We,
after hearing counsel's submissions on sentence and hearing the
appellant's father's evidence in mitigation, set aside the
appellant's conviction on armed robbery and substituted it with one
of receiving stolen property knowing it to have been stolen. We also
set aside the Regional Magistrate's sentence of 10 years
imprisonment with 1 year and 1 and ...
We,
after hearing counsel's submissions on sentence and hearing the
appellant's father's evidence in mitigation, set aside the
appellant's conviction on armed robbery and substituted it with one
of receiving stolen property knowing it to have been stolen. We also
set aside the Regional Magistrate's sentence of 10 years
imprisonment with 1 year and 1 and a half years suspended on
conditions of good behaviour and restitution and substituted it with
one of 7 years imprisonment with 2 suspended on conditions of good
behaviour….,.
On
the question of sentence, counsel for the respondent having urged the
court to substitute the conviction for robbery with that of receiving
the stolen motor vehicle knowing it to have been stolen submitted
that the appellant still deserved a custodial sentence. He submitted
that there should be little difference between the sentence imposed
on a motor vehicle thief and the receiver, as, in both cases, the
victim is grounded. He submitted that the offence becomes serious and
is more reprehensible if the motor vehicle is received with the
intention of smuggling it out of the country for commercial gain.
He
referred us to the cases of Gabriel
Manyika v S
SC175-93; Cephas
Chimanga v S
SC51-93; and Chimbwanda
v S
SC110-93.
In
the case of Gabriel
Manyika v S
SC175-93 the appellant was convicted of receiving a stolen motor
vehicle knowing it to have been stolen. He was found in possession of
the motor vehicle in 1991 after it had been stolen in 1988. He bought
the motor vehicle in circumstances which revealed that it could have
been stolen. His sentence of 7 years, 2 suspended was reduced to 5
years imprisonment of which two years imprisonment was suspended on
appropriate conditions.
In
the present case, the appellant had the motor vehicle hours after the
robbery. He immediately thereafter drove it to an illegal exit into
Mozambique for gain. He said he was to be paid for driving it into
Mozambique and handing it over to an Indian on behalf of Mike
Zengeya.
In
the case of Cephas
Chimanga v S
SC51-93 the
appellant was convicted of theft of motor vehicle. He had surrendered
it to the police saying he suspected it could have been stolen.
Evidence proved he had dealt with the motor vehicle in a manner
showing he knew it was stolen. On appeal, his conviction of theft was
set aside and substituted with one of receiving the motor vehicle
knowing it to have been stolen. The sentence of 7 years, 2 suspended
which had been imposed by the magistrate was not interfered with.
In
Chimbwanda
v S
SC110-93 the
appellant received a truck knowing it to have been stolen; a sentence
of 6 years imprisonment with 2 and a half years suspended was
considered to be on the lenient side. He had acquired the vehicle in
exchange for his Peugeot truck and twenty head of cattle and it had
been re-registered in his name. He therefore had bought a stolen
motor vehicle distinguishing the case from the appellant's case on
the basis that the appellant received the motor vehicle for purposes
of smuggling it out of the country.
Counsel
for the appellant, in the Heads of Argument dated 3 October 2005
suggested a sentence of 7 years imprisonment with 2 years suspended
on conditions of good behaviour. In his supplementary heads dated 9th
November 2005 he suggested a sentence of 7 years of which 4 years
could be suspended.
The
appellant's father gave evidence and told this court that his son's
conduct, in committing this offence, was out of character. He told
the court that his son was managing a family business before he was
imprisoned and that he was a good and humble young man. He believes
that the appellant may have been tempted into committing the offence.
The
appellant is a first offender. He is 28 years old. He is married with
two children aged 6 and 4 years. His parents are high blood pressure
patients. He himself suffers from migraine headaches, and, since May
2004 when he was admitted into remand prison, he suffers from swollen
legs. He spent 10 months in remand prison prior to his being
sentenced.
He
has now been convicted of receiving a stolen motor vehicle knowing it
to have been stolen.
The
motor vehicle was fortuitously recovered. If it had not been stuck in
Mukumbura River he would have smuggled it into Mozambique where he
was to hand it over to an Indian man as instructed by his principal,
Mike Zengeya.
The
motor vehicle was not damaged. This was obviously in the appellant
and his principal's interest as the motor vehicle had to be
delivered in good condition. The complainant however fortuitously
benefits from the un-damaged state of the motor vehicle.
In
assessing sentence afresh I have been guided by case law and counsel
for both parties whose submissions were to the effect that a sentence
of 7 years with 2 or 4 years suspended would be appropriate.
In
arriving at the sentence of 7 years 2 suspended, I considered the
accused's age and his status as a first offender and weighed this
against the gravity of the offence. I considered it aggravating that
the appellant received the motor vehicle for the purposes of
smuggling it out of the country to Mozambique. He almost succeeded.
He failed because it got stuck in mud at the crossing point in
Mukumbura River.
After
he got stuck in the mud he lied about his identity and that of the
motor vehicle to Constable Muchira. He obviously still intended to
smuggle the motor vehicle out of the country. He travelled back to
Harare so that the motor vehicle could be removed from the mud and be
smuggled to Mozambique. It is only the timeous reaction of the police
which prevented him and Mike Zengeya from achieving their purpose.
They had brought a Nissan Sunny to the scene but were intercepted by
the police.
The
appellant was therefore determined to smuggle the motor vehicle out
of the country. He was acting with conscious deception to cover his
tracks. He used someone else's driver's licence with a picture
which could have passed as his when he was younger. This shows
careful planning on his part. His deception succeeded to the extent
that the police at Kamutsenzere accommodated him overnight and Cst.
Muchira travelled with him on the bus up to Mount Darwin. He had
carefully planned the offence.
It
is his determination, deception, and careful planning which
aggravates the offence and diminishes his status as a youthful first
offender.
When
the appellant's case is compared to the cases referred to above it
becomes more serious because he intended to smuggle the motor vehicle
out of the country. When the appellant was arrested he attempted to
escape by running away from police custody. This was after he had
indicated Mike Zengeya to the police. As Mike Zengeya got off the
bus, the appellant ran away from the police. In the confusion, Mike
Zengeya shot and killed a police officer. This demonstrates the
appellant's determination to avoid arrest even after he had been
positively identified by Cst. Muchira and had himself told the police
that Mike Zengeya was the owner of the stolen motor vehicle he had
driven to Mukumbura River. He clearly was not remorseful for the
offence he had committed.
Though
no statistics were given on the prevalence of motor vehicle thefts,
the facts of this case proves that organised motor vehicle thefts and
robberies are still to be deterred. Two complainants were robbed of
their vehicles the same night within four hours of each other - in
the same neighbourhood. The robbers and thieves are encouraged by the
receivers who provide a market and outlets for the stolen motor
vehicles.
In
this case, the appellant had taken the motor vehicle to the illegal
exit point in less than a day after the robbery.
It
is for these reasons that we suspended only 2 years of the sentence
of 7 years imprisonment which counsels for both parties had urged us
to impose. The sentence had to be one with a deterrent effect in
spite of the appellant's status as a young first offender.
The
portion of the sentence suspended against restitution could not be
retained as a receiver of stolen property cannot be held responsible
for property stolen by the thief which was not passed on to him.
These
then are our reasons for…, reducing his sentence to 7 years
imprisonment of which 2 years imprisonment are suspended for 5 years
on condition the appellant does not during that period commit any
offence involving dishonesty.
