KAMOCHA J: The
appellant appeared in the regional court in Bulawayo facing two counts of theft
of motor vehicles and three counts of armed robbery. On the first count, he was alleged to have
stolen a Hwange Colliery Mazda B 1800 motor vehicle which had been parked
outside a block of flats in Parirenyatwa Street, Bulawayo. The appellant used some unknown object to
open the vehicle. It was also not known
what he used to start the vehicle. The
vehicle was grey in colour written Hwange Colliery on both doors but when it
was recovered it had been repainted blue.
In count two he, at gun point,
allegedly stole a blue Mazda B 1600 belonging to Cecil Thambo Dlamini on 29
March 2007. The appellant and his
colleague asked for a lift from the complainant. Along the way they stopped the driver on the
pretext that they had reached their destination but suddenly the appellant drew
out a fire arm – a pistol and ordered all passengers in the vehicle to get out
while his colleague snatched keys from the ignition. The appellant and his colleague then drove
away leaving complainant and his relatives stranded. When the vehicle was later recovered it had
been repainted green.
The third count related to theft of
a blue Mazda B 3000 on 16 April 2007 belonging to Alois Ndlovu who had parked
it outside his house. Using some unknown
objects to open and start the engine the appellant drove the vehicle away. He later abandoned the car near Sizane High
School after removing its Panasonic car radio and speakers. On his arrest the appellant made relevant
indications to the police and also led them to his nephew William Muunganirwa
to whom he had given the car radio.
In count four the appellant
allegedly robbed the complainant at gun point on 16 April 2007 at about 1930
hours. The appellant and a colleague
stormed into the complainant's flat number 64634/2 Tshabalala Flats, Bulawayo
where she was watching television with her family. Appellant and his colleague who were armed
with pistols ordered all occupants to raise their hands up and one of them
fired a shot in the house. The victims
were all ordered to lie down on their stomachs.
The appellant and his colleague fired three more shots in the house and
thereafter ransacked the whole house stealing cash in the sum of $32 170 000
Zimbabwean dollars and various items of clothing. The total value of property stolen was $33
540 000,00 of which only $1 300 000 was recovered.
Before leaving the premises the
appellant and his colleague took the car keys which were on a coffee
table. They went out and stole a white
Landcruiser Toyota motor vehicle belonging to Fidelis Taurai Chivasa who had
visited his relatives at the flat. The
vehicle was later found abandoned in Magwegwe West. Its value was $1,5 billion Zimbabwean
dollars.
The appellant pleaded not guilty to
all the charges. A full trial took
place. Twelve witnesses were
called. The trial started on 5 February
2008 and continued up to 20 May 2009 when the appellant altered his plea from
not guilty to that of guilty in respect of counts 2, 4 and 5.
He did so after his nephew William
Muunganirwa had given his evidence which incriminated him.
The state accepted his pleas in
respect of those counts and withdrew after plea counts one and three. He was found guilty in terms of his altered
pleas and was acquitted on counts 1 and 3.
The trial court sentenced him as
follows:
Count 2: 10 years imprisonment
Count 4: 12 years imprisonment
Count 5: 10 years imprisonment
That gave him a total of 32 years
imprisonment of which 8 years imprisonment was suspended for a period of 5
years on the customary conditions of future good behavior. That then left the appellant with a total
effective sentence of 24 years imprisonment.
He now appeals to this court against
the effective sentence seeking its reduction on the following grounds.
He complained that the court a quo had not taken into account that he
had altered his pleas from not guilty to guilty. Not too much weight can be attached to that
because the appellant only changed his mind on realizing that he was going to
be convicted anyway after the evidence of his nephew William Muunganirwa which
had pinned him down. There was also
overwhelming evidence from other state witnesses. He had been identified at an identification
parade. He only changed his mind after
the trial had been going on for over a year after 12 witnesses had
testified. His change of pleas was
actuated by a realization that he was going to be convicted. It was not actuated by a genuine change of
heart and contrition.
He, however, has made a good point
in relation to counts 4 and 5 which were committed one after the other in one
continuous criminal transaction. It was
in fact a single armed robbery wherein amongst the stolen property was a motor
vehicle. The armed robbery resembled the
American film style. The appellant and
his colleague armed with pistols stormed into the flat and ordered all
occupants to raise their hands up. They
fired a shot in the flat and ordered everyone to lie prostrate before
ransacking the whole flat.
Appellant suggested that he had no
intention to deprive the owner permanently of the vehicle because it was later
abandoned in Pumula suburb. There is no
merit in that assertion and it does not assist him.
He further asserted that the shots
were not fired by him but by his colleague.
He went on to state that the shots were only meant to induce fear into
the victims and not to harm or kill anyone.
He said three of the shots were fired into the air through the window
and one was aimed at a fish tank which was on a room divider, way above the
heads of the victims who lay prostrate on the floor. He said the reason for doing this was to rob
in a bid to survive from the critical economic effects. There was no intention to injure or kill
anybody.
All the above is without merit. It is immaterial whether the shots were fired
by the appellant himself or his colleague.
They were fired in furtherance of the robbers' mandate. They were acting in common purpose. It is not true that they meant no harm. If they had met with resistance they would
have shot dead their victim. That is the
whole purpose of arming themselves with firearms during the execution of the
robberies. Finally on this head it is
baseless to suggest that it was necessary to commit the robberies in order to
survive from the prevailing harsh economic conditions. There would be chaos if that were to be
tolerated. Only the fittest would
survive in a situation contemplated by the appellant.
The appellant also complained about
why he was not afforded an opportunity to compensate the complaint on count 4
for the unrecovered property valued at $32 240 000 Zimbabwean dollars. The trial court misdirected itself in holding
that appellant himself had no means to enable him to restitute. He should have been afforded an opportunity
to do so as he could summon the assistance of his relatives and friends. The complainant would be happy if she
recovered the full value of her stolen property.
Finally he said he was a first
offender in a critical health condition, with tuberculosis related
symptoms. He had been in custody for 2
years before the matter was finalized.
Not much weight can be attached to his assertions bearing in mind that
15 months was spent on the trial. He
only waited for 9 months for his trial to commence.
Although he was a first offender
there can be no doubt that he is a danger and menace to society. Society needs to be protected from such
dangerous people.
His plea that he is in a critical
health condition cannot be taken too far.
He told the court during the hearing of the appeal that he was HIV positive
and was receiving anti-retroviral medication in prison. He was in that condition when he committed
the crimes that he has been convicted of.
There is therefore nothing to suggest that he is less dangerous now.
In the light of the foregoing the
sentence imposed by the trial court is set aside and substituted with the
following:
Count 2: 10 years
Count 4 and 5 are taken as one for
sentence: 15 years imprisonment
Total: 25 years imprisonment of which 2 years imprisonment is suspended
for 5 years on condition accused does not commit an offcence of which
dishonesty or violence is an element of which upon conviction he is sentenced
to imprisonment without the option of a fine.
Effective:
23 years imprisonment
Cheda J
……………………………………………………… I agree
Criminal Division of the Attorney General's
Office respondent's legal practitioners
