Terrence Musona v The State

### Preamble
1
HH 532-25
HCHCR 6073/24
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TERRENCE MUSONA

versus

THE STATE

THE HIGH COURT OF ZIMBABWE

ZHOU and CHIKOWERO JJ

Harare 29 July 2025 and 08 September 2025

Criminal Appeal

Appellant in person

R Chikosha, for the respondent

CHIKOWERO J:

INTRODUCTION

[1]	This is an appeal from the whole judgement of the Magistrates Court sitting at Murewa. The appellant is dissatisfied with his conviction on three counts of the crime of unlawful entry into premises in aggravating circumstances as defined in s 131 (1) (a) as read with s 131(2) (e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“ the Criminal Law Code”) and the sentence imposed on him.  The court a quo treated counts 1 and 2 as one for the purposes of sentence.  It sentenced him to 55 months imprisonment of which 5 months were suspended on the usual conditions of good behavior.  On count 3, the appellant was sentenced to 30 months imprisonment of which 6 months were suspended on the usual conditions of good behaviour.

FACTUAL BACLGROUND

[2]	In respect of count 1, the court a quo found that on 16 October 2024 at around 2230 hours and at House Number 2420 Juru Location, Juru in Chikwaka the appellant, 40 years old at the time, unlawfully entered the said house by breaking the door using a crow bar.  While inside the said premises he then assaulted Albert Dhanda, the lawful occupier, with the crow bar on the left foot.  Dhanda is a police officer.

[3]	The court a quo found it proved, as regards count 2, that during the same night, and at the same premises, the appellant unlawfully entered Mavis Tafira’s house by breaking the kitchen door.  Tafira and Dhanda are spouses.

[4]	As regards count 3, the appellant, in the company of an accomplice, broke into Nowel Chiza’s house at Juru Location, Juru in Chikwaka on 17 October 2024 at around 0130 hours.  The appellant hit the complainant with a crow bar.  That was his way of awakening his victim.  The complainant screamed.  The appellant demanded money. He ransacked the house and stole his victim’s Samsung M32 cellphone and a wallet.  The complainant’s scream awakened his sister, Ever Chiza who was sleeping in another room.  On hearing the commotion in her brother’s room, she realized that some persons had intruded into the house.  She used her phone to call neighbors including members of the security group.  After about 15 minutes she then heard persons outside shouting “thief”. On getting outside the house, she observed that members of the public had apprehended the appellant at the dog kennel.

[5]	We record that the arrival of the neighbours at the Chiza residence prompted the appellant and his accomplice to bolt out of the house.  The accomplice made good his escape.  The appellant endeavored to scale the fence, failed and landed on top of the dog kennel.  That is where the members of the public arrested him.  Nowel Chiza was hot on the heels of the appellant and the latter’s accomplice as those intruders shot out of the house.

THE APPEAL AGAINST CONVICTION

[6]	The appellant has asked us to overturn the convictions.  He says the court a quo erred in convicting him.  He was a victim of mistaken identity.  He did not effect entry into the three dwelling houses.  He was passing through Juru and was in a bushy area when, to his surprise, he was pounced upon and apprehended.  He was not arrested in anyone’s yard.  He was not arrested at a dog kennel.

[7]	The appellant’s conviction on the three counts turned on the credibility of the state witnesses.

[8]	Now, an appellate court is slow to interfere with factual findings made by a lower court where such findings are based on that court’s assessment of the credibility of witnesses.  In S v Soko SC 118/92 Ebrahim JA said at p8 of the cyclostyled judgment:

“A court of appeal will not interfere with the trial court’s assessment on credibility lightly.  There must be something grossly irregular in the proceedings to warrant such interference.  This is so because the trial court by having the witnesses before it is able to make all other factors relevant in assessing credibility.  The court of appeal on the other hand is confined to the record.”

See S v Mlambo 1994 (2) ZLR 410 (S) at 413C; S v Katsiru 2007(1) ZLR 364(H) at 369 C-D.

[9]	The three complainants were believed when they testified that they observed some tattoos on the appellant’s neck.  The third complainant said he observed the drawings on the appellant’s neck as well as the grey jacket and dark pair of trousers he was wearing when the appellant placed an electric shocker on the witness after seeing that the witness was looking at the appellant.  That conduct was designed to inspire fear into the witness.  In respect of all three complainants, the lighting conditions were good.  They identified the appellant at close quarters, inside their respective residences.

[10]	As correctly pointed out by Mr Chikosha, all the complainants observed the tattoos on the appellant’s neck before he had been apprehended and assaulted by members of the public.  The complainants did not take advantage of the fact that the appellant was rendered half naked by the enraged citizens to observe the tattoos on the neck.  Even inside the three residences the appellant’s neck had always been visible, and so were the tattoos.

[11]	Nowel Chiza was also believed when he testified that he chased after the appellant and the other intruder when the neighbours arrived to render assistance. There can be no doubt, on our reading of the record, that the court a quo correctly found that the appellant was arrested at the dog kennel.  That is where he landed after failing to scale the fence.  Ever Chiza, who had not seen the appellant inside the house but had called the neighbours to appear at the Chiza residence, confirmed that the appellant was arrested by members of the public at the dog kennel after failing to escape from the scene of the crime in count 3.

[12]	Further, there is nothing grossly irregular about the court a quo’s acceptance of Nowel Chiza’s evidence that he recovered his stolen cellphone and wallet from the appellant’s bag at the place of the arrest.  The witness, a 22-year-old at the time, was obviously excited to have quickly recovered his property from the intruder.  That explains why the property was not produced as exhibits.

[13]	What were produced as exhibits were the appellant’s implements used in the commission of the offence, to wit, the crow bar and the electric terser.  The crow bar had been used to break into the three premises.  The three complainants testified to seeing the appellant holding it.  As for the electric terser, we have already said that the court a quo did not err in accepting the third complainant’s evidence that the appellant used it to intimidate the witness.

[14]	The appellant is in error in urging us to accept that the court a quo should have found that he had nothing to do with the electric terser and crow bar handed over to the police by the members of the public, together with his person.  Those members of the public did not know him prior to the commission of the offence.  There is no logic in supposing that members of the public, in the dead of the night, would arrest a stranger minding his own business in a bushy area and then run around, again in the dead  of the night, to find not only  a crow bar but also an electric terser and after doing all this, hand over the stranger and the said implements to the police all in a bid to fabricate that it was the stranger who had unlawfully entered the three premises at Juru location.  The appellant was on a spree of committing the crime of unlawful entry in aggravating circumstances.  This was in Juru location. He began to do so towards midnight on 16 October 2024.  He was arrested after committing the third count in the early hours of 17 October 2024.  He, unlike his accomplice, was unable to make good his escape.

[15]	Nothing turns on the rest of the grounds of appeal against the conviction.  The need to discuss those grounds falls away.

THE APPEAL AGAINST SENTENCE

[16]	The appeal against the sentence is unmeritorious.  In a thorough judgment, the court a quo traversed the penal provisions as set out both in the Criminal Law Code and the sentencing Guidelines.  That court sought guidance from pertinent case law in this and other jurisdictions.  It recorded what was said about this offence in Canada.  In this respect, the Law Reform Commission of Canada in Criminal Intrusion Working Papers 46 noted:

“The worst thing about break and enter is how worrying it is.  This is especially so when it occurs to you in your home.  An unwanted intrusion into our homes, our private space, gives rise to feelings of fear, outrage, insult and indignation.  Somehow, we feel violated.  Insurance can compensate for the economic loss, but nothing can compensate for our feelings of fear, insult, anger and loss of security resulting from the invasion of our privacy.”

[17]	The appellant entered three dwelling houses in the space of one night.  He knew that there were people sleeping inside.  He was armed with a crow bar and an electric terser.  He intended to commit robbery inside all three premises.  He damaged the premises in effecting entry.  He assaulted the third complainant using a crow bar and went further to intimidate that victim by deploying an electric terser on the same person.  Although the court a quo considered these factors of aggravation, together with the reprehensible nature of the crimes committed by the appellant, it did not lose sight of the mitigating factors. Chief among these were that the appellant is a first offender and all the property stolen pursuant to the unlawful entry charged as count 3 were recovered.

[18]	We are sitting as an appellate court.  The guiding principle was reiterated thirty-two years ago.  It is under the name of  S v Ramushu and Ors S 25/93 where Gubbay CJ said:

“But in every appeal against sentence, save where it is vitiated by irregularity or misdirection, the guiding principle to be applied is that sentence is pre-eminently a matter for the discretion of the trial court, and that an appellate court should be careful not to erode such discretion.  The propriety of a sentence, attacked on the general ground of being excessive, should only be altered if it is viewed as being disturbingly inappropriate.”

[19]	In S v De Jager and Anor 1965(2) SA 616 (A) at 628-9 Holmes JA said:

“It would not appear to be sufficiently realised that a court of appeal does not have a general discretion to ameliorate the sentences of the trial courts.  The matter is governed by principle.  It is the trial court which had the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised, that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it.  In this latter regard, an accepted test is whether the sentence induces a sense of shock, that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.  It should therefore be recognised that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

[20]	The appellant does not cite any irregularity or misdirection in the sentence.  Instead, his complaint is that the sentence is too severe.

[21]	We disagree.  In terms of imprisonment the penalty for a single count of unlawful entry into premises committed in aggravating circumstances is a period not exceeding fifteen years.  In the present case, all the aggravating factors set out in S 131 (2) (a)-(e) of the Criminal Law Code are present.  The presumptive penalty in such a situation is twenty-four months imprisonment.  The weight of the aggravation was reason enough for the court a quo to go beyond the presumptive penalty in assessing an appropriate sentence.  That the court a quo did.  Still, it treated counts 1 and 2 as one for the purposes of sentence.  This was to temper the severity of the sentence.  The 	two counts were committed during the same night.  Further, although count 3 was treated separately for the purposes of sentence, the court a quo again tempered the cumulative severity of the sentence by ordering that the sentence in that count runs concurrently with that in counts 1 and 2.  The resultant 50 months effective custodial sentence for three counts of unlawful entry into premises committed in aggravating circumstances does not shock us.  It falls far below the maximum imprisonment term of 10 years for a single count of this offence.

ORDER

[22]	The appeal be and is dismissed in its entirety.

Chikowero J: ........................................................................

Zhou J: .....................................................................................

The National Prosecuting Authority, Respondent’s Legal Practitioners.