Mutsa Mwaedza v The State

### Preamble
1
HMT 77/19
CA 52/19
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MUTSA MWAEDZA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 2 October 2019 and 7 November 2019

Criminal Appeal

Mr J Ndomene, the appellant

Ms T. L Katsiru, for the respondent

MWAYERA J: The appellant was convicted and sentenced for unlawful possession or dealing in precious stones. The facts forming the charge and conviction are that on 5 May 2018 the appellant was searched by the police and was found with pieces of diamond in his pocket. The appellant was convicted after a protracted trial for contravening s 3 (1) as read with s 3 (2) (b) of Precious Stones Trade Act [Chapter 21:06]. The appellant was sentenced to the mandatory sentence of 5years imprisonment. Dissatisfied with the finding of the court  a quo the appellant lodged the present appeal.

The grounds of appeal as discerned from the record are as follows:

Against conviction.

“1.	The court a quo erred when it convicted the appellant despite the insufficiency of evidence. As the record of proceedings will reflect, there were material inconsistencies on where the diamonds were allegedly recovered from.”

Against sentence

“1.	The sentence that was imposed by the court a quo is disturbingly harsh in its excessiveness and induces a sense of shock…..”

2.	The court a quo erred in maintaining a finding that there were no special circumstances warranting the court to deviate from the prescribed minimum mandatory sentence. As the record reflects the court a quo failed to make a finding or make an enquiry on whether the appellant’s story was true and probable or otherwise so as to ascertain whether special circumstances existed or not.

3.	The court a quo erred in dismissing the reasons why he committed the offence as no special reasons relating to the offence but rather to the offender…”

I must mention that at the hearing, the appellant’s counsel properly abandoned the appeal against conviction as the conviction was well supported and anchored on evidence. The appellant persisted with the appeal against sentence which the respondent opposed. The appeal against sentence is centred on whether or not in the circumstances of the case the court a quo erred in making a finding that there were no special reasons warranting deviation from the minimum mandatory sentence as provided for by the relevant Act.

Pursuant to conviction the appellant addressed the court a quo on special reasons which can be summarised as follows:

Economic hardships

Necessity to save life.

Compulsion by family members to save life.

Worth noting is the fact that s 3 (2) of the Precious Stones Trade Act, [Chapter 21:06] does not define special reasons. Over the years the Supreme Court and this court have defined what constitutes special reasons or special circumstances where the relevant statute is silent. The common thread that runs through the cases is that special reasons are extra ordinary circumstances associated with the commission of the crime. They are special circumstances which although not extinguishing the criminal liability; diminish and reduce the moral blameworthiness of the offender thus warranting departure from the mandatory sentence. In the case of S v Mbewe 1998 (1) ZLR 7 just like in the plethora cases special reasons were defined in Mbewe’s case (supra) at p 13 C-D special reasons are defined as follows:

“It is apparent that mitigating factors such as good character or particular hardship which are of general application, cannot be taken as special circumstances. Neither, it would seem, would contrition as evidenced by a plea of guilty to the offence or co-operation on the part of the accused constitute the special reasons. However, where for example the accused was out of necessity compelled by circumstances to commit an offence e.g forced to drive whilst drunk because of urgent medical necessity, or was bona fide ignorant of some statutory provision of the law, such factors could constitute not only mitigating factors but special circumstances in the case.”

See also S v Vera 1976 (2) ZLR 228, S v Holmes 1982 (2) ZLR 267, S v Rauston 1982 (2) ZLR 221 and S v Telecel (Pvt) Ltd 2006 (1) 467. In the Telecel case (supra) Kudya J with the concurrence of Omerjee J (as he then was) emphasised that special circumstances are extraordinary circumstances not just ordinary mitigatory factors. It was stated as follows:

“It is apparent from decided cases, therefore that the question of special reasons is dependent on the particular facts of the matter before the court. These factors must be unusual extra ordinary, in the sense approximately to choose between life and death, that is the accused person is left with no choice but to break the law in order to save his or her life or the life of another person.”

In the present case the appellant was found in possession of diamonds of minimal value. He proffered as special reasons economic hardship in circumstances where there was need to save a terminally ill brother’s life. That the family gathered and agreed that the appellant should be send to dispose of diamonds to source funds to assist the ailing brother was placed before the court as a special reason. It was a family decision and there was no evidence that the appellant sourced the diamonds but that he was pushed by his family members so as to secure funds for treatment of the terminally ill brother. The question is, given the circumstances surrounding the commission of the offence the economic hardships and need to save a terminally ill brother would these constitute abnormal, unusual peculiar and extra ordinary circumstances which propelled the appellant into committing the crime. If upon considering the totality of evidence submitted there is an inclination towards the circumstances being extra ordinary then special reasons or circumstances exist warranting deviation or departure from the mandatory sentence.

I am alive to the fact that the trial court is at large to make a finding on whether or not special reasons exists. However, where there appears to be no reason why the factors presented were discarded as being special circumstances given their, extraordinary complexion then there is a misdirection in the finding of the court a quo. The sentiments of Tsanga J in S v Naison Moyo HH 452-15 ring true in this case. The Honourable Judge opined:

“The courts have to ensure that economic situations leading to commission of crimes under the current desperate economic circumstances do not operate differently for the rich as compared to the poor. It is the duty of the court to enquire rigorously into any facts that have been put forth as special circumstances before arriving at a conclusion that what has been stated does not constitute such.”

In casu, the appellant proffered economic hardship. Compulsion from family and the need to save a terminally ill brother. In the absence of challenge to the veracity of these submissions by the appellant one cannot dismiss these circumstance as being general or ordinary, mitigatory factors. The circumstances are special in that they are extra ordinary circumstances surrounding the commission of the offence and special to the offender. The existence of special reasons as opposed to general reasons warrants departure from the mandatory sentence as such we will interfere with the court a quo’s finding that there are no special circumstances. This is more so given the record is silent on whether the court probed the submissions or special reasons so as to test the truthfulness or otherwise of same.

It follows that the sentence cannot stand as there are special circumstances. We will set the sentence aside and impose another sentence in its place. In passing sentence we have considered all mitigatory and aggravatory factors outlined in the court a quo. We however further took note of the special circumstances and it is our considered view that a fine will meet the justice of the case.

Accordingly it is ordered that:

The appeal against sentence succeeds.

The sentence by the court a quo is set aside and substituted as follows:

$800 or in default of payment 3 months imprisonment.

The 4 pieces of diamond are forfeited to the state.

MUZENDA J agrees _____________________

Ndomene and Maposa, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners