The accused was charged with a total of 13 counts, the
first 12 of which related to offences under the Firearms Act [Chapter 10:09]
while the 13th count related to escaping from lawful custody in
contravention of section 185(1)(a) of the Criminal Law Code [Chapter 9:23].
He pleaded guilty to all the charges and was duly
convicted by the trial magistrate at Beitbridge Magistrates Court.
In count 1, the accused was convicted of unlawful
possession of a firearm in breach of section 4(4)(b) of the Firearms Act
[Chapter 10:09] and sentenced to 24 months imprisonment.
In counts 2 to 11, he was convicted of pointing a
firearm in contravention of section 27(b) of the Firearms Act [Chapter 10:09]
and the court a quo took the ten (10) counts as one for purposes of sentence
and sentenced him to 24 months imprisonment.
In count 12 he was convicted of
discharging a firearm in a public place in contravention of section 27(d) of
the Firearms Act [Chapter 10:09] and sentenced to 24 months imprisonment…..,.
Having taken issue with the
sentence in count 1, the apparent splitting of charges in counts 2 to 11 and
the fact that none of the sentences were ordered to run concurrently, I
gave the Attorney General the opportunity
to address me on those issues. The Attorney General has taken the view that
there was nothing wrong with the sentence in count 1 because the penalty clause
is to be found in section 4(2) of the Firearms Act [Chapter 10:09] which allows
the trial magistrate to impose a fine not exceeding level 10 or imprisonment
not exceeding 5 years or both.
Counsel for the State, while
conceding that there was an unlawful splitting of charges in counts 2 to 11,
submitted that the sentence in count 1 was proper.
I do not agree….,.
The facts of the matter are that on the 3rd
April 2010, the police received a tip off that the 21-year old accused was in
possession of an unlicensed firearm at Baobab Spar in Beitbridge. They duly
attended at the scene and took the accused and his three (3) brothers, who were
driving a VW Golf Citi vehicle, to the police station. At the police station,
they started searching the bags of the suspects and when they were about to
rummage through the accused's bag, he suddenly grabbed the bag from where he
pulled out a 9mm Short Unique Pistol.
The accused pointed the firearm at all those present,
including his three (3) brothers, cocked the weapon and ordered them to lie
down. Apparently there were ten (10) people present which then gave rise to the
ten (10) charges of pointing a firearm.
The accused then took to his heels and before
disappearing into the nearby bush he fired a shot from the firearm. The State
had an option to charge the accused under section 4(1) of the Firearms Act
[Chapter 10:09] which provides:
''(1) Subject to this Act, no person shall purchase,
acquire or have in his possession any firearm or ammunition unless he holds a
firearm certificate in respect thereof in force at the time.
(2) Any person who contravenes subsection (1) shall be
guilty of an offence and liable to a fine not exceeding level 10 or to
imprisonment for a period not exceeding 5 years or to both such fine and such
imprisonment.''
However, the accused was not charged under that
section. Instead, in count 1, he was charged under section 4(4)(b) of the
Firearms Act [Chapter 10:09]. That section provides:
''If any person has in his possession any firearm or
ammunition otherwise than as authorised by a firearm certificate in respect
thereof, in force at the time, he shall, subject to this Act, be guilty of an
offence and liable to a fine not exceeding level 6 or to imprisonment for a
period not exceeding 1 year or to both such fine and such imprisonment.''
The accused was charged under section 4(4)(b) of the
Firearms Act [Chapter 10:09] and the penalty for contravening that section is a
level 6 fine or imprisonment of not more than a year. The trial magistrate
therefore erred in opting for a sentence of two (2) years imprisonment.
That sentence will be altered to
one (1) year imprisonment.
In respect of count 13, that is escaping from lawful
custody in breach of section 185(1)(a) of the Criminal Law Code [Chapter 9:23],
he was sentenced to 5 years imprisonment.
This gave the accused an aggregate sentence of 11
years none of which was suspended and none of which was ordered to run
concurrently with the other.
The next issue which arises is whether it was proper
to charge the accused with ten (10) counts of pointing a firearm merely because
there were ten (10) people present at the police station.
The accused pointed a firearm to induce fear in order
to make good his escape. The process of pointing the firearm constituted one
criminal transaction. R v Peter 1965
(3) SA19 (SR)…,; S v Mutawarira & Another 1973 (3) SA 902 (RAD)…,; and S v Rayiti 1984 (1) ZLR 269 (H)…,.
In casu, the accused should have been charged with one
count of pointing a firearm. SMITH J was faced with a similar situation in S v
Rayiti 1984 (1) ZLR 269 (H). At 272 D
he stated:
''If the accused is convicted of only one count the
question arises as to the proper sentence to be imposed. The magistrate had
imposed a total of 15 months imprisonment with labour, six months for count 1
and nine months for count 3. In my view, the reduction in the number of counts
must be reflected in a reduction in sentence, and I am of the opinion that nine
months imprisonment with labour is a proper sentence for the offence
committed.''
Although the magistrate treated the ten (10) counts as
one for sentence he came up with a total of twenty-four (24) months for the ten
(10) counts. In my view, those ten (10) counts should be amended to one count
and the accused should benefit from the reduction. I am of the view that an
appropriate sentence for the single count considering the 24 months for the 10
of them, should be 3 months imprisonment.
Accordingly I make the following order:
1. The conviction on count 1 is confirmed but the
sentence is altered to 12 months imprisonment.
2. Count 2 is amended by the inclusion of all the
individuals contained in counts 3 to 11.
3. The sentence of 24 months imposed on counts 2 to 11
is set aside and a sentence of 3 months imprisonment is substituted therefor.
4. The conviction and sentence on count 12 are
confirmed.
5. The conviction and sentence on count 13 are
confirmed.
6.
The sentences of 3 months (count 2) and 24 months (count 12) are ordered to run
concurrently with the sentence of 5 years imprisonment (count 13) leaving a
total effective sentence in respect of all counts of 6 years imprisonment.
