THE State V Lovemore JUSA & 17 ORS

### Preamble
1
HH 774-18
CRB CHTP 1560-61/18, CHTP 1531/18
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1. THE STATE

versus

LOVEMORE JUSA

2. THE STATE

versus

ELVIS NYAKANYANGA

3. THE STATE

versus

TAFADZWA MWENGA

4. THE STATE

versus

WILSON MUBAIWA

5. THE STATE

versus

FORWARD JECHE

6. THE STATE

versus

REVAI CHIGOVO

7. THE STATE

versus

CHANCE KARASA

8. THE STATE

versus

ELSA MUZA

9. THE STATE

versus

IAN JOWO

10. THE STATE

versus

BRIAN KWINJO

11. THE STATE

versus

RESSIE CHINEMBIRI

12. THE STATE

versus

PETER MAPAKO

13. THE STATE

versus

SIMBAI CHIDODO

14. THE STATE

versus

SIMBARASHE GONESE

15. THE STATE

versus

MORGEN NGORO

16. THE STATE

versus

PHENIAS KASEKE

17. THE STATE

versus

PATRICK GWESHE

18. THE STATE

versus

DUDZAI MUSHAYAHEMBE

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 19 November 2018

Criminal Review

MUSAKWA J: It is unusual to review so many matters at once as is the present situation. The matters involve the same traits of a lackadaisical approach to sentencing by the same judicial officer. The trial magistrate is one of the longest serving on the magisterial bench. A judicial officer like that is ordinarily venerated as very experienced. But experience means knowledge, skill, practice, understanding, capability or proficiency. When a judicial officer routinely majors in brevity at the expense of detail, such practice does not count for experience.

In the course of reviewing a separate matter presided over by the same magistrate, I was tempted to contact the Registrar to enquire whether adverse review minutes cannot be invoked against a judicial officer as a disciplinary measure. If an audit could be conducted, it will be established that there are many adverse minutes and judgments on the same judicial officer. Ironically the eighteen review files under consideration happened to be directed to me at the time I made the enquiry.

A minute addressed to the Secretary, Judicial Service Commission reads as follows in some parts-

“Reference is made to the attached records which were presided over by Mr O. 	Mudzongachiso.

Concern has been raised by the Provincial Magistrate Harare over the patently 	inappropriate sentences passed in the eighteen (18) records.

…………………………………………………………………………………………

It is instructive to note that on all records, the magistrate would simply give a one-line 	reason for sentence.”

Similar sentiments were expressed in a minute that was addressed to the Registrar on behalf of the Secretary.

I have no choice but to highlight the inadequacies in each record.

Lovemore Jusa and Vincent Manyika

The accused persons pleaded guilty to unlawful entry into premises in aggravating circumstances. The two connived and unlawfully entered a tuck shop from which they stole goods worth US$130 of which goods worth US$90 were subsequently recovered. The first accused was aged eighteen years whilst the second accused was aged twenty-six years.

They were sentenced as follows:

First accused

1 month’s imprisonment. In addition, 2 months previously suspended on 20 April 2017 were brought into effect.

Second accused

2 months’ imprisonment. Apparently on 15 March 2017 this accused was convicted of one count of unlawful entry, one count of theft, one count of assault and another offence whose particulars are indecipherable. In all those counts he was sentenced to fines.

The first accused was aged eighteen years whilst the second accused was aged twenty-six years. The trial magistrate’s reasons for sentence are as follows-

“Both pleaded guilty. Accused 1 has a record and the suspended sentence should be brought into effect and 2 (sic) deserve (sic) incarceration.”

Elvis Nyakanyangwa

The accused person pleaded guilty to unlawful entry into premises in aggravating circumstances. On 12 March 2018 he unlawfully entered a dwelling in Chitungwiza. He proceeded to steal a variety of items valued at US$600 of which only a jacket valued at US$7 was subsequently recovered.

The accused was sentenced to 60 days’ imprisonment the whole of which was wholly suspended on condition of good behaviour. The accused person is aged twenty-one years.

The reasons for sentence were given as follows:

“Accused is a young first offender who pleaded guilty. Through such remorse he must 	be accorded a wholly suspended sentence.”

Tafadzwa Mwenga

The accused person pleaded guilty to unlawful entry into premises in aggravating circumstances. In the early hours of 10 April 2018 the accused forced open a door to a shop by means of a hammer and a crow bar. He was arrested whilst in the process of entering the shop.

In the canvassing of essential elements the accused explained that he was caught before he entered the shop. He was sentenced to 30 days’ imprisonment. The accused was aged twenty-two years. The reasons for sentence were as follows:

“Accused is a first offender. A short term appropriate (sic).”

Wilson Mubaiwa

The accused person pleaded guilty to unlawful entry into premises. On 23 August 2018 the accused unlawfully entered a dwelling in Chitungwiza where he stole a variety of items valued at US$486 of which items worth US$15 were subsequently recovered. He was sentenced to 60 days’ imprisonment which was suspended on condition of restituting US$471 on or before 16 April 2018.

The accused was aged thirty-one years. The reason for sentence was expressed as follows:

“I feel a restitutory order is appropriate.”

Forward Jeche

The accused pleaded guilty to unlawful entry into premises in aggravating circumstances. On 11 May 2018 the accused person entered the complainant’s yard and took a green Monarch wheelbarrow. He was fortuitously caught by Police officers who were on patrol as he pushed the wheelbarrow.

The accused who was aged thirty-two years was sentenced to pay a fine of US$30 or in default to undergo 15 days’ imprisonment. The reason for sentence was-

“Accused is a first offender fine is appropriate.”

Revai Chigovo

The accused person pleaded guilty to contravening s 4 (1) as read with s 3 (1) of the Domestic Violence Act [Chapter 5: 16]. Following an altercation with the complainant the accused person bit the complainant on the cheek and forehead.

The accused, who was aged thirty-nine years was sentenced to pay a fine of US$30 or in default to undergo 15 days’ imprisonment. The reason for sentence was-

“Accused is a first offender fine appropriate.”

Chance Karasa

The accused person pleaded guilty to contravening s 4 (1) as read with s 3 (1) of the Domestic Violence Act [Chapter 5: 16]. On 7 March 2018 the accused person had a misunderstanding with his wife on account of the wife chatting with his girlfriend via WhatsApp. As a result the accused assaulted the wife with open hands, fists and a belt all over the body. The wife did not seek medical examination.

The accused, who was aged twenty-six years, was ordered to pay a fine of US$60 or in default to undergo 30 days’ imprisonment. The reason for sentence was-

“Accused must be discouraged through imposition of deterrent penalties.”

Elsa Muza

The accused pleaded guilty to contravening s 157 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was found in possession of 41 sachets of dagga weighing 208g. On 21 April 2018 Police officers on patrol raided the accused person’s residence. A search yielded the dagga which was hidden in a kitchen unit. The accused was a 25 year old female. During mitigation she stated that the dagga did not belong to her.

The accused was sentenced to a caution and discharge. The reasons for sentence were-

“The dagga is negligible hence caution.”

Ian Jowo

The accused pleaded guilty to contravening s 70 (1) (a) of the Code. The accused was eighteen years old whilst the complainant had not yet attained thirteen years. The two had sexual intercourse once in March 2017. The offence came to light in December 2017 after the girl went missing for a day.

The accused, who was aged eighteen years was sentenced to pay a fine of $70 or in default to undergo 35 days’ imprisonment. The reasons for sentence were-

“Accused pleaded guilty. He is a student who can raise a fine. Both are still young 	offenders.”

Brian Kwinjo

The accused pleaded guilty to assault. The facts are that on 6 May 2017 the complainant and his friend had a misunderstanding with the accused. The complainant’s friend then struck the accused with a bottle on the cheek. The accused retrieved a log from his vehicle and struck the complainant once on the head. The complainant fell down and lost consciousness and bled from the ears. The complainant was hospitalised for two days. A medical report noted- swollen face, bleeding from ear, multiple fractured teeth, mobile tender teeth (4), fractured mandible (lower jaw), basal (base) skull fracture. The force used was severe and the injuries were described as serious. There was possibility of permanent disability in the form of non-union of fractures.

The accused, who was aged twenty-five years was sentenced to pay a fine of $50 or in default to undergo 25 days’ imprisonment. The reasons for sentence were-

“Accused is a first offender. The injuries are serious.”

Ressie Chinembiri

The accused pleaded guilty to contravening s 10 (7) of the Domestic Violence Act [Chapter 5:16].

The facts are that the accused shouted obscenities at her husband. When the husband fetched water to bath the accused spilt it on two occasions. She also threatened the husband with a shovel and was restrained by some bystanders. When the husband went to take a bath and left some keys on the lock he was locked out of the house.

The accused, who was 57 years old was sentenced to three months’ imprisonment. She had a record of previous convictions as in March 2018 she was convicted of two similar offences. Thus in March 2018 she was sentenced to 14 months’ imprisonment of which 7 months were suspended on condition of good behaviour. The remaining 7 months were suspended on condition of performing 245 hours of community service. The reasons foe sentence were expressed as follows-

“Accused is intransigent. I feel a sharp term of imprisonment is appropriate.”

Peter Mapako

The accused pleaded guilty to fraud. The facts are that the accused sold to the complainant a Toyota Raum vehicle, registration number ABN 6598. The complainant paid $800 as part-payment. The accused promised to avail the registration book later as he himself had not finished paying for the vehicle which he had purchased from some garage. On 26 February 2018 the owner of the vehicle came across the vehicle being used by a person who claimed to have hired it from the complainant. A report was made to Police and the vehicle was recovered.

The accused, who was thirty-five years old was sentenced to 40 days’ imprisonment which was wholly suspended on condition of restituting $800 to the complainant on or before 27 April 2018. The court also ordered that the vehicle be returned to its owner. The reason for sentence was given as follows-

“Accused should be visited with a deterrent penalty to desist from dishonesty.”

Simbai Chidodo

The accused person pleaded guilty to fraud. The facts were that the accused person sold a stand to the complainant for $3 000. He was paid $300 as deposit and the remainder of $2 700 was paid through instalments. When the complainant commenced to develop the stand he was approached by someone who claimed to be the rightful owner of the stand and claiming to have purchased it in 2013.

The accused, who was aged thirty-five years was sentenced to 60 days’ imprisonment which was suspended on condition of payment of compensation to the complainant in the sum of $3 000. The reason advanced was-

“Accused should be taught that crime does not pay.”

Simbarashe Gonese

The accused pleaded guilty to theft. According to the facts the accused stole a blanket from where it had been hung to dry. The accused had attempted to escape but was caught. The blanket that had been stolen was recovered and it was worth $50.

The accused, who was aged thirty-five years, was sentenced to pay a fine of $30 or in default of payment to undergo 15 days’ imprisonment. The reason for sentence was expressed as follows-

“Accused has means I feel a fine is appropriate.”

Morgen Ngoro

The accused persons were charged with theft. According to the facts the two accused persons connived with others and stole 780kg of tobacco from a farm in Beatrice. The first accused was a worker at the farm. The second accused then paid the first accused $875 and  took the tobacco to Harare. The stolen tobacco was valued at $3 861.

The second accused pleaded not guilty. He admitted buying the tobacco but denied stealing it. Evidence was led from the complainant and the investigating officer. At the close of the state case the trial court acquitted the second accused.

The first accused, aged thirty-eight years was sentenced to 60 days’ imprisonment which was suspended on condition of restituting $3 861 to the complainant. The reason for sentence was-

“Accused is a first offender. I feel a compensatory order is appropriate.”

Phenias Kaseke

The accused pleaded guilty to assault. He and the complainant had an altercation concerning the accused’s wife. In the process the accused stabbed the complainant above the left eye with a knife. The complainant sustained a puncture wound on the left lateral aspect of the eye and abrasion on the upper left eye lid. The force used was moderate and there was no risk of permanent disability.

The accused, aged twenty-six years was sentenced to pay a fine of $30 or in default to undergo 15 days’ imprisonment. The brief reason for sentence was stated as-

“Accused is a first offender who should be discouraged from assault.”

Patrick Gweshe

The accused pleaded guilty to assault. He and the complainant were workmates at a farm. Having found a workshop door not locked the complainant sought the accused person in order to ask about the keys. The accused told the complainant to contact their employer. As the complainant was in the process of sending a text message the accused head-butted him on the mouth. He also set his dogs on the complainant whose pair of trousers got torn in the process. The complainant sustained small lacerations on the inner lower lip, three loose front teeth, peri-orbital tenderness and redness of the left eye.

The accused, aged forty-eight years was sentenced to pay a fine of $50 or in default to undergo 25 days’ imprisonment. The brief reason given was that-

“Accused is a first offender, pleaded guilty fine is appropriate.”

Dudzai Mushayahembe

The accused pleaded guilty to assault. According to the facts the accused and complainant were co-tenants. On the particular day the accused returned home drunk and started to insult other tenants. When the complainant sought to reprimand him the accused struck him twice on the head with a ceramic cup. The complainant sustained a 2cm laceration on the left parietal region. When the complainant went for medical examination he complained of a headache. It was recommended that if the headache persisted he was to undergo C-T scan in order to establish if there was intracranial injury.

The accused person, aged thirty-seven years was sentenced to pay a fine of $20 or in default to undergo 10 days’ imprisonment. The brief reason given was-

“First offender, fine appropriate.”

No mitigation was recorded. The accused’s means were not ascertained. The only indication in the outline of state case was that the accused was self-employed.

I have agonised over all these matters. With the period spent on the bench it is expected that the trial magistrate appreciates that adequate reasons must be given when imposing sentence. A pattern emerges that he prefers this perfunctory approach to sentence. He cannot mentor other judicial officers. Despite the well established principles of sentence, the trial magistrate opted for a pedestrian approach where sentence is summed up in one or two sentences only. This is devoid of any rationality. This lackadaisical approach is what is criticised by rumpff JA in S v Zinn 1969 (2) S 537 where at 541 he quotes Voet-

“Among the faults of Judges which are most harmful are hastiness, the striving after 	severity and misplaced pity……”

And further about a judge

“..he must be watchful to see that no step is taken either more harshly or more 	indulgently 	than is called for by the case.”

It is evident from the cursory reasons given by the trial magistrate that they snugly fit within the excerpts in S v Zinn supra. There is nowhere where the sentences properly reflect the well-established triad of sentencing- the crime, the offender and the interests of society. Informed sentencing entails that all personal circumstances of the accused be considered. In particular these are the age, sex, marital status, employment, means, record and motive. These are then weighed against the offence and its effect or impact on society. That cannot be done in one sweeping sentence (and in some instances sentences of six or seven words).

For example, in the case of Brian Kwinjo, the assault was particularly bad. A charge of attempted murder could have been appropriate. Despite the trial court acknowledging the injuries to be serious it found it appropriate to impose a measly fine of $50. What was the purpose of such punishment. There was not even a consideration of further imposing a wholly suspended term of imprisonment as a deterrent.

A sentence must serve a purpose. As was held by gillespie J in S v Tendai And Others 1998 (2) ZLR 423, the objectives of punishment are retribution, deterrence, prevention and rehabilitation. In my respectful view these objectives must in some way reflect in the manner in which a court assesses sentence. A meaningful sentence can only be assessed after a court has considered all factors pertaining to the crime and the offender.

A sentence that is not supported with adequate reasons is uninformative. As was stated by chinhengo J in S v Antonio And Others 1998 (2) ZLR 64, at 68-

“That being the case, a judicial officer should give reasons in his judgment why he 	opts for one form of punishment as against any other. It is not a judicious exercise of 	the sentencing discretion to sentence an accused person to a custodial term, or to 	payment of a fine or to the suspension of either of them on any condition or to 	community service without showing why he has settled on any of those forms of 	punishment. In my opinion to do so is a misdirection. It is a misdirection because the 	sentencer will not have applied his mind to the most appropriate sentence. If he would 	have applied his mind to the question of sentence the clearest evidence of it is to 	reflect on the record the reason for his choice of sentence. The words of young J in R 	v Dematema 1967 RLR 311 (G) at 316C-D are apposite. He said:

‘The infliction of punishment is perhaps the most important and difficult 			aspect of the exercise of judicial discretion. A sentence must always have a 		rational content with no capricious element in it. The judicial officer must take 		into account, and give proper 	weight to all relevant factors. As in the case of 		convicting the accused, so with punishing him where the justification of the 		sentence is not obvious, the judicial officer should give reasons for his 			decision. As a member of society the accused is entitled to be treated as a 			rational being and both society and the accused are entitled 	to know the 			justification for the punishment.’”

It may be said that where an accused person is sentenced to imprisonment for 12 months or more, the justification for the custodial sentence is more readily understood. In any case, the judicial officer gives his reasons for sentence, but the seriousness of the offence, generally stands out as the obvious justification for imprisonment. This is not so with non-serious offences. Once the sentence which may be imposed is less than twelve months, the   obviousness of any particular punishment is less likely to be grasped by the accused or the society. There are a number of options available to the judicial officer - a custodial term (which necessarily is a short one), the payment of a fine, community service and other conditions of suspension specified in s 358 of the Act. There must always be a justification of the sentence on which the judicial officer settles. As I have already stated, a failure to do so is a misdirection.”

Apart from the inadequate reasons for sentence which permeate all the matters under consideration, there are other procedural aspects that affect some and in one respect all of the matters. These are highlighted hereunder.

Ian Jowo (case number five)

Although it is only one accused involved, in his reasons for sentence the magistrate commented that “Both are still young offenders.”

Forward Jeche (case number nine)

The accused entered the complainant’s yard through an open gate. He then stole a wheelbarrow and went away. The facts do not disclose where the wheelbarrow was.

For purposes of unlawful entry s 130 of the Code defines premises as-

““premises” means any movable or immovable building or structure which is used for human 	habitation or for storage, and includes an outbuilding, a shed, a caravan, a boat or a tent.”

Therefore the accused person only committed theft and should have been charged with contravening s 113 (1) of the Code.

Right To Legal Representation

Section 191 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that-

“Every person charged with an offence may make his defence at his trial and have the 	witnesses examined or cross-examined—

(a) by a legal practitioner representing him; or

(b) in the case of an accused person under the age of sixteen years who is being tried in a 	magistrates court, by his natural or legal guardian; or

(c) where the court considers he requires the assistance of another person and has permitted 	him to 	be so assisted, by that other person.”

On the other hand, s 163 A provides that-

“(1) At the commencement of any trial in a magistrates court, before the accused is called 	upon to plead to the summons or charge, the accused shall be informed by the magistrate of 	his or her right 	in terms of section 191 to legal or other representation in terms of that 	section.

(2) The magistrate shall record the fact that the accused has been given the information 	referred to in subsection (1), and the accused’s response to it.”

Section 163 A was introduced in 2016. In all the eighteen matters under consideration, not in one did the trial magistrate inform the accused persons about the right to legal representation.

Disposition

The expression you cannot teach an old dog new tricks appears to hold true in the present situation.

I do not think that judicial discretion and independence can be invoked in defence of a judicial officer who fails to apply well established legal principles in matters he presides over. I would like to believe that the review mechanism can be a useful management tool at the disposal of the Judicial Service Commission. Adverse review minutes and judgments can be flagged where a judicial officer vies for promotion. In a worst case scenario as in the present situation, it can amount to misconduct. For example, the Third Schedule to the Judicial Service Regulations, Statutory Instrument 30/2015 lists acts of misconduct and paragraph 3 provides as follows-

“3. Failure to perform any duties related to one’s work or improper or negligent, inefficient or 	incompetent performance of duties.”

In the result, in the case of Forward Jeche the charge is amended to read-

“Contravening section 113 (1) of the Criminal (Codification and Reform) Act.”

Overall I am unable to certify that the proceedings are in accordance with real and substantial justice.

CHATUKUTA J agrees…………………..