Unlawful entry into premises followed by theft of property therefrom https://old.zimlii.org/taxonomy/term/10109/all en S v Gomana (SC 166-20, Criminal Appeal No. SC 320/20) [2020] ZWSC 166 (25 November 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/166 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE:</strong><strong>             (155)</strong></p> <p> </p> <p><strong>MILTON     GOMANA</strong></p> <p><strong>v</strong></p> <p><strong>THE     STATE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, SEPTEMBER 23, 2020 &amp; November 25, 2020</strong></p> <p> </p> <p>Appellant in person</p> <p><em>E. Mavuto</em>, for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p><strong>       UCHENA JA:    </strong>This is an appeal against the dismissal of the appellant’s  bail application by the High Court.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>       The appellant and his co-accussed Kudzai Chiza were arraigned before the magistrate’s court facing 19 counts each; 10 counts each being of unlawful entries into premises in contravention of s 131 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and the other nine (9) counts each being of thefts from those premises in contravention of s 113 of the Act. The two were arrested in Gweru on 9 June 2014, after they had broken into and stolen property from Shangani Post Office in the early hours of that day. A satchel containing property stolen from Shangani Post Office, and tools used in the commission of the offence was found in the truck which the appellant and his co-accussed had travelled in from Shangani to Gweru. They had been given a lift by a truck driver who on arriving in Gweru gave information to the Police leading to the arrest of the appellant and his co-accused. The investigating officer told the court that the driver told the police that the satchel belonged to the appellant and his co-accused. The appellant and his co-accused were thereafter implicated in the commission of other offences and taken for indications at several other institutions which they had  broken into and stolen from namely, (Primero Energy Service Station - Kadoma, Ntobe Store –Silobela, Zim Post Office-Mhangura, Selous Post Office- Selous, Ram Petroleum Service Station-Lions Den, Redan Service Station-Makuti, Nyamatani Primary School- Sanyati Kadoma, Nyamatani Secondary School- Sanyati Kadoma, Hovani School – Gokwe, Shangani Post Office - Shangani). The appellant pleaded not guilty to the charges preferred against him.</p> <p> </p> <p>       After the trial the appellant and his co-accused were each convicted of nine (9) counts of unlawful entry into premises and nine (9) counts of theft. The magistrates’ court found that the indications were made freely and voluntarily as the evidence from both civilian and police witnesses proved that they were conducted with the consent and free participation of the appellant and his co-accused. The evidence led established that a black Samsung cellphone which was stolen from Selous Post Office was recovered from a purchaser who had bought it from the appellant’s co-accused. It further found that the appellant and his co-accused used a clear <em>modus operandi</em> to break into premises after which they used explosives to blast open safes from which property and cash would be stolen. The same tools they used (pick head, screwdrivers, explosive tubes and codes amongst others) as narrated in their indications were found in the satchel which was recovered in their possession after they committed similar offences at Shangani Post Office in the early hours of 9 June 2014. The satchel which was found in their possession contained the property stolen from Shangani Post Office and the tools used to break in and explode the safe. The appellant was sentenced to a total of 28 years imprisonment of which five years were suspended leaving an effective term of 23 years.</p> <p> </p> <p>       Aggrieved by the convictions and sentence imposed on him, the appellant noted an appeal to the High Court, after which he applied for bail pending appeal. The appeal is still pending. In determining the appellant’s application for bail pending appeal, the court a <em>quo</em> held that there were no reasonable prospects of success on both conviction and sentence and that there was a possibility of the appellant absconding if he is granted bail pending appeal. The court <em>a quo</em> found that the appellant and his co-accused were not assaulted to force them to make indications because their medical reports did not bear evidence to that effect. It further held that the appellant’s grounds of appeal were centred on factual findings and that it was trite that appellate courts do not lightly interfere with findings of facts by trial courts. Accordingly, the application for bail pending appeal was dismissed. Aggrieved by the dismissal of his application, the appellant appealed to this Court.</p> <p> </p> <p>             The appeal raises two issues for determination</p> <ol> <li>Whether or not the appellant has prospects of success on appeal against both conviction and sentence?</li> <li>Whether or not the appellant is likely to abscond in light of the gravity of the offences for which he was convicted and sentenced.</li> </ol> <p> </p> <p><strong>SUBMISSIONS MADE BY THE PARTIES.</strong></p> <p>                   The appellant submitted that his appeal should be allowed as he has prospects of success in the main appeal. He averred that the court <em>a quo </em>erred by not finding that there was insufficient evidence linking him to the offences. The appellant argued that the indications which were relied on to convict him were not backed by photographs and videos and were thus, not adequate to secure his conviction. He further argued that the indications which were relied on as evidence linking him to the offences were induced by duress and were not made freely and voluntarily. The appellant contended that the court <em>a quo</em> erred in finding that the satchel linking him to the offence was his as there was no conclusive evidence to that effect because the truck had been boarded by many people and the truck driver had not given evidence. The appellant argued that he was improperly convicted on circumstantial evidence. He further submitted that he was not a flight risk as he was going to avail a guarantor if granted bail and was willing to submit to stringent bail conditions.</p> <p> </p> <p>       The respondent opposed the appeal. Counsel for the respondent submitted that the appeal was devoid of merit and ought to be dismissed.  He submitted that the granting or refusal of bail involves an exercise of discretion which is rarely interfered with by appellate courts unless it is proven that the court erred in exercising its discretion. He argued that the court <em>a quo</em> did not err in dismissing the appellant’s bail application. He argued that most of the appellant’s grievances are on factual findings made by the trial magistrate which the court <em>a quo</em> relied on. In that regard, he argued that appellate courts do not lightly interfere with factual findings of trial courts, unless it is proven that they are grossly unreasonable.</p> <p> </p> <p>       Counsel for the respondent submitted that the court <em>a quo</em> correctly relied on the factual findings of the trial magistrate who found that the appellant was in possession of a satchel which contained property stolen from Shangani Post Office. He argued that although most of the respondent’s witnesses did not positively identify the appellant, the pick,  explosive tube and code recovered from him corroborated their evidence as all unlawful entries involved the same <em>modus operandi </em>of breaking in and using explosives to blast open safes from which contents would be stolen. On sentence, he submitted that the court <em>a quo</em> correctly found that the sentence imposed by the trial court was appropriate in view of the seriousness of the offences. Counsel for the respondent argued that the appellant had failed to establish a basis for interference with the court <em>a quo’s</em> exercise of discretion and its findings of fact.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>       Counsel for the respondent correctly submitted that the granting of bail involves an exercise of discretion by the court of first instance.  It is trite that an appellate court will not interfere with the exercise of discretion by a lower court or tribunal unless there is a misdirection.  It is not enough that the appellate court thinks that it would have taken a different view from the trial court. It must appear from the record of proceedings that there has been an error made in the exercise of discretion such as that the trial court acted on a wrong principle; allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact or failed to take into consideration relevant matters in the determination of the question before it.  See <em>Barros &amp; Anor</em> v <em>Chimponda</em> 1991 (1) ZLR 58 (S); <em>Aitken &amp; Anor</em> v <em>Attorney General</em> 1992 (1) ZLR 249 (S).</p> <p> </p> <p>       The purpose of exercising discretionary power vested in the court in terms of s 123 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] is to secure the interest of the public in the administration of justice by ensuring that a person already convicted of a criminal offence will appear on the appointed day for his/her appeal or review.  It is for that reason that the Act provides, that upon sufficient evidence being led to justify it, a finding that a convicted person is likely not to appear for his/her appeal or review when released on bail is a relevant and sufficient ground for ordering his/her continued detention  pending appeal or review. See <em>Madzokere &amp; Ors v The State</em> SC 08/12.</p> <p> </p> <p>       The main factors to consider in an appeal against a refusal of bail by a person convicted of an offence are twofold: Firstly, the likelihood of abscondment. See <em>Aitken, supra</em>. Secondly, the prospects of success on appeal in respect of both conviction and sentence. See <em>S v Williams</em> 1980 ZLR 466 (A) at 468 G-H; <em>S v Mutasa</em> 1988 (2) ZLR 4 (S) at 8D; <em>S v Woods</em> SC 60/93 at 3-4; <em>S v McGowan</em> 1995 (2) ZLR 81 (S) at 83 E-H and 85 C-E. Other factors to bear in mind are the right of the individual to liberty and the delay before the appeal can be heard. <em>See Mungwira v S</em> HH 216\10.</p> <p> </p> <p><strong>WHETHER OR NOT THE APPELLANT HAS PROSPECTS OF SUCCESS ON APPEAL AGAINST BOTH CONVICTION AND SENTENCE?</strong></p> <p>                        The gravamen of the appellant’s contention against the judgment convicting and sentencing him largely depends on factual findings and evidentiary issues. The appellant argued that the trial court erred when it held that the satchel found in the truck belonged to them. He avers that it could have belonged to other travellers who boarded the truck before they arrived in Gweru. The appellant also contends that he was improperly linked to other similar offences committed around the country when there was no conclusive evidence to that effect besides the alleged similar <em>modus operandi</em>. He asserts that he was incorrectly linked to the crimes on circumstantial evidence. He avers that he was improperly convicted on indications which were not voluntarily made but influenced by duress and not backed by photographs and videos.</p> <p> </p> <p>The court <em>a quo</em> held that the decision of the magistrate’s court is unlikely to be altered on appeal. A perusal of the record establishes that the conviction by the magistrates' court cannot be faulted as it was supported by evidence, particularly indications and testimonies from the respondent’s witnesses. The factual finding by the magistrates’ court that the appellant and his co-accused cooperated with the police resulting in them leading the police on indications to several other places which had been broken into and similarly subjected to theft is insurmountable and consistent with the rest of the evidence on record. The indications and cooperation of the appellant and his co-accussed in relation to the breaking in and theft from Selous Post Office resulted in the recovery of a black Samsung cellphone, from a purchaser who had bought it from the appellant’s co-accussed. Selous Post Office had been broken into and stolen from. The finding by the court <em>a quo</em> that the accused persons were not assaulted in order to force them to make indications is reasonable and is supported by their medical reports which did not find any evidence of injuries on the appellant and his co-accussed.</p> <p> </p> <p>       The magistrate’s court found that there were similarities in the <em>modus operandi</em> used by the accused persons in breaking into premises and using explosives to explode safes open, from which property and cash would be stolen. The same tools they used (the pick head, screwdrivers, explosive tube and codes) as narrated in their indications were found in the satchel which was linked to the offences committed at Shangani Post Office in the early hours of 9 June 2014. The satchel also contained property stolen from Shangani Post Office. A perusal of the record confirms these factual findings.</p> <p> </p> <p>The court <em>a quo</em> correctly found that the only reasonable inference which could be drawn from the proven facts was that the appellant together with his co-accused were the ones who committed the series of unlawful entries and thefts using the same <em>modus operandi</em>. This was corroborated by their indications, the tools and property found in their possession on 9 June 2014 after a break-in at Shangani Post Office. The appellant took issue with the fact that their indications were not backed by photographs and videos. The failure to take photographs and videos of the indications, does not invalidate them as it depends on the availability of resources. Indications at each break-in were commented on by local witnesses who observed how the appellant and his co-accused made the indications. They commented on how their indications proved they were familiar with the offices which had been broken into. They were able to lead the Police into the right offices and correctly identified where the safes were located. The witnesses were seeing the appellant and his co-accussed for the first time. The Police could not have brought the appellant and his co-accused to these premises without the knowledge of these witnesses, as they were  employed there, and the premises and offices could not be accessed without their knowledge and cooperation. In most instances the witnesses testified that the appellant and his co-accussed had during indications, accurately narrated how they had broken into their premises, and accurately told the Police what they had stolen.</p> <p> </p> <p>       In respect of the break-in at Selous Post Office a witness, told the trial court of how the appellant freely and voluntarily made indications leading to the recovery of the sumsung cell phone in Harare, therefore the lack of photos and videos did not affect recoveries made as a result of such indications. The evidence is also supported by their medical reports which contradicted their allegations of having been assaulted to force them to make indications.</p> <p> </p> <p>       In respect of the break-in at Redan Service Station in Makuti a witness identified the appellant as he had a day prior to the break-in come to the service station in a Mark 2 motor vehicle pretending to be drunk and asked for prices of oil. On the day of the break-in he on realising that the premises he was guarding had been broken into went into the office to check. He, using a torch, saw the appellant standing by the safe. He ran away to a nearby Hotel to phone the Police. While he was at the Hotel he heard an explosion coming from their premises. He eventually found that the safe which the appellant had been standing next to was blast open with explosives.</p> <p> </p> <p>       It is trite that an appellate court will only interfere with factual findings of a lower court when it is alleged and proved that the finding was arrived at irrationally. See <em>Hama v NRZ</em> 1996 (1) ZLR 664 at 670.  There is no basis to interfere with the court <em>a quo’s</em> exercise of discretion. The appellant has not shown good cause for such interference. In <em>The Attorney General v Siwela</em> SC 20/17 it was held:</p> <p><em>“</em>The power of this Court to interfere with the decision of the court <em>a quo</em> in an application for bail is limited to instances where the manner in which the court <em>a quo</em> exercised its discretion is so unreasonable as to vitiate the decision made. See S v Ncube 2001 (2) ZLR 556 (S). Another ground for interference with a decision of a court <em>a quo</em> is the existence of ‘a misdirection occasioning a substantial miscarriage of justice’ by the court <em>a quo</em> – S v Makombe SC 30/04.”</p> <p> </p> <p>                   In light of the above, the appellant has not established a basis for interference with the decision of the court <em>a quo</em>. He does not have prospects of success in his main appeal pending in the High Court.</p> <p>       Further, there is in our jurisdiction case law justifying conviction on circumstantial evidence. The cardinal rules of logic governing the use of circumstantial evidence were aptly illustrated in <em>Moyo v The State</em> SC 65/13, wherein this Court quoted with approval the remarks made in <em>R v Blom</em> 1939 AD 188, at 202-203 that:</p> <p>“1. The inference sought to be drawn must be consistent with</p> <p>               all the proved facts and;</p> <p> 2. The proved facts should be such that they exclude every   </p> <p>reasonable inference from them save the one sought to be drawn.” Also see <em>State</em> v <em>Marange</em> &amp; Ors 1991 (1) ZLR 244 (S) and <em>S v Shoniwa</em> 1987 (1) ZLR 215 at 224 C-D (S).</p> <p> </p> <p><em>       In casu</em>, it was established that the inference drawn by the trial court is consistent with the facts and is the only one that can be drawn from the proved facts. The evidence against the appellant plugs all the loopholes which he sought to create.</p> <p> </p> <p>       The regional magistrate took into account all factors surrounding the offence before convicting the appellant. There are, therefore, no reasonable prospects of success on appeal against both conviction and sentence. The court <em>a quo</em> therefore, correctly dismissed his application for bail pending appeal.</p> <p> </p> <p> </p> <p><strong>WHETHER OR NOT THE APPELLANT IS LIKELY TO ABSCOND IN VIEW OF THE GRAVITY OF THE OFFENCES AND THE SENTENCE IMPOSED?</strong></p> <p>                   The court <em>a quo</em> held that the appellant is a flight-risk. It held that in view of the long term of imprisonment he is serving and there being no reasonable prospects of success on appeal, he is likely to abscond if granted bail pending appeal. The appellant argues that he is not going to abscond as he is going to avail a guarantor if granted bail and is prepared to submit to stringent bail conditions. In my view, the appellant has a high probability of absconding considering the gravity of his offences and that he has no reasonable prospects of success. The appellant was convicted and sentenced on 23 July 2014. He has experienced the rigours of imprisonment for over six (6) years,  which most probably led to his belated application for bail pending appeal. He still has a long way to go as he was sentenced to 28 years in prison of which 5 years were suspended leaving him with an effective sentence of 23 years. The remaining sentence is likely to cause him to abscond if he is granted bail pending appeal.</p> <p> </p> <p>       The offences for which the appellant was convicted are serious, particularly, the use of explosives in blowing open safes. He was involved in organised crime with a clear <em>modus operandi </em>which poses danger to society. He cannot be released into society pending his appeal which has no reasonable prospects of success. In <em>Mutizwa v The State</em> SC 13/20, it was held that:</p> <p>“Bail pending appeal is not a right. An applicant for bail pending appeal has to satisfy a court that there are grounds for it to exercise its discretion in his favour. In the case of bail pending appeal, the proper approach is that in the absence of positive grounds for granting bail, the application will be refused. The applicant having been found guilty and sentenced to imprisonment is in a different category to an applicant seeking bail pending trial. See S v Tengende &amp; Ors 1981 ZLR 445 (S) at 447H – 448C…<strong>The <em>State</em> v <em>Williams</em> 1980 ZLR 466 (S) wherein it was stated that considerations of reasonable prospects of success on the one hand and the danger of the applicant absconding on the other, are inter-connected and have to be balanced. Furthermore, that the less likely the prospects of success on appeal, the more inducement there is on an applicant to abscond. It also emphasised that in every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail.” </strong>(emphasis added)</p> <p><em>In casu</em>, it is my view that the appellant has no reasonable prospects of success. This may cause him to abscond. He is a flight-risk.</p> <p>The appeal has no merit. It is accordingly dismissed.</p> <p>Appellant in person</p> <p><em>Attorney-General’s Office</em><em>, </em>respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/166/2020-zwsc-166.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=43986">2020-zwsc-166.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2012/8">Madzokere &amp; Others v S (318/11) [2012] ZWSC 8 (12 February 2012);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/13">S v Mutizwa (SC 13-20, Civil Appeal No. SC 408/19) [2020] ZWSC 13 (30 January 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 06 Jan 2021 09:12:04 +0000 Sandra 9960 at https://old.zimlii.org S v Kapondoro & Anor (HH 693-20, CRB BKT 66/20) [2020] ZWHHC 693 (28 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/693 <span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/imprisonment-sentence">Imprisonment (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/theories-purpose-punishment">Theories of purpose of punishment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/166">S v Maparura (HH 166-17 CRB R1050/15) [2017] ZWHHC 166 (28 February 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Mon, 23 Nov 2020 12:36:37 +0000 Sandra 9938 at https://old.zimlii.org S v Moyo (HH 697-20, CR CHG 999/19) [2020] ZWHHC 697 (29 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/697 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>THE STATE</p> <p>versus</p> <p>TAMIRIRASHE MOYO</p> <p> </p> <p>HGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 29 October 2020</p> <p> </p> <p> </p> <p><strong>Review Judgment</strong></p> <p> </p> <p>            CHITAPI J: The proceedings in the above matter were referred for review by the scrutinizing regional magistrate under cover of a letter dated 7 September 2019. The letter referred to four records of trials presided over by the same magistrate in which there appears what the scrutinizing regional magistrate termed a “common error.” I should point out though that although the letter aforesaid referred to four records, only one record is before me for review. The learned scrutinizing regional magistrate described the common error as follows-</p> <p>“The above four records have a common error. The second sentences of imprisonment suspended on condition accused pays restitution appear incompetent.</p> <p>In all the four records, the State nor the complainant applied for restitution in terms of s 268 Criminal Procedure &amp; Evidence Act. (sic)</p> <p>The trial magistrate views were sought. She believes the sentence are competent.”</p> <p> </p> <p>It is totally unacceptable for the regional magistrate and indeed the trial magistrate having taken divergent positions on a point of law to fail to advance their respective stand points. If the trial magistrate believed she is a right, then a researched and supported response should have been furnished to the scrutinizing regional magistrate. Equally if the scrutinizing regional magistrate did not agree, he or she was required to research and support the dissenting position. It cannot be left to the judge to figure out the points of divergence between the two magistrates. The two magistrates are therefore corrected for the future to support their adopted legal positoons on the point of divergence. I will however review the proceedings without their output.</p> <p>To answer the query, it is necessary to give a brief background of the case and to generally review the proceedings. </p> <p>The accused was charged with the offence of unlawful entry as defined in s 131 of the Criminal Law Codification &amp; Reform Act [<em>Chapter 9:23</em>]. The charge alleged that between 13 and 25 June 2019, the accused unlawfully forced open the door to the complainant’s dwelling house and stole 52 buckets of shelled maize. The offence occurred at Magwaza Village, Chief Mashayamombe, Mhondoro.</p> <p>The facts as outlined in the outline of State case were that the accused was aged 23 years old. He was employed as a domestic worker by the complainant and resided at the complainant’s homestead. The complainant was a 60-year-old female adult who stayed with her daughter. Complainant left her homestead and came to Harare on 9 June 2019. She left her daughter in charge of the home. The daughter subsequently followed to Harare on 13 June 2019 leaving accused in charge of the homestead. The accused during the period of the absence of the complainant and her daughter forced open the door of the house where the maize was stored and stole 52 buckets of shelled maize which he sold at the local business centre for $520.00. Maize worth $290.00 was recovered.</p> <p>The trial was purportedly held in terms of s 271 (2) (b) of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>], that is, by guilty plea. It is necessary to quote the plea proceedings recording as per the learned trial magistrate’s record.</p> <p>“PLEA</p> <p>Q         Any complaints against police?</p> <p>A         No</p> <p>Q         Constitutional rights explained?</p> <p>A         I will be self-actor</p> <p>Charge</p> <p>P          Guilty              s 271 (2) (b)</p> <p>Facts read and u/d</p> <p>Q         Admit that on the day in question you committed an unlawful entry by forced opening of the complainant’s house and after “(--- not legible)” and stole 52 buckets of shelled maize?</p> <p>A         Yes</p> <p>Q         Admit it you intended to deprive the owner</p> <p>A         Yes</p> <p>Q         Was it lawful</p> <p>A         No</p> <p>Q         Any right</p> <p>A         No</p> <p> </p> <p>V         GAP</p> <p>PP        First offender</p> <p>The learned trial magistrate adopted a very casual approach to the disposal of this matter by way of guilty plea. The learned trial magistrate started by asking the accused if he had any complaints against the police. What sort of complaints if one may ask? One cannot expect a simple villager to be able to appreciate the purport of a generalized question like “do you have complaints against the police?” In my view, direct and specific questions should be asked. For example, the starting point is to deal with a constitutional issue. An arrested person should be brought before the court within 48 hours of arrest with the period being reckoned to include weekends and public holidays. The accused should be asked to give details of when he was arrested, where and how he was arrested. Questions can be put like who arrested him. How he was treated upon arrest and whilst in police custody. One cannot give an exhaustive list of the nature of questions which may be asked. I surmise that some magistrates may not even appreciate why the court enquires as to whether the accused has complaints against the police.</p> <p>In order to appreciate the rationale for ascertaining whether or not the accused has complaints against the police, it is important to refresh and keep in mind that the law provides for the presumption of innocence until proven guilty. Every accused person has a right to claim that presumption. The constitution provides for rights of an accused upon arrest until the accused is brought to court. Upon appearing in court further rights are accorded the accused. The accused’s rights before appearing in court are set out in s 50 of the constitution. The court is therefore advised where it puts questions to the accused on whether he has any complaints against the police to tailor make the questions in such a manner that they address the rights of the accused in terms of s 50 and generally to ascertain that the police did not act unlawfully in their handling of the accused. For example, if the accused alleges and proves assault, the court would make the necessary order for the accused to be medically examined and a report compiled. The court in terms of s 44 of the constitution has a duty to protect, promote and fulfil the human rights set out in the declaration of rights, [<em>Chapter 4</em>], of the constitution. The role of the court is in terms of s 165 (1) (c) of the constitution made “paramount in safeguarding human rights and freedoms and the rule of law.”</p> <p>Therefore, the court should go deeper in ascertaining whether the accused’s rights were not violated by the police. The enquiry on police treatment should not start and end with the colourless question, do you have any complaints against the police as is the norm?” The magistrate must adopt an active role in ascertaining that the accused’s rights were not trampled upon by the police.</p> <p>The next observation I make is the learned trial magistrate’s handling of the peremptory provisions of s 163A of the Criminal Procedure &amp; Evidence Act. The provisions of that section require that the accused must be informed of his right to legal or other representation (where applicable) as provided for in s 191 of the same Act [<em>Chapter 9:07</em>]. The s 191 rights derive from the constitution. They are part of fair trial rights. The right to a fair trial as given in s 69 of the constitution cannot in terms of s 86 (2) and (3) of the constitution be abrogated by any law. The right is absolute. The right to legal representation is part of safeguards which ensure that the accused receives a fair trial. In <em>casu</em>, the learned trial magistrate simply recorded as follows:</p> <p>            “Q        Constitutional rights explained</p> <p>            -           I will be a self-actor.”</p> <p> </p> <p>            The endorsement by the learned trial magistrate is meaningless. The constitution comprises many rights. It is not possible therefore to determine what constitutional rights were explained to the accused and to which of the rights the accused responded. Section 163 A requires that the accused is informed of s 191 rights. Although the rights in s 191 derive from the constitution because s 163 A is specific that the accused shall be informed of his or her rights in terms of s 191 of the Criminal Procedure and Evidence, the magistrate should specify that the rights which the accused has been informed of are those set out in s 191. Whilst it is onerous a duty to perform, the learned trial magistrate must record the content of the information or explanation given to the accused in relation to the s 191 rights. To simply record that a right has been explained leaves the question open, as to “what was the accused told or how was he informed of the right.” The Magistrates Court is a court of record. What that means is that the record should bear testimony to what transpired in the proceedings. The record cannot be a complete record where answers to what transpired during the proceedings have to be sought outside the record. It is important that the reader of the record of proceedings including the scrutinizing magistrate and/or review judge as the case may be is not left to wonder as to the content of the information given to the accused and/or its accuracy. The recorded explanations should not leave room for doubt that there was full compliance with the peremptory requirements of s 163 A. The magistracy must be guided in future that there is no provision for a curtailed procedure in complying with the requirements of s 163A. The trial magistrate must record the content of the information given to the accused. It is important to do so because the accuracy of the information given is subject to review to ensure that indeed it is the correct information as set out in s 191. In <em>casu</em>, it is not possible to hold so.</p> <p>            The other issue pertains to non-compliance with the provisions of s 271 (3) of the Criminal Procedure and Evidence. The learned trial magistrate in <em>casu</em>simply recorded “P. Guilty s 271 (2) (b)”. Amongst other peremptory requirements s 271 (2) (b) sets out what the trial magistrate should do by way of exchange between him or her and the accused. The section provides that the magistrate shall explain the charge and the essential elements of the offence to the accused. The magistrate then must enquire from the accused whether the accused understands the charge and the essential elements. Section 271 (3) however lists the matters which should be recorded in the process of the guilty plea disposal. For example, para (a) of subs (3) of s 271 requires that “the explanation of the charge and essential elements of the offence…”  shall be recorded. In other words, the full content of the explanation given must be recorded. The reason for this is simple. Again because magistrates court proceedings are susceptible to scrutiny and review, which are quality control measures imposed by statute and are peremptory, the scrutinizing magistrate or review judge should be satisfied that the correct explanation of the charge was given to the accused. If properly explained there would be no doubt arising that the accused who pleaded guilty did so well aware of what constitutes the offence. It is not in my view too onerous a duty to explain the charge and record it because the criminal offences are codified in this jurisdiction.</p> <p>            Lastly, I address the specific query by the learned regional magistrate. The learned trial magistrate sentenced the accused as follows:</p> <p>“6 months imprisonment of which 3 months is suspended for 5 years on condition within this period the offender does not commit any offence of which unlawful entry is an element for which upon conviction he will be imprisoned with the option of a fine 3 months effective.</p> <p>            In addition, 30 days wholly suspended on condition that the accused restitutes $230 to the            complainant by 31/07/19”</p> <p> </p> <p>            I should firstly record that there is no explanation why the restitution amount was assessed at $230 when the agreed facts showed this amount as $290. This lack of attention to detail should be avoided. Figures should not be plucked off from nowhere and a sentence determined on the basis of a ghost figure.</p> <p>            The learned magistrate in this case passed two sentences, the first sentence of 6 months with part suspended on condition of good behaviour and an additional term of imprisonment of 30 days wholly suspended on condition of restitution. It is incompetent to compose sentence in this fashion. Section 358 (2) (b) provides as follows:</p> <p>“(2)      When a person is convicted by any court of any offence other than an offence specified in the Eighth Schedule, it may</p> <p>            (a)        …………..</p> <p>(b)        pass sentence, but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding five years on such conditions as the court may specify        in the order...”</p> <p> </p> <p>            The above provision would be the one that the leaned trial magistrate proceeded in terms of Subsection (3) of s 258 lists the conditions on which the sentence may be suspended in whole or in part. The list is not close ended. The court may include other matters considered necessary or desirable in the interests of the offender, any other person or the general public as a condition of suspension of the sentence. This discretion is provided for in para (h) of subs (3) of s 358.</p> <p>            With regard to restitution, it is provided for in s 365 of the Criminal Procedure and Evidence Act, as follows;</p> <p>            “365    Restitution of unlawfully obtained property</p> <p>           (1)       Subject to this Part, a court which has convicted a person of an offence involving the unlawful obtaining of property of any description may order the property to be restored to its owner or the person entitled to possess it.</p> <p>         (2)         For the purposes of subsection (1), where the property referred to in that subsection consists of—</p> <p>           (a)         money, the court may order that an equivalent amount be paid to the injured party from                moneys—</p> <p>              (i)      taken from the convicted person on his arrest or search in terms of any law; or</p> <p>             (ii)       held in any account kept by the convicted person with a bank, building society or similar institution; or</p> <p>            (iii)      otherwise in the possession or under the control of the convicted person;</p> <p>           (b)        fungibles other than money, the court may order that an equivalent amount or quantity be handed over to the injured party from similar fungibles in the possession or under the control of the convicted person.”</p> <p> </p> <p>            It will be apparent that the restitution envisaged in s 365 is not accompanied by a criminal sanction if not complied with. In this regard restitution becomes a circumstance of mitigation. Ideally the accused should be given the opportunity to make restitution before sentence in which case the restitution is considered mitigatory. The restitution envisaged is one to be ordered in circumstances where the accused actually has the property subject of the offence or some other property of a tangible nature or money from which the equivalent of the unlawfully obtained property can be exacted. Restitution is then ordered to be effected.</p> <p>            It is however also competent to make restitution a condition of a suspension of a sentence in terms of paragraph (b) of subs (2) of s 258. The learned trial magistrate was correct to consider restitution as a condition of suspension of part of the sentence imposed. The learned trial magistrate could not however impose an additional sentence suspended on condition of restitution. What was competent was to impose one sentence with part suspended on condition of future good behaviour and a further portion on condition of restitution. The learned magistrate should have determined what sentence he or she considered appropriate in all the circumstances of the case.  The global sentence imposed in this case was 6 months imprisonment. Part of the 6 months should have been suspended on condition of good behaviour and a further portion on condition of restitution. It was incompetent to impose an additional imprisonment term suspended on condition of restitution. The learned regional magistrate was correct to query the sentence. The learned magistrate was wrong and misdirected to insist that the sentence was proper.</p> <p>            In disposing of the review, I note that the accused has already served the sentence imposed. No useful purpose will be served by correcting the sentence. For all the irregularities which I have set out, the proceedings cannot be said to accord with real and substantial justice dictates.</p> <p>            I accordingly refuse to confirm the proceedings as being in accordance with real and substantial justice. I accordingly withhold my certificate.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>            </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/697/2020-zwhhc-697.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23956">2020-zwhhc-697.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/697/2020-zwhhc-697.pdf" type="application/pdf; length=123182">2020-zwhhc-697.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/compensation">Compensation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review-0">Application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 23 Nov 2020 10:43:50 +0000 Sandra 9936 at https://old.zimlii.org S v Mukwena (HMA 03-19, CRB No CH 1766/18) [2019] ZWMSVHC 3 (17 January 2019); https://old.zimlii.org/zw/judgment/masvingo-high-court/2019/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>STATE                                                           </p> <p>versus</p> <p>JOHANIS MUKWENA</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>MASVINGO, 17 January 2019</p> <p> </p> <p> </p> <p><strong>Criminal review</strong></p> <p> </p> <p>MAFUSIRE J:</p> <p>[1]        An integral part of the adjudication process is the exercise of discretion. It is done judiciously. Whim, caprice, impulse, irrationality, excitability, emotion, and all the other negative urges or passions of that nature have no role. There are many instances when the court is called upon to exercise its discretion. But it is mostly in sentencing, in criminal matters, that that function is so pronounced. Ordinarily the doctrine of <em>stare decisis</em> ensures that like cases are treated alike. In appropriate situations, a precedent set in one case should be followed in all other subsequent cases of a similar nature. But this is only to a degree. Every case is judged in accordance with the peculiarities of its own facts and circumstances. And strictly speaking, there are no two cases that are exactly alike. That is why in sentencing, for example, penalties may differ from case to case despite the similarities on the face of them. It is because of the subtle differences that may exist between seemingly similar cases and the exercise of judicial discretion by the trial court. Because of that, the appeal court or review judge, exercises the greatest of restraint before interfering with the decision of the lower court. There are times when the appeal court or review judge feels that he could have imposed a different penalty from that of the trial court, but nevertheless refrains from interfering because of the realisation that the lower court is reposed with the power to exercise its own discretion. Only in instances where the exercise of that discretion by the lower court was not judicious would the appeal court or review judge interfere. This particular case is a good example of an injudicious exercise of discretion.</p> <p>[2]        It was an ordinary case of unlawful entry and theft. The accused was 21 years old. He “broke into” the complainant’s residence. He did not “break in” in the sense of using force to break down any barrier. He simply pushed open the door and walked in. It was unlocked. That was count 1: “Unlawful entry into premises”, as defined by s 131(1) of the Criminal Law (Codification and Reform) Act, <em>Cap 9:13</em> (“<strong><em>the Code</em></strong>”).</p> <p>[3]        Inside the complainant’s residence the accused stole 5 kilogrammes of mealie meal, a pack of potatoes, a t-shirt and a pair of shorts. The total value of all the items stolen was $53. The short was recovered. It was worth $10. Thus, $43 was the actual value of the prejudice to the complainant. That was count 2 of the charge: “Theft”, as defined in s 113(1) of the Code.</p> <p>[4]        The accused pleaded guilty to both counts. He was duly convicted. The conviction is proper. It is hereby confirmed.</p> <p>[5]        On sentence, the trial court took both counts as one. The accused was sentenced to 16 months imprisonment. 4 months were suspended for 5 years on the usual condition of good behaviour. A further 2 months were suspended on condition the accused paid the complainant $40 restitution. (It should have been $43.) That left him with an effective 10 months imprisonment.  </p> <p>[6]        An effective 10 months imprisonment for unlawful entry into premises and theft of items to the value of $53 seemed unduly excessive. Ordinarily offenders in similar circumstances escape with community service. So the record attracted my attention. I sought to find out what it is that had led the trial court to be so harsh. What could have been the peculiar circumstances of the case? I found nothing other than plain misdirection by the court. Below are the details.</p> <p>[7]        The accused was a first offender. The trial court made no mention of this. He was married and had one child. The trial court said nothing about this either. He was a pushcart operator earning $60 per month on average. His savings or assets amounted to just $15 and 5 goats. Asked why he stole, he said he had no money. Asked where he had put the items that he had stolen, he said he had used/consumed them, but that he was willing to pay compensation.</p> <p>[8]        By all accounts the accused was a poor man. He stole the food items to eat. The clothes he wore them. It was the pair of shorts that gave him away. He was putting them on when he was arrested. He had just been 8 months in the business of cart pushing.</p> <p>[9]        Poverty does not justify crime. If you are poor and you steal to feed or clothe yourself you are offending. The law will convict you. It will judge you. It will punish you. But your sentence should fit you and your crime. That is where judicial discretion comes in. That partly explains why one sentence in one case may differ from the other in another case seemingly of a similar nature.</p> <p>[10]      It was clear the accused did not steal out of greed or malice. He stole out of need. The problem is that the trial court took no account at all of any of his personal circumstances. Not in the least did it comment on them. So there is no telling to what extent its sentence was influenced, if at all it was, by the fact that the accused was a first offender; that he had several mouths to feed; that he had pleaded guilty and saved time, and, above all, that he had shown contrition by offering to pay the complainant compensation. That was part of the misdirection by the court <em>a quo</em>.</p> <p>[11]      The other and more serious misdirection by the court <em>a quo</em> is what it took into account in arriving at the sentence. Without commenting on the personal circumstances of the accused, the trial court went straight to express what should amount to its personal prejudices or whims. It said:</p> <p>            “The offence of unlawful entry is a threat to the security of home owners. Burglars are dangerous criminals. For unlawful entry even first offenders can be sent to imprisonment. It’s an offence which takes so much courage to commit. The complainant lost $40-00 worth of goods. It was only out of good fortune that he lost less. But this does not take away the fact that accused must be sent to jail.”</p> <p>[12]      The next bit of the court’s judgment is rather shocking. The accused was sent to prison because the court thought the approaching festive season would be so tempting for him as to re-offend. It said:</p> <p>“The approach of [the] festive season is a time where most homes will be left unattended. During the festive season the accused must be away from the neighbourhood. The court simply feels imprisonment is the most appropriate sentence.”</p> <p>[13]      There is no principle like that. It was wrong for the court to allow itself to be influenced by such a consideration, especially given that neither had there been any evidence of such placed before it, nor of the prosecutor having made such a submission.</p> <p>[14]      Ordinarily, community service is to be considered in appropriate cases where the court imposes an effective prison term of 24 months or less. The court <em>a quo</em> did consider it. But it ruled against it for reasons alien to precedence. The court thought community service is for immature juvenile offenders only. It said:</p> <p>            “I would have considered community service had the accused been 18 – 19 yrs old. At the age of 21 the accused could not be said to be immature.”</p> <p>            That was wrong. Community Service is not determined by the age of the offender. Courts should follow precedence.   </p> <p>[15]      In conclusion, the court went back to its favourite theme of the approaching festive season. It said:</p> <p>“The court has also taken note of the prevalence of the offence in this district. Deterrence is called for. Accused must be removed from society during this festive so that homes and homeowners’ property are safe; the accused may repeat offend during this festive season which is a tempting period for burglars.”</p> <p>[16]      The wrongness of such an approach sticks out. There is no need to belabour the point. It is hoped the court <em>a quo</em> learns something from this. Its sentence in this matter has to be quashed. Even the sixteen months was excessive to begin with. Admittedly, count 1 (unlawful entry into premises) was committed in aggravating circumstances in the sense that the accused entered a dwelling house and that he committed some other crime, theft. The Code prescribes a sentence of a fine not exceeding level thirteen ($3 000), or not exceeding twice the value of any property stolen, destroyed or damaged by the accused (in this case, $43), whichever is the greater; or imprisonment for a period not exceeding 15 years, or both.</p> <p>[17]      For count 2 (theft), the prescribed penalty is a fine not exceeding level 14 ($5 000), or twice the value of the property stolen, whichever is the greater, or imprisonment for a period not exceeding 25 years. However, the court is empowered to suspend the whole or any part of the sentence of imprisonment on condition that the accused restores the property stolen by him or pays the complainant compensation.</p> <p>[18]      In its discretion, the court <em>a quo</em> treated the two counts as one for the purposes of sentence. It could properly do that. Admittedly, the top ends of the prescribed penalties for both of these offences are very heavy. But that is to cater for all the possible ranges of unlawful entry and theft. Prison should not have entered the court’s mind. One cardinal principle of sentencing is to keep first offenders out of jail where possible, especially youthful ones such as the accused was. And as pointed out above, the court had the discretion to suspend the whole of the sentence for theft on condition of restitution. Furthermore, where a statute allows the payment of a fine for an offence should be the starting point for the court. </p> <p> [19]     Having combined the two counts for the purposes of sentence, and given the value involved, and given all the other mitigating circumstances such as the accused’s age; his family responsibilities; the fact that he pleaded guilty; that he was a first offender and the contrition that he showed, the appropriate sentence should have been no more than 6 months imprisonment, with 3 suspended on condition of good behaviour, 2 suspended on condition of restitution and the remaining 1 month converted to community service.</p> <p>[20]      Up to the time of this judgment the accused had already served a month of his sentence. He should be entitled to his immediate release. In the circumstances it is hereby ordered and directed as follows:</p> <p>i/          The conviction of the accused is hereby confirmed.</p> <p>ii/         The sentence of the court <em>a quo</em> is hereby quashed and substituted with 6 months imprisonment, of which 3 months imprisonment is suspended for 5 years on condition that within that period, the accused is not convicted of an offence involving unlawful entry into premises, or dishonesty for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. A further 2 months imprisonment is suspended on condition that the accused pays the complainant restitution in the sum of $43 within 30 days of the date of this judgment. iii/  Having already served one month of the prison sentence the accused is entitled to his immediate release.</p> <p>iv/        The court <em>a quo</em> is hereby directed to summon the accused and put into effect the aforesaid altered sentence.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>17 January 2019</p> <p>Hon Mawadze J: I agree         _______________ _______</p> <p>Section 131(1)(<em>a</em>) of the Code, as read with subsection (2)(<em>a</em>)</p> <p>Section 131(1)(<em>a</em>) of the Code, as read with subsection (2)(<em>e</em>)</p> <p>Section 113(1) of the Code</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/3/2019-zwmsvhc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=56597">2019-zwmsvhc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/3/2019-zwmsvhc-3.pdf" type="application/pdf; length=156437">2019-zwmsvhc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/factors-affecting-sentence">Factors affecting (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-sentence">Review (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Fri, 08 Feb 2019 07:29:06 +0000 admin 9265 at https://old.zimlii.org S v Shayawabaya & Another (HH 615/-18, CRB HRE. P 4409-10/18) [2018] ZWHHC 615 (04 October 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/615 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>WINSTON SHAYAWABAYA</p> <p>and</p> <p>NGONI TSIGA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI &amp; WAMAMBO  JJ</p> <p>HARARE,4 October 2018</p> <p> </p> <p> </p> <p><strong>Review judgment</strong></p> <p> </p> <p>            CHITAPI J: The two accused persons were convicted of the offence of “unlawful entry into premises in aggravating circumstances as defined in s 131 (2) (a) (b) of the Criminal Law (Codification &amp; Reform) Act, [<em>Chapter 9:23</em>]” by the senior magistrate at Harare on 6 April, 2018. They were each sentenced as follows</p> <p>            “49 months imprisonment of which 24 months is suspended for 3 years on condition accused       does not within that period commit any offence involving unlawful entry and dishonesty for          which he is sentenced to imprisonment without the option of a fine. Of the remaining 24   months imprisonment 1 month imprisonment is suspended on condition accused restitutes the     complainant Patrick Pfupajena in the sum of $53.00 through Clerk of Court Harare on or        before 6 May, 2018.”</p> <p> </p> <p>            Both accused persons had pleaded guilty to the charge. The facts admitted by the accused and from which the charge was grounded were briefly as follows; The accused are aged 32 and 25 years respectively. They are residents of Epworth suburb, Harare. They are not related to the complainant. On 2 April, 2018 around midnight, the complainant who was at his house in Zimre Park, Harare retired to bed after securing the premises by closing all the windows and doors. In the course of the night, the two accused unlawfully gained entry into the complainant’s house. They claimed to have used a garden hoe to open the door and gain access into the complainant’s house. Whilst inside the house, the two accused proceeded into the kitchen from where they stole various grocery items. The accused persons went away unnoticed. They sold part of the loot and this led to their arrest after police recovered part of the stolen items from the 1st accused’s girlfriend following a tip off. The first accused person voluntarily made indications leading to the recovery of property valued at $143-00. The admitted facts indicate that the total value of the stolen property was $250-00. The prejudice was therefore $107.00. The magistrate must have divided that amount in half and come up with the restitution of $53.00 referred to in the sentence.</p> <p>            The conviction is largely proper although more needed to be canvassed as will become apparent upon a reading of this review judgment. I have carefully considered the sentence which was imposed by the magistrate. It needs to be revisited on review because it does not show that the senior magistrate properly applied his or her mind to the process of properly determining the sentence. The consequence of such failure by the magistrate results in the sentence not being certifiable by a judge of this court as being in accordance with real and substantial justice.</p> <p>            The process of sentence is pre-eminently the function and prerogative of the trial court. This principle is trite but not absolute because the trial court’s prerogative or discretion will be interfered with by this court on appeal or review using the powers granted by s 171 (1) (b) and (d) of the Constitution of Zimbabwe (2013) as read with, in case of a review as obtains in this case, s 57 of the Magistrates Court Act, [<em>Chapter 7:10</em>] and s 29 of the High Court Act, [<em>Chapter 7:06</em>].</p> <p>            As a guide to assessing sentence, when dealing with a charge of unlawful entry committed in aggravating circumstances, it is important for the magistracy to always bear in mind that the determination of whether or not an unlawful entry has been committed in aggravating circumstances is an issue of both law and fact. It is an issue of law in that the law in s 131 (2) lists the five factors which are determinant of the issue. Further, the presence of any one of the factors qualifies the unlawful entry as having been committed in aggravating circumstances. The factual side of the issue arises from the fact that the trial court is required to make factual findings on whether or not any one or more of the 5 factors have been proved to be present. Evidence must therefore be led in the usual manner including through seeking admissions from the accused person in terms of s 314 of the Criminal Procedure and Evidence in proof of the aggravating factors aforesaid.</p> <p>            For the avoidance of doubt, an unlawful entry into premises is, as provided for in s 131 (2) of the Criminal Law (Codification and Reform Act) Act, committed in aggravating circumstances where the convicted person</p> <ul> <li>entered a dwelling-house; or</li> <li>knew there were people present in the premises; or</li> <li>carried a weapon; or</li> <li>used violence against any person, or damaged or destroyed any property, in effecting entry; or</li> <li>committed or intended to commit some other crime.</li> </ul> <p>The 5 factors are disjunctive. The presence of more than one of them in any given case should be treated as a factor which aggravates sentence. In order that there is clarity of distinction as to whether the unlawful entry has been committed in circumstances of aggravatory or not, I suggest that the particulars of aggravation should be listed in the charge or state outline. An unrepresented accused should be advised of the relevance of the distinction so that the accused appreciates that he faces a more severe penalty if any of the factors of aggravation are proven to be present. The state must prove the listed factors of aggravation and the accused has a right to challenge the existence of the factors. Where the accused challenges the factors, they must be proved by the State in the usual manner through evidence.</p> <p>In canvassing the essential elements of the offence, the magistrate did not aske questions relevant to the determination of the existence of aggravating circumstances. Although the summary jurisdiction or charge sheet in its heading is headed “Unlawful Entry in aggravating circumstances as defined in s 131 (2) (a) (b) (e) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23.”, This hardly informs an accused person of the gravamen of the charge. Section 131 (2) does not in any event create the offence of unlawful entry. The offence is created by section 131 (1). I suggest that the correct framing of the charge should have been as follows:</p> <p>“Unlawful Entry Into Premises in aggravating circumstances as defined in s 13 (1) (a) as read with s 131 (2), (a), (b) and (e) of the Criminal Law (Codification &amp; Reform Act) Chapter 9:23. In that …. (details of the charge and the aggravating circumstancescharged are then listed).”</p> <p> </p> <p><em>In casu, </em>the magistrate only enquired of the accused persons as to how they gained entry and to confirm the commission of the further offence of theft. The fact that the premises is a dwelling house should have been canvassed because it is not a given or common cause fact that a premises is a dwelling house. The definition of premises given in s 130 of the Criminal Law (Codification &amp; Reform) Act is;</p> <p>“premises” means any movable or immovable building or structure which is used for human habitation or for storage, and includes an outbuilding; a shed, a caravan, a boat or tent.”</p> <p> </p> <p>A dwelling house is not defined. The use of the term implies that the house will be under occupation or intended for human habitation and is thus covered by the word “premises”. It should have been advisable to confirm with the accused persons that they admitted or that the premises which they unlawfully entered was a dwelling house in the sense that there was a person or people in occupation of the house or that they knew that the house was in existence for use as a dwelling.</p> <p>            It will be noted that despite the observations and directions I have given for future guidance; I indicated that the conviction was largely proper. There was no substantial miscarriage of justice, which resulted from the omissions I have addressed because the accused persons admitted when essential elements were put to them that they used a hoe which is a weapon to effect entry by forcing the door to the premises open. They also admitted stealing the groceries listed in the charge sheet. To the extent that the proof or existence of just one of the factors listed in s 131 (2) is sufficient to found aggravating circumstances, the conviction must stand.</p> <p>            I expressed my reservations on sentence. In terms of s 51 (3) of the Magistrate Court Act, every magistrate despite his or her rank is given special jurisdiction to impose any of the sentences provided under s 131 (a) or (b) of the Criminal Law Codification and Reform Act. The extended jurisdiction does not imply that in every case, the magistrate should feel compelled to exceed his or her ordinary jurisdiction. I say so because the provisions of s 131 (a) and (b) do not provide for the imposition of mandatory penalties. What the section implies is that any magistrate may in a case where the facts warrant, exercise jurisdiction beyond his or her ordinary jurisdiction to the extent of the limits provided for in ss 131 (a) and (b) which for the avoidance of doubt provide as follows – </p> <p>            “131     Unlawful entry into premises</p> <ol> <li>Any person who, intentionally and without permission or authority from the</li> </ol> <p>lawful  occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable–</p> <ul> <li>to a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, of imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subs (2); or</li> <li>in any other case, to a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both.</li> </ul> <p>            Reverting to the sentence imposed by the senior magistrate, apart from the sentence being arrived at without  strict consideration of the aggravating circumstances, the overall sentence of 48 months (4 years) in the circumstances of the case is so severe and disparate from the sentences imposed in more or less similar or more severe cases. Without abrogating the trite position that the trial court must be left at large to determine sentence, where it imposes a sentence which is so far removed in severity from what would have been imposed by the review or appeal court, to the extent that the sentence imposed invokes a sense of shock, such a sentence cannot be said to accord with the principle of real and substantial justice. The sentence in such a case should be interfered with.</p> <p>            In <em>casu</em>, the magistrate did acknowledge that the accused persons were first offenders who pleaded guilty. The magistrate also considered that the use of a weapon to gain entry had the potential that it could be used to harm the occupant of the premises. It is however a fact that the weapon was not used. There was no alleged or proven damage to the premises or any property. In all the circumstances, the accused persons were just petty thieves who stole groceries (food) beer, and other items like 2 small 3 kg gas tanks, a duvet and cooler bag. They did not ransack the premises. The loss to the victim was $107.00.</p> <p>            The senior magistrate did not apply his or her mind to the alternative sentence options provided for in s 131 (1) (b) for the offence of unlawful entry into premises in aggravating circumstances. A fine not exceeding level ten or not exceeding twice the value of any stolen damaged or destroyed property are options provided for as adequate punishment apart from imprisonment or in addition to imprisonment. The magistrate did not indicate or give reasons why the alternative options could not have provided adequate punishment.</p> <p>            The magistrate ordered restitution of $53.00 against each accused person. I assume that the order for restitution was made in terms of s 365 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. The provisions of this section should be complied with. The section provides as follows:</p> <p>            “365    <strong>Restitution of unlawfully obtained property</strong></p> <ol> <li>Subject to this Part, a court which has convicted a person of an offence involving the unlawful obtaining of property of any description may order the property to be restored to itsowner or the person entitled to possess it.</li> <li>For the purposes of subs (1), where the property referred to in that subsection consists of–</li> </ol> <ul> <li>Money, the court may order that an equivalent amount be paid to the injured party from moneys–</li> </ul> <ul> <li>taken from the convicted person on his arrest or search in terms of any law; or</li> <li>held in any account kept by the convicted person with a bank, building society or similar institution; or</li> <li>otherwise in the possession or under the control of the convicted person;</li> </ul> <ul> <li>fungibles other than money, the court may order that an equivalent amount or quantity be handed over to the injured party from similar fungibles in the possession or under the control of the convicted person.”</li> </ul> <p> </p> <p>            A court may therefore order restitution by ordering a restoration to the owner or possessor of property lost or taken away from such person through the commission of an offence.  If property consists of money, an order for an equivalent amount to be paid to the injured party can be made. Such money can be taken from money recovered from the convict on arrest or search or as such convict might hold in a bank or similar financial institution. In respect of fungibles, the court may order that similar fungibles in the possession or under the control of the convicted person are taken away from such accused and given to the owner. Section 365 must be read together with s 366 which gives guidelines on what further considerations should to be taken into account when making an order of restitution. Section 366 reads as follows:</p> <p>“366    <strong>Cases where award or order not to be made</strong></p> <p>(1)        A court shall not award compensation in terms of s <em>three hundred and sixty-two, three hundred and sixty-three or three hundred and sixty-four – </em></p> <p>(a)        in respect of any loss or diminution of a right or personal injury where such loss, diminution or injury results from an accident arising out of the presence of a vehicle on a road, unless in the case of loss or diminution of a right it arises from damage that is treated by para (b) of subs (2) of s <em>three hundred and sixty-two </em>as resulting from theft;</p> <p>(b)        in respect of any loss or diminution of a right or personal injury–  </p> <p>(i)         where the amount of compensation due to the injured party is not readily quantifiable; or</p> <p>(ii)        where the full extent of the convicted person’s liability to pay the compensation is not readily ascertainable; or</p> <p>(ii)        unless the court is satisfied that the convicted person will suffer no prejudice as a result of the claim for compensation or restitution, as the case may be, being dealt with in terms of this Part.</p> <ol> <li>A court shall not order the restitution of any property in terms of s <em>three hundred</em> and <em>sixty-five</em> if it appears to the court that another person, who had no knowledge that the property had been unlawfully obtained, has acquired a right or interest in the property which might be prejudiced if the property were restored to its own or to the person entitled to possess it.”</li> </ol> <p> </p> <p>           In <em>casu, </em>it is not clear what the magistrate considered in making the order of restitution. Such an order should not be based on a simple allegation by the state on the values of the property stolen or recovered. At best the accused should be asked whether he admits the extent of the loss as expressed in monetary terms. This was not done in this case.</p> <p>            Another striking feature of the sentence imposed on the accused persons was the length of the suspended term of 24 months (2 years) for good behaviour. Of the 24 months, 1 month was suspended on condition of restitution of $53.00 for each accused leaving an effective sentence of 23 months. The 24 months suspended on condition of good behaviour were suspended for 3 years. If the intention is that the accused persons should be good citizens in future to avoid serving the suspended term, the 3 year period of suspension presents itself as very short. It would normally be justified for shorter suspended sentences and also in relation to offences which are unlikely to be repeated. For crimes of dishonesty or against the person where the offender will reintegrate into society and mix and mingle with other citizenry, the suspended sentence should in my view be fixed at the maximum of 5 years to protect members of society by dissuading the accused person through the sentence hanging over him or her to behave good.</p> <p>            Lastly, I have indicated that the sentence imposed is under the circumstances shockingly excessive. A comparison can be made with a few cases where lesser sentences were imposed for more or less similar or more serious cases and the sentences certified on review by this court: <em>S </em>v <em>Felix Phiri </em>HH 116/15; <em>S </em>v <em>Felix Mtetwa </em>HH 112/15; <em>Dennis Dube </em>HB 78/11; <em>S </em>v <em>Panashe Tagwireyi </em>HH 47/18.</p> <p>            Under the circumstances, following on the finding that there are grounds to interfere with the sentence imposed on review, the sentence imposed on both accused is set aside and substituted with the following sentence.</p> <p>Each accused: 12 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition that within that period the accused is not convicted of any offence involving unlawful entry or theft for which upon conviction the accused is sentenced to imprisonment without the option of a fine.</p> <p> </p> <p> </p> <p>Wamambo J agrees</p> <p> </p> <p> </p> <p> </p> <p>           </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/615/2018-zwhhc-615.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26465">2018-zwhhc-615.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/615/2018-zwhhc-615.pdf" type="application/pdf; length=188922">2018-zwhhc-615.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sentence-see-criminal-procedure-sentence-general-principles">Sentence See CRIMINAL PROCEDURE SENTENCE General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/housebreaking-and-theft-sentence">Housebreaking and theft (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/imprisonment-sentence">Imprisonment (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unlawful-entry-and-theft-sentence-code">Unlawful entry and theft (Sentence; Code)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/116">S v Phiri (CRB 4137/14) [2015] ZWHHC 116 (03 February 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1931/18">Magistrates Court Act [Chapter 7:10]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 31 Oct 2018 07:29:11 +0000 admin 9127 at https://old.zimlii.org S v Makiwa & Another (HB 82-18, HCAR 421/18 X Ref CRB ZV 115-116/18) [2018] ZWBHC 82 (22 March 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/82 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p><strong>versus</strong></p> <p>EDWARD BHEDHA MAKIWA</p> <p>and</p> <p>PRESSMORE MUKONI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>BULAWAYO 22 MARCH 2018</p> <p> </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p> </p> <p><strong>MATHONSI J:          </strong>Both accused persons are aged 18 years, they are both unemployed and hail from Zvishavane.  They appeared before a magistrate at Zvishavane and were on 15 February 2018 convicted of three counts of robbery.  In count one they were each sentenced to 4 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition of future good behaviour.  Of the remaining 3 years 2 months imprisonment was suspended on condition each restitutes the complainant in the sum of $200-00 by 30 April 2018.</p> <p>In count two each was sentenced to 3 years imprisonment none of which was suspended.  In the last count they were each sentenced to 3 years imprisonment of which 2 months imprisonment was suspended on condition they each restitute the complainant the sum of $180-00 by 30 April 2018.  This then left the two very youthful offenders with an effective 8 years and 8 months imprisonment, an aggregate sentence which offends all sense of justice.   In fact two very critical issues arise from the sentence. Firstly it is that magistrates should avoid by all means suspending extremely small portions of an otherwise very heavy sentence on condition of restitution, when it is obvious that the accused person serving a long term of imprisonment will have no incentive whatsoever to pay restitution under those circumstances.</p> <p>In order to be meaningful and to benefit an accused person a suspension of part of the sentence on condition of restitution must substantially reduce the sentence so that it will entice the accused person to restitute and derive benefit.  Honestly what is the point of suspending two months of a total prison term of well over 8 years.  It is pointless because an accused person serving such a long term would rather see it through than to be bothered with looking for money to pay restitution and still remain behind bars for several years.  When that is considered against the fact that restitution is directed at benefiting the complainant it becomes apparent that a sentencer who engages in such activity fails completely in achieving anything.  Neither the accused nor the complainant will relate to such a sentence.</p> <p>Secondly, it is a kind of sentence where mathematics plays such a huge role is shaping the punishment that the purpose of sentencing is completely lost and the final aggregate sentence becomes so divorced from both offenders that it is reduced to the abstract.  How can anyone applying their mind properly to the task at hand settle for 3 year prison terms for each of the 3 counts ending up with a total of 9 years imprisonment for accused persons who are so young they actually pass as boys?  The sentence is so disproportionate to all the circumstances of the accused persons and the offences themselves it does not make sense at all.</p> <p>The facts in the first count are that at about 2000 hours on 17 November 2017 the two accused persons acting in connivance with two others who were convicted and sentenced separately intercepted Martin Kadzimu, a police officer stationed at Criminal Intelligence Unit in Masvingo, as the good cop found his way home along an unnamed road near Delta Beverages in Zvishavane.  They grabbed him by the neck while threatening him with a machete, and forcibly took from him a Samsung cellphone, a mobiwire cellphone, a black wallet containing $14-00, bank, national registration and police cards all valued at $400-00.  Having robbed the complainant, they escaped and nothing of the stolen items was recovered.</p> <p>In count two the facts are that the quartet accosted the complainant Fidelis Nyamazana along Drinkwater Street in Zvishavane on 17 November 2017 and grabbed him by the neck.  They forcibly took two cellphones, and a wallet containing his national identity card and bank card before vanishing from the scene.  Of the stolen property worth $463-00 property worth $363-00 was recovered following their arrest.</p> <p>In the last count, the same group used the same <em>modus operandi</em> to rob Nobert Shava of a Huawei 535 cellphone valued at $360-00 which was never recovered.  When the two accused persons appeared before the trial court they pleaded guilty to the three charges and, upon conviction, they were sentenced aforesaid.</p> <p>In mitigation of sentence the first accused stated that he is 18 years old, is unemployed, is single and has no savings or assets to his name.  He stated further that he had been influenced by his colleagues to commit the offence.  The second accused also stated that he is 18 years old, he is unemployed, is single and has no savings or assets of his own.  He committed the offences because he was drunk.  While acknowledging their youthfulness when assessing sentence and that they were first offenders who had pleaded guilty thereby showing remorse and contrition, the trial court stated that robbery is a prevalent offence which involves the use of violence.  Therefore their “moral guilt” was very high.</p> <p>In my view the magistrate paid lip service to the mitigatory features of the case.  There were very weighty mitigatory factors in that the accused persons are youthful offenders who pleaded guilty.  They are first offenders who had shown remorsefulness and contrition.  While it is accepted that robbery invariably attracts a custodial sentence, each case must be looked at on its own facts and circumstances.</p> <p>The circumstances of the offences are that the robberies in counts one and two were committed on the same day and therefore by virtue of proximity of occurrence they should have been treated as one for purposes of sentence.  Apart from that, in all three cases other than grabbing the complainants by the neck, none of them was assaulted or injured although a machete was used to threaten them into submission.  It cannot be said therefore that the circumstances make them extreme cases of robbery.  Reference to violence does not sit very well with the circumstances as it paints a wrong picture.</p> <p>There is also an element of suggestibility alluded to by the accused persons to the effect that they may have been influenced by other people.  In fact two other accused persons were separately charged with the same offences.  Their ages were not given and therefore the court did not have the benefit of knowing if they had an over-bearing influence on these two accused persons who are only 18 years old.  The state did not bother to challenge that part of the mitigation.  Any doubt should have been for the benefit of the accused persons, as it is possible the other two could have been the principal offenders.</p> <p>As I have said the practice is that where there is a multiplicity of counts, those which are related in the manner and time in which the offences were committed may be taken together for purposes of sentence.  See <em>S</em> v <em>Tadzembwa</em> HB-85-16.  The other option would be to impose a globular sentence in respect of all the counts.  It is always undesirable to adopt a tariff or mathematical approach to sentencing, that is to say, to assess the same sentence for each count, as the aggregate sentence may turn out to be so excessive as to induce a sense of shock.  In the words of NDOU J in <em>S</em> v <em>Nyathi</em> 2003 (1) ZLR 587 (H) at 588 C-G:</p> <p>“This is mathematics in sentencing.  In <em>casu</em>, although the individual sentences imposed in each count are in no way excessive, their cumulative effect is so excessive as to call for interference.  See <em>S</em> v <em>Hassim</em> 1976 (2) PH H 58 (N).  It is trite that there are no hard and fast rules dictating whether a court should treat a number of counts separately or together for purposes of sentence.  A trial court has a very wide discretion and, provided that discretion is exercised on reasonable grounds, an appeal court or review judge will not interfere:  See <em>S</em> v <em>Coetzee</em> 1970 (4) SA 83 (RA).  The sentence must, of course fall within the court’s jurisdiction:  See <em>S</em> v <em>Makurira</em> 1975 (3) SA 83 (R).  Where multiple counts are closely connected or similar in point of time, nature, seriousness or otherwise, it is a useful way of ensuring that the punishment imposed is not unnecessarily duplicated or its cumulative effect not too harsh on the accused.”</p> <p> </p> <p>In <em>S</em> v <em>Chirwa</em> HH 79-94 (unreported) which was followed in <em>S</em> v <em>Sifuya</em> 2002 (1) ZLR 437 (H) at 439 E-G, GARWE J (as he then was) recommended a globular sentence in cases involving multiple counts or to treat the counts separately to determine an aggregate sentence which is then palliated by ordering some counts to run concurrently with others.  He said:</p> <p>“The position is now fairly settled that in cases involving multiple counts, the correct approach to sentence is either to take all counts as one for purposes of sentence and then impose a globular sentence which the court considers appropriate in the circumstances or alternatively to determine an appropriate sentence for each count taken singly so that the seriousness of each offence is properly reflected.  The court should then determine a realistic total which it considers appropriate in the circumstances and where necessary the severity of the aggregate sentence on all the counts taken together may be palliated by ordering some counts to run concurrently with others.”</p> <p> </p> <p>Considering all the factors of this case including the ages of the accused persons who, at their young ages, should not really be punished like mature people and should be not be destroyed by a lengthy prison term, I think a combination of the methods of joining some of the counts for sentence and suspending part of the sentence on condition of restitution and good behaviour will achieve a reasonable aggregate sentence.</p> <p>In the result, it is ordered that:</p> <p>1.         The convictions of the accused persons are hereby confirmed.</p> <p>2.         The sentences are set aside and substituted with the following:</p> <p>“(a)      Counts 1 and 2 are treated as one for purposes of sentence and each accused is sentenced to 3 years imprisonment of which 1 years imprisonment is suspend for 5 years on condition they do not, during that period commit any offence involving violence for which they are sentenced to imprisonment without the option of a fine.</p> <p>(b)        Count 4, each accused is sentenced to 24 months imprisonment of which 12 months imprisonment is suspended for 5 years on condition they do not during that period commit any offence involving violence for which upon conviction they are sentenced to imprisonment without the option of a fine.</p> <p>(c)        Of the remaining 3 years, 1 year is suspended on condition they each restitute the complainant in count 1 Martin Kadzimu  the sum of $200-00 and the complainant in count 2 Nobert Shava the sum of $180-00 each through the clerk of court Zvishavane by 30 April 2018.</p> <p>            Effective sentence: 2 years.”</p> <p> </p> <p> </p> <p>Takuva J agrees…………………………………..</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/82/2018-zwbhc-82.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22310">2018-zwbhc-82.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/82/2018-zwbhc-82.pdf" type="application/pdf; length=124655">2018-zwbhc-82.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suspended-sentence">Suspended sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-suspended-sentence">conditions of suspended sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/85">S v Tadzembwa (HB 85-16 HCAR 588-16) [2016] ZWBHC 85 (17 March 2016);</a></div></div></div> Thu, 12 Apr 2018 06:58:14 +0000 admin 8717 at https://old.zimlii.org S v Teka (HH 158-11, CA 601/16) [2018] ZWHHC 158 (21 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/158 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MOFFAT TEKA</p> <p>versus</p> <p>THE STATE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHATUKUTA &amp; MUSAKWA JJ</p> <p>HARARE, 13 February 2017, 6 and 13 March 2017, 9 and 16 October 2017 and 21 March 2018</p> <p><strong>Criminal Appeal</strong></p> <p><em>T  Muganhiri</em>, for the appellant</p> <p><em>E. Nyazamba</em>, for the respondent</p> <p> </p> <p>MUSAKWA J: We dismissed the appeal against conviction and sentence and gave reasons <em>extempore</em>. Subsequently a request was made for “reasons for judgment” and we hereby avail the full judgment.</p> <p>The background is that the appellant was convicted of one count of rape and two counts of unlawful entry into premises. In respect of the rape count the appellant was sentenced to 20 years’ imprisonment. For the two counts of unlawful entry the appellant was sentenced to 18 years’ imprisonment of which 5 years were suspended for 5 years on condition of future good behaviour.</p> <p>Although appeal was noted against conviction and sentence in all counts, ultimately the appeal against conviction was restricted to the rape count. In any event the appellant pleaded guilty to the charges of unlawful entry and would have struggled to upturn the convictions. The appellant was convicted of the rape charge with two other co-accused.</p> <p>It is not in dispute that the appellant and his companions entered the complainant’s house in Cowdray Park Bulawayo in the early hours of the morning on 3rd October 2011. The third co-accused who was armed with an axe emerged from behind the refrigerator and ordered the complainant to cover herself with blankets. The third co-accused demanded a cell phone and money of which the complainant handed her bag. The complainant was ordered by the third co-accused to undress. Later a person went into the bedroom and raped the complainant. The person spoke in Ndebele. The complainant also heard people ransacking the house. The third co-accused later told the complainant to cover her head before the intruders left the house.</p> <p>On 14 October 2011 there was a repeat break-in at the premises in the first count. An assortment of goods valued at $580 was stolen. Then on 17 October 2011 there was unlawful entry into a different house in the same suburb. Again, a variety of items were stolen. Some of the stolen property was subsequently recovered and this provided the link to the appellant and co-accused.</p> <p>In denying the rape charge the appellant claimed that he was in a hurry as he feared arrest by neighbours. Thus he did not have the opportunity to rape the complainant. Although he admitted entering the complainant’s house he denied entering the bedroom. He demanded money and a cell phone and got out of the house.</p> <p>In his evidence the appellant conceded that he was found in possession of a radio, two cell phones, two skirts and one pair of tennis shoes. He now claimed that the items were brought to his house by the second accused whom he stayed with. He claimed to have purchased the cell phones and skirts for $47. The second accused told him to keep the radio until he had secured alternative accommodation.</p> <p>During cross-examination the appellant claimed that he had lied in his defence outline. He also conceded that when he gave the outline he was aware that the property recovered from him had been stolen from the complainant when she was raped. He claimed to have been forced by Police Officers and co-accused to give the version that he outlined in his defence.</p> <p>The issues on conviction relate to identification of the appellant as well as whether he was liable for the rape on the basis of common purpose. Mr <em>Muganhiri</em> submitted that the complainant only identified the third accused. He further submitted that during the trial the complainant did not even make a dock identification of the appellant. As such, an inference of common purpose is not supported by the facts. This is because different items went missing in the first and second counts.</p> <p>On sentence, Mr <em>Muganhiri</em> submitted that the trial court did not apply guidelines provided in s 65 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. As such, it was his contention that the sentence becomes excessive on account of the trial court’s failure to apply the guidelines.</p> <p>On the other hand Mr <em>Nyazamba</em> submitted that the facts of the matter are common cause. If the appellant was present during the commission of the crime, then common purpose applies. On sentence Mr <em>Nyazamba</em> submitted that what Mr <em>Muganhiri</em> submitted on was not in the grounds of appeal. </p> <p>The trial court was correct to hold that the persons who unlawfully entered the complainant’s house did not do so with the express intention to rape. However, it went further to reason that the issue was whether there was realisation of the real risk or possibility that the complainant might be raped during the course of the unlawful entry.</p> <p>Section 15 (1) of the Criminal Law (Codification and Reform) Act provides that-</p> <p>            “Where realisation of a real risk or possibility is an element of any crime, the test is subjective     and consists of the following two components¾</p> <p>            (<em>a</em>) a component of awareness, that is, whether or not the person whose conduct is in issue           realised that there was a risk or possibility, other than a remote risk or possibility, that¾</p> <p>            (i) his or her conduct might give rise to the relevant consequence; or</p> <p>            (ii) the relevant fact or circumstance existed when he or she engaged in the conduct; and</p> <p>            (<em>b</em>) a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (<em>a</em>), the person whose conduct is in issue continued to engage in that    conduct.”</p> <p>Applying the above provision, the unlawful entry was always going to be perpetrated in aggravating circumstances. This is because the appellant and co-accused were never going to unlawfully enter the premises without committing some crime. The original intention was to steal. At that late hour and within the confines of the two roomed house, it is inescapable that the appellant could not have failed to hear the complainant being ordered by one of his colleagues to undress. Consequently, it must be inferred that the appellant must have heard the command for the complainant to undress. This means then that he must have become aware of the risk of rape which he nonetheless associated with recklessly, whether or not the complainant would be raped.</p> <p>The other aspect to consider is the liability of the appellant as an accomplice. In this respect s 195 of the Criminal Law (Codification and Reform) Act which defines accomplice as follows-</p> <p>            “accomplice” means a person, other than an actual perpetrator of a crime¾</p> <p>            (<em>a</em>) who incites or conspires with an actual perpetrator to commit a crime, with the result that a</p> <p>            crime is subsequently committed; or</p> <p>            (<em>b</em>) who, having authority, whether lawful or otherwise, over an actual perpetrator and¾</p> <p>            (i) knowing that an actual perpetrator intends to commit a crime; or</p> <p>            (ii) realising that there is a real risk or possibility that an actual perpetrator intends to commit</p> <p>            a crime; authorises the actual perpetrator to commit the crime; or</p> <p>            (<em>c</em>) who¾</p> <p>            (i) knowing that an actual perpetrator intends to commit a crime; or</p> <p>            (ii) realising that there is a real risk or possibility that an actual perpetrator intends to commit</p> <p>            a crime; renders to the actual perpetrator any form of assistance which enables, assists or        encourages the   actual perpetrator to commit the crime;”</p> <p> </p> <p>An accomplice can also be liable for an additional crime that is committed by the actual perpetrator. This is provided in s 199 which states that-</p> <p>            “Where an actual perpetrator commits a crime that is different from or additional to the crime intended by the accomplice when the accomplice incited, conspired with, authorised or assisted         the actual perpetrator, the accomplice shall be guilty of that different or additional crime if, when the accomplice incited, conspired with, authorised or assisted the actual perpetrator, the      accomplice realised that there was a real risk or possibility that the actual perpetrator might             commit the different or additional crime.”</p> <p> </p> <p>As already observed earlier on, within the confines of the complainant’s two roomed house, the appellant must have been aware that the complainant was about to be raped. Therefore the appellant’s liability is part of common purpose arising from his association with co-accused. <em>S v Mubaiwa</em> 1992 (2) 362 (S) is authority on common purpose which cites some of the leading cases on the concept. In that case it was held that each individual to a common purpose is to be judged on his own state of mind. In addition, the conduct on which criminal liability is founded is the act by which the accused associates with the common purpose.</p> <p>            Applying the principles enunciated in <em>S v Mubaiwa supra</em>, having heard such a command for the complainant to undress, the appellant must have associated with it with the real risk or possibility that one of his colleagues might rape the complainant. It was immaterial that the appellant’s conduct did not itself directly contribute to the commission of the rape. Therefore the rape was committed by all the intruders because none of them dissociated themselves after the complainant was ordered to undress and eventually raped. I therefore find no merit in the appeal against conviction.</p> <p>Coming to sentence, the notice of appeal attacked it principally on two grounds. The first contention was that the trial court erred in sentencing the appellant on the basis that there was an attempt to rape the complainant in the third count when no evidence was led in that regard. The other ground was that the cumulative sentence imposed on the appellant was excessive as the trial court ought to have ordered part of the sentences imposed separately to run concurrently. As previously noted, counsel for the appellant did not address these issues during his submissions. He opted to raise a totally new issue without having amended his grounds of appeal. We found merit in the observation by state counsel that effectively there was no appeal against sentence.</p> <p>It is for the above reasons that the entire appeal was dismissed.</p> <p>CHATUKUTA J agrees ……………………..</p> <p><em>Machaya &amp; Associates</em>, appellant’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/158/2018-zwhhc-158.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20338">2018-zwhhc-158.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/158/2018-zwhhc-158_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20338">2018-zwhhc-158.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/accomplice">ACCOMPLICE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/theft">Theft</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/accomplice">ACCOMPLICE</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 09 Apr 2018 13:05:36 +0000 admin 8692 at https://old.zimlii.org