S v Gabaza (CA 513 of 2014) [2015] ZWHHC 89 (22 January 2015)

1 HH 89-15 CA 513/14 CRB 878/14 MICHAEL HAMUFARI GABAZA versus THE STATE HIGH COURT OF ZIMBABWE CHATUKUTA & MANGOTA JJ HARARE, 21 and 23, January, 2015 Criminal Appeal S. Mahuni, for the appellant R. Chikosha, for the respondent MANGOTA J: The appellant, a 34 year old, first offender, was convicted, on his own plea, of contravening s 174(2) of the Customs And Exercise Act [Cap 23:02]. The facts which gave rise to the charge were that, on 4 June 2014 and at the 106 km peg along the Harare-Mutare Road, he was found to have had in his possession: (a) 331 kgs of second hand clothes – and (b) 40 kgs of second hand shoes in circumstances where he could not give an account of his possession of the same. The state placed the value of the clothes and shoes at $2 290-00. The court a quo sentenced the appellant to 2 years; 6 months of which were suspended for five years on condition of good future conduct. The applicant’s appeal was against sentence. He insisted that the sentence was not only harsh but was also excessive. He prayed that it be substituted with that of a fine or community service. The respondent opposed the appeal. It, however, conceded that the sentence was harsh and excessive. It prayed that the sentence be reduced to 18 months imprisonment with 6 months being suspended for a period of time so that it would act as a check on the appellant’s future conduct. The court noted, with some disquiet, that the appellant’s instructing attorney Messrs Laita And Partners Legal Practitioners, did a considerable disservice to the appellant. The grounds of appeal and the Heads of Argument which they prepared for the appellant were, to HH 89-15 CA 513/14 CRB 878/14 all intents and purposes, the same as the ones which they prepared for, and on behalf, of another appellant, one Leonard Ndombo whose appeal they filed with the court under case number CA 522/14. What the legal practitioners did was simply to copy and paste, with such minor variations as related to the names and ages of the two appellants, their written submissions in respect of one appellant onto the papers of the other appellant and vice-versa. There is no doubt that the legal practitioner’s conduct in this regard constituted a very high degree of dishonesty which the court finds difficult to condone let alone accept. Case authorities which the legal practitioners cited centred more on generally accepted and settled sentencing principles than they did on the appeal itself. They, in that regard, missed the target which the appellant intended to achieve. Mr Mahuni of Messrs Mahuni and Mutatu Legal Practitioners whom Messrs Laita And Partners instructed did have a torrid time when he appeared before the court on behalf of the appellant. He had to contend with the unpalatable situation into which his instructing attorneys had placed him as stated above. He had, as it were, to think on his feet and salvage a situation which was already unpalatable, so to speak. The court commends him for what he did under very difficult circumstances. He spoke with some convincing eloquency in his effort to persuade the court to interfere with the sentence which had been imposed upon the appellant. With the respondent who, as it were, played the devil’s advocate in the appeal, the court was eventually convinced that the appellant’s mitigating factors did, in a large measure, outweigh matters which militated against him. It, in that regard, became alive to the fact that the appellant: (i) (ii) was a family man; - and a first offender who (iii) did not waste the court’s time or the state’s limited resources when he was convicted on his own plea – and (iv) did not benefit from the crime which he committed. The only matter which remained aggravatory against the appellant was that his conduct constituted a potential prejudice to the state. There was, therefore, need on the part of the court to punish the appellant for what he did as well as to correct him in his future conduct so that he does not continue to cause actual or potential prejudice to the state as he did in casu. HH 89-15 CA 513/14 CRB 878/14 Having been convinced of the need to strike what may be regarded as a happy medium between the sentence which the court a quo imposed and nothing, the court settled for the same sentence of 24 months imprisonment the whole of which had to be suspended on two conditions which were or are: (a) good future conduct – and (b) performance of community service by the appellant. The court has considered all the circumstances of the present appeal. It is satisfied that the sentence which the trial court imposed was harsh and, therefore, induces a sense of shock. That sentence is set aside and is, accordingly, substituted with the following:- The appellant is sentenced to 24 months imprisonment, 12 months of which are suspended for 5 years on condition the appellant does not, within that period, commit any offence involving buying, receiving or possessing goods not accounted for in forms of the Customs and Excise Act for which he is sentenced to imprisonment without the option of a fine. The remaining 12 months imprisonment are suspended on condition the appellant performs 420 hours of community service at Dangamvura Clinic between the hours of 8 am to 1 pm and 2 pm to 4 pm on Mondays to Fridays which are not public holidays. The community service performed shall be carried out to the satisfaction of the supervisor of Dangamvura Clinic. The supervisor may grant leave of absence for hours or days on good cause shown. Such leave of absence shall not form part of the community service performed. The community service shall commence on Monday, 26 January, 2015 and must be completed within a period of 8 ½ weeks. CHATUKUTA J: agrees ………………..