OMERJEE J: The appellant in this matter was arraigned
before the Magistrates Court Marondera on 9 counts of stock theft as defined in
s 114(2)(a) of the Criminal Law Codification and Reform) Act [Cap 9:23]. To these charges he duly
pleaded guilty. He was represented during the course of his trial by a legal
practitioner. He was convicted as charged and was sentenced on 4 March 2010 as
follows:-
Counts 1,2,3,7 and 8 were taken as
one for purposes of sentence. He was sentenced to undergo twenty-five years
imprisonment of which ten years were suspended on the usual conditions of good
behaviour. Courts 4,5 and 6 were taken as one for purposes of sentence. He was
sentenced to undergo twenty-five years imprisonment of which ten years were
suspended on the usual conditions of future good conduct. For count 9 appellant
was sentenced to undergo 15 years imprisonment. The total effective sentenced
was therefore 45 years imprisonment.
Aggrieved by the severity of the
sentence imposed by the trial court, the appellant noted an appeal against
sentence only.
It was established by the State that
the appellant had stolen a total of 44 head of cattle belonging to Shungu
Sekeramai of Ulva farm, Marondera. The appellant at the time resided at March
farm, in Marondera. The said bovines were then sold by the appellant to one
Irene Makamba of Blueridge Farm. The beasts were slaughtered and the meat was
sold to members of the public.
The appellant, in the commission of
this offence was assisted by 3 other persons including a police officer. Their trials are still pending before the Magistrates Court.
The State conceded that all 44 bovines were stolen on one occasion, but were
sold and delivered to Blue ridge farm on
different dates. Be that as it may, it is clear from the evidence on record
that in effect what occurred, was a continuing criminal enterprise as between
May to October of 2009, involving the theft of 44 bovines.
That technical spliting of charges
by the trial court does not vitiate the proceedings. It is accepted that this
court in order to minimise prejudice to the appellant, can use the device of
treating all counts as one for the purposes of sentence. In S v Sawyer 199(2) ZLR 390(H) at 393 C it
was stated as follows:-
“On the other hand, where the
different counts are all closely related to one another in some way, then it is
not only permissible, but often preferable, to treat separate counts
collectively for sentence. For instance, where different offences are committed
together as part of the same criminal activity, or where identical or similar
offences are committed individually over a period of time but as part of an
ongoing cause of conduct or collective sentence will generally be appropriate”.
This
court takes the view that it is both desirable and appropriate, in the
particular circumstances of this case to impose a globular sentence involving
all 9 counts of theft. The appellant urges this court to find that “special
circumstances” exist in this case so as to enable this court to impose in its
discretion, a sentence other than the minimum mandatory sentence required to be
imposed by law. That submission is not supported by the evidence and does not
find favour with this court. In particular, all factors presented by the
appellant, whether considered individually or cumulatively, constitute factors
of mitigation of general application and do not amount to “special
circumstances” in this matter.
The
effective total sentence imposed by the trial court was 45 years imprisonment.
We consider such sentence to be so manifestly excessive as to induce a state of
shock. A sentence of this magnitude exceeds
the limitation of a sentence for
theft of property as enunciated by the Supreme Court. That court has suggested
that the outer limits of sentence in property theft cases not involving the use
of violence is one of 25 years imprisonment. In determining an appropriate
sentence in this matter the courts takes cognisance that the offence committed
is a very serious offence.
The offence, it is clear was
committed by an organised gang of cattle rustlers. They stole a large herd of
beasts. They resorted to originating falsified documents to legitimise their
possession of these beasts. The 44 head of cattle were sold for financial gain.
They were motivated by greed and avarice in the commission of this offence. The
appellant it is clear from his own evidence is possessed of assets of value. He
owns a shopping complex at Dangamvura in Mutare. He also owns a motor vehicle
and 36 head of cattle. He is also a livestock farmer operating from March farm,
in Marondera. These factors aggravate the seriousness of this offence.
This
court also takes into account the mitigatory factors present in this case. The
appellant is a family man of 34 years of age and is a first offender. He
pleaded guilty and in so doing he exhibited a measure of contrition. He offered
to restitute 34 beasts. Having said that, it is clear that the aggravating
factors in this matter far outweigh the mitigatory factors. In arriving at an
appropriate sentence the court takes judicial notice of the fact that Zimbabwe has
undertaken a process of Land Reform and empowerment in the agricultural sector.
Cattle rearing is an intergral part of the agricultural wealth of Zimbabwe.
Also, cattle rearing on a commercial scale, is an intergral part of commercial
agriculture in Zimbabwe.
The
conduct of the appellant in stealing from his neighbour in the context of Land
Reform is clearly behaviour that undermines the thrust of Land reform, in our
country. It is conduct that requires to be depreciated for it was motivated by
greed and avarice. This court having found that no “special circumstances”
exists in this matter, is obliged to impose a minimum mandatory sentence of not
less than 9 years and not more than 25 years imprisonment. This court hereby
sets aside the sentence imposed by the trial court.
All
counts will be treated as one for the purposes of sentence and a portion thereof will be suspended for 5 years on the
usual conditions related to good behaviour, regard being had to the factors of
mitigation including restitution in this matter.
It
is ordered as follows:-
1.
The
sentence imposed by the trial court be and is hereby set aside.
2.
All
counts are treated as one for the purposes of sentence.
3. The appellant is sentenced to undergo
18 years imprisonment of which 5 years of imprisonment is wholly suspended for
a period of 5 years on condition that the appellant does not within that period
commit any offence involving dishonesty and for which upon conviction he is
sentenced to imprisonment without the option of a fine.
HLATSHWAYO J: agrees
_____________________
Mushangwe &
Company,
appellant's legal practitioners
A.G's
Office, respondent's legal practitioners
