1

HH 56-15

CA 532/14

REF W255/14 & W256-7/14

SIMON CHIMBO                                                                            

versus                                                                                     

THE STATE

HIGH COURT OF ZIMBABWE

CHIWESHE JP & HUNGWE J

HARARE, 6 October 2015 & 20 January 2016

Criminal Appeal

M Ndebele, for the appellant

E Makoto, for the respondent

            HUNGWE J: The appellant was on 16 June 2014 convicted on his own plea of guilty to a charge of unlawful acquisition of a Bruno rifle and ten rounds of ammunition. He was sentenced to 12 months imprisonment. The fire-arm and ammunition were forfeited to the State. He appeals against both conviction and sentence. The “grounds of appeal” do not by any stretch of imagination come anywhere near meeting the requirements of the rules relating to appeals from the magistrate’s court.

It is necessary to set out the brief facts upon which the conviction and sentence was founded. Police in Hwange stumbled upon information that there was a motor vehicle which had on it a rifle and ammunition used in poaching activities in the area travelling towards Bulawayo. They set up a road block. Upon the said motor vehicle approaching the road-bock, they stopped it and searched it. Secured underneath the vehicle police found a rifle. A further search yielded the rounds of ammunition. They arrested the driver, one Dingiswayo Ndhlovu. This driver gave them certain information which led to the appellant’s arrest. Upon being questioned, the appellant confirmed that he had acquired the rifle and ammunition for the purposes of hunting. He was charged with unlawfully acquiring the rifle and ammunition. He pleaded guilty to this charge and was duly convicted. He was sentenced to 12 months imprisonment. A litany of procedural and substantive errors condemned this appeal to guaranteed failure.

 In the first place, there is a single notice of appeal for apparently two separate records of proceedings involving the same appellant. The only reference to the other record appears in the case number assigned to the separate court records which resulted in an apparent consecutive numbering of the two “notices of appeal” contained in one appeal record. Whilst the “notice of appeal” refers case number W255/14 as being the court record book (CRB”) for the matter in the court a quo appealed against, the same “notice of appeal” was given two consecutive High Court Criminal Appeal numbers (“High Court CA531/14 and CA 532/14). From there further confusion arises. The record CRB W255/14 is where the appellant appeared in court on a charge of contravening section 4 (1) of the Firearms Act, [Chapter 10:09] (acquiring a fire-arm without a fire-arms certificate). The appellant was then joined with Nkosilathi Ndhlovu on CRB 256-257/14 on a charge of contravening section 4(1) of the Firearms Act [Chapter 10:09]. They both pleaded guilty and were duly convicted. They were each sentenced to 2 years imprisonment. The firearm was ordered forfeited to the State. The court a quo properly separated the appellant when it tried him alone in respect of the rifle and ammo found in the motor vehicle driven by Dingiswayo Ndhlovu. He was a self-actor then. Confusion arose when he hired legal practitioners to prosecute his appeal.

The Notice and Grounds of Appeal filed on his behalf regurgitates the same “grounds” in both records with a slight factual variation in respect of the possession of the rifle by Dingiswayo rather than the appellant in CRB 255/14. It is titled “Notice of Appeal against both conviction and sentence”. In both notices, there is reference to an assault on the appellant by the police which, it is said, ought to have required the court a quo to enter a plea of “not guilty” in respect of both records. Yet there is no record of any assault on the appellant either from what he told the court in mitigation or from any other source. The first ground of appeal in both records is therefore not a ground of appeal. It may probably be a sound reason to seek a review since it is introduced into the record for the first time after the conviction. The second ground of appeal in both records is that the court erred in that it did not put the essential elements of the offence charged to the appellant. In the so-called “ground of appeal” in respect of CRB 255/14 the appellant states that the court a quo “alleged that (appellant) was found in the possession of the fire-arm and ammunition yet the state outline alleges that he was arrested when the driver of the motor vehicle told the police that he had been hired by the (appellant) to drive him to Dete.” There are factual inaccuracies in this “ground.” Firstly, the essential elements of the offence charged were clearly put to the appellant who understandingly admitted the same. Secondly, the appellant was not found in physical possession of the fire-arm but it is the driver of a vehicle the appellant had hired who explained to police that the appellant must be in a position to explain the presence of the fire-arm on the vehicle. When the police quizzed the appellant he readily admitted to having acquired the fire-arm without the necessary permit to do so. That is the charge for which he was convicted. The second “ground” is not a ground of appeal. It is premised on the wrong facts or a misunderstanding of the record of proceedings. The third and fourth “grounds” make wrong factual assertions regarding the admitted facts. In the result there is no appeal for consideration by this court in respect of CRB 255/14.

The facts upon which the appellant was convicted under CRB 256-7/14 are that on 10 June 2014 the appellant and another person had been arrested in connection with allegations of poaching. They both admitted their guilt and both led the police into the bush where they indicated the log under which they had hidden a Bruno rifle. They were separately charged and convicted of the same. They were sentenced to 2 years each and the rifle was ordered forfeited to the State.

In his heads of argument, Mr Ndebele, for the appellant, refers to count one and count two. This is an incorrect reference. None of the two records had two counts. These were two records where the appellant appeared in each of them. He was correctly charged and convicted and sentenced. As such, there can be no justification in the reference to two counts. Instead, it is the appellant’s counsel who has perpetuated the confusion that was initiated at the appeal stage of the proceedings in the court a quo. The approach adopted in this case offends the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979, (r 22(1)) which require that where there is more than one conviction, and it is intended to appeal against each conviction, a separate ground specifically attacking that conviction be separately set out in both the notice and grounds of appeal as well as the heads of argument. Further, a new basis for attacking conviction based presumably on an infringement of the constitutional right of the appellant is raised in the heads. It is said that the arrest and trial was unlawful by virtue of the fact that the appellant had been held in police custody beyond the mandatory forty-eight hours without the police obtaining a warrant for his further detention. It is not made clear how this affected either the conviction or the sentence. It is true that this court takes a dim view of any alleged contravention of the constitutional rights of any citizen when in police custody. However, a bald allegation raised in the heads of argument is not the best way to bring the court to decide whether there has been a violation of a citizen’s right under the circumstances. A proper case can be made upon an affidavit by a person who has full knowledge of the facts and on notice to the State that the constitutional point would be taken at the hearing of the matter. Argument may then be advanced regarding how the infringement impacted on either the conviction or the sentence or the trial in general. Only then can a court properly deliberate on such grave a mater as a constitutional violation of right to liberty. In the premises I am unable to make a finding one way or the other. In any event in the view I take of this matter, this appeal can be determined without reference to this point. Assuming in favour of the appellant that he may have been detained beyond the forty-eight hour period, I am of the view that his subsequent trial was not tainted by that as he fairly admitted his guilt without anything being brought to bear upon his volition.

Mr Ndebele, submitted that the fact of possession was not properly put and therefore properly understood by the appellant. Mr Makoto, for the State appears to have agreed that because the court put one question to both and obtained an omnibus answer to that question in respect of possession and possession being a fairly nebulous concept which could be said to be difficult for the ordinary person to comprehend, therefore the proceedings were in that respect, irregular, requiring this court to quash the conviction in respect of CRB 256-7/14 and remitting it back for recording of the essential elements. Before this court can adopt that approach, it has to be satisfied that from the circumstances of the particular case, taking into account the level of sophistication of the accused, the nature of the charge and the overall impression made to the reader, there is a possibility that the admission was not understandingly made, or that the answer did not reflect the truth as understood by the appellant. It is a difficult proposition to arrive at in an appeal because there is no extra evidence by way of affidavit from the appellant himself stating what he understood the question to mean. Had the matter proceeded by way of review, presumably such evidence through the affidavit in support of the application for review would have put the matters beyond doubt. As matters stand, I must decide the issue on the basis of the facts contained in the four corners of the appeal record. The typical definition of possession equates possession with ownership, but generally speaking the legal definition of possession is much broader than that. There are two facets of legal possession; the one that most closely equates with the dictionary definition is known as actual possession. This is when the accused is in physical contact with the object which forms subject of possession; for example when the accused has the dagga in his pocket or some such contraband in his hands or bag next to him.

The second type of possession is called constructive possession. This is the legal tenet which covers instances where an accused can be held to possess something which is under his or her control even if that object or thing is not in his immediate possession. Here, knowledge of the thing and control of that thing will largely determine whether at law a person can be said to have possessed that thing. Thus one can be charged for illegal possession of dagga where the dagga is found in one’s motor vehicle boot and at the time the driver was outside the vehicle. See R v David 1957 (2) SA 279 (R, AD); R v Smythe 1968 (2) 21 (R); R v Pfakacha 1964 (2) SA 32 (FC); R v Mara 1968 (3) SA (R,AD); S v Blanchard & Ors 1999 (2) ZLR 168 (HC); S  v Young 1983 (1) ZLR 258 (SC); S v Masson 1982 (1) ZLR 216 (SC); R v Sibanda & Anor 1964 (1) SA 311 (SR); S v Bledig & Anor 1974 (2) SA 613 (R,AD); Attorney-General v Chimwadze 1982 ZLR 218 (SC); S v Ndiweni 1983 (2) ZLR 49 (HC).

It will be seen from the above line of cases that the appellants who led the police to where they had hidden the fire-arm had the requisite knowledge and, by inference, control of the firearm. It seems to me that although it would have been better for the magistrate to have elicited individual responses to his question, the fact that he recorded a globular answer does not constitute such an irregularity as to vitiate the proceedings, taking into account all the circumstances of this particular case. The appellant is a fairly sophisticated individual acquainted with the operation of a fire-arm. The concept of possession of it could not have in any way flabbergasted him simply because he was in court answering charges of such possession.

 The appellant bemoaned his sentence on the basis that the court a quo did not assess sentence judiciously in that it did not suspend a portion of the sentence in each case or order that the sentences run concurrently; it did not consider a non-custodial sentencing option in light of the fact that the Act provides for a fine; it failed to treat the two offences as one for the purpose of sentence when the circumstances called for such an approach; did not give due weight to the fact that the appellant was a first offender. The appellant argued that the court was unduly swayed by the recent events where elephants had been poached using cyanide. In the result the appellant prayed for a community service order in place of the term of imprisonment.

Where an appeal is against sentence, it ought to be born in mind always that sentencing discretion reposes in the trial court. An appellate court will not interfere with that discretion unless it is shown that the court acted on a wrong principle in its assessment of sentence; or that it exceeded its jurisdiction; or that the sentence imposed is clearly manifestly excessive and demonstrably out of sync with similar cases or that no reasons were given for the sentence imposed which then leaves one with the view that it was capriciously or irrationally assessed. See S v Mundowa 1998 (2) ZLR 392 (HC); S v Munechawo 1998 (1) ZLR 129 (HC); S v Gono 2000 (2) ZLR 63 (HC); S v Mugwenhe & Anor 1991 (2) ZRL 66 (SC); S v Chiweshe 1996 (1) ZLR 425 (HC); S v Dullabh 1994 (2) ZLR 129 (HC); S v Zvondani & Ors 1983 (1) ZLR 111 (SC); S v Mudzingwa 1999 (2) ZLR 225 (HC); S v Julieta & Anor 1998 (1) ZLR 432 (HC); S v Banda 1984 (1) ZLR 96 (HC); S v Kearns 1992 (2) ZLR 116 (SC).

In the present case the appellant pleaded guilty to the offences for which he was charged. In doing so, he saved the court time to investigate a false defence. He ought to be rewarded for it otherwise what would encourage any would be offender to plead guilty? The offences were closely related to each other in terms of time and presumably place. There is no evidence that in fact the appellant had reaped the benefits of their desired goal of poaching. The value of the two weapons is not given but assuming these are standard rifles, they do pose a serious security threat to wild life as confessed to by the appellant. As a first offender, the appellant ought to have benefitted from the age old practice of suspending a portion of his term of imprisonment. I do not hold the view that there was any misdirection by the magistrate in electing to settle on a custodial sentence. Possession of unlicensed      fire-arms is a grave offence. The court correctly took into account the admitted purpose of poaching. However, it should have ameliorated the net effect of the term of imprisonment by either ordering both sentences to run concurrently or suspending a portion on each term of imprisonment. In my view, the fact that appellant was involved with various hunting gangs does not help his case. As such I would not order the sentences to run concurrently. I would however order that four months be suspended for a five year period so as to act as a future deterrent. In the result the appeal against conviction in respect of each case fails. The appeal against sentence succeeds to the extent set out above.

 In the result it is ordered that the appeal against conviction in CRB W255/14 and CRB W356-7/14 be and is hereby dismissed.

The sentence in CRB W255/14 be and is set aside and in its place the following is imposed:

“12 months imprisonment of which 4 months imprisonment is suspended for five years on condition the accused is not, during that period, convicted of any offence involving a        contravention of a section of the Firearms Act, [Chapter 10:09] for which he is sentenced to    imprisonment without the option of a fine”.

The sentence in CRB W256-7/14 be and is hereby set aside and in its place the

 following is imposed:

“24 months imprisonment of which 4 months is suspended for five years on condition that the accused is not, during that period, convicted of any offence involving a contravention of the Firearms Act, [Chapter10:09] for which he is sentenced to imprisonment without the option of a fine.

In both cases the firearms and ammunition subject of the conviction remain forfeited to the State.”

Zvinavakobvu Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners