S v Mushuku (HCA 132 of 2002) [2004] ZWBHC 95 (30 June 2004)

Judgment No. HB 95/2004 Case No. HCA 132/02 SIMBARASHE MUSHUKU Versus THE STATE IN THE HIGH COURT OF ZIMBABWE CHEDA & NDOU JJ BULAWAYO 17 MAY & 1 JULY 2004 N Mashayamombe for the appellant Mrs M Moya-Matshanga for the respondent Criminal Appeal CHEDA J: This is an appeal against sentence only. The brief facts of the case which are common cause are that on 21 November 2002 appellant with one Frank Dhliwayo robbed the complainant who is a taxi driver of his motor vehicle. At around 12 midnight they hatched a plan to rob complainant who was parked waiting for customers. Frank Dhliwayo pretended to be drunk while appellant went to hire him and he was brought where Frank was. Complainant was “hired” to North End suburbs. Appellant carried Frank into the vehicle, who, all the time pretended to be drunk. When they were near Baines Junior School, Frank who was alone at the back pretended that he wanted to vomit. Complainant believed him and he stopped his vehicle. At that moment, Frank took out his belt and strangled the driver. They then pushed the driver out of his motor vehicle. They searched him, threatened to shoot him and robbed him of $36 000,00 cash and the motor vehicle. They then took it to a mechanic Julius Ndlovu for minor repairs. Julius then caused their arrest. They appeared in court on 29 November 2002, pleaded guilty and were sentenced to 10 years imprisonment. The total value of the stolen property is $1 236 000 and $1 200 000 of that (motor vehicle) was recovered. HB 95/04 Appellant through his legal practitioner submitted that the trial court misdirected itself by (1) failing to accord sufficient weight on the youthfulness of the appellant as a factor in sentencing; (2) failing to place due emphasis on the plea of guilty tendered by appellant; (3) that overall sentence is inclined toward retribution and deterrence at the expense of reformation and rehabilitation. First and foremost, it is well settled law that sentencing is the domain of the trial court. Therefore the appeal court can only interfere with that discretion if it is proved that it was not used judiciously or it appears so grossly out of the ordinary so much so that it is clear that the court adjudicating on the matter did not apply its mind in the determination of the said sentence. It, therefore, follows that failure to suspend the said sentence is not per se a misdirection. 1. Youthfulness It is trite law and general practice of our courts that an accused’s age plays a major role in mitigating his moral blameworthiness. This, however, is a general rule. In my view where a young man ventures into a game which by its nature befits adulthood he should not be heard to cry foul when the rules of the game are applied to him. It is in those circumstances whereby he should be treated as an adult. In the present case, this crime can not be regarded as a boyish prank. The learned trial magistrate would have misdirected himself had he ignored the seriousness of this offence by scaling down in order to treat the appellant leniently purely for his age. In fact, youths are so recognised and removed from the realms of adulthood when they behave themselves as such, certainly not when they engage themselves in nocturnal activities and even go further to instil fear on adults. 2. Plea of Guilty HB 95/04 A plea of guilty indeed should serve as a mitigation, but this is not a blanket statement. Circumstances of the plea can not be ignored. Appellant, did not surrender himself to the police. If he had done so, it would have gone a long way to demonstrate his change of heart. But instead, the crime was discovered as a result of a report by a mechanic. It is safe to conclude that appellant was in fact arrested while he was in possession and control of the stolen motor vehicle. His plea of guilty was therefore the only way out as his denial of the theft would have caused him problems. The magistrate did recognise that and in my view, he could only recognise it to that extent only. To take it further than that would be a misdirection. 3. Retribution While there is a need for reformation, such reformation should not be applied as the rule of thumb. There is a need to weigh appellant’s personal circumstances against the expectations of society at large. Robberies involving motor vehicles and other valuable property has been on the increase. The public at large has been adversely affected by them. There is no doubt, that, while the personal circumstances of the appellant are indeed important, so are, expectations of members of the public and society at large. Sentences which are less severe in the circumstances will no doubt shake the confidence of those they seek to protect and hence the courts will not be respected. It should not be forgotten that the complainant was traumatised by this unlawful encounter with two strangers during ungodly hours and he lost his cash and his motor vehicle in the process. Such trauma ca not be played down particularly when the process was accompanied by threats of violence which was to be carried out HB 95/04 by way of shooting as they threatened. Indeed, shooting has been known to be carried out in such robberies. In my opinion, the court a quo accorded this matter all the necessary principles of sentencing and balanced appellant’s personal circumstances against those of society. For the reasons stated above, the appeal is accordingly dismissed. Ndou J ………………………. I agree Ben Baron & Partners appellant’s legal practitioners Criminal Division – Attorney General’s Office respondent’s legal practitioners