The
appellant appeared in the Bulawayo Regional Court facing twelve charges of
crimes which he and his colleague committed in three days. Six of the
offences were allegedly committed on 24 October 2006, four on 25 October 2006
and two of them on 26 October 2006.
Count
1: On 24 October 2006, he and his colleague were alleged to have been
unlawfully found in possession of a .38 special revolver without a valid
firearms certificate in respect of it in contravention of section 4(1)(a) of
the Firearms Act [Chapter 10:09].
Count
2: It was alleged that on 24 October 2006 they were also found to be in
unlawful possession of 4 x 9mm live rounds of ammunition in contravention of
section 4(4)(a) of the Firearms Act [Chapter 10:09].
In
Count 3, he and his colleague were alleged to have robbed, on 24 October 2006,
one Abel Ncube of his Dig Wheel Humber bicycle valued at $50,000= Zimbabwe
dollars.
In
Count 4, the allegation was that on 24 October 2006 in order to facilitate the
robbery of Abel Ncube they tied him to a tree and stole his bicycle and then
left him still tied to the tree thereby depriving him of his freedom of bodily
movement in contravention of section 93(1)(a) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23].
Count
5 is another robbery which also took place on 24 October 2006. The
appellant and his colleague were armed with a loaded revolver and an axe and
robbed Khondo Ndlovu of a bag full of an assortment of items of grocery valued
at $16,000= and his bicycle valued at $40,000=.
In
Count 6, the accused and his colleague, like in Count 4, tied the complainant,
Khondo Ndlovu, to a tree with a rope in order to facilitate the
robbery. They left him tied to the tree thereby depriving him of his
freedom of bodily movement in contravention of section 93(1)(a) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23].
The
offence in Count 7 was committed on 25 October 2006 at Aleck Ndlovu's
homestead, Tsheguta Village in the Malalume area. The accused persons, who were
armed with a revolver and axe, and using the said weapons, attempted to rob
Simelinkosi Ndebele of South African Rands.
Count
8 was attempted murder in that on 25 October 2006 at the same place when the
complainant escaped through the window and fled the accused fired two shots
towards her with the revolver but missed their target.
Count
9 was a charge of unlawful entry into the house of Handsome Ndlovu at Tsheguta Village,
Malalume area of Plumtree on 25 October, 2006.
The
tenth count is one of theft in that while they were inside the house they stole
from there, property valued at $495,500= most of which was recovered except for
property valued $500=.
Count
11 was yet another unlawful entry into the house of Handsome Ndlovu the
following day - 26 October 2006.
While
inside the house they stole from there, property valued at $1,947,000= of which
property valued at $45,000= was recovered.
Both
accused pleaded not guilty to all the counts but were convicted of all counts
despite their protestations. They were then sentenced as follows:
Count
1 - 7 years imprisonment.
Count
2 - 1 year imprisonment.
Counts
3, 5 and 7 the robbery charges were treated as one for sentence: 8 years
imprisonment.
Count
4 and 6 taken as one for sentence - 10 years imprisonment.
Count
8 - 10 years imprisonment.
Counts
9 and 11 the two counts of unlawful entry into a house - 2 years.
Counts
10 and 12 charges were treated as one for sentence - 6 years imprisonment.
Of
the total of 44 years imprisonment 10 years imprisonment was suspended for a
period of 5 years on the customary conditions of future good behaviour….,.
The
appellant contended that the sentences meted against him were manifestly
excessive and induced a sense of shock in him.
The
State counsel made some concessions which, in my view, were proper. He
conceded that the accused should have been charged with a single count in
respect of Counts 1 and 2. They should have been charged with contravening
section 4(4)(b) of the Firearms Act [Chapter 10:09] possessing the firearm and
rounds of ammunition without a licence for which the sentence provided is a
fine not exceeding level six or imprisonment not exceeding one year.
Accordingly, Counts 1 and 2 are merged into one count. The original sentences
of the court a quo
are hereby set aside and substituted with a sentence of 1 year
imprisonment.
Counts
3 to 6
In
respect of these counts the accused robbed two different complainants at
different times. In order to effectively and successfully rob their
victims the accused tied each of them to a tree and thereafter robbed them of
their respective property and left them still tied to the trees. They were
charged with two counts of robbery and two counts of depriving them of their
bodily movement in contravention of section 93(1)(a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
The
respondent's counsel properly conceded, in my view, that there was an
impermissible splitting of charges. Instead of charging the appellant and
his colleague with two counts of robbery and two counts of depriving their
victims of bodily movement, they should have been charged with just two counts
of robbery.
I
agree.
In
the result, the convictions and sentence of 10 years imprisonment in respect of
Counts 4 and 6 are hereby set aside.
The
two robberies were committed in aggravated circumstances. In each case,
the appellant and his colleague left their victims tied to trees and went
away. Similarly, the attempted robbery in Count 7 was committed in
aggravated circumstances in that they struck their victims with an axe handle
and threatened to shoot her.
These
three counts were treated as one for sentence and the appellant and his
colleague were sentenced to 8 years imprisonment. There is no reason why
this court should interfere with that sentence. It is hereby allowed to
stand….,.
Nothing
turns on the sentence imposed in respect of the last four counts. The
sentences imposed are not out of step with the sentences normally meted for
those offences. The appeal accordingly fails in respect of the sentences
on those counts.
The
sentences now stand as follows:
Count
1 - 1 year imprisonment.
Counts
3 and 5 the two robbery charges and Count 7 one attempted robbery are treated
as one for sentence - 8 years imprisonment.
Count
8 one count of attempted murder - 10 years imprisonment.
Counts
9 and 11 the two counts of unlawful entry - 2 years imprisonment.
Counts
10 and 12 the two counts of theft - 6 years imprisonment.
Total: 27
years imprisonment of which 10 years imprisonment is suspended on the
conditions formulated by the trial court.
