The State v Joe Gutuza and Munyaradzi Masawu

On 8 December 2010, the two accused persons were arrested for touting for customers at Plumtree Border Post. They appeared before the trial magistrate on 10 December 2010 and both pleaded guilty to contravening section 40 of the Road Motor Transportation Act, Chapter 13:15. The 1st accused had two previous convictions (theft in 2009 and domestic violence in 2009). The 2nd accused had two previous convictions (theft on 18 June 2010 sentenced to 3 months imprisonment, and touting on 19 October 2010). Upon conviction, the 1st accused was sentenced to 18 months imprisonment and the 2nd accused to 20 months imprisonment, with nothing suspended.

• Whether the trial magistrate misdirected himself in considering irrelevant previous convictions when sentencing for touting
• Whether the sentences of 18 and 20 months imprisonment for touting were appropriate and in accordance with the penalty prescribed in section 40 of the Road Motor Transportation Act
• Whether a fine should be imposed in the first instance where the enabling statute provides for both a fine and imprisonment

1. The conviction of the accused persons stands. 2. The sentences imposed against 1st and 2nd accused persons are hereby quashed and in their place is substituted a sentence of 30 days imprisonment for each accused person. 3. As both have already served that period they should be released immediately.

Where an enabling statute provides for both a fine and imprisonment as sentencing options, the court must give effect to a fine in the first instance and reserve imprisonment for more serious breaches of that offence. Previous convictions that are irrelevant to the nature of the current offence should not be taken into account in sentencing (except where the previous conviction relates to the same type of offence). Courts must have proper regard to the penalty prescribed in the enabling legislation and ensure sentences are proportionate to the seriousness of the offence.

The court observed that section 40 of the Road Motor Transportation Act creates an offence that "is not a serious one at all," as illustrated by the level 4 fine of $100 prescribed. The court noted it was difficult to comprehend how the magistrate arrived at the sentences of 18 and 20 months imprisonment. Mathonsi J commented that even one prior touting conviction "would not suddenly elevate a fineable offence of $100,00 to the status of such serious offence as would attract a lengthy imprisonment period."

This case is significant in Zimbabwean jurisprudence for establishing important sentencing principles: (1) courts must not consider irrelevant previous convictions when sentencing; (2) courts must give proper regard to the penalty prescribed in enabling legislation; (3) where a statute provides for both a fine and imprisonment, courts must impose a fine in the first instance and reserve imprisonment for more serious breaches; and (4) sentences must be proportionate to the seriousness of the offence. The case demonstrates the High Court's supervisory role in reviewing manifestly excessive sentences imposed by lower courts.