Clive Ushe v The State

### Preamble
1
HH435-13
CA 588/12
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CLIVE USHE

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & MAVANGIRA JJ

HARARE, 21 November 2013

Appeal against sentence only

J Terera, for the appellant

T Mapfuwa, for the respondent

HUNGWE J.	The appellant was convicted of theft of motor vehicle after a trial at Masvingo. He was sentenced to 6 years imprisonment of which 2 years imprisonment was suspended for five years on the usual conditions. He appeals only against his sentence.

The court found overwhelming evidence establishing the following. Appellant and his accomplice, who is on the run, joined two ladies waiting for conveyance into town at a bus stop in Mucheke, Masvingo. The complainant drove up and picked the four passengers as he knew by sight the two women from his night club jaunts. Before they got into town, complainant stopped at a council beer hall. He and his three friends alighted from the front of the Mazda pick-up truck to buy beer. Upon his return, he could not locate the pick-up truck nor the passengers he had offered a ride into town. He reported the incident at Central Police station. Whilst still giving his report more people streamed into the charge office reporting that the each had been robbed separately by a two man gang at various spots around town. The motor vehicle used by these two fitted his motor vehicle description. Members of the criminal investigations unit sprang into action. Around 02h00 hrs the following morning this unit spotted the complainant’s motor vehicle parked by the roadside. Someone was transferring their goods from the pick-up into another motor vehicle. Two men ran away. The person who remained with his taxi gave information tying the appellant to the crime. The unit, together with the complainant proceeded to Chikato police station where complainant identified the two ladies who he had given a ride together with the two men who drove off in his truck. The two ladies identified the appellant as the person who used a knife to jump start the complainant’s motor vehicle before driving it off. After 8 hours the complainant’s motor vehicle had been recovered and the appellant had been arrested.

The grounds of appeal advanced by the appellant do not point to any misdirection on the trial court’s part. The grounds of appeal allege that the sentencing court did not give sufficient weight to the mitigatory aspects of the matter. It is said that insufficient weight was placed on the youthfulness of the appellant and that the sentence of 6 years would traumatise the appellant.

Section 38(1) of the High Court Act. [Cap 7”10] provides:

"Notwithstanding that the High Court is of the opinion that any point raised might be decided in favour of the appellant, no conviction or sentence shall be set aside or altered unless the High Court considers that a substantial miscarriage of justice has actually occurred."

In S v Sidat 1997 (1) ZLR 487 (SC) (per McNALLY JA) this section was interpreted to mean that an appeal court may interfere with the sentence imposed in a lower court only if it considers that a substantial miscarriage of justice has occurred. However, the appeal court's approach will vary, depending on whether or not there has been a misdirection by the lower court. I understand this to mean that an appellant must rely on some misdirection by the sentencing court in its approach to sentence which would render it liable to interference. This may be shown by demonstrating that the sentencing court applied a wrong principle in assessing sentence, or over-emphasised an individual aspect resulting in an unduly harsh sentence that is out of line with similar decided cases and so on. The list is endless. An effective sentence of 4 years imprisonment is not out of line with sentences previously imposed for theft of motor vehicle. See S v Dube & Anor 1995 (2) ZLR 321 (SC) and the cases therein cited.

In the present case the learned trial magistrate took into account every conceivable factor which is usually taken into account, for instance the age of the appellant, the fact that the motor vehicle was recovered that same night intact, therefore no benefit accrued to the appellant from this crime, the time spent before the finalisation of the matter and that his accomplice is on the run. The recovery of the complainant’s motor vehicle was a result of it running out of fuel, not a change of heart by the appellant. His use of a knife to start its engine speaks to his determination to fulfil a desire to achieve his goal, not lack of pre-meditation. He was determined to get away with the motor vehicle and use it as a get-away car after committing a spate of other crime for which luckily for him he was acquitted on the basis that the witnesses failed to turn up for court. Where a youthful offender embarks on a criminal career from the deep end he should not expect his youthfulness to work in his favour where, as here, he has played a prominent role in the commission of the crime. In the present case it appears that this factor was taken into account hence the absence of a misdirection on the part of the sentencing court. In light of all these factors, the court asked Mr Terera, for the appellant, whether he was able to point to any misdirection in the manner in which the court aquo assessed sentence, or whether it was out of line with similar cases. He correctly conceded that he could not submit that there was any misdirection or that the sentence was out line with similar cases.

In the result we dismissed the appeal against sentence on the turn.

Mavangira J agrees………………...........................

Mwonzora & Associates, appellant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners