Theophelus Murahwa v The State

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HMT 6-19
CA 26/18
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THEOPHELUS MURAHWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 6 February 2019 and 7 March 2019

Criminal Appeal

No appearance for the appellant

M Musarurwa, for the respondent

MUZENDA J: On 12 July 2018, the appellant appeared before a magistrate sitting at Mutare facing two counts of contravening sections of the Road Traffic Act. Count 1 was for contravening s 6 (1) as read with s 6 (5) of the Road Traffic Act [Chapter 13:11] for having no driver’s licence. The state alleges that on 10 July 2018 and along Chimanimani Road, Mutare, appellant unlawfully drove a motor vehicle Nissan Vannet registration number AEP 7947 without a valid driver’s licence issued in his name in respect of any class of motor vehicle. The second count was for contravening s 53 (2) of the Road Traffic Act, [Chapter 13:11]. The respondent alleged that on the same day as per count one and from fly over to Mutare Sakubva, Mutare, the appellant unlawfully drove a motor vehicle Nissan Vannet registration number AEP 7947 recklessly by failing to obey regulatory signs and traffic lights.

On the date in question and at around 1130hrs, along Chimanimani Road, Mutare the appellant was driving a motor vehicle, Nissan Vannet, Registration number AEP 7947 carrying passengers for reward plying Mutare Sakubva route without a permit or driver’s licence. When the appellant was signalled by the police details who were manning a road block at flyover, Mutare, to stop he did not comply but instead accelerated the car and flashed the car’s lights. He drove over the reflective cones which had been placed on the road, swerved to the right, drove over the island and avoided the road block. He did not give way to the oncoming traffic and fled the police. Police details gave a chase in a Hollywood style but the appellant reacted equally to match the police’s efforts to catch up with him. He disregarded Paulington traffic lights and proceeded against the red robots. At Sakubva round about appellant did not give way to those motor vehicles already circulating but drove disrupting the sequence.

On approaching Liverpool, Bent Road and Chimanimani Road, the appellant turned right in front of an oncoming traffic and proceeded due west at high speed towards Sakubva residential area. On approaching intersection of Musikavanhu Avenue and Bent Road, the appellant failed to obey a stop sign and proceeded at a high speed. He was subsequently apprehended at Maonde Bottle Store cooling himself but the motor vehicle had been concealed away from the bottle store. As already stated the incident qualifies to be a thriller. However, the appellant was carrying innocent helpless passengers. They were exposed to risk and were trying to escape such reckless and heart renting driving by the appellant.

The appellant pleaded guilty, was convicted as pleaded and on count 1, he was sentenced to $100-00 in default of payment 1 month imprisonment. On count 2,18 months of which 6 months was suspended for 2 years on condition accused does not within that period commit any offence involving reckless driving for which he is sentenced to imprisonment without the option of a fine.

The appellant filed an appeal against sentence only and outlined the grounds of appeal as follows:

The learned magistrate erred by not imposing a fine in the place of the effective custodial term.

The learned magistrate erred by not considering community service as a viable sentencing option.

The learned magistrate also erred by over emphasising the moral blameworthiness of the accused person and not taking into account his youthfulness and exuberances that comes with it.

The appellant prayed that the effective prison term be substituted with community service or a fine.

It is worthy to note that there is no prayer for the upholding of the appeal by the appeal court but only the substitution of the sentence. That defect per se makes the notice of appeal defective. On the date of hearing of this appeal, there was no appearance of and on behalf of the appellant. We sought the attitude of Mr Musarurwa who appeared on behalf of the respondent and he submitted that since both parties had filed their heads of argument, it was prudent for this court to hear the matter on merits. We agreed with the State on this aspect and proceeded with the matter.

The appellant is aged 26 years, married and has 3 children, employed and had no valuable assets to talk about nor savings. He is also a first offender. In the court a quo’s reasons for sentence, it emphasised that appellant was driving recklessly on the day in question. He was running away from police and deliberately nonchalantly failed to obey the laws of the road. The trial magistrate further condemned the appellant’s actions as abhorable and called for the need to protect the public from conducts exhibited by the appellant. The court a quo rated appellant’s degree of negligence as very high. The facts of this matter and the circumstances outlined above in the foregoing reflect a total disdainful behaviour by the appellant towards the law enforcement agents, the public as well as the very passengers whom appellant was getting money from. What the passengers needed was to get transport to their destination and safely so not to be subjected to blood curdling moments when the appellant would turn in front of oncoming traffic. Indeed such conduct is deplorable. The only positive element to the advantage of the appellant was that he pleaded guilty and did not waste the court’s time but he had no option because evidence was overwhelming.

The appellant submitted that community service or a monetary penalty could have met the justice of the matter. The court is aware that the sentence for contravening s 53 (2) of the Road Traffic Act [Chapter 13:11] where the motor vehicle is not a commuter omnibus or heavy vehicle shall be a fine not exceeding level twelve or to imprisonment for a period not exceeding ten years or both such fine and such imprisonment. In ordinary circumstances where the statute provides a monetary penalty, the sentencing court ought to pass such a sentence and avoid a custodial sentence. However the trial court, in this case, ably and professionally justified why a monetary sentence was not appropriate. It was fortuitous that no accident happened on that day given the appellant’s manner of driving. Community service is not a right but is appropriate where the sentencing court after having carefully weighed aggravating features and mitigating features would come up with that class of sentence. The same approach equally applies to a monetary penalty.

In the case of State v Mundowa 1998 (2) ZLR 392 (H) and at 392 E the court held that:

“An appeal court does not have a general discretion to ameliorate the sentence of the trial courts. It cannot interfere unless the discretion was not judiciously exercised, that is unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court would have imposed it.”

We agree with the approach and practice enunciated in the Mundowa case (supra).  It is correct that the moral blameworthiness of the appellant was high. He is 26 years and has 3 children he cannot be regarded a youthful offender anymore and should have at least behaved in a manner that reflected contrition by stopping at a road block. Having weighed the reasons preferred by the trial court, we have failed to discern where the court misdirected itself on the aspect of sentence which would warrant this court to interfere. A clear message must be sent to like  minded offenders who mock and ridicule law enforcement agents and stubbornly show a disregard for traffic law for the safety of the general public. In our view a custodial sentence was appropriately meted and accordingly the appeal against sentence is dismissed.

MWAYERA J agrees ____________________

National Prosecuting Authority, respondent’s legal practitioners