AFRO-JAZZ musician Dudu Manhenga was yesterday spared from doing time in prison for causing the death of motorcyclist after the High Court quashed her 18-month jail term and substituted the sentence with a $1 000 fine.
SENIOR COURT REPORTER
Manhenga had been convicted for causing the death of Graham Martin Millward in 2010.
Judges of appeal, Justices Francis Bere and Charles Hungwe, convicted the jazz maestro of negligent driving and further slapped her with a five-month jail term which was wholly suspended for five years on condition that within that period she should not be convicted of any offence involving negligent driving.
While reading the operative part of the judgment, Justice Bere, sitting with Justice Hungwe, said Manhenga was wrongly convicted by the lower court of gross negligence instead of ordinary negligence.
“The appellant ought to have been found guilty of negligence instead of gross negligence . . . the sentence (by the lower court) is set aside and substituted with the following: That the appellant pays $1 000 or failure of payment to serve three-months in prison. Appellant is also sentenced to five-month imprisonment which is wholly suspended for five years on condition that within that period, she should not be convicted of any offence involving negligent driving.”
The judges further said the Prosecutor-General’s Office made a proper and well informed concession by accepting that the magistrate who convicted Manhenga misdirected him/herself by not making a proper inquiry to get the full facts of the offence before making a finding.
Commenting on sentence, Justice Bere said: “It has been stated on many times without numbers that sentencing is the most difficult part for any judicial officer.”
Manhenga, was last year convicted of gross negligence and sentenced to 24 months’ imprisonment of which six months were suspended leaving her with an effective jail term of 18 months.
She then appealed against the sentence arguing the magistrate had misdirected herself by sending her to prison rather than considering other non-custodial sentences.
Manhenga further argued that the lower court had failed to consider that the State led no evidence through eyewitnesses to confirm that indeed she was speeding on the day in question or as to whether Millward himself did not contribute to the fatal accident.
Prosecutor Sharon Fero conceded that the magistrate ought to have taken into consideration the degree of negligence which was ordinary in the circumstances.
She proposed that Manhenga should be sentenced to perform community service, but the judges opted for a fine instead.