SAUROSI & ANOTHER v NATIONAL PROSECUTING AUTHORITY (176 of 2024) [2024] ZWHHC 176 (12 September 2024)

2 HH 176 - 25 HCH CR 2641/24 SC 574/24 DENIAS SAUROSI & ANOTHER versus NATIONAL PROSECUTING AUTHORITY HIGH COURT OF ZIMBABWE FOROMA J HARARE; 12 September 2024 Reasons for judgment B. Zonge, for the appellants P.A. Gutu, for the respondent FOROMA J: The appellants were convicted on their own plea of guilty to contravening s 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were sentenced to 36 months imprisonment 6 months of which were suspended for 5 years on condition appellants would not within that period commit an offence involving violence and for which they would be sentenced to imprisonment without the option of a fine thus leaving an effective 30 months imprisonment. Appellants were dissatisfied with the sentence and noted an appeal against it. They impugned the sentence on the following grounds – That the court a quo erred by disregarding the sentencing guidelines of 2023 by neglecting to provide cogent reasons for departing from the presumptive penalty.That the court a quo erred by imposing an unduly harsh and excessive sentence on first offenders who pleaded guilty to the charge.The court a quo erred by imposing an unduly harsh and excessive sentence without considering that the complainant sustained no permanent injuries.The court a quo erred by concluding that the assault was a gang attack when it was not.The court a quo erred by imposing a sentence which is not consistent with sanctions imposed on other offenders for similar offences committed in similar circumstances.The court erred by concluding that the assault was pre – meditated without any evidence of pre – meditation.The court a quo erred by not considering material mitigatory factors that ought to have reduced the sentence. The appellants prayed for the sentence of the court a quo to be set aside and substituted of a fine of US$300.00 in default of payment 3 months imprisonment. Additionally they prayed for each to be sentenced to 3 months imprisonment wholly suspended for 5 years on conditions of good behaviour. The State opposed the appeal but only in part. At the hearing the State representative’s attitude was that misdirected itself by the court a quo not giving cogent reasons for departing from the presumptive penalty – a view which we did not share. The court a quo found aggravation in her sentencing judgment as follows; gang assaultComplainant seriously injuredAccused used reasons to assault complainantAssault was a result of an abuse by security guards.Attack was mindless, vicious and relentless. It is important to note the definition of aggravating circumstances in the sentencing guidelines under section 3. It says “:aggravating circumstances” means those facts or circumstances expressly listed as such by provisions of the Criminal Law Code or any other enactment including the factors and circumstances listed in section 8 of these guidelines and without limitation on any other factors or circumstances which a court may take into account as warranting an augmented sentence.” In casu in addition to the aforementioned aggravating factors the court a quo found further aggravation below. It was clear from the statement of agreed facts that (1) the appellants were not provoked by complainant at all, (2) Complainant was a patient under treatment who deserved appellants’ sympathy. (3) The appellants who were guards ought to have exercised self-restraint but instead needed restraint from a passerby (4) Complainant was not armed to deserve such a vicious attack as resulted in a fractured limb. While it is important that reasons are given for departing from the sentencing guidelines presumptive penalty an appeal court will find such reasons as provided where clearly the court’s reasoning process explains the justification for the departure. In casu the assailants were brutal and yet not provoked. The consequential injuries though not life threatening would have justified a departure from the presumptive penalty. We did not agree with the defence that a fractured limb was a minor injury. While our attention has been brought to their lordship Muremba and Mutevedzi Js’ views as expressed in the review minute in S vs Kufandada we do not share the view that the reasons for departure must be compelling. (our emphasis) In our respectful view the departure have to be justified lest departure is lightly resorted to unjustified departure would certainly the underlying purpose of introducing the presumptive penalties in the sentencing guidelines namely achieving uniformity in sentencing. If a standard for the acceptability of reasons for departure were necessary to achieve the guidelines would have indicated so. Appeal courts in our view should continue to be slow in interfering with the sentencing discretion of the lower courts by avoiding imposing standards such as compelling when assessing the court a quos explanation for a departure from the presumptive penalty. It is our considered view that the conduct of the appellants was totally unacceptable and an uncalled for abuse of power. They could easily have taken complainant to the pharmacy for confirmation that the medication found on him had not been stolen as complainant had suggested. The complainants’ refusal to show appellants his hospital medical cards was totally justified. This was within complainant’s right to his privacy. It was absolutely not necessary that appellants access details of his medical condition in the circumstances. The appellants got upset and must have felt defied by complainant’s resistance to their attempt to pry into his privacy. In in our view their reaction was wrong totally unjustified. The appellants’ grounds of appeal as canvassed in appellants’ heads of argument broadly allege that the sentence imposed on them was harsh and excessive. It may have been so but they do not suggest that it was so excessive as to induce a sense of shock. Generally every sentence of an effective imprisonment is regarded as harsh but may not necessarily be so excessive as to justify interference by the appeal court. Considering that the sentencing discretion reposes in the sentencing court (a quo), it ought to be accepted as an established position at law that the court of appeal will have no right to interfere with such discretion except in very limited specific circumstances. See S vs Sidat 1997 (1) ZLR 482. – In the case of Tichafa Muhomba vs The State SC 57/13 Malaba Dcj (as he then was) made the following illustrative remarks regarding the threshold when an appeal court can interfere with the sentencing jurisdiction of a lower court – “It was held that an appeal court will not lightly interfere with the sentencing jurisdiction of a lower court unless it is shown that the sentence is manifestly excessive and wholly inappropriate. The sentence imposed must be unduly harsh and induce a sense of shock” (underlining for emphasis). We did not find the sentence of the court a quo unduly harsh in the circumstances of this matter particularly since it was not pleaded that the sentence induced a sense of shock neither was it proved so. It is important to bear in mind that the s 38(2) of the High Court Act [Chapter 7:06] stipulates that: “Notwithstanding that the High Court is of the opinion that any point raised might be divided in favour of the appellant, no conviction or sentence shall be set aside or altered unless the High Court considers that a substantial miscarriage of justice has actually occurred. In casu it was not our view that any departure from the presumptive penalty resulted in a substantial miscarriage of justice.” For the foregoing reasons we found ourselves unable to agree with both the State’s partial concession and the appellants’ arguments and dismissed the appeal in it’s entirely. Foroma J: …………………………………….. Kwenda J: ……………………………………… Mhishi Nkomo Legal Practice, appellants’ legal practitioners National Prosecuting Authority 2 HH 176 - 25 HCH CR 2641/24 SC 574/24 2 HH 176 - 25 HCH CR 2641/24 SC 574/24 DENIAS SAUROSI & ANOTHER versus NATIONAL PROSECUTING AUTHORITY HIGH COURT OF ZIMBABWE FOROMA J HARARE; 12 September 2024 Reasons for judgment B. Zonge, for the appellants P.A. Gutu, for the respondent FOROMA J: The appellants were convicted on their own plea of guilty to contravening s 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were sentenced to 36 months imprisonment 6 months of which were suspended for 5 years on condition appellants would not within that period commit an offence involving violence and for which they would be sentenced to imprisonment without the option of a fine thus leaving an effective 30 months imprisonment. Appellants were dissatisfied with the sentence and noted an appeal against it. They impugned the sentence on the following grounds – That the court a quo erred by disregarding the sentencing guidelines of 2023 by neglecting to provide cogent reasons for departing from the presumptive penalty. That the court a quo erred by imposing an unduly harsh and excessive sentence on first offenders who pleaded guilty to the charge. The court a quo erred by imposing an unduly harsh and excessive sentence without considering that the complainant sustained no permanent injuries. The court a quo erred by concluding that the assault was a gang attack when it was not. The court a quo erred by imposing a sentence which is not consistent with sanctions imposed on other offenders for similar offences committed in similar circumstances. The court erred by concluding that the assault was pre – meditated without any evidence of pre – meditation. The court a quo erred by not considering material mitigatory factors that ought to have reduced the sentence. The appellants prayed for the sentence of the court a quo to be set aside and substituted of a fine of US$300.00 in default of payment 3 months imprisonment. Additionally they prayed for each to be sentenced to 3 months imprisonment wholly suspended for 5 years on conditions of good behaviour. The State opposed the appeal but only in part. At the hearing the State representative’s attitude was that misdirected itself by the court a quo not giving cogent reasons for departing from the presumptive penalty – a view which we did not share. The court a quo found aggravation in her sentencing judgment as follows; gang assault Complainant seriously injured Accused used reasons to assault complainant Assault was a result of an abuse by security guards. Attack was mindless, vicious and relentless. It is important to note the definition of aggravating circumstances in the sentencing guidelines under section 3. It says “:aggravating circumstances” means those facts or circumstances expressly listed as such by provisions of the Criminal Law Code or any other enactment including the factors and circumstances listed in section 8 of these guidelines and without limitation on any other factors or circumstances which a court may take into account as warranting an augmented sentence.” In casu in addition to the aforementioned aggravating factors the court a quo found further aggravation below. It was clear from the statement of agreed facts that (1) the appellants were not provoked by complainant at all, (2) Complainant was a patient under treatment who deserved appellants’ sympathy. (3) The appellants who were guards ought to have exercised self-restraint but instead needed restraint from a passerby (4) Complainant was not armed to deserve such a vicious attack as resulted in a fractured limb. While it is important that reasons are given for departing from the sentencing guidelines presumptive penalty an appeal court will find such reasons as provided where clearly the court’s reasoning process explains the justification for the departure. In casu the assailants were brutal and yet not provoked. The consequential injuries though not life threatening would have justified a departure from the presumptive penalty. We did not agree with the defence that a fractured limb was a minor injury. While our attention has been brought to their lordship Muremba and Mutevedzi Js’ views as expressed in the review minute in S vs Kufandada we do not share the view that the reasons for departure must be compelling. (our emphasis) In our respectful view the departure have to be justified lest departure is lightly resorted to unjustified departure would certainly the underlying purpose of introducing the presumptive penalties in the sentencing guidelines namely achieving uniformity in sentencing. If a standard for the acceptability of reasons for departure were necessary to achieve the guidelines would have indicated so. Appeal courts in our view should continue to be slow in interfering with the sentencing discretion of the lower courts by avoiding imposing standards such as compelling when assessing the court a quos explanation for a departure from the presumptive penalty. It is our considered view that the conduct of the appellants was totally unacceptable and an uncalled for abuse of power. They could easily have taken complainant to the pharmacy for confirmation that the medication found on him had not been stolen as complainant had suggested. The complainants’ refusal to show appellants his hospital medical cards was totally justified. This was within complainant’s right to his privacy. It was absolutely not necessary that appellants access details of his medical condition in the circumstances. The appellants got upset and must have felt defied by complainant’s resistance to their attempt to pry into his privacy. In in our view their reaction was wrong totally unjustified. The appellants’ grounds of appeal as canvassed in appellants’ heads of argument broadly allege that the sentence imposed on them was harsh and excessive. It may have been so but they do not suggest that it was so excessive as to induce a sense of shock. Generally every sentence of an effective imprisonment is regarded as harsh but may not necessarily be so excessive as to justify interference by the appeal court. Considering that the sentencing discretion reposes in the sentencing court (a quo), it ought to be accepted as an established position at law that the court of appeal will have no right to interfere with such discretion except in very limited specific circumstances. See S vs Sidat 1997 (1) ZLR 482. – In the case of Tichafa Muhomba vs The State SC 57/13 Malaba Dcj (as he then was) made the following illustrative remarks regarding the threshold when an appeal court can interfere with the sentencing jurisdiction of a lower court – “It was held that an appeal court will not lightly interfere with the sentencing jurisdiction of a lower court unless it is shown that the sentence is manifestly excessive and wholly inappropriate. The sentence imposed must be unduly harsh and induce a sense of shock” (underlining for emphasis). We did not find the sentence of the court a quo unduly harsh in the circumstances of this matter particularly since it was not pleaded that the sentence induced a sense of shock neither was it proved so. It is important to bear in mind that the s 38(2) of the High Court Act [Chapter 7:06] stipulates that: “Notwithstanding that the High Court is of the opinion that any point raised might be divided in favour of the appellant, no conviction or sentence shall be set aside or altered unless the High Court considers that a substantial miscarriage of justice has actually occurred. In casu it was not our view that any departure from the presumptive penalty resulted in a substantial miscarriage of justice.” For the foregoing reasons we found ourselves unable to agree with both the State’s partial concession and the appellants’ arguments and dismissed the appeal in it’s entirely. Foroma J: …………………………………….. Kwenda J: ……………………………………… Mhishi Nkomo Legal Practice, appellants’ legal practitioners National Prosecuting Authority