Rushwaya was last week remanded in custody following her conviction by the Anti-Corruption Court at the High Court in Harare for smuggling 6kg of gold worth more than US$333 000 to Dubai three years ago.
She was due for sentencing yesterday, but Justice Pisirayi Kwenda adjourned the court until November 16 for a pre-sentencing hearing, to ascertain the facts needed to impose an appropriate sentence that is fair to the offender, victim and society.
According to the new regulations, it is now mandatory for judicial officers to abide by the new guidelines.
In an attempt to bring about more consistency in sentencing the Minister of Justice, Legal and Parliamentary Affairs recently published the Criminal Procedure (Sentencing Guidelines) Regulations, 2023, which prescribe standard sentences (called “presumptive penalties” in the regulations) for a range of commonly-occurring crimes.
Courts retain the right to impose heftier or lighter penalties depending on the facts and circumstances but must explain their reasons to depart from the presumptive penalties.
For each crime listed in the Schedule there is a presumptive penalty — the median penalty — and for most of the crimes there is a list of factors that courts should regard as aggravating and as mitigating plus the penalties that should be imposed when those factors are present.
However, courts may depart from the presumptive penalties for good reason. But if a court does depart from them it must record the reason in its judgment.
If a court departs from a presumptive penalty without cogent reasons for the departure, it will be a gross irregularity invalidating the sentence.
The Schedule lays down presumptive penalties for crimes under the certain statutes, including the Customs and Excise Act – covering smuggling and import of prohibited goods
Rushwaya was heading to Dubai when she was arrested for attempting to smuggle 6kg gold through the VIP route at Robert Gabriel Mugabe International Airport on October 26, 2020.
Four small bars of pure gold were found in her hand luggage. Rushwaya pleaded not guilty when her trial began last month at the Anti-Corruption Court.
The prosecution case was built on the evidence that Rushwaya was caught with the gold in her bag as she was leaving the country and that she failed to provide a valid export permit and presented a fake invoice and packing list from a company called Ali Japan 786 (Pvt) Limited, at the time of her arrest.
Rushwaya denied the charge, claiming she mistakenly picked up the wrong bag at home, one containing gold bars rather than the one she meant to take on her trip.
But Justice Kwenda found her guilty, dismissing her defence of a “wrong bag” as implausible.
Rushwaya was charged with the smuggling along with two Central Intelligence Organisation operatives Stephen Tserai and Raphios Mufandauya.
These two were found not guilty at the close of the prosecution case, for lack of evidence that they had committed a smuggling offence. Herald
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