Collen Samhungu v The State

### Preamble
1
HH 465-13
CA 1168/12
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COLLEN SAMHUNGU

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE,TAGU, MUREMBA JJJ

HARARE, 15 October 2013 and 4 December 2013

Criminal appeal

Mrs D. Machaya, for the appellant

I. Muchini, for the respondent

MUREMBA J: On 22 June 2012 the appellant drove a Mazda Rustler registration number ABC 6845 while he was not a holder of a driver’s licence.  He had 5 passengers on board.  He was driving along Harare - Masvingo road.  At the 139km peg he turned right in front of oncoming traffic resulting in a collision with a Nissan Hardbody which then overturned.  Eleven passengers from both vehicles were injured and were rushed to Chivhu General Hospital.  One passenger who had been seriously injured later died on the same day in hospital.  The other passengers were treated and discharged.

The appellant was charged with two counts. Firstly, for driving without a driver’s licence in contravention of s 6(1) (a) as read with s 6(5) of the Road Traffic Act [Cap 13:11]. Secondly, with culpable homicide as defined in s 49(a) of the Criminal Law Codification and Reform Act [Cap 9:23].

The appellant pleaded guilty to both counts when he appeared before a magistrate at Chivhu Magistrates’ Court.  He was found guilty of the two counts. In count one he was sentenced to 3 months imprisonment.  In count two he was sentenced to 6 months imprisonment. In addition he was prohibited from driving class 4 motor vehicles for 6 months.

The appellant is appealing against sentence only and he is on bail pending appeal.

The essential elements of the first count were properly canvassed and we hereby confirm the conviction. With regards to the second count we made an observation that the essential elements of culpable homicide were not properly canvassed.  Instead, the magistrate canvassed the essential elements of negligent driving only.  The magistrate did not canvass the issue of the accident, the death of the deceased and the link between the death of the deceased and the accident.  Even the post mortem report which should show the link between the accident and the death of the deceased was not produced. Using our reviewing powers in terms of s 26 of the High Court Act [Cap 7:06] we hereby quash the conviction in count two. As a result the sentence in respect of count two falls away.

The appellant is appealing against sentence on the grounds that the magistrate erred by sentencing the appellant to imprisonment without considering community service when the sentences imposed are within the ambit of cases where community service should be considered.  It was submitted that the trial court erred by sentencing the appellant who was a first offender with a family to take care of to imprisonment in light of the general rule  that first offenders should be kept out of prison. It was further submitted that the pleas of guilty should have resulted in a reduced sentence.  The appellant submitted that the court ought to have suspended a portion of the total sentence or ordered the sentences to run concurrently.

The respondent’s counsel opposed the appeal on the grounds that the trial magistrate exercised his discretion properly when he imposed prison sentences as opposed to other sentencing options. It was submitted that he properly weighed and balanced the mitigatory and aggravatory factors. It was further submitted that the magistrate did not even impose the maximum sentences which are provided for in the penalty sections of the offences.

In his reasons for sentence at the magistrate said,

“In assessing sentence the court took into account the following mitigatory features. Offender is a first offender who pleaded guilty to the offence and did not waste the court’s time.  Offender is a family man.  The aggravating features in the case are that the offence is prevalent.  Human life was lost and the degree of negligence on the part of the accused person borders on recklessness.  The moral guilty of the offender is above average”.

It is trite law that where a statute provides for a sentence of a fine and imprisonment the court must give consideration to the sentence of a fine in the first instance: S v Mlilo HB 131/10. In S v Antonio & Ors1998 (2) ZLR 64 (H) CHINHENGO J stated that the proper approach in sentencing non-serious offenders is to consider the following punishments in order of priority: fine, community service and imprisonment. He said community service must be considered in every case where the accused would otherwise be imprisoned for less than 12 months (now 24 months). Full reasons for not imposing it must be given. In S v Cleto Chireyi & 2 Ors HH63/11 MAWADZE J said that it is wrong to regard imprisonment as the only punishment which is appropriate for retributive and deterrent purposes. He said with the advent of the concept of community service our courts have long departed from this notion. He said even in cases where the court considers imprisonment to be appropriate it must make an inquiry into the suitability of community service first and then give cogent and sound reasons as to why community service is inappropriate. In all the cases cited above, it was stated that failure to first consider a fine or community service before imposing imprisonment in cases where a penalty provision provides for a fine constitutes a serious misdirection.

In casu the appellant was driving a Mazda rustler which is neither a commuter omnibus nor a heavy vehicle which means that the penalty which is applicable to him in respect of the first count is a fine not exceeding level six or imprisonment not exceeding one year. The court a quo opted for the alternative sentence of imprisonment without consideration to a fine or community service. No reason whatsoever was proffered for rejecting the two non-custodial sentences. This was a misdirection. On that basis the sentence in count one is set aside and substituted with the following sentence:

U.S. $300 in default of payment 3 months imprisonment.

In respect of count two which has been quashed the matter is remitted to the lower court for the proper canvassing of the essential elements of culpable homicide before the same magistrate. The sentence to be imposed upon the accused upon conviction should not be more severe than the sentence originally imposed.

HUNGWE J agrees …………………………………

TAGU J agrees………………………………………..

Machaya and Associates legal practitioners, appellant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners