S v Matimati; S v Kutsvara; S v Muvhari (19 of 2021) [2021] ZWMSVHC 19 (31 March 2021)

1 HMA 19-21 CRB GT 634/20 CRB GT 536/20 CRB CHATS 167/20 1. THE STATE versus TAKUDZWA MATIMATI 2. THE STATE versus GIFT KUTSVARA 3. THE STATE versus TATENDA MUVHARI HIGH COURT OF ZIMBABWE MAWADZE J. MASVINGO, 31st March, 2021 Criminal Review MAWADZE J: All these three records were referred to me on 29th March, 2021 by the Acting Resident Magistrate, Gutu under cover of a Minute stated as follows; “May the following records be placed before a Judge. The Magistrate who dealt with the matters has since left service before responding to the queries. We are therefore referring the records for further directions.” This followed the queries raised by the scrutinising Regional Magistrate on 11th November, 2020. I now deal with the matters as follows; HMA 19-21 CRB GT 634/20 CRB GT 536/20 CRB CHATS 167/20 State v Takudzwa Matimati : CRB GT 634/20 On 23rd October, 2020 the 30 year old accused who is a first offender was convicted on his own plea of guilty for contravening section 3(1)(a) as read with section 4(1) of the Domestic Violence Act, [Cap 5:16]. The accused had on 20 August, 2020 assaulted his 29 year old girlfriend by twisting her right hand and slapping her once in the face for having changed the door locks of her house without the accused’s knowledge. They are both residents of Gutu growth point. No serious injuries resulted. The sentence imposed by the trial Magistrate is couched as follows; “$2 000 in default of payment 2 months imprisonment -----------“ In addition 3 months imprisonment was wholly suspended for 5 years on the usual conditions of good behaviour. The query by the Regional Magistrate was whether $2 000 was compensation, bail or a fine? With all due respect to the scrutinising Regional Magistrate I find this query to be frivolous if not absurd. The words preceding the $2 000 clearly show that it was a sentence imposed. How could it possibly be bail deposit. All the trial Magistrate omitted to include is the word “a fine of” before the amount of $2 000. It is clear this omission is trivial and cannot possibly prejudice the accused in any way. Further it cannot lead to any miscarriage of justice. In any case the trial Magistrate as per the notes in the record responded to the query stating that the $2 000 is a fine. There was therefore no reason to refer the record to me. Further the fine of $2 000 was paid on 26 November 2020 on receipt number 023720 and the receipt is filed of record. I therefore shall confirm the proceedings as in accordance with real and substantial justice. State v Gift Kutsvara CRB GT 536/20 The query raised by the scrutinising Regional Magistrate relates to how the sentence in respect of compensation to the two complainants is couched. HMA 19-21 CRB GT 634/20 CRB GT 536/20 CRB CHATS 167/20 In both counts the accused was convicted on his own pleas of guilty of unlawful entry into premises in aggravating circumstances as defined in section 131(1) of the Criminal Code [Cap 9:23]. The facts not in issue in both counts are that between January to July, 2021 both complainants were in Botswana when the accused forcibly opened the doors of their houses and stole various properties. In count 1 property valued at $20 000 was stolen and only property valued at $8 000 was recovered. In count 2 (he was acquitted in count 2) property valued at $90 000 was stolen and only property valued to $57 000 was recovered. The accused was sentenced on 22 October, 2020 to 12 months imprisonment in respect of both counts with 3 months imprisonment suspended for 5 years on the usual conditions of good behaviour. A further 4 months was suspended on condition of restitution to both complainants and the remaining 5 months on condition he performs equivalent hours of community service. The record shows the accused failed to pay restitution by the given date and a warrant of his arrest was issued and is extant. The accused just performed community service from 23 October to 13 November, 2020 and defaulted thereafter as per the letter from the relevant institution. Again a warrant of his arrest was issued. The relevant part of the sentence giving rise to the query is framed as follows; “A further 4 months imprisonment accused restitutes the complainants Edmond Muchechesi and Innocent Muchechesi in the sum of $12 000 and $32 800 respectively through the Clerk of Court, Gutu on or before 28 December, 2020.” Indeed the sentence is clumsily couched. The correct or clearer way was to suspend a specific number of months in respect of restitution to each of the two complainants. This would obviate the situation where the accused could pay restitution to one complainant only and fail to do so in respect of the other. The accused would not know in those circumstances the period he would serve in prison. I have therefore amended that part of the sentence as follows; HMA 19-21 CRB GT 634/20 CRB GT 536/20 CRB CHATS 167/20 “4 months imprisonment is suspended on condition the accused pays restitution to both complainants through the Clerk of Court, Gutu on or before 30 December, 2020 is broken down as follows; (i) 1 month imprisonment in respect of of Edmund Muchechesi in the sum of $12 000, and (ii) 3 months imprisonment in respect of Innocent Muchechesi in the sum of $32 800.” The proceedings are otherwise confirmed as in accordance with real and substantial justice. Once arrested the accused should be advised of the amendment. Tatenda Muvhari CRB CHATS 167/20 The query in respect of this matter relates to the seemingly lenient sentence imposed by the court a quo. On 2 November, 2020 the 21 year old accused was convicted of robbery as defined in s 126 of the Criminal Code [Cap 9:23]. He pleaded guilty to the offence. The agreed facts are that on 30 October, the accused and his accomplice way laid the 23 year old complainant at night who was coming from a beer drink at Zoma business centre in Chatworths. They chased after the complainant, tripped him after which they forcibly took US$80, a cellphone and some other item called “Hot 10 Lite” all valued at $17 081,20 and only property valued at $10 572 was recovered after their arrest. The accused was sentenced to 12 months imprisonment and 3 months imprisonment was suspended on condition of good behaviour. A further 3 months was suspended on condition of restitution and the remainder of 6 months on condition he performs community service on the usual conditions. The record shows that the accused has since completed performing the required 210 hrs of community service work done from 3 November 2020 to 10 December, 2020. This review therefore is simply now academic. HMA 19-21 CRB GT 634/20 CRB GT 536/20 CRB CHATS 167/20 Indeed robbery is generally a serious offence. This was a gang offence. It involved premeditation and planning. Some degree of violence was used. Be that as it may the accused is a youthful offender. He has no previous criminal record. A plea of guilty was tendered. Part of the property was recovered. He was degorged of his criminal gain as per order of restitution. The remainder of 6 months is within the threshold for which community service should be considered. In my view an effective prison sentence in these circumstances is uncalled for. The emphasis should be on rehabilitation rather than retribution. Indeed he has performed the community service. I find no misdirection on the part of the trial Magistrate in how he assessed and imposed the appropriate sentence. In the result the proceedings are confirmed as in accordance with real and substantial justice. Zisengwe J. agrees ....................................................