MAKONESE J:
The above matter was placed before me for review. On perusing the record
I addressed a minute to the trial magistrate and asked him to explain why he
had decided to take the 2 counts of rape and robbery as one for the purposes of
sentence.
The learned Magistrate's response is as follows:
''It is true that the
charges and the essential elements of Rape and Robbery are different.
In taking the 2 counts as
one for the purposes of sentence here, I predominantly considered the closeness
of time and space, in committing both rape and the robbery, by the accused
person. In essence, the 2 different offences, were committed
simultaneously, so to speak. I stand guided, though.''
On the face of it the learned Magistrate's
explanation seems reasonable and straight forward. A careful reading of
the record of proceedings, however, reveals that there are fundamental
difficulties in the learned Magistrates' approach to sentence in this matter.
The accused was arraigned before the Regional Magistrate at
Gweru on two counts of rape and robbery. On the first count the
allegation was that accused contravened section 65(1) (a)(b) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23]. The accused was
sentenced as follows:
“Both counts taken as one for
purposes of sentence – 20 years imprisonment, of which 3 years imprisonment is
suspended for 5 years on condition accused is not, within that period convicted
of the offences of Rape or Robbery, upon which conviction, he shall be
sentenced to imprisonment without the option of a fine.
Effective prison term- 17 years.”
The accused initially tendered a plea of guilty on
the first count but when the essential elements were being put to him he
changed his tune and told the court that he was forced by the people who
arrested him to admit to the charge of rape. The accused went on the
state that he had consexual sexual intercourse with the complaint. The
matter went into a full trial and the accused was convicted on both counts.
The brief facts of the matter are that on the day in
question the complainant a 23 year old young married woman who was pregnant at
the time was at Musengi Bobby show Farm outside Gweru visiting her
husband. Around 6-7pm her husband left home going to fetch some water
from an aunt who was a neighbour. After complainant had had her supper
she went outside the house to relieve herself in an outside toilet. As
she got out of the house she saw a man standing outside. The person who turned
out to be the accused person enquired into the whereabouts of the complainant's
husband. The accused said he had brought some tobacco for the
complainant's husband. As complainant was trying to explain that she had
no knowledge about the issue, accused suddenly grabbed her by the arm and threw
her down and started throttling her by the neck. Accused lifted
complainant up and carried her away from the house and placed her on the
ground. Accused then proceeded to rape the complainant once.
Accused briefly took complainant's pant but handed it back to her.
Accused threatened to kill complainant if she told anyone about the rape.
The complainant then testified as follows regarding the
NOKIA 1202 cellphone: (page 4 of the handwritten record)
''He ordered me not to tell
anyone and I promised so. He had taken my phone which I pleaded for
only to get a line. He ordered me not to run home, instead I ran
straight to my aunt's where my husband should have been.'' (emphasis added)
The accused was arrested later that night and the
complainant positively identified him. Accused's premises were searched
and the NOKIA cellphone was recovered. Evidence was led to show that the
cellphone belonged to the complainant's husband.
The accused's defence was properly rejected by the trial
court as it was patently false. There was nothing to substantiate his
claims of consexual sexual intercourse with the complainant.
In this matter therefore, nothing turns on the conviction
on the first count of rape. It is the conviction on the second count and
the approach to sentence adopted by the learned Magistrate which creates
difficulties.
On the facts of the case as narrated above I found it
difficult to justify, the robbery charge. The complainant's evidence is
to the effect that the accused took the NOKIA Cellphone and later removed the
sim card and handed it back to the complainant. At best, in my
view, the evidence led on the aspect of the cellphone is sufficient to
establish theft of the cellphone by the accused. It is instructive to
note that the charge on the second count of ''robbery'' is crafted as follows:-
''In that on the 31st
day of January 2013 and at Mr Musengi Bobby Show Farm, Guimea Fowl, Gweru
LOVEMORE IMBAYARWO a male adult stole one NOKIA 1202 CELLPHONE THE PROPERTY
OF CLEMENTINE MARECHA using violence or threats of violence immediately
before or at the time he took the property in order to induce CLEMENTINE
MARECHA who had lawful control over the cellphone to relinquish her control
over it'' (emphasis added)
My view is that not enough evidence was placed before the
trial Magistrate as to the manner of the taking of the cellphone. The
issue is dealt with casually by the complainant when she testified when she
said ''I pleaded with him to give me back the phone …'' There is no doubt that
the complainant did not give the cell phone to the accused voluntarily but the
manner in which the cellphone was taken by accused is not ventilated by the
evidence. It is logical to reason that the accused took the cellphone
without the owner's consent and therefore he stole the cellphone. I am
not convinced that the essential elements of robbery were established on the
evidence led. I also point out here that section 129(1) of the Criminal
Law (Codification and Reform) Act provides as follows:
“(1) The
taking, dealing with, using or keeping of property by means of a threat of
evidence shall not constitute robbery unless the threat is of immediate
violence, that is to say, is a threat that violence will be used immediately if
control over the property is not surrendered.
(2)
Nothing in this section shall prevent a person who uses a threat of future
violence to obtain control over property from being charged with
extortion.''
In casuas I have stated
above the circumstances under which the cellphone was surrendered are not clear
from the evidence and therefore a conviction of robbery is unsafe. I am
satisfied, however that the facts support a conviction of theft of the
cellphone.
The learned trial Magistrate treated both counts as one for
the purposes of sentence. In his reasoning he says he predominantly
considered the closeness of time and space in the commission of the offences by
the accused. Herein lies the problem. In the event that the court
on review or appeal sets aside one of the two counts, the court is then forced
to apply a value judgment and use its wide discretion to decide the appropriate
sentence in respect of the count whose conviction is upheld on review or
appeal. Whilst I agree that there is no rule forbidding the treating of
closely connected offences as one for the purposes of sentence, ideally this is
not advisable or desirable in respect of serious offences such as rape and
robbery. Both offences usually attract lengthy prison sentences and as
such the proper approach is to impose separate sentences for each count.
In the instant case both the state outline and the complainant's own evidence
on oath do not specifically reveal that any violence or threats of evidence
preceding the taking of the cellphone. The evidence clearly shows that
after the rape the accused stole cellphone. Complainant asked for her
sim-card back and accused handed over the sim-card. With due respect to
the learned Magistrate, the approach he adopted in sentencing is usually
correct where the offences are not serious. In the case of S v Banda
1984 (1) ZLR at page 96.
WADDINGTON, J, stated that before counts are treated as one
for sentence, there should be some relationship between them. He went on
to say that it is wrong to treat as one for sentence counts which are separated
in time and place. It is also inappropriate to impose individual
sentences on individual counts in order to arrive at an appropriate aggregate
sentence. Each count should be treated separately on its own merits.
In casu, the rape count
has to be treated separately on its own merits. The aggravating factors,
especially the violence used in the perpetration of the unlawful sexual
intercourse and the fact that the complainant was visibily pregnant have to be
viewed separately from the taking of the cellphone.
Having found that the conviction on the count of rape is
proper and that the accused should have been convicted of theft of the
cellphone, instead of robbery, this court is at large on the issue of sentence.
In the result I make the following order:
(1)
The conviction on the charge of rape is confirmed and the accused is sentenced
to 12 years imprisonment with labour.
(2) The conviction on
the case of robbery is set aside.
(3)
The accused is convicted of theft of a cellphone and is sentenced to 6 months
imprisonment with labour.
KAMOCHA
J agrees.............................................
