Saurosi and Another v S [2025] ZWSC 139 (5 June 2025)

1Judgment No. SC 12/26Civil Appeal No. SC 575/24 REPORTABLE (12) (1) DENIAS SAUROSI (2) MICHAEL JEKISENI v THE STATE SUPREME COURT OF ZIMBABWE UCHENA JA, CHITAKUNYE JA & MWAYERA JA HARARE: 05 JUNE 2025 L Majogo with G Mhishi, for the appellants Ms. P. A. Gutu for the respondent MWAYERA JA: INTRODUCTION 1. This is an appeal against the judgment of the High Court (the court a quo) wherein the court dismissed the appellants’ appeal against the sentence imposed on them by the Magistrates Court (“the trial court”). At the hearing of the appeal, this Court dismissed the appeal and indicated that the reasons for the decisions would be availed in due course. These are they. FACTUAL BACKGROUND 2. The appellants are both adult male citizens of Zimbabwe aged 47 and 43 years respectively. The respondent is the State. The background facts of this appeal are as follows: 3. On 11 March 2024, the appellants were arraigned before the trial court facing a charge of assault as defined in s 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The State alleged that on 6 March 2024, the appellants in their capacity as security guards for the Bindura Provincial Hospital (“the hospital”), together with one Charles Maja stopped Takunda Tennis (“the complainant”), at the main gate of the hospital. 2Judgment No. SC 12/26Civil Appeal No. SC 575/24 4. The respondent alleged that the appellants searched the complainant and recovered some pills in his satchel. They proceeded to request for the complainant’s hospital card, which the complainant refused to show them. A dispute ensued amongst the parties. Charles Maja proceeded to the guard room and brought three baton sticks. The appellants and Charles Maja started assaulting the complainant all over his body. In addition, the respondent made the allegation that members of the public restrained the appellants and their accomplice from further assaulting the complainant. 5. The complainant was immediately taken to the hospital where he was examined and treated for various serious injuries which resulted from the assault. The respondent alleged that the appellants were thus guilty of the charge of assault leveled against them. 6. The State led evidence from one Prosper Majeri. The witness testified that the complainant was beaten by the appellants after they detained him. He further testified that the complainant sustained a swollen left hand, injuries on the back of the head and bruised painful ribs. This testimony was corroborated by a medical report prepared by Dr Youndry Olay Maye, a medical and forensic pathologist based at Parirenyatwa Hospital. 7. The appellants pleaded guilty to the charges levelled against them. They submitted that their actions were fueled by the need to carry out their work as security guards. In that regard, the appellants pleaded with the court for a lighter sentence as they had admitted to the crime and had not wasted the court’s time. FINDINGS OF THE TRIAL COURT 3Judgment No. SC 12/26Civil Appeal No. SC 575/24 8. In coming up with a sentence the trial court considered the appellants’ personal circumstances, the seriousness of the offence and the interest of the community. It also bore in mind the primary purpose of sentencing. The trial court then held that a fine would not be appropriate for the reason that the appellants were security officers, who ganged up to assault the complainant using baton sticks. Further, it found that the nature of the assault was serious, persistent and the force used was severe, as the appellants only stopped when they were restrained by members of the public. Further, it held that the complainant had suffered serious injuries as a result of the attack. 9. The trial court then considered the appellants’ submission in mitigation and made the finding that the aggravating circumstances far outweighed mitigation. The trial court held that though the appellants were first offenders who pleaded guilty to the charges, they had dived into crime at the deeper end. The trial court further made the finding that the attack on the complainant was mindless, brutal, premeditated and well executed. It was the trial court’s finding that a fine would not be appropriate. 10. In view of the above, the trial court sentenced the appellants to 36 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition that the appellants did not within that period commit an offense involving violence for which upon conviction appellants will be sentenced to imprisonment without an option of a fine. The effective sentence was 30 months imprisonment. The court reasoned that the presumptive penalty in the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (“the Sentencing Guidelines”) in circumstances of a gang assault would not meet the justice of the case. PROCEEDINGS BEFORE THE COURT A QUO 4Judgment No. SC 12/26Civil Appeal No. SC 575/24 11. Aggrieved by the decision of the trial court the appellants filed an appeal in the court a quo. In the court a quo , the appellants submitted that the trial court erred by disregarding the sentencing guidelines when it neglected to provide reasons for departing from the presumptive penalty for a charge of assault. The appellants further submitted that the trial court had imposed an unduly harsh sentence on them and that the court a quo had erred in determining that the appellants had committed a gang assault. 12. The respondent initially consented to the appeal by the appellants. However, after an exchange with the court, the respondent submitted that the trial court was correct in its determination. The respondent submitted that the circumstances surrounding the assault warranted a prison sentence. It also submitted that the injuries that resulted from the assault were so grave that it would have been against the interests of justice for the appellants to have been fined. 13. The court a quo determined that the trial court had correctly considered the factors in mitigation and aggravation and weighed the same, which led to the imposition of its sentence. The court a quo made a finding that the trial court gave reasons for its departure from the sentencing guidelines in its reasoning. The court a quo further made a finding that the appellants were brutal, yet unprovoked. The court held that the consequential injuries, though not life threatening, justified a departure from the presumptive penalty. 14. In addition, the court a quo found that the conduct of the appellants was totally unacceptable abuse of power. With that, the court a quo did not find any reason to depart from the sentence imposed by the trial court. The court relied on s 38(2) of the High Court Act [ Chapter 7:06] 5Judgment No. SC 12/26Civil Appeal No. SC 575/24 and found that the departure from the presumptive penalty did not result in a substantial miscarriage of justice. In that regard, the court a quo dismissed the appellants’ appeal. PROCEEDINGS BEFORE THIS COURT 15. Aggrieved, the appellants noted an appeal to this Court on the following grounds: GROUNDS OF APPEAL AD SENTENCE 1. Despite conceding to the fact, the court a quo erred in failing to find that the failure by the Magistrate to comply with peremptory obligations to provide cogent reasons for departing from the presumptive penalty in the Sentencing Guidelines was a material misdirection that vitiates sentence. More so, where the State properly conceded this fact. 2. That the court a quo erred in failing to appreciate the effect of the new sentencing guidelines on the doctrine of stare decisis leading to a wrong conclusion that old cases referred to were no longer applicable. Had it done so, it would have found that the sentence was disproportionate as evidenced by sentences of similar offences in cases this Court decided before the Sentencing Guidelines. 3. The court a quo erred in failing to appreciate that the failure by the Magistrates court to abide by peremptory obligations laid down in Sentencing Guidelines was in itself a ground to vitiate sentence even if its finding was that there was no sense of shock. 4. The court a quo erred in failing to find that the Magistrate’s failure to consider material mitigatory factors provided in the Sentencing Guidelines led to a disproportionate sentence and that a sentence that offends the law must be set aside. 6Judgment No. SC 12/26Civil Appeal No. SC 575/24 5. The court a quo erred in disregarding the concession by the State where it was properly taken. In forcing the state to abandon its concession during oral submission, the court a quo violated the right to fair and independent administrative conduct in creating an impression that the Court was now unduly descending into the arena to the prejudice of the appellants. RELIEF SOUGHT 1. That the instant appeal be and is hereby allowed; 2. The sentence of the court a quo is set aside and substituted with the following: (i) Each accused person is sentenced to a fine of US$300 (or equivalent in ZWL (at a prevailing bank rate on the date of payment) or in default of payment, 3 months’ imprisonment. In addition, each accused person is sentenced to 3 months’ imprisonment, wholly suspended for 5 years on condition the accused does not within that period commit any offence of which violence is an element and for which upon conviction, the accused is sentenced to a term of imprisonment without the option of a fine.” Alternatively, (ii) The matter is remitted to the High Court for a fresh hearing on sentence before a different bench with a directive that the Court must pay due regard to the Sentencing Guidelines and stare decisis. SUBMISSIONS BEFORE THIS COURT 16. At the hearing of the appeal, Mr Majogo, counsel for the appellants, submitted that the sentence that was imposed upon the appellants was excessive and in contravention of the 7Judgment No. SC 12/26Civil Appeal No. SC 575/24 Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (“the Sentencing Guidelines”). Counsel further submitted that the court a quo erred when it failed to find that the judgment handed down by the trial court did not give reasons for departing from imposing community service and for departing from a presumptive penalty of 24 months. 17. Counsel for the appellant further argued that the court a quo also failed to find that the Magistrates’ court did not consider the appellants’ circumstances in mitigation. In addition, Mr Majogo contended that given the fact that the appellants pleaded guilty, were first time offenders, pleaded for mercy, were bread winners for their families and had spent some time in prison on remand before they were sentenced, the trial court ought to have imposed a lighter sentence upon them. 18. Mr Majogo’s submissions centered on the argument that the judgment from the trial court ought to have been structured in such a manner that the sentence imposed upon the appellants was justified per the requirements of s 5 of the Sentencing Guidelines. Counsel for the appellants submitted that where there is a law that depicts what should be taken into account and the court does not follow this law, that court would have erred and as such the appellate court is justified to interfere. In that regard, counsel argued that in this case, the court aquo ought to have shown that it engaged on the enquiries depicted in the Sentencing Guidelines and that it engaged the victim impact statement. 19. In response, Ms. Gutu, counsel for the respondent, submitted that the court a quo’s decision was hinged on s 38 of the High Court Act. In that regard, counsel submitted that an appellate court can only interfere on appeal where there was a gross misdirection in imposing a sentence. It was the respondent’s case that the appellants in this case were taking issue with the manner 8Judgment No. SC 12/26Civil Appeal No. SC 575/24 in which the judgment of the trial court was structured and this does not constitute a gross misdirection. 20. In addition, counsel stated that taking into account the injuries sustained by the complainant, the evidence filed on record as well as the description of the nature of the crime that the appellants committed, the sentence that was imposed upon the appellants was appropriate. Therefore, in her final submissions, counsel for the respondent maintained that the sentence imposed did not induce any sense of shock as it was not unduly severe. Counsel prayed for the appeal to be dismissed. ISSUES FOR DETERMINATION 21. The sole issue that falls for determination in casu is whether or not the court a quo erred in upholding the sentence imposed by the trial court. APPLICATION OF THE LAW TO THE FACTS 22. The appellants’ contention is that the sentence imposed on them is harsh and induces a sense of shock. The appellants further contend that the trial court did not give cogent reasons for its departure from meting out a community service or the presumptive penalty of 24 months imprisonment. The trial court imposed a sentence of 36 months on the appellants. In its sentencing judgment, the trial court considered the fact that the sentencing guidelines provide for a presumptive penalty of 24 months imprisonment. In mitigation, the trial court deliberated that the appellants were first offenders and that they pleaded guilty. However, the trial court made a finding that the aggravating factors far outweighed the mitigating factors. 9Judgment No. SC 12/26Civil Appeal No. SC 575/24 23. From the sentencing judgment, it is quite clear why the trial court departed from the presumptive sentence of 24 months imprisonment. The trial court made a finding that the appellants as security guards, gang assaulted the complainant who suffered serious injuries as a result of the attack. Further, it made the finding that even though the appellants are first offenders who pleaded guilty to the charges, the appellants dived into crime at the deeper end. As a result, the trial court placed reliance on the case of S v Ziwange SC 133/90, which states that where a person jumps into crime at the deeper end, he must be expected to be treated severely by the courts. 24. The trial court concluded that a fine was not appropriate as the attack on the complainant was mindless, brutal, premeditated and well executed. This led the court into imposing an effective sentence of 30 months’ imprisonment. The presumptive penalty for assault is 2 years imprisonment. The appellants’ contention is that the trial court did not give cogent reasons for departing from the presumptive penalty. Section 5(2) of the Sentencing Guidelines provides that where a sentencing court departs from a prescribed presumptive penalty, it has to give reasons for such departure. Section 5 of the Sentencing Guidelines provides as follows: “Binding nature of guidelines on judicial officers 5. (1) Where these guidelines have provided for a presumptive penalty, the courts shall pay due regard to the applicable sentencing guidelines when sentencing offenders. (2) Where a sentencing court departs from a prescribed presumptive penalty as provided for in these guidelines it shall give reasons for that departure.” 25. In this case, it is apparent that the trial court gave reasons why it departed from the presumptive penalty. The trial court found that the attack was mindless, brutal and premeditated. Further, the trial court found that the attack was a clear abuse of office as the appellants were security 10Judgment No. SC 12/26Civil Appeal No. SC 575/24 guards and that it was a gang assault. In addition, the court considered the gravity of the injuries suffered by the complainant. After all these considerations, the trial court then chose to depart from the presumptive penalty on the basis that it would not be appropriate taking into consideration the gravity of the offense. In view of the clear reasoning and proper exercise of the sentencing discretion by the trial court it is therefore, astounding why counsel or the appellants took the position that the trial court did not give reasons for departing from the presumptive sentence. 26. In light of the foregoing, the court a quo correctly and properly found that the sentence was not unduly harsh in the circumstances and that there was no need to interfere with the decision of the trial court. The court a quo placed reliance on s 38(2) of the High Court Act [Chapter 7:06] which provides that: “Notwithstanding that the High Court is of the opinion that any point raised might be decided 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.” (My emphasis) 27. The import of the above is that the High Court cannot just set aside the conviction or sentence imposed by the trial court because they do not agree with it. The High Court can only set aside the conviction or sentence if there is a substantial miscarriage of justice that has actually occurred. The appellants have failed to show this Court that the departure from the presumptive penalty led to a substantial miscarriage of justice. Considering that the court a quo found that there was no substantial miscarriage of justice, the court a quo cannot be said to have erred. 11Judgment No. SC 12/26Civil Appeal No. SC 575/24 28. Further, it is an established principle that an appellate court does not lightly interfere with the sentence imposed by the trial court, unless there is a gross misdirection. In Diyenga & Ors v The State SC 114/24, on pp 36-37, this Court as per MAVANGIRA JA remarked that: “It is trite that sentencing is in the discretion of the trial court and that an appellate court will not readily interfere with that discretion unless there is a misdirection by the sentencing court. In S v Matanhire & Ors HH 18/02 at p 3, the following was stated in this regard: “The assessment of sentence is a matter in the discretion of the sentencing judicial officer. There must be a miscarriage of justice occasioned by the exercise of that discretion or some error or misdirection on the part of the judicial officer exercising that discretion: See R v Ramushu SC 25/93 and S v Mundowa 1998 (2) ZLR 392 (A). In addition, the sentence must not only appear to be severe, but must be disturbingly so. An appellate court does not interfere with the sentencing discretion of a lower court unless the criteria I have outlined are satisfied.” See also Mandla Mkombo v The State HCB 140/10. It is also trite that it is not for an appellate court to interfere with that discretion merely on the ground that it might have imposed a different sentence.” 29. In view of the above, the court a quo could not have set aside the decision of the trial court. Further the court a quo correctly made the finding that the trial court gave clear reasons for its departure from the presumptive penalty. It therefore did not have the power to interfere with the decision of the trial court. Further, the court correctly found that there was no substantial miscarriage of justice, hence it could not set aside the sentence passed by the trial court. It is clear from a reading of the record that the aggravating circumstances far outweighed the mitigating factors, as such the trial court imposed a befitting sentence. Therefore, because of the reasons mentioned above, this Court cannot interfere with the judgment of the court a quo. 30. Given the above considerations, the appeal is devoid of merit. It is for the foregoing reasons that this Court dismissed the appeal as reflected in para 1 above. 12Judgment No. SC 12/26Civil Appeal No. SC 575/24 UCHENA JA : I agree CHITAKUNYE JA : I agree Mhishi Nkomo Legal Practice, appellants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners