S v Musokeri (29 of 2024) [2024] ZWCHHC 29 (27 March 2024)

1 HCC 29/24 HCCR 143/24 KBA 3/24 THE STATE Versus TAWANDA MUSOKERI HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 27 March 2024 Review Judgment MUZOFA J: This review matter was placed before me accompanied by a letter from the Regional Magistrate that the sentence imposed was too lenient. The trial Magistrate’s response to the query on the lenient sentence shows to some extent that the Magistrate failed to appreciate the Sentencing Guidelines. The response was as follows, ‘The court was guided by the sentencing guidelines SI 146/23 which provide for a sentence of 6 months imprisonment if certain mitigatory factors are present. The court found that these factors existed coupled with the victim’s attitude, it found that a period of 6 months imprisonment was appropriate’ The response appears to me that the trial Magistrate considered the mitigatory factors in isolation which is incorrect. They must be weighed against the aggravating factors. Secondly it appears the trial Magistrate felt bound by the 6 months imprisonment whereas that is the starting point. Lastly the victim’s statement attached to the record did not add to the mitigatory factors infact the complainant expressed how he was hurt and how he incurred the unnecessary expenses as a result of the offence. His conclusion was that justice must take its course. The background facts are as follows, the accused was convicted on his plea of guilty on a charge of robbery in contravention of s126 of the Criminal Code. He was sentenced to 6 months imprisonment. The trial court found that there were no aggravating circumstances that is why it settled for the minimum presumptive sentence of 6 months imprisonment. HCC 29/24 HCCR 143/24 KBA 3/24 The accused committed the offence in the company of an accomplice who was not before the court. Prior to the robbery the accused and the accomplice had been drinking beer with the complainant. During this time the two taunted the complainant. Obviously, the accused and his accomplice were unnecessarily high handed and condescending towards the complainant. When the complainant left heading to his house they followed him. When they caught up with him, they slapped him and struck him with clenched fists and took property worth US$120, 60 and nothing was recovered. The complainant sustained a swollen right elbow, shoulder tenderness, lower back tenderness and tenderness on the right side of the neck. The injuries did not pose any danger to life. In passing sentence the court recorded that it took into account all the relevant factors and concluded that this was not an aggravated robbery. Having made that finding it appears the court felt bound to impose the 6 months imprisonment presumptive penalty. A presumptive sentence must not be confused with a mandatory sentence. It must not be treated as immutable. By definition it’s a midway sentence between an augmented penalty which may be imposed in aggravating circumstances and a diminished penalty which may be imposed in mitigating circumstances. The guidelines in State v Dube 2000 (1) ZLR 386 (HC) remain apposite in sentencing. At page 389 the court noted the steps as follows; i) ii) Identify the normal range of sentences for the offence. Place the offence, taking into account its particular facts, at a level appropriate to the gravity of the case. Aggravatory circumstances will place the offence at the upper limit. Mitigatory factors depending on their level will pitch the offence either at the middle range or where there are highly mitigatory factors, at the bottom of the range. iii) Finally having considered a sentence appropriate to the gravity of the offence, the court must consider the personal mitigating factors of the accused such as HCC 29/24 HCCR 143/24 KBA 3/24 youthfulness, the reasons for the commission of the offence and the consequences of the conviction. In short, those guidelines require the court sentencing an accused to have regard to the penal provisions including precedent, the gravity of the offence including the mitigatory factors and aggravating factors and then the accused’s personal circumstances. The approach remains extant even in light of the Criminal Procedure (Sentencing Guidelines)1. The Guidelines now requires that the court also take into account the impact on the victim. Had the trial court applied its mind to the sentencing principles and properly assessed the mitigatory factors and the aggravating factors it would have imposed a different sentence. The value involved was negligible, but nothing was recovered which means the accused benefitted from the offence. The complainant was attacked by two people who inflicted injuries on him. Although the injuries did not pause a threat to life that cannot be treated as no injuries. In his victim impact statement the complainant said he incurred expenses seeking medical assistance. He lost some work hours that he was not going to be paid. All this must have been taken into account. These factors must have been considered inconjuction with the mitigatory factors. Robbery is generally a serious offence and the case of S v Madondo 1989 (3) ZLR 300 is seminal on sentences of robbery cases. In S v Moyo HB 18/09 the review Judge declined to confirm a sentence of a fine where the accused robbed the complainant of property worth ZWL$450 which was a considerable amount by then. In light of the aggravating circumstances alluded to and the nature of the offence a sentence of 6 months imprisonment would be on the lenient side. In addition the court must have seriously considered suspending a portion of the sentence to discourage the accused from committing similar offences in future. An appropriate sentence would have been around 12 to 18 months imprisonment with part suspended on condition of good behavior and then consider community service. 1 Statutory Instrument 146 of 2023. HCC 29/24 HCCR 143/24 KBA 3/24 The accused was sentenced in January 2024. He has already served 2 months imprisonment and would soon be released. For the sake of completeness, the conviction is confirmed but I withhold my certificate in respect of the sentence.