daniel chigunwe
Court Reporter
FORMER St John’s College sports teacher and Zimbabwe Triathlon Association coach, David Edward Gardner, lost his appeal against both conviction and sentence for indecently assaulting three schoolboys between 2002 and 2006.
However, instead of returning to prison to serve the remainder of his 12-month term, he will now serve 420 hours of community service.
He is now expected to appear before a regional magistrate to be placed on community service at a public institution.
Gardner was on July 5, 2008 jailed for 12 months for indecent assault, but successfully applied for bail pending appeal after serving a portion of the jail sentence.
It took 13 years for his appeal to be heard at the High Court and the delay was not of his making, as the prosecution conceded.
In deciding the appeal, a two-judge bench of Justice Benjamin Chikowero and Justice Pisirayi Kwenda took into account the excessive delay between the imposition of the sentence in 2008 and the hearing of the appeal on October 11 last year.
So while they agreed the trial court’s decisions were correct and so they agreed to uphold both the conviction and sentence, they took the view that there would be a gross miscarriage of justice if they were to order that Gardner returns to prison to serve the remainder of the jail term.
Instead of sending Gardner back to prison to finish his sentence, the judges decided to suspend the 12 months on condition he performs 420 hours of community service.
“Although the sentence was appropriate at the time it was imposed, the delay of 13 years before the hearing of the appeal necessitates that we suspend that portion of the custodial sentence, being 12 months, on condition the appellant performs community service,” said Justice Chikowero.
He directed that a copy of the judgment to be forwarded to the chief magistrate for arrangements to be made to enable Gardner to appear before a regional magistrate for his placement on community service.
Gardner, now 51, was sentenced to two years on the three counts before ex-regional magistrate Ms Judith Tsamba conditionally suspended one year.
Gardner had denied the charges, but was convicted on overwhelming evidence after a full trial.
He was, however, cleared on one count.
The trial court heard that the first incident occurred in 2002 when Gardner invited a 14-year-old to spend the night at his Highlands house. The two shared the same room, but slept on separate beds. However, the boy woke up around 3am to find Gardner on his bed fondling him.
The second incident occurred in November 2006 at a training camp for 15 athletes when Gardner sneaked into the hotel room of another 14-year-old boy, and indecently assaulted him.
In August 2006, Gardner allegedly assaulted a 15-year-old boy while on an international tour.
The boys separately reported the cases to their parents who, in turn reported to the police.
Online Reporter