KAMOCHA J: This is
an appeal against a sentence imposed by the regional court sitting in Bulawayo
on 20 January 2011. The appellant
pleaded not guilty to theft of a motor vehicle as defined in section 113(1)(b)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The allegations were that during the
early hours of New Year's day he stole a Mazda SXD 2500 belonging to one
Tatenda Mbengegwi which was parked outside Vision Night Club. He was found guilty at the end of the trial
despite his protestations.
The trial court then sentenced him
to undergo 6 years imprisonment of which 2 years imprisonment was suspended for
5 years on the customary conditions of future good behavior.
In his grounds of appeal he
complained that the learned magistrate had not properly balanced his mitigating
and aggravating factors in her reasons for sentence. His other complaint was that the sentence
imposed did not fit the circumstances of the case.
The brief circumstances giving rise
to this case were that on 1 January 2011 at about 12 midnight the complainant
parked his car outside Vision Night Club situated at the corner of 13th
Avenue and Robert Mugabe Way, Bulawayo.
He closed all the windows and locked all the doors and entered the night
club.
While he was inside the appellant
used some unknown object to open the locked car. He drove the car, but run out of luck before
going far, and collided into a parked car and then failed to drive away before
being discovered by the complainant's young brother who found him sitting in
the car. The car had been parked just
before 12 midnight. The appellant was
found in the car at about 3 am having driven the car from where it had been
parked before he collided into a parked car.
When approached by the complainant's young brother and other
people the appellant bolted out of the car and fled but was apprehended before
he went too far. He was found with a
bunch of keys on his person.
The complainant's young brother said
the gear box of the vehicle had been damaged during the collision with a parked
car. The appellant could not drive the
car any further because of the gearbox which was stuck following the collision.
The appellant must have either used
some keys from his bunch of keys to open and start the vehicle or some other
object which he was not prepared to tell the court. The vehicle was valued at $5 000 and was
recovered.
The trial court found the appellant
to have been untruthful. It rejected his
story that he only wanted to steal the battery of the car. Had that been his sole intention there would
have been no need to drive the car from where it had been parked.
The accused was aged 19 years at the
time he committed the offence. It is
usually that age group that commits that type of crime which is regrettably
prevalent and appears to be on sharp increase.
Mr Nyathi who argued the appeal on behalf of the appellant was unable
to show any misdirection by the trial court.
There being no misdirection by the trial court this court cannot
interfere with judicial discretion properly exercised on the basis that it
would, maybe, have imposed a somewhat different sentence had it been the trial
court.
Consequently, after hearing
arguments from the respective legal practitioners we concluded that the appeal
was devoid of any merit and dismissed it and indicated that our reasons would
follow. The above are they.
Mathonsi
J …………………………………………… I agree
Sansole & Senda, appellant's legal practitioners
Criminal Division of the Attorney General's
Office, respondent's legal practitioners
