Denias Saurosi and Michael Jekiseni v The State

On 6 March 2024, the two appellants, who were security guards at Bindura Provincial Hospital, stopped the complainant Takunda Tennis at the main gate. They searched him, recovered pills from his satchel, and requested his hospital card which he refused to show. A dispute ensued, whereupon their accomplice Charles Maja brought three baton sticks. The appellants and Maja then assaulted the complainant all over his body using the baton sticks. Members of the public had to restrain them from further assaulting the complainant. The complainant sustained serious injuries including a swollen left hand, injuries on the back of the head, and bruised painful ribs. The appellants, aged 47 and 43 years respectively, pleaded guilty to assault charges under s 89(1) of the Criminal Law (Codification and Reform) Act. They were first-time offenders who claimed their actions were fueled by the need to carry out their work as security guards.

• Whether the trial court erred in departing from the presumptive penalty prescribed in the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 without providing cogent reasons
• Whether the trial court failed to properly consider mitigating factors in sentencing
• Whether the sentence of 36 months imprisonment (30 months effective) was unduly harsh and induced a sense of shock
• Whether the court a quo erred in upholding the sentence imposed by the trial court
• Whether there was a substantial miscarriage of justice warranting appellate interference with the sentence

The appeal was dismissed. The sentence of 36 months imprisonment with 6 months suspended for 5 years (effective sentence of 30 months imprisonment) imposed by the trial court and upheld by the High Court was confirmed.

A sentencing court complies with s 5(2) of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 when it provides clear reasons for departing from a presumptive penalty, including consideration of the nature and gravity of the offence, aggravating circumstances such as gang assault, abuse of authority, premeditation, and severity of injuries. An appellate court will not interfere with a sentence imposed by a trial court unless there is a substantial miscarriage of justice or gross misdirection, per s 38(2) of the High Court Act. The mere fact that an appellate court might have imposed a different sentence is not grounds for interference. Where aggravating circumstances significantly outweigh mitigating factors (such as first offender status and guilty plea), a trial court is entitled to impose a sentence exceeding the presumptive penalty.

The Court cited with approval the principle from S v Ziwange SC 133/90 that where a person 'jumps into crime at the deeper end', he must be expected to be treated severely by the courts. This emphasizes that the seriousness of a first offence can override the mitigating factor of being a first-time offender. The Court noted that sentencing is within the discretion of the trial court and appellate courts should not readily interfere with that discretion. The judgment also observed that the attack was not only violent but represented an abuse of office by security guards who should have been protecting rather than assaulting members of the public.

This case clarifies the application of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 in Zimbabwean law, particularly regarding the requirement under s 5(2) for courts to provide reasons when departing from presumptive penalties. The judgment reinforces the principle that an appellate court will not interfere with a sentencing decision unless there is gross misdirection or substantial miscarriage of justice, in accordance with s 38(2) of the High Court Act. The case demonstrates judicial approach to gang assaults, abuse of authority by security personnel, and the balancing of aggravating and mitigating factors in sentencing. It affirms that even first-time offenders who plead guilty can receive severe sentences where they 'dive into crime at the deeper end' through premeditated, brutal violence causing serious injuries.