Imprisonment (Sentence) https://old.zimlii.org/taxonomy/term/10242/all en 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 Ndebele (HB 18-20, HCAR 2533/19 XREF CRB PT 891/19) [2020] ZWHB 18 (22 January 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/18 <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>THE STATE</strong></p> <p><strong>Versus </strong></p> <p><strong>JATHO NDEBELE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 22 JANUARY 2020</p> <p><strong>Criminal Review</strong></p> <p>            <strong>MAKONESE J:</strong>        This matter has been forwarded by the scrutinizing Regional Magistrate.</p> <p>The accused in this matter appeared before a Provincial Magistrate at Plumtree facing charges of stock theft as defined in section 114 of the Criminal Law (Codification &amp; Reform) Act (Chapter 9:23) .  The accused stole four donkeys valued at $2 800.  The accused sold the donkeys and nothing was recovered.  The accused pleaded guilty and was convicted and sentenced on his own plea of guilty.  Accused was sentenced to 12 months imprisonment of which 3 months was suspended for 5 years on the usual conditions of future good conduct.  A further 4 months was suspended on condition of restitution.  The remaining 5 months was suspended on condition the accused performed 175 hours community service.</p> <p>Nothing turns on the conviction in this matter.  The Regional Magistrate requested the trial magistrate to justify the sentence which he viewed as lenient considering the following facts:</p> <ol> <li>Stock theft is inherently a serious offence.</li> <li>The number of donkeys stolen is high.</li> <li>The accused stole from a relative thus breaching his trust.</li> <li>A non-custodial sentence was wholly inappropriate.</li> </ol> <p>In her response to the query by the Regional Magistrate the trial magistrate responded as follows:</p> <p>“<em>The reason why I deemed a custodial sentence inappropriate is because accused person is a first offender.  The general sentencing trend is that first offenders should be kept out of prison where possible.  That was mentioned in State v Chitenda HH 215-89, Matwana v State SC 20/ … (sic), MUNYAMWA HB 14/87.  He tendered a plea of guilty plus he shows remorse.  The complainant mitigated on his behalf.  So whilst I do appreciate the aggravating factors. It is a breach which the complainant has forgiven stating that he wants to keep family relations intact.  Accused is also willing to restitute the complainant.  In addition to which he is of ill health.  These were part of the factors considered in conclusion that imprisonment should be spared.  The complainant actually said that he did not want accused to be arrested.  So it will be terrible for him to be imprisoned.  Thus I have noticed that accused is remorseful.  He appears to have learnt a lesson.  These are my reasons why I arrived at my sentence.  I stand guided</em>.”</p> <p>In his response to these remarks the Regional Magistrate had this to say, <em>inter alia</em>:</p> <p><em>“… In my view, even if the learned trial magistrate had opted for a non-custodial sentence, which is within her discretion, still the gross sentence should reflect the big number of donkeys which were stolen coupled with the nature of tthe offence.  I think that a gross sentence of 12 months imprisonment underestimates the nature of the offence and the number of donkeys stolen.  Whether she opted to suspend a portion on restitution and the remaining portion on community service or any other condition to remain with a non-custodial sentence, the total gross term of imprisonment should reflect what I have said above.  See;  State v Lovemore Ncube HB 111.2008.”</em></p> <p>Theft of stock is without doubt always considered a serious offence.  The accused person stole 4 donkeys and sold them.  He naturally benefited from the commission of the offence.  Theft of a large number of donkeys should necessarily attract a custodial sentence.  Donkeys provide draught power in communal areas.  When a person decides to steal a donkey he robs the complainant of his means of survival.  The seriousness of the offence should be reflected in the imposition of custodial sentences for theft of stock especially when   more  than two donkeys are involved.  Whilst I concede that the trial magistrate was persuaded by the mitigating factors advanced by the accused, the danger is that a wrong precedent will be set and the offence of theft of donkeys will be trivialised.  To ensure that there is uniformity in sentencing in similar offences, involving theft of donkeys, I would hazard to say that where one donkey is stolen and weighty mitigating factors are placed before the court, a sentence of community service may be appropriate.  Where two or more donkeys are stolen, my view is that a custodial sentence is called for.</p> <p>In <em>State</em> v <em>Lovemore Ncube</em> HB 11.08, the accused stole three donkeys valued at Z$150 000 (old currency).  Nothing was recovered.  The accused pleaded guilty and was sentenced to 15 years imprisonment.  This court set aside the sentence and substituted it with an effective sentence of 3 years imprisonment.</p> <p>In all the circumstances of this case, inspite of the attitude of the complainant, who did not want to see the accused sentenced to a custodial term, the court was enjoined to hand down an appropriate sentence.  In my view a sentence of 2 years imprisonment would have met the justice of the case.</p> <p> </p> <p>I would, accordingly decline to confirm the proceedings as being in accordance with real and substantial justice, and withhold my certificate.</p> <p> </p> <p>                                           Takuva J…………………………………. agrees</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </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/2020/18/2020-zwhb-18.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19011">2020-zwhb-18.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/2020/18/2020-zwhb-18.pdf" type="application/pdf; length=573237">2020-zwhb-18.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/theft">Theft</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</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/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/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/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 30 Jun 2020 12:09:39 +0000 Sandra 9742 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 Kalenga (HH 416-18, CRB 7800/18) [2018] ZWHHC 416 (13 July 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/416-0 <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>ELIZABETH KALENGA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE &amp; MUSAKWA JJ</p> <p>HARARE, 13 July 2018</p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>CHITAKUNYE J. The above case came to my attention through a Newspaper article headlined “Student Nurse jailed for using forged papers”. The article informed everyone who cared to read that a woman who used false documents to secure admission as a trainee nurse was jailed for 15 months.</p> <p>My concern was with the effective jail term of 10 months for the nature of the offence alleged. I requested for the record of proceedings in terms of s 29 (4) of the High Court Act [<em>Chapter 7:06</em>] which states that:</p> <p>“(4) Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”</p> <p> </p> <p>When the record of proceedings was placed before me for review my view of the sentence was confirmed.</p> <p>The facts were that:</p> <p>The accused person in the above matter was charged with Fraud as defined in s 136 of</p> <p>the Criminal Law (Codification and Reform) Act, [<em>Chapter 9:23</em>].</p> <p>The allegations were that sometime in mid – May 2016 Parirenyatwa School of Nursing advertised in Newspapers that they were recruiting Trainee nurses and that the vacancies required candidates to have at least five Ordinary level passes with grade C or better including English language and a science subject.</p> <p>In response to the advert, the accused person on 15 June 2016 submitted a fake Ordinary level Certificate with seven passes at grade C or better including the required subjects which was in her name bearing candidate number 010400/3082 to Parirenyatwa School of Nursing to secure admission as trainee nurse. The accused was duly enrolled as a trainee nurse based on the fake certificate.</p> <p>Subsequent to her admission the Zimbabwe Anti-Corruption officers got a tip off and arrested her. Investigations with the Zimbabwe School Examination Council (ZIMSEC) revealed that the certificate was not authentic. The candidate number on the certificate belonged to someone else who had not passed the examinations.</p> <p>The accused is a 29 year old female first offender, single with 2 minor children to take care of.</p> <p>Upon being arraigned before the trial magistrate the accused pleaded guilty and was duly convicted.</p> <p>The conviction is proper.</p> <p>She was then sentenced to 15 months imprisonment of which 5 months was suspended for 3years on the usual conditions of good behaviour. The accused was thus left with an effective 10 months imprisonment.</p> <p>An effective imprisonment for the offence in question is rather shocking and out of sinc with sentences in similar cases. In holding this view I am mindful of the fact that the issue of sentencing is within a trial court’s discretion. Indeed as noted by GUBBAY CJ in <em>S v Ramushu</em> S-25/93 at page 5:</p> <p>“But in every appeal against sentence, save where it is vitiated by irregularity or misdirection, the guiding principle to be applied is that sentence is a pre-eminently a matter of discretion of the trial court, and that an appellate court should be careful not to erode such discretion. The propriety of a sentence, attacked on the general grounds of being excessive, should only be altered if it is viewed as being disturbingly in appropriate.”</p> <p> </p> <p>In <em>casu</em>, I am of the view that the sentence in this matter was disturbingly inappropriate considering the developments in approaches to sentencing.</p> <p>This court has on numerous occasions pointed out that effective imprisonment must only be used as a last resort, where court is satisfied that there is no other non custodial sentence that would be suitable.</p> <p> In <em>S </em>v<em> Zulu</em> 2003(1) ZLR 529 (H) court held, <em>inter alia</em>, that:</p> <p>“Over the years the courts have emphasised that imprisonment is a severe and rigorous form of punishment, to be imposed as a last resort and when no other form of punishment will do. There has also been a shift from the more traditional methods of dealing with crime and the offender towards a more restorative form of justice, which takes into account the interests of society and the victim. This is a holistic approach to sentencing, in that it punishes the offender, causes him to pay reparation and integrates him into society.”</p> <p> </p> <p>See also <em>S </em>v<em> Shariwa</em> 2003 (1) ZLR 314 (H)</p> <p>In instances where  a sentencing court is satisfied that  a sentence of 24 months or less will be appropriate, this court has exhorted sentencing officers to seriously consider  community service as a viable option to imprisonment.</p> <p>In her reasons for sentence the trial magistrate justifies her imposition of the harsh penalty in these words:</p> <p>1.         Accused person used a fake Ordinary level certificate to get a place on the nurse training programme. The offence suggests adequate prior planning which point to a disturbing syndicate of producing fake certificates. Accused said she was referred to a certain woman by her friend. This woman then produced the fake certificate.</p> <p>2.         The conduct of the accused discredits our education system and exposes innocent consumers of services to incompetent people riding on the back of manufactured qualifications. I shudder to imagine the implications of a nurse who is responsible for human life but is unqualified. There is a need to protect the public from similar minded persons. I am also of the view that as long as there is a market for fake certificates, those who produce them continue to flourish. It is therefore appropriate to deal with the ‘market’ in a deterrent manner.</p> <p>3.         I am aware of the sentencing policy that calls for the treatment of female first offenders with leniency. I am however satisfied that this case calls for a departure from that policy in a bid to protect the public by a deterrent sentence. A non-custodial sentence will send the wrong message. The personal circumstances of the accused are outweighed by the circumstances of the commission of the offence. I will however reward accused for pleading guilty by suspending a portion of the sentence.</p> <p>The above reasons do not in any serious way show that the trial magistrate properly applied her mind to the options of non custodial sentences. She seemed subsumed with a desire for deterrence. Such approach has been discarded by our courts and the approach is for restorative and rehabilitative justice.</p> <p>Had the trial magistrate cared to examine other cases of the use of fake educational qualification certificates she would have noted that, in her case there were no aggravating factors warranting imprisonment. In as far as she noted the need for an effective custodial sentence she could easily have opted for community service. The assertion that non-custodial sentence will send the wrong message is clearly misplaced. Effective implementation of a sentence of community service would in fact serve the concerns the trial magistrate expressed.</p> <p>In  <em>S </em>v<em> Jumbe</em> 1992 (2) ZLR 153 (H) SMITH J after considering a number of decided cases where accused persons had been sentenced for fraud involving the use of false education certificates to obtain employment, in effect concluded that:-</p> <p>“where the accused is charged with fraud on the basis that he has used a false educational certificate to obtain employment but once employed he has apparently performed the work satisfactorily, it is a misdirection to find that the accused has defrauded the employer of the amount of salary he has received and that the employer has suffered prejudice to that extent.</p> <p>In such cases a fine will usually be an appropriate sentence and there should be no condition imposed relating to the restitution of wages as the accused will have worked for his wages.”</p> <p> </p> <p>The cases reviewed involved accused persons who had worked for considerable periods using false educational certificates.</p> <p>In <em>casu</em>, the complainant was not shown to have suffered any financial prejudice. All that is alleged is that the accused caused the Parirenyatwa School of Nursing to enrol her and to suffer prejudice to good administration.</p> <p>The fear that the trial magistrate shuddered to think about of the risk of unqualified people toying with human life was farfetched as the facts do not show that accused had been tasked to deal with patients. The facts do not even show that she had attended any training or had been trained for any length of time. It was thus a serious misdirection for the magistrate to pontificate on what would have happened when accused had not been trained at all. Equally there was no indication that had she trained she would have failed to perform. In the event she passed her passing in the training would be the determining factor as to her competence. Clearly the trial magistrate misdirected herself in premising her sentence on such assumptions.</p> <p>In my view, this is a case where a fine would have met the justice of the case for the act of using a false certificate to secure enrolment at the school of nursing.</p> <p>A sentence in the region of $200 in default of payment one month imprisonment would have sufficed.</p> <p>Accordingly therefore the conviction is confirmed but the sentence is hereby set aside and is substituted by the following:</p> <p>The accused is sentenced to $200 or in default of payment 1month imprisonment. In addition 4 months imprisonment which is wholly suspended for 5 years on condition that the accused does not within that period commit any offence  involving dishonesty and for which he is sentenced to imprisonment without the option of a fine.</p> <p>The accused must be allowed to pay the fine proportionate to the outstanding period of imprisonment and be released forthwith.</p> <p>MUSAKWA J. I concur ……………..</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/2018/416/2018-zwhhc-416.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21936">2018-zwhhc-416.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/2018/416/2018-zwhhc-416.pdf" type="application/pdf; length=127653">2018-zwhhc-416.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/fraud">Fraud</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/theories-purpose-punishment">Theories of purpose of punishment</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/1981/29">High Court Act [Chapter 7:06]</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></div> Thu, 13 Sep 2018 08:12:27 +0000 admin 9102 at https://old.zimlii.org S v Mutekure (HMA 38-18, CRB 40/18) [2018] ZWMSVHC 38 (23 July 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/38 <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>THE STATE</p> <p>Versus</p> <p>LIBERTY MUTEKURE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J,</p> <p>MASVINGO, 23 JULY, 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Assessors</strong></p> <p> </p> <ol> <li>Mr Chikukwa</li> <li>Mr Gweru</li> </ol> <p> </p> <p> </p> <p><strong>Criminal Trial - Sentence </strong></p> <p> </p> <p> </p> <p><em>B.E. Mathose </em>for the state</p> <p><em>Mrs S. Mpofu </em>for the accused</p> <p> </p> <p> </p> <p>MAWADZE J:            The accused who was initially facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>] was subsequently convicted on his on plea of guilty of contravening section 49 of the same Act which relates to culpable homicide. This was after the matter proceeded on the basis of a statement of agreed facts.</p> <p>This is a borderline case between murder and culpable homicide. The state may have found its work cut out as there was no eye witness to the fatal assault of the now deceased. In addition to that the now deceased was the aggressor who in fact followed the accused who had decided to walk away from the confrontation. To compound matters the state could not rebut that the now deceased is the one who possessed the lethal weapon being an okapi knife and that he pulled it out to stab the accused but was dispossessed and instead fatally stabbed. The defence of self-defence in the circumstances is available to the accused although the means he used were not reasonable. This is brief informs the conviction of the accused on a lesser charge of culpable homicide.</p> <p>The agreed facts are that both accused and the now deceased who are aged 22 years were patrons at Day and Night Club, Zano business centre, Chief Chikwanda, Masvingo on Christmas day, 25th December 2017. As usual they were merry making partaking beer and playing a game of snooker. Apparently as the alcohol took its toll at around 21.30 hrs a quarrel ensued between them as to who was to play the snooker first. A fight nearly ensued but one Lebison Sithole restrained the two. The accused decided to take his snooker tokens and left the bar for home using a foot path which passes through some maize fields.</p> <p>The now deceased Tinashe Shepherd Shindi had other ideas. He followed the accused and caught up with him some 400m from the night club. The altercation between the two resumed. There was no other person present. Accused said the now deceased pulled out an okapi knife. It weighs 0.058kg with a 13 cm long handle and the blade is 10 cm long. The accused said the now deceased tried to stab him and a scuffle over the knife ensued. The now deceased was dispossessed of the knife and stabbed three times. The now deceased rushed back to the night club where he fell unconscious on the verandah and passed on upon arrival at Zano clinic the same night. The accused fled from the scene and did not even proceed to his homestead. Instead he hid at his aunt’s resident in Matende Village where he was finally apprehended at 0200 hrs on 26 December 2017. The accused had hid the knife in a shoe and wiped it of blood. The accused produced the knife and confessed to what he had done.</p> <p>The post mortem report shows that the now deceased died of haemorrhage shock arising from stab wounds. In fact, there were three stab wounds described as follows;</p> <p><em>“- ± 2cm stab wound on right subclavian area, piecing through chest wall to lung.</em></p> <p><em>  - ± 2cm left subclavian stab wound piercing through muscle but not chest wall.</em></p> <p><em>  - ± 1cm superficial stab wound left subclavian area</em>.”</p> <p>Our task in this matter is to assess the appropriate sentence.</p> <p>The offence of culpable homicide arising from violent conduct is a very serious offence and invariably attracts a custodial sentence unless there are special mitigatory factors. This is so because the sanctity of human life cannot be over emphasised. Human blood is sacred hence once life is lost whether intentionally or through negligence it cannot be replaced.</p> <p>This court is saddened by the fact that offences of this nature are alarmingly prevalent in Masvingo Province. A lot of lives are needlessly lost over minor disputes like a game of snooker. It is unfortunate that these offences are being committed by our young persons who are the future of this country.  The mind boggles why young persons easily resort to violent conduct using lethal weapons like knives to settle very petty disputes. Our nation has the onerous task to incalculate some sense of moral responsibility within the young generation so that they value human life.</p> <p>It is clear from the facts of the case that the accused used severe force. An okapi knife is a lethal weapon. Three stab wounds were inflicted targeting the neck, one of the stab wound pierced through the chest wall to the lung. The attack was vicious, barbaric and unfeeling. In the circumstances the degree of negligence is extremely high. As already said it borders on intention to kill.</p> <p>The accused’s conduct after fatally injuring the now deceased deserve severe censure. The accused saw if fit to flee from the scene. He did not render any assistance to the now deceased. Instead he decided to avoid the long arm of the law by deserting his residence, concealing the weapon used after wiping it of blood. The moral blameworthiness of the accused is very high. In such circumstances our courts can only play their role by handing down deterrent sentences.</p> <p>We are alive to the mitigatory factors in this case. The accused is married with two children said to be 6 years old and 8 months old respectively. We just wonder whether accused had his first child at 16 years of age as he is 22 years old. At that age accused is fairly youthful. The accused is unemployed and the family relies on his manual labour.</p> <p>As a first offender accused deserves some measure of leniency. Further, he did not waste the court’s time and resources by admitting to the charge without raising flimsy defences. To that extent he exhibited contrition. This matter has been finalised in a short space of time.</p> <p>It is in accused’s favour that his family assisted in the burial of the now deceased. They provided a coffin and the food consumed at the funeral.</p> <p>We take note that the now deceased was the aggressor. He is the one who followed the accused, was in possession of the okapi knife and was ready to use it. To that extent his was the author of his demise.</p> <p>In the circumstances we believe the following sentence will meet the justice of the case,</p> <p>“<em>10 years imprisonment of which 2 years are suspended for 5 years on condition the accused does commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.</em></p> <p><em>Effective term; 8 years imprisonment.</em>”</p> <p><em>National Prosecuting Authority</em>, counsel for the state</p> <p><em>Pundu &amp; Company</em>, pro deo counsel for the accused</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/2018/38/2018-zwmsvhc-38.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20861">2018-zwmsvhc-38.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/2018/38/2018-zwmsvhc-38.pdf" type="application/pdf; length=161064">2018-zwmsvhc-38.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/culpable-homicide">Culpable homicide</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/imprisonment-sentence">Imprisonment (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> Tue, 07 Aug 2018 10:32:34 +0000 admin 9088 at https://old.zimlii.org