MATHONSI J: The two appellants pleaded guilty to and were
convicted of two counts of armed robbery in contravention of section 126 of the
Criminal Law Code, [Chapter 9:23]. They
were convicted by the Regional Magistrates Court, Bulawayo on 23 August 2010 and
sentenced to 12 years imprisonment on each count. Of the total 24 years imprisonment 3 years was
suspended on the usual condition of good behaviour.
The
two were granted leave to appeal against sentence only and when they appeared
before us in person they appealed for leniency arguing that they now realise
the folly of their actions. They stated
that the court a quo should have given them the benefit of
pleading guilty and reduced their sentence.
The second appellant added that he has young children and orphans to
look after and that the court should give him a chance to return home to look
after them.
The
case against the appellants is that in the afternoon of 16 August 2010 the two
of them proceeded, in the company of four others, to Tashas Supermarket in Old
Magwegwe, Bulawayo in an Isuzu KB200 vehicle which they intended to use as a
get away vehicle. The vehicle which was
driven by a colleague of the appellants was parked at a distance away. The two appellants and two others who were
armed with pistols proceeded to the supermarket where upon the arrival they
fired two shots into the air and ordered people in the supermarket to lie down.
Using
threats of violence, they took two tills containing money and ran away towards
their get away vehicle. Unfortunately
for them, the driver panicked and took off at a high speed leaving them behind.
In
count two the case is that on the same afternoon of 16 August 2010, the two
appellants, in the company of another person, stopped a Toyota Hiace minibus
along Intemba Road in Pumula East, Bulawayo.
When the driver stopped they shot him two times on the left thigh before
pulling him out of the vehicle which they drove away at high speed in the
direction of Gwabalanda.
The
police were engaged in a high speed chase with the appellants resulting in the
appellants ramming the minibus against a precast wall in Gwabalanda. There was a shooting incident as the
appellants resisted arrest and opened fire on the police detectives. They were eventually arrested.
I
agree with Mr Hove for the respondent
that this was a robbery committed in aggravating circumstances. In terms of section 126(3) of the Criminal
Law Code a robbery is committed in aggravating circumstances if the convicted
person possessed a firearm or a dangerous weapon, or inflicted or threatened to
inflict serious bodily injury upon any person; or killed a person in the
process of the robbery.
In
both counts of robbery the appellants were armed with pistols. At Tashas Supermarket they fired two shots to
induce submission and threatened people who were present before making off with
the loot. When they robbed the minibus
driver they shot him twice in the leg thereby causing him grievous bodily
injury. They threw him off his vehicle
and left him in pain as they took off in his vehicle.
Subsection
(2)(a) of section 126 of the Criminal Law Code provides that where a robbery is
committed in aggravating circumstances, the convicted person shall be liable to
life imprisonment or any shorter period.
It was therefore within the powers of the trial magistrate to sentence
the appellants up to life imprisonment.
He opted for an effective 21 years in total for the two counts. The sentence was therefore within his
sentencing powers.
In
our law, the sentencing court as a discretion in assessing an appropriate sentence. The appeal court does not have a general
discretion to modify the sentences of trial courts. Mkombo
v The state HB 140/10 at page 3.
For
the appellate court to interfere with the trial court's sentencing discretion
there should be a misdirection on the part of the sentencing court or the
sentence imposed should be manifestly excessive: S v
Chiweshe 1996(1) ZLR 425(H) at 429D; S
v Ramushu S – 25-93; S v Nhumwa S
-40-88 at page 5.
In
my view, in casu, the sentence
imposed is not vitiated by any misdirection as none exists and it fell within
the sentence that can be imposed for such offence. In fact, considering the serious aggravating
factors that exist in this matter, the appellants are very lucky to have gotten
away with such a lenient sentence.
It
is for the foregoing reasons that the appeal is without merit. It is accordingly dismissed.
Kamocha
J agrees.............................................................
Criminal Division, Attorney
General's Office, respondent's legal practitioners
