Torevei Muganyura v The State

### Preamble
1
HMT 53-20
CA 23/19
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TOREVEI MUGANYURA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 15 July 2020 and 23 July 2020

Criminal Appeal

Mrs M Mandingwa, for the appellant

Mrs J Matsikidze, for the State

MUZENDA J: This is an appeal against sentence only. The appellant was arraigned before the Magistrates Court at Mutasa facing allegations of unlawful entry into premises in aggravating circumstances as defined in s. 131 (1) as read with s 131 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant an Africa University Student, entered fellow student’s rooms at night without permission and stole gadgets belonging to the occupants. He pleaded guilty to four counts and was sentenced to 20 months imprisonment, 8 months imprisonment were suspended on conditions of future good behaviour, leaving him with an effective 12 months imprisonment.

Aggrieved by the sentence the appellant approached this court to appeal against the sentence and spelt out the grounds as follows:

GROUNDS OF APPEAL

The learned Magistrate misdirected himself in imposing a term of imprisonment in the force of a finable offence and in the face of mitigatory circumstances, thereby over-emphasising aggravation resulting in a sentence which was too excessive so as to induce a sense of shock. Thus the appellant avers that the learned Magistrate did not give due weight to the mitigatory factors thereby over-emphasising the factors in aggravation.

The appellant avers that the learned Magistrate erred in considering prison sentence as the only appropriate sentence in the face of other real non-custodial sentencing options such as community service.

Appellant prays that the sentence of imprisonment be set aside and substituted with the option of a wholly suspended sentence with an order to restitute the one complainant or alternatively an order for appellant to do community service.

BACKGROUND

The appellant is aged 22 and was a student at Africa University in Penhalonga, Mutare. In count 1 the State alleges that on 12 February 2019 at around 1600 hours, Desire Gwaturi, first complainant was in his room K17 when the appellant came to him looking for a hard drive. Complainant told appellant that the hard drive was in the adjacent room to his. Complainant accompanied the appellant to the room and when complainant returned to his room, he found his Samsung S. 3 blue in colour missing. Appellant later on admitted stealing the cell phone. The cell phone is valued at US$ 65-00 and was sold by the appellant to someone else.

In count 3 the state alleges that on 21 February 2019 at around 0450 hours Alfred Samuriwo’s cell phone rang and woke him up, he then switched it off and fell asleep. He woke up at 0530 hours and noticed that his cell phone Samsung Galaxy A6 was missing. On 24 February 2019 appellant was found in possession of the cell phone belonging to the complainant. The value of the cell phone is given as US$650-00 and it was recovered. In count 4 it is the state’s case that on 23 February 2019 Pitman T. Clement was in his room K 18 when he plugged his cell phone Itel 511 on the laptop for charging. He then fell asleep when he woke up the following morning he noticed that the cell phone was missing. He had forgotten to lock   the entrance the previous night. On 24 February 2019 appellant was found in possession of the cell phone. The cell phone is valued at US$125-00 and it was recovered. In count 5 the state alleges that on 23 February 2019 Simbarashe Chimoga fell asleep at around 2300 hours in his room leaving the cell phone Samsung Galaxy S6 Edge on his bed. When he woke up the following day, the 24th the cell phone was missing. On the same day the cell phone was found in appellant’s possession. It is valued at US$666-00 and was recovered.

On 26 February 2019 the appellant who was legally represented pleaded guilty to all 4 counts. There was a fifth count which was count 2 but the state withdrew that second charge before appellant had pleaded. He was found guilty as pleaded for the 4 counts. After the appellant had been sentenced, he successfully applied for bail pending appeal and he is out of custody.

Appellant, was attending university at the time he committed the offence. He is a first offender and has been expelled from Africa University. Mrs Mandingwa, for the appellant submitted that the sentence imposed by the court a quo is manifestly excessive and that it induces a sense of shock given the mitigatory factors in favour of the appellant. She further submitted that where a statute provides for a fine or imprisonment, the sentencing court should first consider the imposition of a fine and where the court decides against imposing such a fine it ought to record reasons for such. Where such reasons are not availed, that would amount to a misdirection, it was contended. The appellant added that the court a quo did not conduct a meaningful enquiry as to the appropriateness or otherwise of a fine or community service moreso where appellant was a first offender. To the appellant there was need to hold an enquiry to see whether or not community service was appropriate and the appellant submitted that it is mandatory for a trial magistrate who has settled for an effective prison term of 24 months or less to conduct such an enquiry into the suitability of community service in respect of first offender.

Appellant further submitted that the court a quo failed to factor in personal mitigatory factors proffered by the appellant and the court failed to adopt a rational approach towards sentencing which requires it to have adequate information before it passes sentence. It was not enough for the court to simply state that a fine or community service would trivialise the offence, it was submitted by the appellant. The appellant added that the trial court did not put credence or value to the plea of guilty tendered by the appellant as well as the personal circumstances of the appellant this would be more befitting where the appellant was a first offender. The court a quo is alleged to have over-emphasised the need for deterrence in order to pass a custodial sentence. Appellant contended that imprisonment is a rigorous and draconian form of punishment which has a destructive consequence on an offender especially a first youthful offender and must be resorted to in extremely exceptional circumstances. A judicial officer has to strike a balance between the competing interests of the society and that of the offender, it was argued. The punishment to be imposed must fit both crime and the offender, it was further submitted. Appellant urged the court to embrace change in sentencing patterns and appellant contended that the court a quo misdirected itself when it failed to consider community service, the twelve months imposed on the appellant should have, automatically attracted community service particularly given the age of the appellant. The appellant prays that the sentence passed by the court a quo be set aside and be substituted by a non-custodial sentence.

On the other hand the state has a different perception. Mrs Matsikidze submitted that there is no misdirection on the sentence imposed by the court a quo. The sentencing process remains the domain of the trial court. The state contended that superior courts ordinarily do not interfere with such discretion unless it can be shown that such discretion was not exercised judiciously. To the state nothing has been demonstrated by the appellant that the decision appealed against falls within this category. Mrs Matsikidze in her submission highlighted the importance of an offender’s plea of guilty and the need for courts to keep youthful first offenders out of prison. However, in this appeal the state feels the court a quo’s discretion was properly and judiciously exercised. The state agrees with the sentiments of the trial court that unlawful entry in aggravating circumstances cannot be trivialised by imposing a sentence of community service. To the state community service is not mandatory and should only be imposed where it meets the justice of the case and the principle of keeping first offenders out of prison remains a guiding principle to be applied with caution. The state went on to cite the matter of S v Chiweshe where the court held that it is actually a misdirection for a court to consider community service in more serious offences. The state concluded its submission by stating that there is no basis for this court to interfere with the sentence passed as the appellant has not shown that the court a quo misdirected itself in arriving at that sentence. The state prayed that the appeal be dismissed for lack of merit.

The appellant’s counsel opened her heads of argument citing the judgment of Mathonsi J (as he then was) in the matter of S v Lameck Tshuma where the learned judge remarked:

“The trial magistrate must attempt to grasp the guideline on that type of sentencing given in a line of cases coming out of the superior courts instead of just groping in the dark when there is a case law which binds him has settled the issue. See S v Mabhena, 1996 (1) ZLR 134 (H) 140, S v Antonio and Others 1998 (2) ZLR 64 (H), S v Chireyi and Others 2011 (1) ZLR 254 (H) 260. These authorities make it mandatory for a trial magistrate who has settled for an effective prison term of 24 months or less to inquire into the suitability of community service as a sentencing option in respect of a first offender. The magistrate simply has no choice and cannot be heard to say he did not consider community service as it would have trivialised the offence. This is not to say that the Magistrate may not opt out of the imposition of community service but everyone reading the record must be able to see that an enquiry was conducted. If, following such an enquiry, the magistrate comes to the conclusion that it is inappropriate, and that imprisonment is the proper sentence, he or she must give proper reasons for the decision which must also appear ex facie the record. State v Ndlovu HB 267/16.”

In the matter of Mabhena (supra) the court observed:

“Further it has been emphasized by this court and the Supreme Court that an effective custodial sentence of imprisonment is a severe and harsh form of punishment which should be imposed on first offenders only if no other punishment would be appropriate. Needless to say there are certain crimes which the foregoing does not only apply because of their nature and magnitude which necessitates the imposition of an effective term of imprisonment. Accordingly such serious crimes as attempted murder, rape, attempted robbery, car thefts and aggravated type of assault with intent to cause grievous bodily harm are examples of serious offences which generally magistrates have to impose an effective custodial term. Clearly fines, including those on conditions of community service would normally be out of question for them.”

I am satisfied that unlawful entry in aggravated circumstances cannot be classified as a genre of a serious offence which would not qualify for a sentence of community service in an appropriate case where all other factors have been befittingly considered.

The generally accepted approach by our courts dealing with a sentence of community service is to treat each case on its own peculiar perspective. The starting point is to see whether the offence is one which may qualify for community service or not, if the subject offence so qualifies, the court then decides on the duration of the sentence appropriate in the circumstances, if the court resolves to pass a sentence of 24 months or less then it proceeds to further look at both the aggravating and mitigating circumstances. If at looking at these factors it considers that community service is appropriate in the circumstances then an enquiry is made, which enquiry includes the role of the community service officer. More often accused or appellants argue that in an enquiry of that nature the trial court is duly bound to follow the community service officer’s recommendations or that the community service officers report should bind the sentencing court, in my view that would amount to placing the community service officer a grade above the judicial officer. The report by a community service officer assists the trial court and it can be disregarded by the court as long as the judicial officer gives reasons in his reasons for sentence showing why he or she did not factor in the report. With all due respect to the sentiments by the Learned Judge in the S v Lameck Tshuma where the court remarked that it is mandatory for a Trial Magistrate who has settled for an effective prison term of 24 months or less to enquire into the suitability of community service as a sentencing option in respect of first offender. In my view where the sentencing court has settled for a period of 24 months or less then it becomes absolutely desirable to conduct an enquiry and record as much information as possible relating to the suitability or otherwise of the offender for community service. Such information forms part of the record where the court, after conducting such an enquiry and makes an informed decision that the offender does not qualify for community service but a custodial sentence, again such must be recorded explicitly. I am aware of the daily load of the Magistrates doing a lot of work under strenuous conditions and end up being a bit terse by dismissing community service in one or two sentences on the basis of the seriousness of the matter that would look to the world as if the Magistrate is trivialising the offence, that is not desirable. Such reference of trivialising should naturally flow from the gathered information and emerge as a product of an analytical process of each set of facts presented to the court. At the same time if the matter is so serious to the extent that community service is not applicable it is enough for the sentencing court to mention in its reasons for sentence that community service is not applicable as what the court in this matter did.

In S v Mabhena (supra) Adam J clearly explained.

“In previous judgments reference has been made to the “Approach to be adopted by the magistrates courts imposing sentences suspended on condition that the accused carries out community service” Legal Forum (1994) Volume 6 at p17 – distributed by the National Committee on Community Service. It must be stressed that these are merely guidelines “(my own emphasis)”

In S v Ndlovu (supra) Korsah J.A observed at p5

“Community Service is considered a fine on leisure time and is particularly appropriate for persons who exhibit antisocial behaviour. It gives an opportunity for constructive activity as well as a possible change of outlook on the part of the offender. The essentials of an order for community service, all of which must co-exist to render  it meaningful, are to punish the culprit to make him pay reparation by way of his service to the community and to reintegrate him into society”

I have come to the further conclusion that the criticism levelled against the court a quo relating to the assessment of Community Service is misplaced. The record shows that he was alert to the aspect of Community service but did not think that the appellant was a proper candidate for Community Service. I find no misdirection on his part. However when one looks at the weight of the totality of the mitigatory features of the appellant the sentence of 12 months imprisonment induces a sense of shock. Modern trends on sentencing of offenders show that the overall purpose of s 358 of the Criminal Procedure and Evidence Act [Chapter 9:07] is to give the court a discretion to keep offenders who should not be there in the first place from being imprisoned. The appellant is aged 22 years, an undergraduate who has since been expelled from the University and his prospects of securing another university place is remote because of this conviction. That factor on its own is a punishment. He pleaded guilty to all four counts showing remarkable contrition, when he was found in possession of the gadgets by the University Security personnel he cooperated and admitted to stealing even some of the items not found in his possession. The whole idea of the sentence indeed must cater for the interests of both the offender, the complainant and the community. The sentence itself must essentially show a balance of all the stack holders with the sole purpose of rehabilitating the misguided conduct of the offender in order to reintegrate him or back into the society. This is achieved by suspending a portion of a sentence to guard him in the future, at the same time affording him an opportunity to recover and continue with his life. The court will also take judicial notice of the overcrowded prisons as well as the meagre resources to maintain inmates. Hence it is desirable to minimise strain on the fiscus and afford the appellant another chance whilst serving the community. I am aware that sentencing is the domain of the trial court but where the sentence is disproportionate to the offence and also where there are compelling reasons to avoid a custodial sentence, this court is at large in imposing an appropriate sentence. Appellant has been on bail pending his appeal it will not be ideal to send him to jail.

Accordingly the appeal against sentence succeeds, the sentence of 20 months imprisonment 8 months imprisonment of which were suspended on condition of future good behaviour is set aside and substituted by the following.

10 months imprisonment of which 6 months are suspended for 5 years on condition accused does not commit during that period any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine. A further 4 months imprisonment are suspended on condition that he performs 140 hours Community Service at a place to be identified by the trial court.

The matter is remitted to the Magistrate at Mutasa for him to make the necessary arrangements for the due performance of the Community Service.

MWAYERA J agrees

Mhungu and Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners