CHEDA J: This is an appeal against sentence.
Appellants were charged with 8
counts of armed robbery and 1 count of attempted murder. The allegations are that between 2 March 2004
and 18 May 2004 they committed the said offences in Bulawayo suburbs using a pistol. Their activities resulted in the complainants
losing various items of property in the process. Both appellants pleaded not guilty to the
charges. At the conclusion of the trial
the court a quo convicted and made the following findings:
Both appellants: Count 9 was withdrawn before plea
1st appellant Counts 1, 2, 5, and 8, he was
discharged at the close of the state
case.
2nd appellant Counts 5, he was discharged at
the close of the state case.
1st appellant Counts 3, 4, 6, and 7 was
convicted
2nd appellant Counts 3, 4, and 7 was convicted
but was acquitted in count 8.
On count 3, each appellant was sentenced to 12 years imprisonment.
Count 4- 12 years imprisonment
Count 7- 8 years imprisonment
Total: 32 years of which 6 years imprisonment was suspended on the usual
conditions of good behaviour.
Count 6 – 1st appellant 6 years imprisonment which totals 30
years imprisonment.
2nd appellant's total
sentence is 24 years imprisonment.
It is appellant's argument that the sentence imposed by the court a quo
induces a sense of shock. They further
argued that the court a quo did not exercise its discretion
judiciously which resulted in it passing excessive sentences on them.
Mrs Phulu,
for the appellants referred the court to the case of S v Chitiyo 1987 (1) ZLR 235 wherein, DUMBATSHENA, C. J. at 240B
stated:
“A
sentence of 50 years imprisonment with labour is in my judgment objectionable,
not because it is unjust or undeserved, but because it seems to me inhumane to
keep a young man of 23 years of age in prison for that long.”
The respondent on the other hand has argued that the trial court's
discretion in general should not be interfered with for the mere reason that
another court would have passed a different sentence except where it has not
been judiciously exercised. This, infact,
is the correct legal position.
In casu appellants have relied on the remarks by DUMBUTSHENA CJ (supra). This, in my opinion was the correct legal
position before the passing of the Criminal Law (Codification and Reform Act
No. 23/2004 [Chapter 9:23] of which section 126(2) and (3) reads:
“126 (2) A person convicted of robbery shall be
liable:-
(a) to imprisonment for life or any shorter
period, if the crime was committed in aggravating circumstances as provided in
subsection (3); or
(b) in any other case-
(i) to a fine not exceeding level fourteen
or not exceeding twice the value of the property that forms the subject of the
charge, whichever is the greater; or
(ii) to imprisonment for a period not
exceeding fifty years;
or
both:
Provided that a
court may suspend the whole or any part of a sentence of imprisonment imposed
for robbery on condition that the convicted person restores any property stolen
by him or her to the person deprived of it or compensates such person for its
loss.”
This section underlines the seriousness of the offence as viewed by the
Legislature hence the authority to impose a life imprisonment where robbery is
committed under aggravating circumstances.
For that reason the case of Chitiyo
supra is distinguishable.
Appellants embarked on a spree of robberies, wherein within two days
they had committed 5 armed robberies using a pistol and in count 6 a police
officer was shot on both legs. The
terror which gripped Bulawayo and its environs during that period was there for
anyone to see and feel. Such orgy of
violence cannot by any stretch of imagination be played down or sacrificed on
the altar of the usual and ordinary mitigatory features which are now a mantra
to every convicted person. Appellants
committed robbery, not only once, but, on many occasions leaving their victims
in the state of shock. For them to say
that the sentences imposed on them is severe to an extent of inducing a sense
of shock is to attempt to reverse the genuine and deep shock they left on their
victims. They ought to have known that
sailing too close to the wind would ultimately result in their yatchts being
blown off and therefore, they can not be heard to complain of their failure of
captaincy of the said yatcht.
I am of the opinion that the court a
quo exercised its discretion
judiciously. All I can add is that the
trauma and anxiety experienced by the victims under appellants' siege can not
be down played to an extent of interfering with the sentences imposed. Appellants despite their ages had no respect
for other people's dignity, freedom and property. They surely deserve to be removed from
society to hopefully teach them a lesson and warn those of like mind of the dim
view these courts take in these matter.
For the above reason the convictions are confirmed.
Appeal against sentence is accordingly dismissed.
Mathonsi J
agrees.............................................................
Lazarus and Sarif, appellants' legal
practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
