Criminal
review
MAFUSIRE
J:
[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 section 114(2)(a) of the
Criminal Law (Codification and Law Reform) Act [Cap
9:23]
(“the
Code”).
He stole two cows and a calf in a single act.
[2] In
the absence of special circumstances, theft of a bovine attracts a
mandatory minimum sentence of nine years imprisonment. But in S
v Chitate
HH 568-16 we
said:
“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.”
[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.
[5] The
aggravating circumstances noted by the court were:
-
stock
theft is a very serious offence;
-
stock
theft has become prevalent;
-
there
was premeditation;
-
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;
-
it
was necessary to deter the accused from committing further similar
offences;
-
removing
the accused from society for a long time will enable him to mend his
ways;
[6] The
personal and mitigating circumstances were:
-
the
accused was forty-two years old; was a farmer and was married with
ten children;
-
the
accused had two cattle and two calves of his own, and he earned
about $300 per season;
-
the
accused pleaded guilty and thereby saved time;
-
the
accused did not benefit from the theft as all the cattle were
recovered;
-
the
accused was a first offender;
[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.
[8] In
this case the accused was properly convicted. Therefore the
conviction is hereby confirmed.
[9] I
queried the sentence. It was above the mandatory minimum. In the
light of Chitate's
judgment above the trial court readily conceded that there was no
justification for the higher sentence. The concession was well made.
[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 a
quo
treated the more crucial aspect of special circumstances.
[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 S
v Manase HH110-15;
S
v Chembe
HH357-15 and Ziyadhuma
v S
HH303-15.
[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:
“Special
circumstances explained and understood.
Q Do
you have any special circumstances?
A No.”
[13] That
was most perfunctory and somewhat a dereliction of duty by the trial
magistrate.
[14] In
S
v Ziyadhuma
above, the magistrate had merely recorded that “Special
circumstances peculiar to the case explained and understood”.
Bere J, as he then was, (Hungwe J concurring) set aside the sentence
imposed, and said:
“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.”
[15] In
S
v Chaerera
1988 (2) ZLR 226 (S); and S
v Manase
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.
[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.
[17] Generally
the record should contain all the questions and answers. As Bere J
noted in Ziyadhuma
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.
[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 good 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.
[19] Sadly,
because of the deficiencies documented above, the sentence of the
court a
quo
has to be set aside and the record remitted. It is ordered as
follows:
i/
The conviction is hereby confirmed.
ii/
The sentence is hereby set aside.
iii/
The record is hereby remitted to the court a
quo
for a proper investigation into special circumstances after which the
court may pass an appropriate sentence.
22
November 2018
Hon
Mawadze J: I agree _______Signed
on original____________
1.
Mawadze J and I
2.
At
p 3 – 4 of the cyclostyled judgment
3.
Section 5(1) of the Magistrates Court Act, [Cap
7:10]
