Criminal
Review
CHIGUMBA
J:
This
matter was placed before me in chambers for review, in terms of
section 57(1), as read with section 57(4) of the Magistrates Court
Act [Cap
7;10],
as read with section 29(1), and section 29(5) of the High Court Act
[Cap
7;06].
The High Court is cloaked with powers to automatically review any and
all matters in which a magistrate passes a sentence of twelve months
imprisonment or more, and where the accused person was not legally
represented, or a private limited company.
In
this case the sentence imposed was fourteen months, of which four
months were suspended for 5 years on condition of good behavior,
another four months was suspended on condition of restitution and a
six month custodial sentence imposed. The grounds of review are set
out in section 29 of the High Court Act. Although the process of
conviction is in order, the framing of the charge warrants further
scrutiny.
Magistrates
should be alive to their duty to ensure that the charges brought
against an accused person are proper and competent. Before charges
are put to the accused, there is a duty on the presiding officer to
cross check the efficacy of the charges, i.e.
(a)
to check that the charges are spelt correctly and cited in full.
(b)
to ensure that the charges are properly formulated as provided in
terms of the CODE.
(c)
to check that the facts as set out in the summary of the State case
are sufficient to support the charge, not only in terms of
particularity, but in terms of appropriateness.
The
accused was charged with the crime of “unlawful entry” as defined
in section 131 of the Criminal Law Codification and Reform Act [Cap
9; 23],
(the CODE). It was alleged that on 19 December 2014, at house number
300 Devonshire, Sakubva in Mutare, the accused person intentionally
and without permission or authority from Kabhaso Yvonne, the lawful
occupier of the premises concerned, or any other lawful authority,
entered the premises and took some DVD's and cash amounting to
USD$80-00.
According
to the outline of the State case, the accused unlawfully entered the
complainant's premises and took complainant's tops, some DVD's
and USD$80-00. When the accused was arrested a Vodafone cellular
phone and DVD's were recovered. The total value of the stolen items
was USD$200-00. The value of the recovered items was USD$100-00.
According
to section 139 of the Criminal Procedure and Evidence Act [Cap
9; 07],
the CPEA:
“Where
a public prosecutor has, by virtue of his office, determined to
prosecute any person in a magistrates court for any offence within
the jurisdiction of that court, he shall forthwith lodge with the
clerk of the court a statement in writing of the charge against that
person, describing him by his forename, surname, place of abode and
occupation and setting forth shortly and distinctly the nature of the
offence and the time and place at which it was committed”.
The
question that arose before me was whether the statement lodged by the
prosecutor in writing of the charge against the accused person in
this case, set forth the “nature of the offence”, distinctly as
stipulated by section 139 of the CPEA.
We
are guided, further, by section 146 of the CPEA which stipulates
that, it is essential that the charge sets forth the offence with
which the accused is charged with, in such a manner, and with such
particulars as to the alleged time and place of committing the
offence, that the person who is charged with committing the offence
may be reasonably sufficiently informed of the nature of the charge.
If the wording of the description of the offence matches the wording
found in the enactment creating the offence, this shall be sufficient
to reasonably inform the accused of the charge against him.
The
accused was charged with contravening section 131(1) of the CODE,
which provides that any person who intentionally and without
permission from the lawful occupier of the premises, or other lawful
authority, enters the premises shall be guilty of unlawful entry into
premises and liable to:
(a)
A fine up to level thirteen or up to twice the value of the property
stolen, destroyed or damaged as a result of the crime, or to
imprisonment for a period up to fifteen years imprisonment, or both
such fine and imprisonment if the crime was committed in one or more
of the aggravating circumstances set out in subsection (2).
(b)
In any other case, a fine up to level ten or not exceeding twice the
value of the property stolen, destroyed or damaged or imprisonment
for a period up to ten years.
It
is my view that, for every case in which an accused person is charged
with the crime of unlawful entry into premises, it is necessary to
determine, from the facts set out in the outline of the State case,
whether the crime was committed in aggravating circumstances. Failure
to consider whether there were any aggravating circumstances, has the
same effect as failing to consider any mitigatory factors in passing
sentence, or whether special circumstances exist. The Legislature
very graciously assisted us by proceeding to define aggravatory
circumstances in section 131(2), as follows:
“(2)
for the purposes of paragraph (a)
of subsection (1), the crime of unlawful entry into premises is
committed in aggravating circumstances if, on the occasion on which
the crime was committed, the convicted person
-
(a)
entered a dwelling-house; or
(b)
knew there were people present in the premises; or
(c)
carried a weapon; or
(d)
used violence against any person, or damaged or destroyed any
property, in effecting the entry; or
(e)
committed or intended to commit some other crime.”
The
outline of the State case clearly tells us that the accused person
entered a dwelling house with intent to steal and that he did steal
various items valued at USD$200-00. It is my view that the accused
ought to have been properly charged with the offence of contravening
section 131(1) as read with section 131(2)(a) and section 131(2)(e),
“unlawful entry into premises with intent to enter a dwelling house
and commit the crime of theft”.
An
alternative couching of the charge would be “unlawful” entry into
premises in aggravatory circumstances, where the prosecutor is unsure
whether technically the accused gained entry or if, after gaining
entry, any crime was committed inside the dwelling.
It
is important to note that not all premises are “dwellings”. For
example company offices, or a clinic, or a school may well qualify to
be regarded as premises, but they are not “dwellings”. The
intention of the legislature was to punish more severely an accused
person who enters a place where people reside. It is a violation of
the sanctity and privacy of one's home that is cherished in a
civilized society. So, it is considered aggravatory simply to enter
into a place where people live without invitation or authority. It is
even more aggravatory to enter into a place where people live, with
intent to commit some other crime.
The
High Court has had occasion in the past to guide magistrates on the
question of framing of the charges in circumstances similar to this
case under consideration.
In
S
v Trymore
Zhakata
it
was said that the crime of unlawful entry into premises is a
statutory
offence which repeals and replaces the common law crime of burglary
or housebreaking with intent to steal, but with certain additional
features. By virtue of para (a) of subs (1), as read with para(s) (a)
to (e) of subs (2), the offence is aggravated by any of the
circumstances set out in subs (2).
In
S
v
Chirinda
& Ors
131(1)(a) the court said that this offence does not create a combined
offence of unlawful entry and theft. What it does is to aggravate the
offence of unlawful entry, by prescribing a more severe penalty
therefore, in the event of any one or more of the circumstances
enumerated in subs (2) being established.
I
wish to add my voice to that of other judges before me, who
respectfully disagree with the position that the elements of theft or
other aggravating circumstance need not be stated in the charge and
can merely be mentioned in the State Outline or agreed facts or in
the prosecutor's address in aggravation. It is my view that, it is
necessary for the State to prove or otherwise establish the relevant
aggravating factor if it is to sustain a charge under section 131(1)
as read with section 131(2)(a)(e).
The
example has already been alluded to above that there is a difference
between “mere unlawful entry into premises” and “unlawful entry
into a dwelling”. It would be necessary for the State to prove
whether the accused entered into any other premises, or a dwelling.
Where an accused enters into a dwelling that is a further aggravatory
circumstance, as distinguished from entering any other premises such
as a clinic. In some circumstances, unlawful entry into a church, for
example might provide greater aggravation, depending on what the
accused is alleged to have done on gaining entry into the church.
Perhaps he might be alleged to have desecrated some holy relics held
dear by the followers of that church, to such an extent that a severe
sentence might be called for as a deterrent to other would be
offenders. For these reasons in my view, it is necessary that the
particulars of the alleged aggravatory features be specifically
pleaded and proved, by the State, as part and parcel of the essential
elements of the offence.
Addressing
the court on alleged agravatory factors from the bar is not the same
as being required to prove, beyond a reasonable doubt, the essential
elements of an offence, that the accused did indeed enter unlawfully
onto premises in one or more aggravatory circumstances. If the
aggravatory circumstances are not proved beyond a reasonable doubt,
as part of the essential elements of the offence, how can a court
rely on bald allegations by the prosecution from the bar? The
allegations will constitute facts which must be proved not matters of
law.
It
follows that where the State fails to prove the essential elements of
the unlawful entry or any of the aggravatory circumstances, the fact
of aggravation cannot be taken into account for the purposes of
assessing and imposing the more severe sentence stipulated by that
provision (or for ordering restitution). Once this is accepted, it
seems to me unavoidable that the aggravating factor or circumstance
be specifically pleaded and spelt out in any charge under section
131(1) as read with section 131(2)(a)(e).
Where
the State fails to prove any of the aggravatory circumstances the
accused can be convicted of simple unlawful entry.
A
criminal indictment must clearly set out all the particulars of the
charge so that the accused fully grasps the basis of the charge so as
to enable him to prepare his defence. If the charge does not
particularize the alleged aggravating circumstances, the accused
would obviously be prejudiced in the preparation and presentation of
his defence.
In
the case of S
v
Simon
Ngulube
it was emphasised that the sentencing court, in deciding upon the
appropriate punishment, must strive to find a punishment which will
fit both the crime and the offender. The sentence must be fair and
just instead of excessive, savage and draconian – see 'A
Guide to Sentencing in Zimbabwe' by
G. Feltoe at p 1.
The
punishment must fit the criminal as well as the crime, be fair to the
State and to the accused and be blended with a measure of mercy –
see Sparks
and Another 1972
(3) SA 396 A.
In
light of those sentencing principles, it was said to be essential
that magistrates should equip themselves with sufficient information
in any particular case to enable them to assess sentence humanely and
meaningfully, and to reach a decision based on fairness and
proportion. The needs of the individual and the interests of society
should be balanced with care and understanding' - see S
v
Moyo
HH 63-84. It was also said that:
“…
pre-sentencing
information is very important. Whilst the age, marital and family
status, employment, savings and assets are important aspects in the
assessment of sentence, magistrates should always bear in mind that
the reason why the accused committed the offence and the
circumstances of the offence is of equal importance. In some cases
the reason is evident from the facts of the case. In other cases it
is not. In such cases the magistrates must canvass these aspects with
an unrepresented accused. Generally all the mitigatory and
aggravating factors must be canvassed…”
The
record does not show that the magistrate was aware of the need to
canvass aggravatory circumstances as part of the essential elements
of the offence, or even as part of the sentencing procedure.
The
conviction stands because the trial court satisfied itself that the
essential elements of unlawful entry into premises were proved beyond
a reasonable doubt, and meted out an appropriate sentence.
For
an appropriate example of how to correctly couch the charge, see page
4-5 of S
v
Trymore
Zhakata
supra.
Similarly
in this case, the charge is amended to read as follows:
Contravening
section 131(1) as read with section 131(2)(a) and 131(2)(e), i.e.
Unlawful Entry into premises in aggravatory circumstances, in
entering into a dwelling house with intent to enter into a dwelling
house and with intent to steal, and to commit the offence of theft.
The
conviction was proper so we will not interfere with it. With the
amendment of the charge, we accordingly certify that the proceedings
are now in accordance with real and substantial justice.
CHIGUMBA
J: ……………………
TAGU
J: agrees…………………….
1.
Section 146(2)(a) CPEA
2.
HH 13-2013
3.
HH 87-2009
4.
HH48-02
