PATEL
J: The accused in this matter was
convicted on his plea of guilty to a charge of unlawful entry in aggravating
circumstances as defined in section 131(2)(e) of the Criminal Law (Codification
and Reform) Act [Cap 9:23]. Although the process of conviction is
otherwise in order, the framing of the charge warrants further scrutiny.
The accused is 34 years old and is
married with two children. He is unemployed and has no savings or assets of any
value. He is not a first offender, having been previously convicted for armed
robbery in February 2011 under CRB No. MW153/11. His offence in casu
involved breaking into the complainant's house and stealing various items of
electrical equipment, a firearm with ammunition and other household goods. The
value of the property stolen was US$1,800 and the amount recovered was
US$1,250.
In sentencing the accused, the trial magistrate took into account his admitted
theft of property and found that this, coupled with the previous conviction for
armed robbery, aggravated the offence in this case. He then sentenced the
accused to a term of 6 years imprisonment and suspended 1 year on condition of
restitution, leaving an effective custodial sentence of 5 years. The 8 years
previously suspended in CRB No. MW153/11 was further suspended for the next 5
years. The effective sentence of 5 years was to run concurrently with the
sentence in CRB No. MW153/11.
On initial review, a query was raised through the Registrar. It was noted that
the accused was charged and convicted of unlawful entry in aggravating
circumstances. The charge avers unlawful entry but is silent on the theft of
property within the premises in question. The trial magistrate was directed to
explain why this omission was not corrected.
In his response, the trial magistrate states that in his understanding of the
charge “what should be established are the essential elements of unlawful
entry. The issue of theft can only arise as an aggravating circumstance in the
commission of the offence. Furthermore, theft may nonetheless be taken into
account in assessing sentence only”. In support of these propositions, the
learned magistrate relies upon the decision of UCHENA J (with BHUNU J
concurring) in The State v Chirinda & Others HH
87-2009.
Section 131 of the Criminal Law (Codification and Reform) Act [Cap 9:23]
provides as follows:
“(1) Any
person who, intentionally and without permission or authority from the lawful
occupier of the premises concerned, or without other lawful authority, enters
the premises shall be guilty of unlawful entry into premises and liable –
(a)
to a fine not exceeding level thirteen or not exceeding twice the value of any
property stolen, destroyed or damaged by the person as a result of the crime,
whichever is the greater, or imprisonment for a period not exceeding fifteen
years, or both, if the crime was committed in any one or more of the
aggravating circumstances set out in subsection (2); or
(b)
in any other case, to a fine not exceeding level ten or not exceeding twice the
value of any property destroyed or damaged by the person as a result of the
crime, whichever is the greater, or imprisonment for a period not exceeding ten
years, or both.
(2) For
the purposes of paragraph (a) of subsection (1), the crime of unlawful
entry into premises is committed in aggravating circumstances if, on the occasion
on which the crime was committed, the convicted person –
(a)
entered a dwelling-house; or
(b)
knew there were people present in the premises; or
(c)
carried a weapon; or
(d)
used violence against any person, or damaged or destroyed any property, in
effecting the entry; or
(e)
committed or intended to commit some other crime.”
A plain reading of section 131(1) makes it clear that it enacts the crime of
unlawful entry, the essential elements of which are intentional entry without
permission or authority. This statutory offence repeals and replaces the common
law crime of burglary or housebreaking with intent to steal, but with certain
additional features. By virtue of paragraph (a) of subsection (1), as read with
paragraphs (a) to (e) of subsection (2), the offence is aggravated by any of
the circumstances set out in subsection (2). As was made abundantly clear in Chirinda's
case (supra), section 131(1)(a) does not create a combined offence of
unlawful entry and theft. What it does is to aggravate the offence of unlawful
entry, by prescribing a more severe penalty therefor, in the event of any one
or more of the circumstances enumerated in subsection (2) being
established.
To this
extent, I am in total agreement with the very detailed views expressed by
UCHENA J in Chirinda's case. However, I must respectfully disagree with
the position that the elements of theft or other aggravating circumstance need
not be stated in the charge and can merely be mentioned in the State outline or
agreed facts or in the prosecutor's address in aggravation. I note that this
position accords with the comments elicited from the Attorney-General on the
interpretation of section 131.
In my view, it is necessary for the
State to prove or otherwise establish the relevant aggravating factor if it is
to sustain a charge under section 131(1)(a). If it fails to do so, that factor
cannot be taken into account for the purposes of assessing and imposing the
more severe sentence stipulated by that provision (or for ordering restitution
as was done in the case under review). Once this is accepted, it seems to me
unavoidable that the aggravating factor or circumstance be specifically pleaded
and spelt out in any charge under s131(1)(a). It cannot simply be left to be
dealt with at some later stage in the proceedings. In the event that the State
fails to prove or otherwise establish the aggravating circumstance stated in
the charge, this will not be fatal to the conviction of the accused on the
primary charge. It would still be possible to properly convict him of unlawful
entry simpliciter under section 131(1)(b).
It is
axiomatic that a criminal indictment must clearly set out all the particulars
of the charge so that the accused fully grasps the basis of the charge so as to
enable him to prepare his defence. If the charge does not allude to the alleged
aggravating circumstance, the accused would obviously be prejudiced in the
preparation and presentation of his defence. For instance, the crime of robbery
under section 126 of the Criminal Law Code attracts a considerably more severe
punishment if the crime is committed in aggravating circumstances, such as
possession of a firearm or dangerous weapon or the infliction of serious bodily
injury. In any such case, it cannot be doubted that the State must both charge
the particular aggravating factor alleged and prove it in order to invoke the
more severe penalty prescribed. In my view, the same principle must apply to
all crimes that provide for increased sentences when those crimes are committed
in aggravating circumstances.
This is clearly recognised in
subsections (1) and (2) of section 146 of the Criminal Procedure and Evidence
Act [Cap 9:07] which delineate the essentials of an indictment or charge
as follows:
“(1)
Subject to this Act and except as otherwise provided in any other enactment,
each count of the indictment, summons or charge shall set forth the offence
with which the accused is charged in such manner, and with such particulars
as to the alleged time and place of committing the offence and the person, if
any, against whom and the property, if any, in respect of which the offence is
alleged to have been committed, as may be reasonably sufficient to inform
the accused of the nature of the charge.
(2)
Subject to this Act and except as otherwise provided in any other enactment,
the following provisions shall apply to criminal proceedings in any court, that
is to say –
(a)
the description of any offence in the words of any enactment creating the
offence, or in similar words, shall be sufficient; and
(b)
any exception, exemption, proviso, excuse or qualification, whether it does or
does not accompany in the same section the description of the offence in the
enactment creating the offence, may be proved by the accused, but need not be
specified or negatived in the indictment, summons or charge, and, if so
specified or negatived, no proof in relation to the matter so specified or
negatived shall be required on the part of the prosecution.” [my
emphasis]
Before turning to the specific
charge in casu, I should add that the structure and wording of section
131, taken as a whole, leaves much to be desired, particularly in the
infelicitous marriage of subsections (1) and (2). It is therefore not
surprising that the provision has generated substantial confusion and
contradiction in the framing of charges and the conduct of criminal proceedings
thereunder. I would therefore strongly recommend that the Minister of Justice
and the Attorney-General take steps to reconsider and redraft section 131 in
its entirety.
In light of the views
expressed herein, it is necessary to amend the charge under which the accused
in this matter was convicted and sentenced. It is accordingly amended to read
as follows:
“Charged
with unlawful entry into premises as defined in section 131(1)(a) of the
Criminal Law (Codification and Reform) Act [Cap 9:23] as read with
section 131(2)(e) of the said Act
In that on
16October 2009 and at No. 1657 Glen Norah A, Harare, Trymore Netsai Zhakata
unlawfully, intentionally and without permission or authority from Watson
Goredema, the lawful occupier of the premises concerned, or without other
lawful authority, entered the said premises by means of forcibly opening the
main entrance door to gain entry; and that, whilst inside the said premises,
Trymore Netsai Zhakata took the property listed in the State outline, knowing
or realising that Watson Goredema was or may be entitled to own, possess or
control the property, and intending to deprive Watson Goredema permanently of
his ownership, possession or control of the property or realising that he may
be so deprived thereof.”
With the charge being amended as above, the conviction of the accused and the
sentence imposed upon him are hereby confirmed as being in accordance with real
and substantial justice.
HUNGWE J: I concur.
