MAGISTRATE USED GUESSWORK, HIGH COURT RULES

Mathew Masinge

THREE men, who were committed to a combined 1820 hours of community service had their sentences set aside after a review with the High Court judge saying the magistrate used “guess work” to come up with the judgment.

Confidence Kamucharari and Proud Tichabaiwa were charged with having sexual intercourse with minors (aged 15 and 13), while Trevor Pikini faced an assault charge. The trio was ordered to perform 840 hours, 455 hours, and 525 hours respectively.

But community service guidelines put the cap on the maximum number of hours to be imposed at 630 hours. This means the 840 hours imposed on Kamucharari were unlawful. The review judgment, delivered by Justice Lucy Mungwari, found out that the trio was committed to too much time after the magistrate made errors in ordering the completion of the service. Confidence Kamucharari (19), Trevor Pikini (19) and Proud Tichabaiwa (22) were all convicted on their own plea of guilty at Epworth magistrate court. However, on review, Justice Lucy Mungwari remitted the three cases back to the trial magistrate, citing the worrying patterns.

Justice Mungwari said the imposition, the calculation, and the period within which the offenders were supposed to perform their community services were all unlawful.

“A worrying observation from the varying responses is the apparent lack of knowledge of the procedure to be followed when imposing community service on the part of the magistrate.

“The responses demonstrate the use of guess work by the trial court,” ruled Justice Mungwari.

The judge said the magistrate had also failed to seek consent from any of the offenders.

“In other words, the consent of the accused person must be sought.

The convictions in the three cases are confirmed as being in accordance with real and substantial justice but the sentences imposed on the offenders in all three cases are set aside

“The matters are remitted to the trial magistrates to resentence the offenders in accordance with the guidelines given,” reads part of the review.