State v George Masendu

### Preamble
1
HH 647 - 25
HCHCR 5341/25
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STATE

versus

GEORGE MASENDU

HIGH COURT OF ZIMBABWE

MANDAZA J

HARARE; 29 September 2025

Criminal Review

MANDAZA J:    The above record was placed before me on automatic review of the criminal proceedings in terms of section 57(1) of the Magistrates Court Act [Chapter 7:06] as read with section 29(1) of the High Court Act [Chapter 7:06]. The accused appeared before Harare Magistrates Court facing a charge of contravening Section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with Section 131(2)(a) and (e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] “Unlawful Entry in Aggravating Circumstances”.

The facts of the matter are that on 30 August 2025 at 6372, Kuwadzana 5, Harare, the accused unlawfully entered the complainant’s premises and stole a Samsung A16, cellphone which was later recovered. The accused pleaded not guilty but was duly convicted.

Having perused the proceedings, I raised a query with the Magistrate on the sentence passed. I queried whether the Magistrate, among other things, had considered the presumptive penalty in such cases. I also queried her reasons for departing from the presumptive penalty. I also queried the sentence endorsed regard being had to the fact that the accused had a previous conviction.

The Magistrate responded to my query as follows:

“The court has noted the query that was raised and concedes that it failed to consider the presumptive penalty and opted for a sentence that is below the one provided for and failed to also (sic) give reasons.

The court considered the 12 months imprisonment on the accused’s previous conviction and brought it into effect. The suspended sentence was considered in arriving at the endorsed sentence.”

I apologise for the serious oversight and I promise to guard against such in future.

Section 5 of the Sentencing Guidelines provides as follows:

“Where these guidelines have provided for a presumptive penalty, the courts shall pay due regard to the applicable sentencing guidelines when sentencing offenders.

Where a sentencing court departs from a prescribed presumptive penalty as provided for in these guidelines, it shall give reasons for that departure.” (Bolding is for emphasis).

Section 4 of the Sentencing Guidelines states that:

These guidelines shall apply to all criminal proceedings in the Supreme Court, High Court, Magistrates’ Court or any other court specified in a statute. What that means is that a Judicial Officer has no choice but to comply with the Sentencing Guidelines. Gone are the days when judicial officers could pick and choose a sentence they felt was applicable. Under the new regime, the guide is the presumptive penalty prescribed. However, judicial officers are not slaves to the presumptive penalty as they are allowed to depart. However, the departure must be justified, as can be noted by the use of the word ‘shall’ in section 5(2) of the guidelines. See S v Sixpence and Others HH 567/23.

In casu, the Magistrate did not state the reasons for her departure from the presumptive penalty. Magistrates are reminded to always state their reasons should they decide to depart from the presumptive penalty. The reasons must be clearly stated in the sentencing judgement. It is not for the Judge to scrounge around the sentencing judgement looking for reasons for departure. The Magistrate must also demonstrate that he or she is aware of the presumptive penalty. In other words, there must be a justification for the departure on purely legal grounds as held in the case of S v Sixpence and Others (supra)

“As shown, however, by the language in section 5 of the guidelines, a sentencing court is permitted to either go higher or lower than the presumptive penalty. Where the court does that, the requirement is that it must justify that departure. It need not be stated therefore that where a court fails to give not just reasons but cogent reasons for the departure such failure will constitute a gross irregularity warranting the vitiation of the sentencing proceedings”

I also noted that the accused has a previous conviction. That should have been taken as aggravatory. Section 8 of the Sentencing Guidelines states that: Subject to the Criminal Law Code or any other law, the following circumstances shall be taken as aggravatory-

Previous conviction(s).

In casu, the offender had a previous conviction. I queried why the Magistrate endorsed an effective jail term of 12 months imprisonment regard being to the accused’s previous conviction.  To put my query into context, the sentence is couched in the following terms:

12 months imprisonment. In addition, the 12 months imprisonment is (sic) suspended under CRB 11218/24 and be (sic) brought into effect. 12 months is the effective jail term.

I suppose the Magistrate wanted to say: In addition, the 12 months imprisonment that was suspended under CRB 11218/24 is hereby brought into effect. Be that as it may, it appears to me that the total effective prison term should have been 24 months not, 12 months. It will be noted from the review cover that the Magistrate then went on to state that, the effective jail term was 12 months. That was a mathematical error in my view. The Magistrate did not bring into effect the suspended prison term, contrary to her response that the suspended jail term was brought into effect. The fact that the accused has a previous conviction aggravated the offence. Magistrates are called upon to be diligent in the discharge of their duties.

The requirement to take into account a previous conviction for purposes of sentence after conviction is a statutory duty imposed upon the court. Section 327 of the Criminal Procedure and Evidence Act [Chapter 9:07] generally deals with the procedure to prove a previous conviction or previous convictions. Subsection (4) states that, “If on any trial any previous conviction is lawfully proved against the accused or if he confesses or has admitted such previous conviction, the court shall take it into consideration in determining sentence for the offence to which he has been found guilty”. In casu, the Magistrate did not take into account the previous conviction and, that was a misdirection.

Having demonstrated that the Magistrate committed a misdirection in arriving at the appropriate sentence, this court is now at large. We proceed to interfere with the sentence imposed with the full understanding that it has been said time and again that sentencing is a matter for the exercise of discretion by the trial court and for superior courts to exercise restraint when reviewing proceedings from subordinate courts. The appellate court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of the sentence by the trial court for the appellate court to interfere and assess it afresh. See Tichafa Muhomba v The State SC 241/12 per Malaba DCJ (As he then was).

I hold that the trial Magistrate committed serious misdirection by not considering the presumptive penalty and/or alternatively departing from it without giving reasons, and secondly by failing to take into account the offender’s previous conviction.

It was held in S v Mkombo HB-140-10 that:

“The position of our law is that in sentencing a convicted person, the sentencing court has discretion in assessing an appropriate sentence. That discretion must be exercised judiciously, having regard to both the factors in mitigation and in aggravation. For an appellate tribunal to interfere with the trial court’s sentencing discretion, there should be a misdirection”

In S v Sidat 1997(1) ZLR 487 (S), it was held by Mcnally JA as follows:

“Once it is decided that there has been a material misdirection in relation to sentence then there has been a substantial miscarriage of justice. The appellate court is then at large to consider on the right facts, what an appropriate sentence should be” See also S v Chiweshe 1996(1) ZLR 425 (H) and S v Ramushu and Others S-25-93.

Having said the above, the sentence imposed by the trial Magistrate cannot stand. Section 29(2) of the High Court Act [Chapter 7:06] states that if on review of any criminal proceedings the High Court considers that the proceedings are not in accordance with real and substantial justice it has the power to do various things, including the power to alter and quash the conviction or to set aside or correct the proceedings or generally give such judgment or make such order as the inferior court or tribunal ought, in terms of any law, to have given, imposed or made.

Accordingly, I make the following order:

The conviction is confirmed.

The sentence is set aside in its entirety and is substituted with the following:

24 months imprisonment. In addition, the 12 months imprisonment that was suspended under CRB 11218/24 is hereby brought into effect. Effective sentence: 36 months imprisonment.

The accused is to be recalled and advised of his new sentence.

I have deliberately chosen not to depart downwards from the presumptive penalty because the offender has a previous conviction; he has simply refused to reform. Society looks up to the courts for protection from dangerous criminals. It is also aggravatory that he entered a dwelling house for purposes of stealing.

I have sought the views of my learned brother Mambara J and he agrees with me.

The accused must be recalled and his new sentence read to him.

Mandaza J: ……………………………………….

Mambara J: ………………………………………. Agrees