Crispin Masunda v State

### Preamble
1
HMT 94-20
BAIL 193 /20
---------


CRISPEN MASUNDA

Versus

STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 3 December 2020

Bail Application pending appeal

C Mukwena, for the Applicant

M Musarurwa, for the Respondent

MUZENDA J: This is an application for bail pending appeal. On 10 September 2020 the applicant was convicted for contravening s 70 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23) having sexual intercourse with a young person. He was sentenced to 3 years imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 14 September 2020 the applicant filed a notice of appeal against sentence only. The grounds of appeal alleged that the trial court misdirected herself by sentencing applicant to a custodial sentence of 2 years (24 months) imprisonment. Moreso where the applicant had pleaded guilty, first offender aged 40 years and that complainant was one year shy the age of consent. The applicant added that the court erred in failing to wholly suspend a prison term on condition that applicant renders community service and lastly that applicant was the sole bread winner of his family he ought to have been spared from a prison term. Applicant in his prayer in the appeal prays for a fine or community service.

The State in response does not oppose the application.

Background

Applicant is aged 42 years, married and has two children. He works at a plot and earns RTGS $1 700-00, he had RTGS $2 800-00 in the bank and a breadwinner of his family. Complainant is aged 15 years and doing form one. Complainant is said to be applicant’s girlfriend. Applicant had several sexual intercourses with complainant from May 2020 to September 2020.

In its reasons for sentence the learned court a quo took notice of all the mitigation aspects outlined by the applicant but juxtaposed these factors with aggravatory features peculiar to the matter. More importantly the court a quo cited a number of cases (see p 14 of the Record of Proceedings) and stated that an effective sentence of 3 years imprisonment should be imposed on an incremental basis for those accused who are twice the victims age, married with children of their own. The court a quo expressed its abhorrence of grown up men who abuse young girls and hide behind the basis of intended marriage of the complainant. The court concluded that applicant was twice the age of the complainant. The court discarded community service and fine as lenient sentences for the matter. He opted for a custodial sentence.

It is against this background that the applicant appeals against the sentence of the court a quo.

Having looked at the grounds of appeal and the reasons for sentence specially advanced by the court a quo, I am satisfied that the concession by the State is misplaced. It is trite that the basis for an application for bail pending appeal is that there should be prospects of success, the appeal is reasonably arguable and not manifestly doomed to failure. The test is whether the appeal is free from predictable failure.

It is not denied that the applicant’s age is double that of the complainant, he is married and actually encouraged complainant to elope to him well knowing that complainant was under the age of 18 years. The applicant is fit to be complainant’s father and he apparently introduced complainant to sexual life at an early age. The sentence of 3 years with a portion suspended is sync with the sentences recommended by these courts, hence there are no prospects especially where young children are involved. I fail to find any fault on the part of the trial court and the appeal is not free from predictable failure. I did not detect any misdirection on the part of the trial court in using its sentencing discretion and in my view the prospects of success on appeal are virtually non-existent.

The applicant has not met the threshold required for the applicant to be granted bail pending appeal.

Accordingly the application for bail pending appeal is dismissed.

Messrs Chigadza and Associates, Applicant’s legal practitioners

National Prosecuting Authority, for the State