CRIMINAL PROCEDURE (SENTENCE) Offences Under Criminal Law Code https://old.zimlii.org/taxonomy/term/10257/all en S v x ( A Juvenile) (HMA 20/19, CRB CG 134/19) [2019] ZWMSVHC 20 (20 May 2019); https://old.zimlii.org/zw/judgment/masvingo-high-court/2019/20 <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> </p> <p>THE STATE</p> <p>vs        </p> <p>X</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE  J</p> <p>MASVINGO, 20 May, 2019</p> <p> </p> <p> </p> <p> </p> <p><strong>Criminal Review                                                                   </strong></p> <p> </p> <p>MAWADZE J:  This review judgment has been occasioned by the need to assist judicial officers especially Magistrates in sentencing juveniles convicted of criminal offences in light of the decision of the Constitutional Court in the case of <em>State</em> v <em>Willard Chokuramba</em> &amp; 4 Ors. CCZ 10/19.</p> <p>            The Constitutional Court outlawed corporal punishment administered on male juveniles as was provided for in s 353 of the Criminal Procedure and Evidence Act [<em>Cap 9:07</em>]. This was  with effect from 3 April., 2019. Male juvenile offenders convicted of any criminal offence cannot be sentenced to receive corporal punishment. Consequently, Magistrates are now enjoined to resort to other forms or methods in dealing with juveniles in conflict with the criminal law especially those convicted of such offences.</p> <p>            Prison sentences have long been regarded as undesirable in dealing with juvenile offenders. In the case of <em>S</em> v <em>Ncube and Ors</em>. 2011 (1) ZLR 608 (H) I discussed in some detail on other forms of punishment or options open to judicial officers in dealing with such juveniles. The guiding principle is that in dealing with juveniles in conflict with the criminal law is to impose a rehabilitative rather than a retributive sentence. This is in line with the international best practices and international instruments which include <em>inter alia</em> Article 40 of the <em>United Nations Convention on Rights of the Child (1990) and</em> Article 17 of the <em>African Charter on the Rights and Welfare of the Child (1999).</em></p> <p>            I should applaud the trial Magistrate in this matter for attempting to adhere to these principles. The only problem which arises in this case is that the trial Magistrate did not fully adhere to the proper procedure.</p> <p>            The bare bones of the case is that a 15-year-old male juvenile was convicted on his own pleas of guilt of 10 counts. Five counts relate to unlawful entry into premises as defined in s 131(1) of the <em>Criminal Law (Codification and Reform) Act</em> [<em>Cap 7:23</em>] and the other five counts relate to theft as defined in s 113(1) of the same <em>Act</em> [<em>Cap 9:23</em>].</p> <p>            The agreed facts are that between the period extending 28 February, 2019 and 15 March, 2019 in and around Chivi growth point, Masvingo, the 15-year-old juvenile broke into five different premises from which he stole various goods all valued at $548.50 of which goods valued at $395.00 was recovered this causing actual prejudice of $153.50.</p> <p>            The matter proceeded in terms of s 271(2)(b) of the <em>Criminal Procedure and Evidence</em> <em>Act</em> (<em>Cap 9:07</em>] and the male juvenile was convicted on his own pleas of guilty in all the 10 counts.</p> <p>            A detailed probation officer’s report was compiled and produced. It was recommended that the male juvenile be found to be a child in need of care as defined in s 2 (c), (d) and (g) of the <em>Children’s Act</em> [<em>Cap 5:06</em>]. The recommendation was that the male juvenile be placed in a Training Institute at Kadoma in terms of s 20(1)(b)(vi) of the <em>Children’s Act</em> [<em>Cap 5:06</em>]. This recommendation was informed by a number of reasons.</p> <p>            The male convicted juvenile is described in the probation officer’s report as an habitual truant. His biological father is unable to exercise proper care and control over him. Secondly, as already said the male juvenile is facing and had been convicted of 10 counts which clearly shows his propensity to crime. Thirdly, the convicted male juvenile has a relevant previous conviction for contravening section 131 (1) of the <em>Criminal Law (Codification and Reform)</em> <em>Act</em> [<em>Cap 9:23</em>] as per CRB CH  275/18 dated 28 August 2018. In that case passing of sentence was suspended for 5 years on the usual conditions of good behaviour. Clearly the said male juvenile has failed the test in less than a year. The trial Magistrate proceeded in this case at hand to place the convicted male juvenile at Kadoma Training Institute for 3 years.</p> <p>            The first anomaly in this matter is that the trial Magistrate did not deal with the convicted male juvenile’s previous conviction on CRB CH 275/18 in which passing of sentence had been conditionally suspended for 5 years. The convicted male juvenile as already said breached the said conditions by committing these offenses at hand. To his or her credit the trial Magistrate, in the reasons for sentence, suggested that it would be prudent to further postpone the passing of sentence on CRB CH 275/18. However, the misdirection is that this remained a wish on the part of the trial Magistrate as it was not captured on the ultimate sentence imposed. The trial Magistrate profusely apologised for this oversight and implored this court to rectify the omission. I am of the view that the convicted male juvenile should be afforded the proverbial second chance to reform hence the need to further postpone the passing of sentence on CRB CH 275/18 for another period of 5 years on the same conditions.</p> <p>            The second anomaly in this matter is that the trial Magistrate did not comply with the provisions of s 351(3)(b) of the <em>Criminal Procedure and Evidence Act</em> [<em>Cap 9:07</em>] which provide as follows;</p> <p>            “<strong><em>Section</em></strong> <strong><em>351 Manner of dealing with convicted juveniles</em></strong></p> <p> </p> <ol> <li> <em>irrelevant</em></li> </ol> <p> </p> <ol> <li> <em>Any court before which a person under the age of nineteen years has been convicted of any offence may, instead of imposing a punishment of a fine or imprisonment for that offence, subject to subsection (1) of section</em> <em>three hundred and thirty-seven</em>—</li> </ol> <p> </p> <ul> <li>----------------------------- (<em>irrelevant</em>)</li> </ul> <p> </p> <ul> <li><em>after ascertaining from the Minister responsible for social welfare that accommodation is available, order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic of South Africa for the period specified in subsection (1) of section </em>.”</li> </ul> <p> </p> <p> </p> <p>After I raised a query with the trial Magistrate as to whether he or she had complied with the provisions of s 351(2)(b) of <em>Criminal Procedure and Evidence Act</em>, [<em>Cap 9:07</em>] by ascertaining that that there is indeed accommodation at Kadoma Training Institute before committing the convicted male juvenile to that institution, the response by the trial Magistrate was rather perfunctory.</p> <p>The trial Magistrate said he or she simply complied with the recommendations of the Probation Officer as per the Probation Officer’s report. This is incorrect. The Probation Officer had suggested that the convicted male juvenile be referred to the Children’s Court and dealt with in terms of s 20 (1) of the <em>Children’s Act</em> [<em>Cap 5:06</em>]. The trial Magistrate although placing the convicted male juvenile at the said training institute he or she did not do so sitting as a Children’s Court and was not exercising the powers outlined in s 20(1) of the <em>Children’s Act</em> [<em>Cap 5:06</em>].</p> <p>The truth of the matter is that the trial court simply proceeded in terms of s 351 (2)(b) of the <em>Criminal Procedure and Evidence Act</em> [<em>Cap 9:07</em>]. Be that as it may, whether the trial Magistrate had exercised the powers outlined in s 20 of the <em>Children’s Act</em> [<em>Cap 5:06</em>] sitting as Children’s Court or acted in terms of s 351(2)(b) of the <em>Criminal Procedure and Evidence</em> Act [<em>Cap 9:07</em>] the bottom line is that the trial Magistrate was enjoined to first ascertain from the responsible authority whether there is accommodation at Kadoma Training Institute before committing the convicted male juvenile to the institution.</p> <p>The trial Magistrate in a bid to explain this omission said he or she telephonically contacted the said institution and was advised telephonically that there was such accommodation. I have no reason to doubt the integrity of the trial Magistrate. His or her ability to think on his or her feet is remarkable! However, the fact remains that a Magistrate Court is a court of record. This means that inquiries made in compliance with the law cannot be sufficient if they are made telephonically only. There is need for written documents or proof.</p> <p>How will this court in exercising its review powers ascertain compliance with the law where such  compliance has purportedly been made telephonically? The proper way to comply with the provisions of s 351(2)(b) of <em>Criminal Procedure and Evidence Act</em> [<em>Cap 9:07</em>] is to simply obtain and attach such proof. This may be in the form of a letter of confirmation from the head of such a training institute that accommodation for the convicted juvenile is available. The need for this confirmation is obvious. In my view it matters not whether such an inquiry is done by the trial Magistrate or the Probation Officer.  The bottom line is that such proof of confirmation should be part of the record of proceedings.</p> <p>I am inclined to condone this omission by the trial Magistrate in the interest of the convicted male juvenile. This court would be not acting in the best interests of the said convicted male juvenile if it was to decline to confirm these proceedings by withholding its certificate, worse still by setting aside the order imposed. This court as the upper guardian of minor children should always and at all times act in their best interests. Be that as it may my exhortation is that trial Magistrates should nonetheless comply properly with the provisions of the law. I shall however confirm the proceedings as in accordance with real and substantial justice but nonetheless seek the concurrence of my brother MAFUSIRE J as I have made an addition to the order made by further suspending the passing of sentence in CRB CH 275/18 for 5 years on the usual conditions.</p> <p>In the result, I make the following order;</p> <ol> <li>The proceedings are confirmed as in accordance with real and substantial justice.</li> <li>The order of placing the convicted make juvenile at Kadoma Training Institute for 3 years be and is hereby confirmed.</li> <li>The passing of sentence on the said convicted male juvenile on CRB CH 275/18 is further postponed for 5 years on condition the said male juvenile does not commit any offence involving dishonesty within the said period for which he is sentenced to a term of imprisonment without the option of a fine.</li> </ol> <p> </p> <p> </p> <p>Mafusire J. concurs ………………………………………………………..</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/2019/20/2019-zwmsvhc-20.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22775">2019-zwmsvhc-20.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/2019/20/2019-zwmsvhc-20.pdf" type="application/pdf; length=173605">2019-zwmsvhc-20.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-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/juvenile-offender">Juvenile offender</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/corporal-punishment-sentence">Corporal punishment (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-offences-under-criminal-law-code">CRIMINAL PROCEDURE (SENTENCE) Offences Under Criminal Law Code</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/constitutional-court-zimbabwe/2019/10">S v Chokuramba Justice For Children’s Trust Intervening As Amicus Curiae Zimbabwe Lawyers For Human Rights Intervening As Amicus Curiae (CCZ 10/19, Constitutional Application No. CCZ 29/15) [2019] ZWCC 10 (03 April 2019);</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/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/1971/2">Children’s Act [Chapter 5:06]</a></div></div></div> Mon, 01 Jul 2019 08:12:47 +0000 admin 9337 at https://old.zimlii.org S v Guvhu (HMA-55-18, CRB ZK 496/18) [2018] ZWMSVHC 55 (22 November 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/55 <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>PHILLIP GUVHU</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>MASVINGO: 22 November 2018</p> <p> </p> <p> </p> <p><strong>Criminal review</strong></p> <p> </p> <p>MAFUSIRE J:</p> <p>[1]        In this matter there were two major irregularities by the trial court. I only picked the second one much later. The first irregularity that drew my attention concerned the sentence meted out on the accused for a conviction of stock theft as defined in s 114(2)(a) of the Criminal Law (Codification and Law Reform) Act, [<em>Cap 9:23</em>] (“<strong><em>the Code</em></strong>”). He stole two cows and a calf in a single act.</p> <p> </p> <p>[2]        In the absence of special circumstances, theft of a bovine attracts a mandatory minimum sentence of nine years imprisonment. But in <em>S v Chitate</em> HH 568-16 we said:</p> <p> </p> <p>“Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum. Undoubtedly, the court may go above the prescribed minimum. But by all accounts 9 years is already a very long stretch. The court’s discretion to impose a sentence other than the prescribed minimum has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.”</p> <p> </p> <p>[3]        The cattle the accused stole were valued at $1 150. All were recovered. He pleaded guilty. He was sentenced to fourteen years imprisonment of which four years imprisonment was suspended for five years on the usual condition of good conduct. Thus the effective sentence was ten years.</p> <p> </p> <p>[5]        The aggravating circumstances noted by the court were:</p> <p> </p> <ul> <li>stock theft is a very serious offence;</li> </ul> <p> </p> <ul> <li>stock theft has become prevalent;</li> </ul> <p> </p> <ul> <li>there was premeditation;</li> </ul> <p> </p> <ul> <li>the accused’s intention was to deprive the complainant permanently of his property given that it was over a month before he was discovered and the cattle recovered;</li> </ul> <p> </p> <ul> <li>it was necessary to deter the accused from committing further similar offences;</li> </ul> <p> </p> <ul> <li>removing the accused from society for a long time will enable him to mend his ways;</li> </ul> <p> </p> <p>[6]        The personal and mitigating circumstances were:</p> <p> </p> <ul> <li>the accused was forty-two years old; was a farmer and was married with ten children;</li> </ul> <p> </p> <ul> <li>the accused had two cattle and two calves of his own, and he earned about $300 per season;</li> </ul> <p> </p> <ul> <li>the accused pleaded guilty and thereby saved time;</li> </ul> <p> </p> <ul> <li>the accused did not benefit from the theft as all the cattle were recovered;</li> </ul> <p> </p> <ul> <li>the accused was a first offender;</li> </ul> <p> </p> <p>[7]        Frankly, in cases of mandatory jail terms where there are no special circumstances, aggravating and mitigating circumstances have diminished relevancy. However, this is not to suggest that the assessment should not be made. It should always be made. But judicial officers should be careful not to be distracted from the duty to investigate special circumstances, as appears to have happened in this matter.</p> <p> </p> <p>[8]        In this case the accused was properly convicted. Therefore the conviction is hereby confirmed.</p> <p> </p> <p>[9]        I queried the sentence. It was above the mandatory minimum. In the light of <em>Chitate’s</em> judgment above the trial court readily conceded that there was no justification for the higher sentence. The concession was well made.</p> <p> </p> <p>[10]      If the irregular sentence was the only misdirection, we would probably have simply reduced it and returned the record, with appropriate directions. Sadly, there was another irregularity in relation to the manner the court <em>a quo</em> treated the more crucial aspect of special circumstances.</p> <p> </p> <p>[11]     Section 114(3) of the Code requires the court to record the special circumstances peculiar to the case that an accused may mention. Although nothing is said about the recording of the court’s own explanation to the accused, it is now trite that this too ought to be done: see <em>S v Manase </em>HH 110-15; <em>S v Chembe</em> HH 357-15 and <em>Ziyadhuma v S</em> HH 303-15.</p> <p> </p> <p>[12]     In the present case, the record of proceedings shows that neither the court’s explanation of special circumstances nor the accused’s response thereto was taken down.  All that the record bears is:</p> <p> </p> <p>“Special circumstances explained and understood.</p> <p> </p> <p>Q          Do you have any special circumstances?</p> <p>A          No”</p> <p> </p> <p>[13]     That was most perfunctory and somewhat a dereliction of duty by the trial magistrate.</p> <p> </p> <p>[14]     In <em>S v Ziyadhuma</em> above, the magistrate had merely recorded that “<em>Special circumstances peculiar to the case explained and understood</em>”. Bere J, as he then was, (Hungwe J concurring) set aside the sentence imposed, and said:</p> <p> </p> <p>“It is imperative in my view that where there is need to deal with the issue of special circumstances, the actual explanation given by the magistrate be recorded to avoid the appeal court having to speculate on what was explained to the appellant before sentencing. … The proper approach should be for the magistrate to explain what special circumstances are and also the consequences of a failure by the convicted person to give such special circumstances. Both the explanation given by the magistrate and the responses given by the convicted person must be recorded.”</p> <p> </p> <p>[15]     In <em>S v Chaerera</em> 1988 (2) ZLR 226 (S); and <em>S v Manase</em> above, it was said that it should be further explained to the accused that in addressing the court on special circumstances, it is his right, should he so wish, to lead evidence from witnesses.</p> <p> </p> <p>[16]     Accurate recording and proper record keeping are key. A magistrate court is a court of record. A court record that fairly and accurately represents the proceedings and the findings facilitates the review of, or appeal from, such proceedings or findings. Admittedly, current resource limitations mean that judicial officers are condemned to the tedious and mechanical process of recording proceedings in long hand. There are no video or audio facilities. The judicial officer’s notes remain the only evidence of the proceedings. The court record is a reflection of what the adjudicating officer believes to have heard. There is of course, the obvious danger of mistake or mishearing. Sometimes there are omissions on the actual questions put to a witness, the answers thereto or the full submissions by the parties.</p> <p> </p> <p>[17]     Generally the record should contain all the questions and answers. As Bere J noted in <em>Ziyadhuma</em> above, it is difficult on review or appeal to appreciate the meaning of responses if the questions asked are not recorded. In cases where only answers to questions are recorded, the context in which a response is given and the intended meaning of the response are not clear on review or appeal.</p> <p> </p> <p>[18]     Whilst from personal experience the problem of incomplete or inadequate records from the lower courts is not prevalent, thanks to the dedication and industry of the majority of the presiding officers therein, in spite of notable punishing work schedules combined with demoralising conditions of service, continuous efforts should be made to achieve god results with what is available. It is hoped judicial officers in those lower courts will embrace the above explanation in order to improve record keeping.    </p> <p> </p> <p>[19]      Sadly, because of the deficiencies documented above, the sentence of the court <em>a quo</em> has to be set aside and the record remitted. It is ordered as follows:</p> <p> </p> <p>            i/          The conviction is hereby confirmed.</p> <p> </p> <p>i/          The sentence is hereby set aside.</p> <p> </p> <p>iii/        The record is hereby remitted to the court <em>a quo</em> for a proper investigation into special circumstances after which the court may pass an appropriate sentence.</p> <p> </p> <p>22 November 2018</p> <p>Hon Mawadze J: I agree         _______<strong>Signed on original</strong>____________</p> <p>Mawadze J and I</p> <p>At p 3 – 4 of the cyclostyled judgment</p> <p>Section 5(1) of the Magistrates Court Act, <em>Cap 7:10</em></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/2018/55/2018-zwmsvhc-55.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=58130">2018-zwmsvhc-55.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/2018/55/2018-zwmsvhc-55.pdf" type="application/pdf; length=221236">2018-zwmsvhc-55.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/theft">Theft</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</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/mandatory-minimum-sentence">Mandatory minimum sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-sentence">Review (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-offences-under-criminal-law-code">CRIMINAL PROCEDURE (SENTENCE) Offences Under Criminal Law Code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stock-theft-sentence-code">Stock 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/2015/110">S v Manase (CRB M 103/14) [2015] ZWHHC 110 (04 February 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/357">S v Chembe (Ref Case CRB 797/14) [2015] ZWHHC 357 (09 April 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></div> Fri, 14 Dec 2018 08:57:33 +0000 admin 9224 at https://old.zimlii.org S v Phiri (HH 121-18, CON 27/18 CRB MH 58/16) [2018] ZWHHC 121 (08 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/121 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> TEST PHIRI</p> <p>versus                           </p> <p>THE STATE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 8 March 2018</p> <p><strong>Chamber Application for extension of time to note appeal</strong></p> <p> Applicant, <em>in person</em></p> <p><em>F.I Nyahunzvi,</em> for the respondent</p> <p>            CHITAPI J: The applicant was on 16 March, 2016 convicted on his plea of guilty by the magistrate at Chinhoyi for the offence of stock theft as defined in s 114 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. It was alleged against him and his accomplice who pleaded not guilty that the two of them being uncle and nephew acted in common purpose in stealing two cows from the complainant’s farm in Mhangura. The two cattle were selected from a herd which was grazing in a paddock. After identifying and driving away the two cows, they left them with a third person at another farm with instructions that he should find buyers and sell the cows on their behalf. The third person alerted the police who set up a trap by pausing as prospective buyers. The applicant and his accomplice were arrested in the trap. The two cows both valued at $1 000.00 were recovered.</p> <p>            The applicant as already noted pleaded guilty to the charge. The matter was dealt with in terms of s 271 (2) (b) of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>]. Nothing arises from the conviction. The applicant was sentenced to 16 years imprisonment with 4 years suspended for 5 years on condition that the applicant did not within that period commit any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine. This left the applicant with an effective imprisonment term of 12 years.</p> <p>            The applicant seeks to be condoned for not timeously noting his appeal against sentence and for extension of time within which to note his appeal in the event that condonation has been granted. The approach of the court in considering such applications was set out by Korsah JA in <em>Kombayi</em> v <em>Berkout</em> 1988 (1) ZLR 53 (SC). The court considers the following broad principles in deciding whether or not to grant condonation;</p> <ul> <li>The extent of the delay</li> <li>The reasonableness of the explanation for the delay</li> <li>The prospects of success</li> </ul> <p>The learned judge also stated that where the tardiness of the applicant was extreme, the applicant would have to show good grounds for the success of the appeal. The Supreme Court has continued to apply the principles enunciated by Korsah JA (see <em>Leornard Dzvairo</em> v <em>Kango Products</em> SC 35/17). It must be noted that the broad considerations aforesaid are the same irrespective of whether the appeal intended to be filed is in consequence of a civil court or criminal court judgment.</p> <p>The constitution of Zimbabwe (2013) in s 70 (5) provides as follows:</p> <p>“Any person who has been tried and convicted of an offence has the right subject to reasonable restrictions that may be prescribed by law, to</p> <ul> <li>have the case reviewed by a higher court; or</li> <li>appeal to a higher court against the conviction and sentence.</li> </ul> <p>            The courts as with every institution and agency of government has a duty as enshrined in s 44 of the constitution to respect, protect, promote and fulfil rights and freedoms enshrined in the declaration of rights. The right enshrined in s 70 (5) of the Constitution as quoted above is one that the court must respect, protect, promote and fulfil subject to reasonable restrictions which the law may impose. The imposition of time limits within which an accused person wishing to appeal against a conviction or sentence is an incidence one such reasonable restriction. The restriction is well founded in the principle that there must be finality to litigation. Even then, the law recognizes that there may be reasonable and substantial grounds or cause for a failure to meet the time limits for appeal. The court does not play slave to its rules but will in a proper and deserving case grant condonation for late noting of appeal and extensions of time within which to appeal. In doing so, the court plays its constitutional mandate to promote, protect and fulfil the rights of the accused person. The decision which I will reach in this matter is informed by applying the principles I have set out to the facts of this application.</p> <p>            I should at this stage acknowledge that the Prosecutor General’s representative has filed a statement comprising two sentences consenting to the application. It reads as follows;</p> <p>“Having gone through the applicant’s papers, it appears the appeal against sentence is reasonably arguable. The respondent is thus not opposed to the applicant being granted the relief he seeks.”</p> <p>The Prosecutor General’s response is not helpful at all and appears to have been perfunctorily prepared. It does not inform the judge or court of the grounds on which the Prosecutor General relies for his submission that the intended appeal against sentence is reasonably arguable. Does the Prosecutor General see a misdirection in the sentence of the trial court? Is the sentence in the view of the Prosecutor General so excessive as to induce a sense of shock? Without extrapolating on the reasons for asserting that the appeal is reasonably arguable, the Prosecutor General has not assisted the court contrary to the court’s expectations that the Government Chief Prosecutor uses the expertise in his office to research and make meaningful submissions which help the court in assessing the merits of the application for condonation.</p> <p>            Turning back to application, it has been filed almost 22 months after conviction and sentence. A period of 22 months is <em>prima facie</em> inordinate. The applicant attributes the delay to ignorance of the criminal procedure. He states in his application that neither the court nor prison authorities advised him of his rights of appeal. The record of proceedings does not indicate that the applicant being an unrepresented actor was appraised of his rights to appeal nor that the proceedings would be sent on review by a judge of this court and the ramifications of the processes. The trial court does not of course act as a legal representative of an accused person. However as a general practice, courts have always taken it upon themselves to ensure that an unrepresented accused is not unduly prejudiced by a lack of legal representation. Ultimately what a court should strive for, is to ensure a fair trial and to do justice to all persons irrespective of status as enshrined in s 165 (1) (c) of the Constitution. In this regard, section 165 (1) (c) of the Constitution provides that, “the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law.” Courts should always be reminded of their role as quoted.</p> <p>            The applicant avers that it was only in the course of serving his sentence that he learnt of his rights to appeal from other inmates. He states that he was also advised that there would be need for him to attach a record of proceedings to his application for condonation of late noting of appeal. Given his state of incarceration, he could not easily make arrangements for preparation of the record. Right or wrong the advise which the applicant was given in prison could be said to be, I am unable to hold that the applicant just sat on his rights. I am equally unable to reject the applicant’s assertion that he was ignorant of his rights of appeal. Whilst ignorance of the law is not a defence to a crime, I am unable to hold that where an unrepresented accused has not been advised of his rights of appeal or review after the conclusion of his trial, he should invariably be held to the maxim that his ignorance of further steps to take to challenge the conviction does not avail him as an excuse. The circumstances of each case will inform the decision which a court or judge will arrive at in any given case whether to accept or reject the explanation. <em>In casu</em>, the applicant from what I can make from the record was just an unsophisticated farm dweller who depended on piece jobs for his live hood. A reading of his handwritten application shows that it is fraught with spelling and grammatical errors. His handwriting is hardly intelligible and difficult to make out. I believe that I am justified to hold that the applicant is of little education and that whilst he would obviously know right from wrong, to hold against him that his lack of knowledge of procedural law is covered by the <em>iquorantia juris</em> <em>non excusat</em> principle would be to adopt an armchair approach and a failure to accept the realities of little or non-existent knowledge by a sizeable number of the populace in Zimbabwe of procedural law. Such approach would be inconsistent with the protection, promotion and fulfilment of human rights and freedoms. I therefore hold that under the circumstances and weighing the applicants’ explanation on a balance of probabilities, his explanation for delay is therefore understandable and excusable.</p> <p>            The fact that I have accepted the explanation for the delay by the applicant in noting the appeal and the reasonableness of the explanation is not the end of the matter for him. The applicant still must show on a balance of probabilities that his intended appeal against sentence has prospects of success. In order to properly interrogate the prospects of success, the applicant’s grounds of appeal as set out by the applicant with grammar and spelling errors uncorrected must be considered. I reproduce them as follows:-</p> <p>            “Grounds of appeal</p> <p>            AD SENTENCE          </p> <ol> <li>The court <em>a quo</em> erred in failing to consider the defence’s evidence and rather opted to rely on the inconsistent evidence by the accused.</li> <li>The court a quo erred in failing to consider that the appellant’s was a first offender our court are usually included in treating first offenders with leniency.</li> <li>The court a quo erred in lay by considering the fact that applicant was not married, a youthful and he was not employed. Our law is clear on first time offenders as they should be treated with leniency our court are also highly reluctant to subject first offenders aged (29) to prison terms especially where alternative punishment can be imposed. Prison environment may entirely and hardened and corrupt them into harco criminals.</li> <li>The court a quo erred in law by holdings that there was need for the stiffer penalty to deter would be offenders our law is clear that it is not severity of the punishment that deters but the publicity of such penalty; a now custodial sentence such as community service would in circumstance be highly deterrent as it is performed in full glance of the public.</li> <li>The court <em>a quo</em> misdirected itself by failing to considering the reformative and rehabilitative principle of sentencing before deciding on sentencing option the applicant has a life to live after serving the sentence therefore a sentence that reforms and reintegrated him into this society would have nee met and proper.</li> <li>The sentence imposed is so excessive such that the sentence induces a sense to shock taking into account that special circumstances exits.</li> </ol> <p>Wherefore applicant will pray that the lower court sentence be set aside and be substituted with an acquittal and discharged.”</p> <p>            It is not proposed to isolate and deal with each of the listed grounds of appeal in turn. Indeed some of the grounds of appeal like the first one do not constitute a valid ground of appeal. A perusal of all the proposed grounds of appeal read holistically reveal that the applicant is aggrieved by having been sentenced to effective imprisonment as opposed to community service or other  non-custodial sentence. At best it can be said that the applicant considers the sentence to be shockingly excessive in the circumstances.</p> <p>            In considering the applicant’s dissatisfaction with the sentence, two factors should be kept in mind. The first one is that the offence which the applicant was convicted of is a statutory offence of stock theft. The legislation creating the offence provides for a mandatory minimum sentence of 9 years imprisonment to be imposed upon an offender in the event that the offender fails to satisfy the court that there are special circumstances peculiar to the case why the minimum sentence should not be imposed upon him or her. The second one is to recognise that in the law of criminal procedure, sentencing is a preserve of the trial court whose exercise of sentencing powers will not be interfered with by the appeal court in the absence of a misdirection having been committed by the sentencing court.</p> <p>            In <em>S </em>v <em>Rabie </em>1975 (4) SA 855 A at 857 D-F, Holmes JA stated as follows:</p> <p>            “1.       In every appeal against sentence whether imposed by a magistrate or a Judge, the</p> <p>court hearing the appeal –</p> <ul> <li>should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court;</li> <li> </li> <li>should be careful not to erode such discretion hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised.</li> </ul> <p>2.         The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.”</p> <p>The dicta in the<em> Rabie</em> case though a decision of the Supreme Court of South Africa,</p> <p>is reflected in the decisions of our courts and jurisprudence. In <em>Munyaradzi Hatinahama </em>v <em>State </em>HH 297/16, Hungwe J with the concurrence of Chiweshe JP following on the dicta in decisions of the Supreme Court in <em>S </em>v <em>Sidat </em>1997 (1) 487 (SC) and <em>S </em>v <em>Gono </em>2000 (2) ZLR 63 (SC) followed the same approach as in <em>Rabie</em>’s case.</p> <p>            In <em>S </em>v <em>Malgas </em>200 (1) SACR 469 (SCA), Marais JA whilst agreeing with the dicta in the Rabie case, held further that there will be justification for an appellate court to interfere with the sentence of the trial court where the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as ‘shocking’, ‘startling’ or disturbingly inappropriate.</p> <p>            My task is to express an opinion on whether taking into account the principles which guide the appellate court with respect to determining appeals against sentence, there is a reasonable chance that the sentence imposed upon the applicant might be interfered with on appeal. I have no hesitation in holding that the applicant cannot escape the imposition of the mandatory minimum sentence of 9 years imprisonment. The applicant did not advance any cognisable special circumstances for committing the offence or surrounding the commission of the offence. After the trial court explained the concept of special circumstances to the applicant, he indicated that he wanted to fend for his family and thus committed the offence to achieve his goal. This is not a special circumstance.</p> <p>            The trial court however imposed a 16 year sentence which was almost double the mandatory sentence. Granted, the aggravatory circumstances outweighed the mitigatory circumstances in that the offence was deliberately planned and thus pre-meditated. However, there is nothing in the reasons for sentence to justify the imposition of more than the minimum sentence. Despite the suspension of 4 years of the 16 year sentence on conditions of good behaviour, the 12 years effective sentence is nonetheless a lengthy sentence. If one considers that a suspended sentence is in fact an integral part of the global sentence, there is room to argue that the global sentence is so severe as to be shocking and therefore disturbingly inappropriate.</p> <p>            In view of my findings condoning the failure by the applicant to note the appeal out of time and the further finding that the appeal enjoys a reasonable prospect of success, I determine the application in favour of the applicant and the following order shall issue.</p> <ul> <li>The applicant’s failure to note his appeal against sentence timeously is hereby condoned.</li> <li>The applicant is granted an extension of time within which to note his appeal against sentence.</li> <li>The applicant shall note his appeal within 14 days of delivery upon him of this order and proof of service of this order by the Registrar or Prison authorities where the applicant is serving his sentence shall be included as part of the record on appeal.</li> <li>The applicant is granted leave to prosecute his appeal in person</li> </ul> <p><em>National Prosecuting Authority</em>, respondent’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/2018/121/2018-zwhhc-121.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28956">2018-zwhhc-121.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/2018/121/2018-zwhhc-121.pdf" type="application/pdf; length=140742">2018-zwhhc-121.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/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/extension-time-within-which-note-appeal">Extension of time within which to note appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-offences-under-criminal-law-code">CRIMINAL PROCEDURE (SENTENCE) Offences Under Criminal Law Code</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stock-theft-sentence-code">Stock 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/supreme-court-zimbabwe/2017/35">Dzvairo v Kango Products (SC 35/2017 Civil Appeal No. SC 593/14) [2017] ZWSC 35 (23 May 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/297-0">S v Hatinahama (HH 297/16 CA 1131/12) [2016] ZWHHC 297 (10 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/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> Tue, 15 May 2018 07:51:08 +0000 admin 8787 at https://old.zimlii.org