Upon
considering papers filed of record and having had due regard to the
record of proceedings in the court a
quo
I dismissed the application for condonation of late noting of an
appeal. The applicant requested for the reasons for my disposition.
The reasons are laid out herein.
The
history of the matter of necessity has to be put into perspective.
The
applicant was convicted of robbery as defined in section 126 of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
The facts of the case are that on 2 February 2013, at Central Avenue
and Sixth Street, Harare, the accused unlawfully and intentionally
used violence in order to steal Elias Mutambara's property valued
at $244=. The accused, together with three accomplices, approached
the complainant who was selling music compact discs and posed as if
they were potential buyers. The accused and his accomplices forced
the complainant into their car, and, using force and violence, took
away the complainant's 80 CDs and cash all valued at $244=. The
complainant was forced out of the vehicle after the robbery. He
however managed to take note of the registration number of the motor
vehicle. This then led to the arrest of the accused who had hired the
vehicle from the owner on the day in question.
The
court a
quo,
upon conviction of the accused, made a finding on the credibility of
the State witnesses. The court a
quo
believed the State witnesses and concluded that the State had proved
its case beyond reasonable doubt. The complainant, Elias Mutambara,
was positive about the identity of the accused. His evidence about
the accused having taken him to a police base at 5 Avenue shortly
after robbing him as if to make a report that the accused and
accomplices had picked him for selling CDs which were pirates, was
confirmed by Godfrey Makuwaro. Godfrey Makuwaro confirmed the accused
approached in a white private car asking for one Officer
Mwanangeni who was off duty. After about 45 minutes to an hour the
complainant came to the police station to lodge a complaint at the
police station about the robbery at the instance of the accused and
his accomplices who posed as police details. The complainant's
evidence and that of the witness as regards the vehicle registration
number ACP 1770 was confirmed by the owner of the vehicle. Emerencia
Chikwereti, the owner of the vehicle confirmed hiring out this
vehicle, Nissan Serena ACP 1770, to the accused on 19 January 2013.
The hire was for a month and terms were reduced into writing.
The
accused person, in his evidence, admitted having hired the vehicle in
question and he also admitted having gone to Five Avenue police
station base on the day in question while still using the hired
vehicle.
It
is clear from the reasons for judgment that the magistrate carefully
and meticulously assessed the evidence before him. There was both
direct and indirect evidence linking the accused to the commission of
the offence. The accused himself did not dispute being at the scene
of crime. It is not in dispute the complainant lost his property to
the robbers through use of force and violence. The conviction, which
is anchored on clear evidence, is unassailable as such there are no
prospects of success on appeal as regards conviction. The sentence
imposed for gang armed robbery in a clear pre-planned manner cannot
be faulted.
The
accused and accomplices posed as if they were on an operation as
police details (to curb piracy) and robbed the complainant of his
compact discs. The trial court properly exercised its sentencing
discretion and suspended a portion of the prison term on conditions
of good behaviour given the accused is a first offender. Again, there
are no prospects of success on appeal against sentence.
In
the case of S
v Madondo
HH60-90,
GREENLAND J…, had this to say:
“For
a robbery where little or no violence is used a sentence in the
region of 4-5 years imprisonment with a part suspended is
appropriate.”
I
agree with those sentiments because robbery, by nature, is violent
and indicative of lack of respect of other people in the community.
In
this case, the accused and accomplices used violence in a movie-style
fashion to induce submission on the part of the complainant. They
then stole property while posing as police details thereby showing
determination in achieving the unlawful enterprise. The offence is
deserving of a custodial sentence as imposed by the trial court.
There
is no satisfactory explanation tendered for the late noting of
appeal. That, when considered in conjunction with lack of prospects
of success on appeal is the basis for dismissal of the application.
Accordingly,
the application is dismissed.
