Todii Chagweda versus The State

### Preamble
1
HH411-13
CA 22/13
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TODII CHAGWEDERA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAVANGIRA J, TAGU J AND MUREMBA J

HARARE, 29 October 2013

CRIMINAL APPEAL

F. Murisi, for the applicant

I. Muchini, for the respondent

TAGU J: The appellant was convicted on 3 January 2013 at Chinhoyi magistrates court on a charge of bribery as defined in s 170 (1) (b) of the Criminal Law (Codification and Reform) Act [Cap 9:23].  It was alleged that the appellant, a conductor of a Toyota Hiace, offered a Zimbabwe Republic Police Officer a bribe of US$5.00 so that he would not be arrested and prosecuted.  Appellant’s public transport motor vehicle had no certificate of fitness and the luggage was insecurely loaded.

The appellant pleaded guilty to bribery and was sentenced as follows:

“5 months imprisonment of which 2 months imprisonment is wholly suspended for 2 years on condition accused does not within that period commit any offence involving offering a bribe for which upon conviction accused is sentenced to imprisonment without the option of a fine.

In addition the US$5.00 note forfeited to the State”

The appellant is now appealing against the sentence. The conviction is in order and it is hereby confirmed.

The appellant’s grounds of appeal are that;

“1. The court a quo erred in ruling out the option of any non-custodial sentence in the

circumstances of this case.

2. The court a quo did not give due weight and consideration to the appellant’s

mitigation factors.

3. The court a quo erred in imposing a sentence that was too excessive and shocking

in the circumstances of this case.

4. The court a quo erred in treating the appellant’s case differently from other similar

matters decided by the superior courts.

5. The court erred in failing to seriously consider the fact of the small amount

involved.

6. The court a quo over-emphasised the offence at the expense of the person of the

accused person.

7. The court a quo erred in equating the moral blameworthy of the appellant who was

a lay man and a general person with that of a police officer who accept a bribe.

8. The court therefore erred in relying on the case of S v Chirivu HH 40/04 which is

distinguishable from this present case.

Wherefore the appellant prays for the setting aside of the sentence by the court a

quo and putting in its place a sentence of 6 months imprisonment wholly

suspended for 2 years on usual conditions of good behaviour.”

In his heads of argument the appellant relied on a number of case authorities.  Notably S v Rutsara SC-2-89 for the proposition that where the statute provides the option of a fine, the court must consider that option first before resorting to a custodial sentence.

S v Shariwa HB 37/03 and S v Majaya HB 15/03 for the need to consider community service.

S v Zishiri HH 58/09 where it was stated among other things that-

“The convicted person should not be visited with punishment to the point of being broken ---------- whatever the gravity of the crime and the interests of society, the most important factors in determining the sentence are the person and character and

circumstances of the crime.”

A comparison of this case was made with that of S v Adolfo 1991 (2) ZLR 325 where the accused had offered a bribe of $5 000.00 to a Regional Magistrate and was fined $2 000.00 or 6 months imprisonment in default of payment plus a further 6 months suspended on conditions of good behaviour.

See also S v Sithole 1992 (2) ZLR 110 (HC) involving a bribe of ZW$20 offered to a police constable by a motorist he had arrested for riding a motor cycle without a headlight and while drunk.  He was sentenced to 7 months imprisonment with 2 months suspended on the usual conditions but on appeal, the sentence was set aside and substituted with a fine of $400.00 in default of payment 2 months imprisonment plus a further 3 months wholly suspended on condition of good behaviour.

The respondent is opposed to the granting of the relief sought.  His submission being that-

“1. Section 170 (1) (b) of the Criminal Law (Codification and Reform) Act [Cap

9:23] provides a penalty of a fine not exceeding level 14 or not exceeding thrice

the value of any consideration given whichever is the greater or to imprisonment

for a period not exceeding 20 years or to both such fine and imprisonment.

2. The offence for which appellant was convicted of is viewed seriously by the courts

to such an extent that imprisonment is usually the appropriate sentence in the

absence of very highly mitigatory factors.

In S v Paweni and Ors 1985 (2) ZLR 133 (SC) the court noted:

“Bribery of public officials is a most serious evil in any society and is particularly to be guarded against in a developing country.  All the reasons for requiring the exemplary punishment of public servants who accept bribes apply with equal vigour to the punishment of those who bribe them and in relation to the latter there are additional reasons for an even greater measure of deterrence and retribution.” (my own emphasis)

In S v Narker and Anor 1975 (1) SA 583 the court said:

“Bribery is a corrupt and ugly offence striking cancerously at the roots of justice and integrity and it is calculated to deprive society of fair administration. In general courts view it with abhorrence.”

3. An appeal court will not lightly interfere with the sentencing discretion of a

sentencing court:

In S v Mundowa 1998 (2) ZLR 392 H it was said:

“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed if the sentence complies with the relevant principles even if it is severer than one that the court would have imposed, sitting as a court of first instance, the court will not interfere with the discretion of the sentencing court.”

He went further to say

“In S v Naker and Anor (supra) the following was noted:-

“In every appeal against sentence the question is whether it can be said that the trial court exercised its judicial discretion improperly. Bearing in mind that reasonable men may differ in the matter of sentence, a test to be applied, in the absence of misdirection or irregularly, is whether the sentence imposed appears to the court of appeal to be disturbingly in appropriate”.

In his reasons for sentence the learned magistrate highlighted the mitigatory and aggravatory factors that he had taken into consideration for sentence.

I cannot avoid but quote them in extensor as follows-

“The accused person is a first offender, pleaded guilty, aged 42 and is married with 5 children.  He is the sole bread winner of his family and is employed as a bus conductor at Musa Tours.  It was during the course of that employment that he committed this offence. These factors would ordinarily entitle the accused to a great measure of leniency.  Accused was arrested for various traffic offences that were detected upon the vehicle he was in charge of as a conductor.  Instead of submitting himself to the attendant punishments, accused sought to escape this by inviting the arresting details to accept a bribe in the amount of $5.  It is not a rule of thumb that a first offender who pleaded guilty is automatically entitled to a non-custodial sentence.  We don’t have such a law.

The principle is that when dealing with such a person the court is enjoined to put to serious consideration the option of a fine.  It is only when the fine has been deliberately determined to be inappropriate would it be competent for the court to impose other forums of punishments.  If the court feels a sentence of imprisonment is appropriate in a given case and that sentence is not beyond the community service threshold, the court must again make a conscious decision against the imposition of community service.  The bottom line of it all is that the facts of each case take the day.  It is common cause that there is a cause for concern over the accidents that occur on our roads.  Various measures have been implemented in a bid to reduce the carnage.  One such measure is to regulate public transport operations by requiring that these vehicles be operated in observance of certain conditions.  The police have a duty to enforce compliance.  For employees to evade these by enticing the police with bribes must receive the total condemnation which it deserves.

In this case, accused’s bus was found to be lacking in the following a) no certificate of fitness, and had insecure load.  The defect goes to the root cause of road accidents involving buses, lack of road worthiness.  Accused wanted to continue putting the lives of passengers at risk by giving the police officers an amount of $5.  It is clear the seriousness of the offence is not in the amount offered in the bribe.  Viewed in this light the offence is quite serious so as to warrant a sentence which is neither a fine nor community service.  In any event corruption is viewed seriously by courts.  In S v Chirivu (HH 40/2004) the High Court was dealing with a policeman who had solicited a bribe from an arrestee.  He was sentenced to 1 year imprisonment and he appealed. Dismissing the appeal the High Court stated-

“--------- the sentence erred on the side of leniency.  A police man who solicits for bribe should expert to be fried in boiling oil, not leniency.  Bribery like corruption needs to be nipped in the bud.  It is one crime for which a custodial sentence cannot be said to be out of sync with expectations of society”.

If one who solicits for a bribe must be fried in boiling oil, I see no reason why one who offers an unsolicited bribe should also not be treated at least with not boiling but hot oil.  There is a clarion call from all right minded members of the society that corruption on the highways is rife from both the police and transport operators.  It is all’s wish that it be stopped.  I think courts should play a part and deal with those brought before them accordingly.  It is the view therefore of this court that a period of imprisonment is appropriate even for this accused”.

I have quoted this in full because I was highly impressed by the reasoning and I wish all magistrates could do the same.

In casu the trial magistrate properly considered the mitigatory and the aggravatory factors. The magistrate clearly did not impose the sentence capriciously. I found no misdirection. He exercised his sentencing discretion judicially.  The sentence is not excessive and does not induce a sense of shock. It cannot be disturbed.

The appeal is therefore dismissed.

Tagu J………………………………………………………

Mavangira J. agrees …………………………………………

Muremba J. agrees …………………………………………..