Raspa Gahadza v The State

### Preamble
1
HH468-13
CA 426/13
---------


RASPA GAHADZA

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU and MUREMBA JJ

HARARE 21 NOVEMBER 2013

Criminal Appeal

A Taruvinga, for appellant

I Chingarande, for respondent

TAGU J: This is an appeal against sentence. The appellant was convicted by a Harare court on a charge of fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act Chapter 9.23. The allegations were that sometime in February 2011 the complainant told the appellant that he had just obtained a provisional driver’s licence and that he intended to obtain a driver’s licence. The appellant then told the complainant that he could process him a driver’s licence upon paying him $300.00 which was to be forwarded to a VID person. By June 2012 nothing had been processed. The appellant then disclosed that he had spent the complainant’s money. The complainant then realised that the appellant had deceived him. He recovered an amount of $190.00 only. The appellant then pleaded guilty to the charge of fraud and was sentenced to 3 years imprisonment of which 1 year imprisonment was suspended for 5 years on the usual conditions of good behaviour.

Dissatisfied with the sentence imposed by the court a quo the appellant now appeals to this court. He prayed that the sentence imposed by the court a quo be set aside in its entirety and that the same be substituted by a sentence of community service, a fine or a wholly suspended sentence.

The appellant’s grounds of appeal are that:-

“1. The sentence imposed was too severe and harsh as to induce a sense of shock

taking into account the circumstances of the offence, the time which the offence

was committed and prosecuted.

2. The Learned magistrate erred at law in failing to clearly explain how a fine or

community service would not deter the would be offender and why custodial

sentence is appropriate.

3. The Learned magistrate erred at law in sentencing the appellant based on

speculative evidence which was never led by anyone during the plea recording.

4. The magistrate erred at law in failing to place due weight attached to mitigatory

factors aligned to the appellant specially that he is a first offender. There is a plethora of cases which state that if an accused is a first offender and the sentence likely to be imposed is 24 (twenty four) months imprisonment and below the court should consider other forms of punishment such as community service or a fine or wholly suspended sentence. See S v Allegrucci 2002 ZLR (1) 674, S V Antonio and Others 1998 ZLR (2) 64.

5. The Learned magistrate erred at law in failing to seriously consider the plea of

guilty tendered by the appellant. Same shows serious remorse. See S v Sidet 1997

ZLR 485 (S), S V Mabhena 1996 ZLR (1) 134 (H).”

In his reasons for sentence the magistrate took into account the fact that the appellant pleaded guilty and did not waste the court’s time and resources, that he is a first offender, that he is a married man with children and orphans to take care of as mitigatory. He took into account the fact that fraud is a serious offence. Further he stated that, “Accused and complainant connived to have a licence issued to the complainant through the back door, a practice that results in incompetent drivers using the public roads thereby putting other road users ranging from pedestrians, cyclists and drivers of light and heavy vehicles in danger.” He went further to state that “…An exemplary term of sentence is called for to deter the offender and would be offenders. A fine or community service will not meet this objective.”

Mr Chingarande for the respondent firstly opposed the appeal on the ground that the sentence imposed by the court a quo did not induce a sense of shock. Upon further reflections and taking into account that the magistrate did not enquire into the appellant’s ability to process the said driver’s licence, and the fact that it was never established if he indeed had connections at VID Offices, he conceded that the sentence is unduly harsh. The magistrate took it as if the appellant indeed wanted to take the money to VID Officers and could have procured the said driver’s licence. The fact that since February 2011 up to June 2012 the appellant did not approach any VID Officer shows that he merely misrepresented to the complainant that he was able to process a driver’s licence when in fact he was not able to do so . It was a mere ploy to defraud complainant his money and was not serious in obtaining any licence through the back door. The magistrate therefore misdirected himself in relying on information that was not before him and treated appellant as someone who had actually taken the money to VID.

On the basis of such misdirection the trial magistrate failed to properly exercise his discretion. We are therefore at large to determine a proper sentence.

Fraud is indeed a serious offence. This is reflected in the penalty provision in s 136 (a) (i) and (ii) of the Criminal Law (Codification and Reform ) Act [Cap 9.23]. The penalty is a fine not exceeding level fourteen or not exceeding twice the value of any property obtained or imprisonment not exceeding thirty five years.

The appellant was sentenced to 3 years imprisonment of which 1 year was suspended for 5 years on the usual condition of good behaviour. He was left with an effective sentence of 2 years imprisonment. 2 years imprisonment falls within the range permitted for community service. The court a quo should have considered community service.

The appeal is allowed. The sentence imposed by the trial magistrate is set aside. The following sentence is imposed on the appellant:-

“18 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition appellant does not within that period commit an offence involving fraud and for which upon conviction he is sentenced to imprisonment without an option of a fine. The remaining 12 months imprisonment is wholly suspended on condition the appellant performs 420 hours of community service at ZRP Chinamhora. The community service starts on 16 December 2013. The community service must be performed every Monday to Friday excluding weekends and public holidays between the hours of 08.00 AM to 01.00 PM, and from o2.00 PM to 04.00 PM. The community service must be performed to the satisfaction of the person in charge of the said institution or his/her delegate who may on good cause shown grant appellant leave of absence on certain days or hours, but such leave of absence shall not be counted as part of the community service to be performed. The community service must be completed within 12 weeks.”

MUREMBA J Agrees		……………………………………

Khanda and Company, Legal Practitioners for Appellant

Attorney –General’s Office, Legal Practitioners for Respondent.