reasons for the decision which we made. These are they:

The appellant faced the charge of attempted murder as defined in s 47 as read with s 189 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was convicted on his own guilty plea to the charge. He was sentenced to 15 years imprisonment 3 years of which were suspended for 5 years on condition of good future behaviour.

The sentence which the court a quo imposed upon the appellant formed the basis of his appeal. He couched his grounds of appeal in the following terms:-

“A. GROUNDS OF APPEAL

The learned Magistrate erred both in law and in fact in one or more or all of the following:

By totally ignoring or giving insufficient weight to the following factors:

That the appellant is a first offender.

That the appellant pleaded guilty and did not waste the court’s time.

That the appellant is a family man with dependants who look up to him for their day-to-day needs.

That appellant had been provoked by the complainant.

That appellant was under the influence of alcohol when he committed the offence.

That the appellant also faced the possibility of civil litigation.

That appellant has shown contrition.

That the appellant has shown great contrition

B.	RELIEF SOUGHT

Appellant prays that the sentence imposed by the court a quo be set aside and it be replaced with the following:

‘Accused be and is hereby sentenced to 12 months imprisonment, wholly suspended on condition that he prays (sic) a fine of $300 and performs 420 hours of community service at a government institution to be determined by the community service officer.’”

The appellant’s bone of contention was that the sentence which the court a quo imposed upon him induced a great sense of shock. He moved us to set it aside and substitute it with the above sentence which appears in his prayer.

The respondent was largely in agreement with the appellant on the issue of the severity of the sentence which had been imposed. It stated the trite position which is that a sentencing court should strike a balance between the appellant’s personal circumstances and the interest of society and the crime. It remained of the correct view which is that the court should not over-emphasise any one of the abovementioned factors at the expense of the other factors. It was its view that the court a quo over-emphasized the seriousness of the offence and, in the process, suffered a misdirection.

The respondent’s point of departure from the appellant centred on whether or not the latter should be punished in any manner other than the imposition of an effective custodial sentence upon him. Its firm position was that a sentence which was in the region of 6 years imprisonment would have met the justice of the case.

The agreed statement of facts which the parties filed of record as read with the medical report played a critical role in our assessment of the sentence which we imposed. It was on the basis of the two documents that we disregarded the appellant’s prayer and looked with favour at the respondent’s submissions on the issue of what we considered to be an appropriate sentence for what the appellant stood convicted of.

The agreed statement of facts on the basis of which the appellant was convicted and sentenced states that on the evening of 5 July, 2012 the complainant, one Maurice Fitz Storm and another were cycling along a path. They were coming from Mazowe Veterinary College in Mazowe. They were going towards Manzou area. The appellant observed the two cycling away from the Veterinary College. He drove his motor vehicle, a Mitsubishi Chariot with registration number ACA 5403, following them. He caught up with the complainant and his companion after he had driven for about 500 metres.

The complainant and his companion pulled off to the left side and the right side of the path respectively. The appellant drove his motor vehicle towards the complainant. He hit the rear wheel of the complainant’s bicycle causing the complainant to fall to the ground. He drove his motor vehicle for some 28 metres from where the complainant was lying down. He stopped his car, got out of the same and walked to where the complainant was. He was, at the time, armed with a Harrington and Richardson revolver with serial number 322205. He short the complainant once on the right chest after which he walked back to his car and drove away leaving the complainant for dead.

The medical report which the doctor who examined and treated the complainant produced is very revealing. It describes the injuries which the complainant suffered at the hands of the appellant. It reads:

“Gunshot to the chest. Entry wound on the right side of the chest, M D Claviculor line just below the clavicle. Massive intra chest bleed (30 cc is draved) and tissue pneumatosis. Bullet lodged in the left side of chest”

It was the doctor’s opinion that a sharp instrument caused the injuries. He said very serious force was applied to inflict the injuries. He did not rule out the possibility of permanent injuries.

On the strength of the above stated set of circumstances, we were satisfied that the conduct of the appellant constituted a calculated attempt on the life of the complainant. We rejected the assertion he made which is to the effect that he was provoked. We remained of the view that the dispute which he had with the complainant over a mine took place, if it did, sometime before the day that he attempted to end the life of his victim. Provocation would not therefore serve as a mitigatory factor in respect of his conduct of the evening of 5 July 2012. The attack was, in our view, deliberate, unprovoked and very much pre-meditated.

We also rejected the applicant’s assertion which was to the effect that he was under the influence of alcohol when he committed the offence. The facts of the case were silent on the matter. Nothing showed that he had consumed alcohol or any intoxicating substance when he shot the complainant in the chest.

The appellant’s conduct of driving his motor vehicle onto the complainant’s bicycle was not only unwarranted. It was in itself sufficient to cause the death of his victim. His conduct of shooting at the complainant with a lethal weapon displayed nothing but his specific intent to kill his victim. The spot upon which he directed the shot on the complainant was a very delicate part of his victim’s person. The fact that the bullet remained lodged in the complainant’s chest was very aggravating to his case.

As the court a quo correctly found, we remained satisfied that the appellant’s moral blameworthiness was very high. His aggravating factors outweighed his mitigatory features in a considerable measure.

Because the appellant and the respondent were ad idem on the point that the sentence which the court a quo imposed was, in the circumstances of the case, very harsh we decided to temper justice with mercy. We were, in the mentioned regard, guided by case authorities which the parties furnished to us. One such case which resonated well with our views was that of S v Elias Kanengoni SC 776/93 wherein the accused who shot the complainant in the genital area with a firearm was sentenced to 7 years imprisonment with one year of the same being suspended for a period of time on condition of future good conduct and was held by the supreme court to have been appropriate. S v Basopo Moyo SC 12/85 was also another case which we took the liberty of reading. Its circumstances were more or less similar to those of the present case. He used a firearm to shoot at two victims one of whom was hit in the mouth. The sentence of 4 years which the court imposed upon him for both counts was regarded as having been appropriate.

We did not remain oblivious to the mitigatory features of the appellant. We observed that he pleaded guilty and, in the process, showed contrition. We also remained alive to the fact that he was a first offender and a family man whose wife and children depended on him for their sustenance.

It was for the mentioned reasons, if for no other, that we were persuaded to reduce the sentence which the court a quo imposed on him from 15, to 7 years imprisonment with 2 years of it being suspended for 5 years on the usual condition of good future conduct. We rejected the notion that an effective custodial sentence was not warranted. The conduct of the appellant qualified for nothing else other than an effective custodial sentence. None of the case authorities which counsel for the appellant cited in his heads supported the position which he was moving us to grant to him.

Attempted murder is, by its nature, a very serious offence. It is regarded as such by the courts and the Zimbabwean society as a whole. It would, therefore, be a travesty of justice for the court to impose a fine coupled with performance of community service for such a crime. A fairly long but sharp term of imprisonment remains appropriate for what the appellant did.

The appellant arrogated to himself the power to try to take life which he could not and cannot give. If he had a dispute over a mine with the complainant, as he alleged, he should not have resorted to the law of the jungle as he did. He should have adopted a civilized and more acceptable way of resolving the matter.

The sentence which the court a quo imposed was, in our view, a harsh one. It induced a sense of shock regard being had to the factors which favoured the appellant. We were, however, satisfied that the appellant could not escape a custodial sentence given all the factors which militated against him. We, accordingly, allowed the appeal to succeed in part as follows:

It was ordered that:

“ 1. The appeal be and is hereby upheld.

2. The sentence of the court a quo be and is hereby set aside.

It be and is hereby substituted with the following sentence:

‘The accused is sentenced to 7 years imprisonment, 2 years of which are suspended for 5 years on condition he does not, within that period, commit any offence for which he is sentenced to imprisonment without the option of a fine.

Effective sentence: 5 years imprisonment.’”

CHATUKUTA J agrees ……………………………….

Maposa Ndomene Maramba Legal Practitioners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners