By James MuonwaTHE ‘lenient’ sentence handed a 20-year-old unlicenced driver, who ran over and killed a Chinhoyi University of Technology (CUT) student, has elicited mixed reactions from the court of public opinion.CUT’s School of Hospitality and Tourism student, Tanatswa Chinyama (21), tragically lost her life while four other students were left nursing varying degrees of injuries following the accident on the fateful morning of November 17, 2024, near the railway crossing adjacent Sips Bar, Chinhoyi.Takudzwa Gwenzi, the man behind the steering wheel, was spared a custodial sentence when he recently appeared before Chinhoyi Magistrate Kudzanai Kapurura facing three charges; culpable homicide, driving without a driver’s licence and negligent driving.The court found Gwenzi guilty of all charges and sentenced him to 24 months improvement with six months suspended for three years. The remaining 18 months were set aside on the condition that he performs 360 hours of community service.During court proceedings prior to sentencing, defendant’s lawyer, Knight Tafadzwa Rwodzi put up a spirited argument to keep his client out of prison.He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids.
He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention.
A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis.
If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident.
This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law.
It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
THE ‘lenient’ sentence handed a 20-year-old unlicenced driver, who ran over and killed a Chinhoyi University of Technology (CUT) student, has elicited mixed reactions from the court of public opinion.
CUT’s School of Hospitality and Tourism student, Tanatswa Chinyama (21), tragically lost her life while four other students were left nursing varying degrees of injuries following the accident on the fateful morning of November 17, 2024, near the railway crossing adjacent Sips Bar, Chinhoyi.Takudzwa Gwenzi, the man behind the steering wheel, was spared a custodial sentence when he recently appeared before Chinhoyi Magistrate Kudzanai Kapurura facing three charges; culpable homicide, driving without a driver’s licence and negligent driving.The court found Gwenzi guilty of all charges and sentenced him to 24 months improvement with six months suspended for three years. The remaining 18 months were set aside on the condition that he performs 360 hours of community service.During court proceedings prior to sentencing, defendant’s lawyer, Knight Tafadzwa Rwodzi put up a spirited argument to keep his client out of prison.He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids.
He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention.
A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis.
If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident.
This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law.
It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
CUT’s School of Hospitality and Tourism student, Tanatswa Chinyama (21), tragically lost her life while four other students were left nursing varying degrees of injuries following the accident on the fateful morning of November 17, 2024, near the railway crossing adjacent Sips Bar, Chinhoyi.
Takudzwa Gwenzi, the man behind the steering wheel, was spared a custodial sentence when he recently appeared before Chinhoyi Magistrate Kudzanai Kapurura facing three charges; culpable homicide, driving without a driver’s licence and negligent driving.The court found Gwenzi guilty of all charges and sentenced him to 24 months improvement with six months suspended for three years. The remaining 18 months were set aside on the condition that he performs 360 hours of community service.During court proceedings prior to sentencing, defendant’s lawyer, Knight Tafadzwa Rwodzi put up a spirited argument to keep his client out of prison.He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids.
He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention.
A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis.
If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident.
This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law.
It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
Takudzwa Gwenzi, the man behind the steering wheel, was spared a custodial sentence when he recently appeared before Chinhoyi Magistrate Kudzanai Kapurura facing three charges; culpable homicide, driving without a driver’s licence and negligent driving.
The court found Gwenzi guilty of all charges and sentenced him to 24 months improvement with six months suspended for three years. The remaining 18 months were set aside on the condition that he performs 360 hours of community service.During court proceedings prior to sentencing, defendant’s lawyer, Knight Tafadzwa Rwodzi put up a spirited argument to keep his client out of prison.He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids.
He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention.
A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis.
If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident.
This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law.
It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
The court found Gwenzi guilty of all charges and sentenced him to 24 months improvement with six months suspended for three years. The remaining 18 months were set aside on the condition that he performs 360 hours of community service.
During court proceedings prior to sentencing, defendant’s lawyer, Knight Tafadzwa Rwodzi put up a spirited argument to keep his client out of prison.He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids.
He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention.
A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis.
If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident.
This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law.
It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
During court proceedings prior to sentencing, defendant’s lawyer, Knight Tafadzwa Rwodzi put up a spirited argument to keep his client out of prison.
He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids. He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide.
He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention. A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender.
The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis. If this was not done then the sentence imposed would not be in accordance with justice.
If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident. This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g.
transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law. It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
He argued that in the circumstances, the degree of negligence was moderate or ordinary considering the accident happened around 4am when visibility was still poor and the pedestrians, who are also victims, were not wearing reflective clothing.
Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way.
If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids. He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment.
It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention. A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene.
So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis. If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge.
So is running away from the scene of the accident. This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary.
The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law. It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
Rwodzi further submitted that a truck approaching from the opposite direction flashed its headlamps to high beam hence reduced his client’s vision.
“The intense dazzling light from this truck caused a temporary blindness culminating into the accident,” the defence lawyer submitted in court.The lawyer also averred that the victims were themselves negligent.“The victims were walking and some standing in the midst of the road thereby obstructing the accused to enjoy his right of way. If these pedestrians intended to cross the road, they should have done so on designated crossing point or when it was safe to do so,” Rwodzi said.“The victims are all adults, and greater care was expected of them whenever they walk on public roads.“The accident having happened closer to Sips Bar at around 0400hours, there is highly likelihood that these pedestrians were drunk as they were standing in the midst of the road.”In mitigation, Rwodzi expressed remorse that a life was lost while the other parties suffered injuries due to the actions of his youthful client, now a vendor orphaned in childhood hence lacked strict parental guidance.“He is of youthful age, that is 20 years, not married and no kids.
He is a first time offender, who readily admits the charges and should be treated differently from those who deny and found guilty after a full-fledged trial.“He lost his mother when he was still a teenager and he was taken care of by his maternal grandmother whom with age, might not have taken a firm grip in nurturing him into a responsible adult person.”Court also heard that Gwenzi was full of guilt for causing a person’s death and injuring four others.“Ever since he committed this offence, his entire life is full of guilt and he sometimes attempts to commit suicide. He is also a victim of this incident as he needs to undergo extensive counselling,” said the defence counsel.He added that Gwenzi displayed Ubuntu when he contributed money towards the now deceased’s funeral and medical expenses for the injured.“He showed contrition for committing the offence and assisted the deceased’s family with a sum of US$500, which they accepted.“…he pledged to buy beasts in the name of sacrificial offering for the lost soul,” further submitted the lawyer, before pleading with the magistrate to impose a fine or community service.In the aftermath of the sentencing, social media was inundated with mixed reactions with some frowning upon the “lenient” sentence while others felt Gwenzi, being a young offender, was supposed to be given a second chance.Zimbabwe Prisons and Correctional Services (ZPCS) legal counsel Rutendo Mudarikwa said the sentence was in sync with the diversion route the justice system had adopted to keep young first-time offenders out of prison.“The courts are wary of passing custodial sentences to young offenders who don’t have previous criminal records.“In this instance, although negligent driving caused a fatality, the court pursued the diversion route so that young offenders are spared imprisonment. It’s a balancing act,” said Mudarikwa.A renowned Chinhoyi-based lawyer, who requested anonymity, told NewZimbabwe.com that courts consider various factors when determining sentences, hence the public must be aware of mitigating circumstances that could result in passing of lighter, non-custodial sentences.“Generally sentencing is discretionary on the part of the sentencing court and is a result of a consideration of several factors which include (i) the nature and circumstances of the case (ii) the personal circumstances of the accused and (iii) society’s interests (retribution),” said the lawyer, who preferred anonymity.“Now in this case, the offender was youthful, and maybe a first offender, who should be spared the rigours of imprisonment hence he may be turned into a criminal if sent to jail and learn from hardcore criminals.“Further, in culpable homicide one is punished for negligence which carries lighter consequences than cases to do with intention.
A fine or community service are available for culpable homicide.“What accounted in favour of the offender is his youthfulness and being a first offender. The penal justice system seeks to rehabilitate and only punish when rehabilitation has failed,” added the top legal practitioner.Another revered lawyer, Mike Mutsvairo of Mushonga-Mutsvairo & Associates, opined that the offender was driving without a valid driver’s licence hence this alone aggravated the circumstances.“On a charge and conviction of culpable homicide arising out of a driving offence where an accused was driving without a driver’s licence, the sentence ranges from imprisonment for life, a shorter prison term, a fine or both.“The absence of a driver’s licence aggravates the offence so is the running away from the scene. So, the trial court must first make a finding on the degree of negligence before assessing the appropriate sentence S v Chitepo 2017 (1) ZLR 237 H and Manhenga vs S, HH-62-15,” said Mutsvairo.“The finding must be anchored on a sound factual basis.
If this was not done then the sentence imposed would not be in accordance with justice. If it was and going by the summary of facts by the NPA (National Prosecuting Authority), my view is that the accused should have been found guilty of gross negligence or recklessness“Recklessness in traffic cases means no more than gross or aggravated form of negligence or where the driving shows a complete or wilful disregard for the safety as well as rights of other road users.“Loss of life due to an accident is an aggravating factor, so are the injuries suffered by the other four (4), which are likely to be serious and permanent.“Absence of a driver’s licence is a separate offence and adds to the seriousness of the culpable homicide charge. So is running away from the scene of the accident.
This would point to imprisonment being the appropriate punishment,” said the top lawyer.“Any other sentence would only come into play if there are special circumstances that made the accused drive the vehicle, for example driving under duress or having a medical emergency e.g. transporting someone with a life-threatening medical condition to hospital.“If there were no special circumstances, the sentence imposed fails to recognise the seriousness of the crime and society loses its confidence in the criminal justice system, especially in a society where fatal road accidents have become prevalent and endemic.“The facts as narrated by the NPA shows that a deterrent sentence was necessary. The accused can consider himself extremely fortunate that he was treated with such excessive leniency.“The sentence is disturbingly inappropriate and not in accordance with the requirements of the law.
It is not in accordance with real and substantial justice and the NPA ought to file an appeal against the sentence imposed unless if there are facts warranting the sentence imposed that were not made public,” said the senior counsel.The Passengers Association of Zimbabwe (PAZ) described the ruling as “woefully inadequate” and “deeply unjust.”“We are appalled by a justice system that seems to prioritise the perpetrator over the victims, effectively rendering the latter invisible and voiceless.“This ruling perpetuates the notion that the lives of ordinary citizens, particularly the vulnerable, are of little value,” said PAZ national coordinator Tafadzwa Golaiti.PAZ is lobbying for an appeal of the ruling, as well as a broader review of how road traffic fatalities are prosecuted.“We demand a more just and equitable outcome that acknowledges the gravity of this tragic incident and holds the perpetrator accountable,” said Goliati.The Ministry of Justice as well as Parliament were urged to address what PAZ terms “systemic failures” in the legal handling of road traffic crimes.
Source: Newzimbabwe
