Cuthbert Mhishi v The State

HH 85-11
                                                                                       CA 278/09



CUTHBERT MHISHI
versus
THE STATE


HIGH COURT OF ZIMBABWE
KARWI & BERE JJ
HARARE, 30 July 2009


Criminal Appeal


J Shekede, for appellant.
A Mashamha, for respondent.


       KARWI J: The appellant was convicted on his own plea of guilty to contravening s 49
of the Criminal Law (Codification and Reform) Act [Cap 9:23] (Culpable Homicide). The
facts of the matter are that on 9 August 2008 at 1700 hours, and at Dema, the appellant, who is
employed by the Zimbabwe Electoral Commission, ran over the deceased, 12 years of age,
with a vehicle which he was driving and the deceased died on the spot.
   Upon conviction, the appellant was sentenced as follows:

   a) Seven months imprisonment, of which four months imprisonment was suspended for
       five years on condition he did not within that period commit an offence involving
       culpable homicide, negligence or recklessness for which he is convicted and sentenced
       to a term of imprisonment without the option of a fine.
   b) The appellant’s driver’s license number 46606 was cancelled,
   c) The appellant was prohibited from driving classes 1, 2, 3, 4 and 5 vehicles for a period
       of twelve months.

       The appellant had appeared before the Magistrate’s Court at Marondera and was not
legally represented. Having been aggrieved by the sentence, the appellant secured the services
of a legal practitioner, appealed against sentence in paras (a) and (b) of the sentence only.
       His grounds of appeal are that the court a quo had erred and misdirected itself by
failing to attach sufficient weight to appellant’s submissions in mitigation which were that he
had pleaded guilty to the charge and that he was a first offender. He had also not run away
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from the scene and had assisted in meeting the deceased’s funeral expenses. It was also the
appellant’s further grounds of appeal that the learned magistrate had erred and misdirected
himself in imposing a custodial sentence when the circumstances of the accident did not show
gross negligence or recklessness on his part. The court a quo had further misdirected itself by
making a finding that a fine was not appropriate for the offence and also by ordering the
cancellation of the appellant’s driver’s license.
        It was stressed that had the court a quo fully explained community service to the
appellant, he would have indicated that he was willing to perform it during weekends since he
was employed.
        At the hearing of this appeal it was strongly argued for the appellant, that the court a
quo had erred in failing to attach sufficient probative value to the appellant’s submissions in
mitigation. The mitigatory circumstances that the court a quo did not attach sufficient weight
to were that the appellant had pleaded guilty and thus saved the court’s time. The plea was a
genuine sign of contrition which should have been rewarded with leniency. See S v Katsaura
1997 (2) ZLR 102. He was a family man and was likely to lose his job as a result of the
custodial sentence imposed on him. The appellant had shown contrition as shown by the
assistance he rendered at the deceased’s funeral and by the fact that he had ferried the body of
the deceased to hospital soon after the accident. The court a quo had fallen into error by failing
to seriously consider the option of community service given the fact that the effective term of
imprisonment was less than twelve months. See S v Antonio & Ors 1998 (2) SA 64.
        It was further submitted that the court a quo had erred and consequently misdirected
itself by making a finding that the offence committed by the appellant was so serious to the
extent that it warranted the imposition of a custodial sentence. Although culpable homicide is a
serious offence given that a life had been lost, the court a quo should have considered the
rationale for the punishment of the offence. In R v Richards 2001(1) ZLR 129 (S) it was held
that:
        “In cases of culpable homicide based on negligence, the accused is not
         being punished for his evil intent, for he had no intent at all, but for being careless.
        The function of punishment in this situation is not so much to punish
        wrong doing as to inculcate caution in the citizenry and encourage attentiveness to the
        safety of others. The function of the crime of culpable homicide is as much educative
        as it is coercive”.

        An example of a case were the above was applied was in S v Duri 1989 (3) ZLR 111
[S].
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       It was also argued in the appellant’s favour that the lower court had erred and
misdirected itself in canceling the appellant’s driver’s license without explaining whether there
were special circumstances surrounding the commission of the offence. It was held in S v Duri
(supra) that failure to explain special circumstances was an error and a misdirection.
       The respondent did not oppose the application. The respondent was of the view that for
count one which involves the conviction on culpable homicide, the appropriate sentence
should have been a prison term which is wholly suspended on conditions of good behavior and
performance of community service. The respondent was of the view that the court a quo was
right to prohibit the appellant from driving classes 1, 2, 3, 4 and 5 vehicles for a period of
twelve months. The respondent did not however support the cancellation of the appellant’s
driver’s license.
       The record of proceedings shows that the trial magistrate indicated that he had
explained community service to the appellant, but did not write what exactly he had explained.
One is left with doubt as to what was explained. In my view, that amounts to no explanation at
all. Section 5 (1) of the Magistrates Court Act [Cap 7:10) provides that “every court shall be a
court of record”. What ever is not on the record is deemed not to be part of the record of the
proceedings. This court has on numerous occasions called upon magistrates to fully explain
and record the proceedings, particularly so in cases like this one where the accused was not
legally represented. See The State v Emmanuel Jack Takawira, HH 155-91. Given the fact that
the lower court did not explain the sentencing option of community service to the appellant, it
was not correct for the court to rule it out as a sentencing option. I also agree that the
imposition of a fine was inappropriate in this as the rate of inflation was so high at the material
time such that the maximum fine the magistrate could have imposed was to make a mockery
of the justice delivery system. Furthermore a fine was inappropriate in a case like this where
there had been loss of life in circumstances of gross negligence. The most appropriate sentence
was therefore one of a custodial sentence which is wholly suspended on the conditions of good
behavior and performance of community service.
       It seems to me that the effective sentence of three months in prison was too harsh in the
circumstances. The appellant was 50 years of age at the time, was a first offender, had pleaded
guilty to the charge, had offered assistance after the accident and contributed towards the
funeral expenses. A proper consideration of these strong mitigatory features would clearly
dictate that the imposition of an effective prison term was inappropriate. Consequently, the
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sentence imposed by the court a quo is set aside. The appropriate sentence in this case should
have been one of seven months imprisonment, of which a portion thereof is suspended on
condition of good behavior and the remainder suspended on the condition that the appellant
performs community service.
       As regards the cancellation of the appellant’s driver’s license, it is my respectful
opinion that the court a quo fell into error by sentencing the appellant as if he was charged in
terms of the Road Traffic Act. The appellant was charged and pleaded guilty to contravening s
49 of the Criminal Law (Codification and Reform) Act, [Cap 9:25]. The penalty provision of
that section does not provide for the cancellation of an accused’s driver’s license nor does it
provide for prohibition from driving. It therefore follows that the learned magistrate should
neither have cancelled the appellant’s driver’s license nor prohibited him from driving.
   As a result, it is ordered as follows:

   1. That the sentence imposed on the appellant of seven months in prison, of which four
      months in prison is suspended on conditions be and is hereby set aside. This is
      substituted by a sentence of seven month in prison, of which 4 months is suspended for
      5 years on condition that appellant does not commit any offence involving c/s 49 of
      Criminal Law (Codification & Reform) Act, for which he may be sentenced to a term
      of imprisonment without an option of fine. The remaining 3 months is suspended on
      condition the appellant does community service on conditions to be imposed by the
      trial magistrate.

   2. That the sentence in terms of which the appellant’s driver’s license was cancelled and
      the appellant prohibited from driving for twelve months be and is hereby set aside.

   3. The matter is remitted to the trial magistrate for him to comply with the above
      sentence.




Wintertons, appellant’s legal practitioners
The Attorney-General’s Office, respondent’s legal practitioners