This review judgment has been occasioned by my routine
visit to Mutimurefu Prison in Masvingo on 13 May 2017.
During the normal interface with the prisoners, the
accused/prisoner in both cases herein raised a complaint to the effect that
prison authorities were improperly interpreting the sentences imposed upon the
accused in both cases, being CRB CH 707/15 and CRB CHR 38/16. After I engaged
the Officer in Charge of the Prison it dawned upon me that indeed there was a
dispute as to the total sentence the accused was to serve. The prison authorities
and the accused had different interpretations to the sentences imposed upon the
accused in both matters.
While at the prison, I only had sight of the accused's two
warrants of committal to prison in relation to both cases. In the circumstances,
I was not able not to only fully appreciate the nature of the dispute but to
also prescribe a solution. I decided, therefore, to invoke the powers vested in
me in terms of section 29(4) of the High Court Act [Chapter 7:06] which
provides as follows;
“29. Powers of review of criminal proceedings
(1) Not relevant.
(2) Not relevant.
(3) Not relevant.
(4) Subject to Rules of court, the powers conferred by
subsections (1) and (2) may be exercised whenever it comes to the notice of the
High Court or a judge of the High Court that any criminal proceedings of any
inferior court or tribunal court are not in accordance with real and
substantial justice, notwithstanding that such proceedings are not the subject
of an application to the High Court and have not been submitted to the High
Court or judge for review.”
I proceeded to direct the Registrar of the High Court to
call for the records of proceedings in both matters from Chiredzi Magistrates
Court and have them placed before me.
CRB CH
707/15
In this matter, the accused was arraigned before the magistrate
sitting at Chiredzi facing four counts of stock theft as defined in the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
The accused pleaded guilty to two of the counts but was
convicted of all the four counts after a trial was held in respect of the other
two counts which he denied.
The facts relevant to all the four counts are that the
accused would proceed to the complainants' pens to steal goats or sheep at
night. The accused would slaughter the goats or sheep. This happened from the
period extending December 2014 in Count 1 to February 2015 in Count 4.
After being convicted in respect of all the four counts,
the accused was sentenced on 8 October 2015. All the four counts were treated
as one for purposes of sentence. The accused was sentenced to 24 months
imprisonment of which 2 months imprisonment were suspended on the usual
condition of good behaviour. A further 8 months imprisonment were suspended on
condition accused paid restitution to the four complainants. The accused was to
serve 14 months imprisonment.
These proceedings were confirmed on review by this court on
17 November 2015….,.
CRB CHR
38/16
The accused, in this case, appeared before the Senior
Regional Magistrate sitting at Chiredzi facing 3 counts of rape as defined in section
65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The brief facts are that on 23 July 2015, the accused raped
his step-daughter three times the same night at their residence, being Plot 142B,
25 Hectares in Chiredzi. The accused had chased away his wife who is the
complainant's mother.
After a protracted trial, the accused was convicted of all
3 counts of rape. On 11 May 2016, all the 3 counts were treated as one for
purposes of sentence and the accused was sentenced to 18 years imprisonment of
which 3 years imprisonment were suspended for 5 years on the usual conditions
of good behaviour leaving an effective sentence of 15 years imprisonment. In
addition to that, the Senior Regional Magistrate ordered the sentence on CRB CH
707/15 to run concurrently with the sentence in this matter. For clarity
purposes, the Senior Regional Magistrate's sentence is couched as follows;
“All counts as one for sentence.
18 years imprisonment for which 3 years imprisonment is
suspended for 5 years on condition accused does not within that period commit
an offence involving sexual conduct for which accused will be sentenced to
imprisonment without option of a fine. The sentence on CH 707/15 will run
concurrently with this sentence.”
The proceedings in CRB CHR 38/16 were also confirmed on
review by this court on a date which is not clear from the record.
It is the order by the Senior Regional Magistrate, to the
effect that the sentence on CRB CH 707/15 should run concurrently with the
sentence on CRB CHR 38/16 which has caused the dispute between the accused and
prison officials….,.
The Dispute
The accused's perception is that the Senior Regional
Magistrate's sentence on CRB CHR 38/16 entails that the 14 months imprisonment
on CRB CH 707/15 should now run concurrently with the 15 years imprisonment on
CRB CHR 38/16. Further, the accused submitted, in his query, that he should now
only serve 15 years imprisonment in both matters, and, most importantly, that
the period he had spent in prison from 8 October 2015, when he was sentenced on
CRB CH 707/15, to 11 May 2016, when he was sentenced on CRB CHR 38/16, should
be considered by subtracting it from the 15 years imprisonment. In mathematical
terms, the accused is saying he should now only serve a total of 14 years 5
months in respect of both matters.
The prison officials, on the other hand, disputed the
accused's perception or interpretation but were unclear as to what they
perceived to be the total sentence the accused should serve in both matters.
Disposition
The order by the Senior Regional Magistrate on CRB CHR
38/16 is in terms of section 343(2) of the Criminal Procedure and Evidence Act [Chapter
9:07]. It simply provides as follows;
“343. Cumulative or
concurrent sentences
(1) Irrelevant
(2) When sentencing any person to punishments in terms of
subsection (1), the court may direct the order in which the sentences shall be
served or that such sentences shall run concurrently.”…,.
It is the manner in which the Senior Regional Magistrate
couched the sentence which, in my view, is confusing.
At the time the accused appeared before the Senior Regional
Magistrate, on 11 May 2016, on CRB CHR 38/16, he had already served 7 months
imprisonment for the charges on CRB CH 707/15. The Senior Regional Magistrate
seemed to have overlooked this fact. At that stage, on 11 May 2016, the
sentence remaining on CRB CH 707/15 was only 7 months imprisonment out of the
14 months imprisonment. This means that what the Senior Regional Magistrate
could only competently deal with were the remaining 7 months on CRB CH 707/15.
It is these remaining 7 months imprisonment which the Senior Regional
Magistrate should have ordered to run concurrently with the 15 years
imprisonment on CRB CHR 38/16.
In my view, there is no prejudice to the accused or the
State if that clarity is made. Accordingly, the sentence of the Senior Regional
Magistrate is amended to read as follows;
“All counts as one for sentence.
18 years imprisonment for which 3 years imprisonment is
suspended for 5 years on condition accused does not within that period commit
an offence involving sexual conduct for which accused will be sentenced to
imprisonment without the option of a fine. The remainder of 7 months
imprisonment on CRB CH 707/15 shall run concurrently with the effective
sentence of 15 years imprisonment.”…,.
Lastly, in light of the above, the accused
should be called and be properly advised of the orders I made. I have advised
the Registrar accordingly and a copy of this judgment should be availed to the
Officer in Charge of Mutimurefu Prison.
