KAMOCHA
J: The
appellant in this matter noted an appeal against both conviction and sentence
of the court a quo. After listening to legal practitioners
representing both parties we dismissed the appeal in its entirety and indicated
that out full reasons would follow. These are they.
Appellant pleaded not guilty to a charge of theft where it was alleged that on
9 December 2010 along 3rd Street Kwekwe, he took $113 cash the
property of Willard Sibanda knowing that Willard Sibanda was
entitled to own possess or control the property or realising that there was a
real risk or possibility that Willard Sibanda was so entitled to own,
possess or control the property and intending to deprive him permanently of his
ownership, possession or control.
In summary the state outline was this. On 9 December 2010 at 0800 hrs
when the complainant was in the Central Business District in Kwekwe he was
approached by the accused who offered him a job. The complainant accepted
the offer of a job. There after the accused gave the complainant an
envelope and asked the complainant to put all his money into that
envelope. The complainant put his money amounting to $113-00 into the
envelope.
The accused then referred the complainant to another person in the market place
where he was going to commence working. Before the complainant left, the
accused had changed the envelopes. He then handed the complainant a wrong
envelope containing a pieces of flour paper.
The complainant proceeded to the market place to start his job but found no
person answering the description given by the accused.
He returned to where he had left the accused but the accused was no longer
there. He was nowhere to be seen in the vicinity.
While still disappointed because he could not get the promised job, he opened
the envelope into which the accused pretended had his money. He was
shocked to discover that he had been conned of his money. He was a victim
of an ''Envelope Switch''.
Complainant went to report the matter to the police leading to arrest of the
accused. Out of the $113 stolen $73-00 was recovered.
The accused's defence outline was that on the day in question he never came any
where near the area indicated by the complainant. He said he had come
from Gokwe on the day in question to process his brother's death
certificate. He came from Kadoma and went to the civil court where he
intended to register the estate of his late brother.
Strangely, a certain police officer stopped him and asked him how much money he
had. He was then arrested on the allegations that complainant had been
conned of some money. The police officer went on to say he believed
it was accused who had done so. He concluded that that was a clear case
of mistaken identity.
The evidence adduced from the complainant was that he had arrived in
Kwekwe between 9 am and 10 am from Zhombe. When he was near a flea market
he met the appellant who engaged him in a conversation. A certain
youngster arrived at the scene. The appellant asked the complainant and
the youngster to go and assist him in loading his goods. He led them
towards Globe and Phoenix. They got to a certain place where he told them
to wait while he went away for a while and returned. On his return he
told them that they were not supposed to take anything with them. He gave
the complainant one of the envelopes which he had and told him to put his money
in there. The complainant had $113-00 which he put in the envelope.
The man took the envelope from the complainant and sealed it and gave it back
to him.
Thereafter the man sent him to go and look for a motor vehicle similar to the
one complainant had seen with him (con man). The complainant set out for
a wild goose chase. Of course, there was no such motor vehicle. He
gave up the search for a non-existent motor vehicle and decided to go back to
where he had left the con man and the youngster but they were nowhere to be
seen.
He then decided to go and do the business that he had gone to Kwekwe for.
He had gone all the way from Zhombe to Kwekwe to buy a mobile phone, a pair of
shoes and some clothes. When he opened the envelope into which he had put
his money but sealed by the trickstar he discovered that it was stuffed with
pieces of flour paper. His money had been stolen by the
trickstar.
Complainant said he had spent-some time with the man who stole his money but he
thought it was less than 20 minutes. The tricks were being executed in
broad day light. The complainant observed the person clearly by what he
was wearing and the bag he was carrying.
The complainant went to the police to report the matter but the police were of
no assistance at that stage. He left the police camp but as he was
walking in town just behind the court building he fortuitously saw the
trickstar still in the same attire and carrying the same bag. Complainant
looked for a police officer and pointed the conman to him. The
police man then arrested him.
The con man was the appellant. The complainant ruled out the possibility
of mistaken identity. The appellant conned him and disappeared but he
fortuitously met him again after 1 hour 30 minutes still in the same attire and
carrying the same bag – in broad daylight. The complainant spent sometime
with the appellant before he was conned. Appellant and complainant were
close to each other as the appellant was making false promises to hire
him. They walked together towards Globe and Phoenix. The appellant
at some stage left the complainant for a while and returned. It was only
after his return that appellant stole complainant's money.
The identification was so positive that it did not require any corrobation as
chances of the witness being mistaken were non-existent in this particular
matter. The trial court cannot be faulted for making that finding.
Similarly the court cannot be faulted for rejecting the appellant's
story. The conviction was accordingly sound and is hereby upheld.
The appellant was sentenced to 12 months imprisonment of which 4 months
imprisonment was suspended on the usual condition of future good
behaviour.
The appellant did mention in his notice of appeal that the appeal was against both
conviction and sentence but gave no grounds of appeal against sentences.
The only grounds of appeal raised related to conviction. Consequently the
magistrate's response to the notice of appeal related to conviction only.
The appellant raised the issue of community service in his heads of
argument. This was improper because the trial court had no opportunity to
respond to that.
The magistrate's view was that due to prevalence of cases of con-artists in
Kwekwe a deterent sentence was called for. No other form of punishment
other that imprisonment was appropriate in this case. The magistrate gave
the reason for holding that imprisonment was the only suitable form of
punishment in casu. The magistrate considered other forms of
punishment and held that they were inappropriate in the circumstances.
This case was carefully planned. Complainant was promised some job albeit
for a short time. The appellant chose his victim very carefully.
The complainant was a rural dweller who was naive. The appellant pounced
on him and took his $113 which was a lot of money to a communal home
dweller. The sentence was far from being excessive for someone who does
this kind of thing. There is nothing wrong with it and it is hereby
upheld. In the result the appeal is dismissed in its entirety.
Makonese J ................................... I agree
Hore
& Partners,appellant's
legal practitioners
Attorney-General's office,respondent's legal practitioners
