Criminal
Appeal
MANGOTA
J:
The
appellant was charged with contravening section 60A(3) of the
Electricity Act [Chapter
13:19].
He was, in the alternative, charged with contravening section
173(1)(a)(i) and (ii) of the Criminal Law (Codification And Reform)
Act [Chapter
9:23].
The
allegations which the State preferred against him in respect of the
main charge were that, on a date to the prosecutor unknown but in
June, 2013 and at 165 Smuts Road, Prospect, Waterfalls, Harare, the
appellant and two others removed a conventional meter with serial
number 573625 and replaced it with a pre-paid meter with serial
number 07087936378. It was the contention of the State that, when the
appellant and his accomplices acted as they did, they interfered
with an apparatus
which
is used for transmitting or supplying of electricity to House Number
165 Smuts Road, Prospect, Waterfalls, Harare. (emphasis added).
The
State's allegations in respect of the alternative charge were that,
on a date to the prosecutor unknown but in June, 2013 and at Smuts
Road, Prospect, Waterfalls, Harare the appellant and his two
accomplices unlawfully and intentionally corruptly concealed from
their principal, Zimbabwe Electricity Transmission and Distribution
Company, a personal transaction intending to obtain a consideration
in the sum of $500 after the installation by them of a pre-paid
meter. The consideration, the State claimed, was not due to them in
terms of the agreement which existed between their principal and
them.
The
appellant pleaded not guilty to both the main, and the alternative,
charges. He was, however, convicted after a fully-fledged trial and
was sentenced to 10 years imprisonment.
He
appealed against conviction. He stated in his four grounds of appeal
that the trial court erred:
(a)
in convicting him without indicating the charge which he had been
convicted of – i.e. between the main and the alternative charge(s);
(b)
in convicting him when the evidence which had been adduced did not
support the offence of contravening section 60A(3) of the Electricity
Act [Chapter
13:19].
(c)
in relying on the evidence of a single witness whose eyesight and
other faculties were failing; – and
(d)
in not allowing him a fair trial.
The
respondent remained of the view that the appellant was erroneously
convicted of the main charge. It stated that he should have been
convicted of the alternative charge. It gave very convincing reasons
for the position which it took. It insisted that the sentence which
the court a
quo
imposed on the appellant induced a sense of shock.
The
concluding remarks of the trial magistrate's judgment read:
“The
State has managed to prove its case against the second accused, who
is accordingly found guilty as charge.”
(emphasis added).
The
second accused is the appellant.
Two
charges had been preferred against him in the alternative. The
remarks of the learned trial magistrate, with respect, do not show
the actual charge which the appellant was convicted of. That is a
serious misdirection on the part of the trial court.
The
fact that the court a
quo
proceeded to make an inquiry into the existence or otherwise of
special circumstances which surrounded the commission of the offence
supports the view that the court convicted the appellant of
contravening section 60A(3) of the Electricity Act. That view finds
further support from the 10 year sentence of imprisonment which the
court a
quo
imposed on the appellant. The trial court must have been persuaded to
pursue that route in terms of section 60A(3) of the Electricity Act.
The section enjoins a court which convicts a person in terms of it to
impose a mandatory minimum sentence of 10 years imprisonment. The
only occasion when the court is allowed to depart from that mandatory
sentence is where the court is satisfied that special circumstances
exist in the case of an accused person who is before it. Section
60A(4) reads:
“If
a person referred to in subsection (2) or (3) satisfies the court
that there are special circumstances peculiar to the case, which
circumstances shall be record by the court, why the penalty provided
under subsection (2) or (3) should not be imposed, the convicted
person shall be liable to a fine of up to or not exceeding level
fourteen or to imprisonment for a period not exceeding ten years, or
to both such fine and such imprisonment”.
The
trial court did not find special circumstances to have been existent
in the case of the appellant. It, accordingly, imposed upon him the
sentence of 10 years imprisonment.
There
is no doubt that the trial court misdirected itself in a very serious
way when it failed to pronounce the charge which the appellant had
been convicted of. The appellant was, as it were, left in the dark as
regards the fact of what he had been convicted of.
It
is trite that where a court is trying a person of more than one
charge or of charges which are preferred in the alternative, the
court must assess the evidence of the prosecution as a whole and make
a definite pronouncement of what the person is convicted of. The
pronouncement must also show what the person is acquitted of. Leaving
matters hanging in the air as the court a
quo did
in the present case creates a serious uncertainty. It opens the work
of the judicial officer to criticism which can easily be avoided.
The
appellant and the respondent were ad
idem
on the point that the evidence of the State did not support the
conviction of the appellant on the main charge. The court agrees with
the parties' position on the matter. The section which pertains to
that charge prohibits persons from cutting, damaging or interfering
with an apparatus which generates, transmits, distributes or supplies
electricity. The only occasion where a person is allowed to interfere
with such an apparatus is where the law allows him to do so for one
reason or the other. The apparatus which is contemplated in
casu
is the conventional meter. The appellant and another or others
removed, and replaced, it with a pre-paid meter. The question which
begs the answer is whether or not, in acting as they did, the
appellant and his accomplice(s) interfered with the apparatus.
The
interpretation section of the Electricity Act does not define the
word “interfere”. However, a correct interpretation of the word
can easily be gleaned from a reading of the section which creates the
offence. The section reads, in part, as follows:
“(3)
any person who, without lawful excuse the proof whereof shall lie on
him or her –
(a)
tempers with any apparatus for generating, transmitting, distributing
or supplying electricity with
the result that any supply of electricity is interrupted or cut off;
or
(b)
Cuts, damages, destroys or interferes with any apparatus for
generating, transmitting, distributing or supplying electricity;
shall be guilty of an offence” (emphasis added).
It
does not require the knowledge and ingenuity of a rocket scientist to
ascertain that the
appellant and his accomplices did not contravene para (a) or (b) of
section 60A(3) of the Electricity Act.
The
conduct of the appellant and his accomplice(s) did not result in the
supply of electricity being interrupted or cut off as is contemplated
in para (a) of the section. Equally, their conduct did not constitute
an act of vandalism which para (b) of the section contemplates. The
evidence which the State led did not support the appellant's
conviction on the main charge. The court a
quo,
accordingly, erred when it convicted the appellant, as it did, on the
main charge.
It
has already been stated that the appellant and his accomplice(s)
removed the conventional meter and replaced it with a pre-paid meter.
They did not perform the work as an act of charity. They charged the
owner of House Number 165 Smuts Road, Prospect, Waterfalls, Harare
the sum of $500 for their work. The owner of the house one Aerkanos
Mutema was adamant that he paid the stated sum to the appellant and
others. He said he paid them an initial sum of $400 and later, at the
instance of the appellant, a further sum of $100. He said he paid the
amount through his son.
There
is no doubt that the appellant and his accomplice(s) concealed from
their principal a personal interest in the transaction which they
concluded with Mr Mutema. They obtained a consideration of $500 when
they installed the pre-paid meter on to the house of Mr Mutema. They
knew at the time that they received the amount that the consideration
was not due to them. They also knew that the agreement which existed
between their principal and them did not allow them to act in the
manner which they did.
There
is, therefore, no doubt that the appellant and his accomplice(s)
contravened section 173(1)(a)(i) and (ii) of the Criminal Law
(Codification and Reform) Act. The evidence of the prosecution
supports the appellant's commission of the mentioned offence in an
irrefutable way. The respondent was, accordingly, correct when it
stated that the appellant should have been properly convicted of the
alternative, and not the main, charge.
The
appellant, on his part, made a confession in the course of the court
a
quo's
proceedings. The trial court explained to him the meaning and
exigencies of special circumstances after which it invited him to
state whether or not such circumstances existed in respect of the
case which it had convicted him of. His submissions were as follows:
“I
committed
the offence
after the Human Resources Department at ZETD had held several
meetings with meter readers and announced that the department of
meter readers was going to be closed down due to the introduction of
pre-paid meters. The same department further advised us that we
should look for employment elsewhere. I
was led into the commission of the offence by a colleague
who is currently on the run without realising the gravity of the
offence…
(emphasis added).
The
appellant, therefore, stands convicted of the alternative charge.
Counsel
for the appellant did not make any submissions in respect of the
sentence which the court must impose upon him. He, in fact, did not
appeal against sentence. He left that matter to the court to
determine.
The
respondent, on the other hand, remained of the view that the
appellant's aggravatory matters outweighed what favoured him by a
very wide margin. It stated, correctly so, that the appellant
breached the trust which his employers bestowed upon him. It stated,
further, that he committed the offence out of greed and not need as
he was gainfully employed. It insisted that a sentence of 4 years
imprisonment with one year being suspended for deterrent reasons
would meet the justice of the present case.
The
offence which the appellant committed attracts the penalty of a fine
of up to or not exceeding level fourteen or imprisonment for a period
which does not exceed twenty years or both. It follows from the
foregoing that the legislature did not want persons who act in a
corrupt manner to be treated with kid gloves. The appellant acted
corruptly when he stole his employer's valuable item and installed
it at Mr Mutema's house for a consideration. The respondent spelt
out in a very lucid way all the factors which militate against the
appellant. The court remains alive to those matters in its effort to
assess the sentence which is commensurate with the crime which he
committed. The appellant is, on the other hand, a middle–aged first
offender. He maintained an unblemished record for some 42 years
running. He is a family man who lost his employment as a result of
this offence.
The
court remains of the view that a short but sharp term of imprisonment
is warranted in the circumstances of this case. It, however, does not
agree with the respondent's proposal which is to the effect that
the appellant be sentenced to four years imprisonment with a three
year term being effective. The appellant, in the court's view,
should be sentenced to a term of imprisonment which is less than the
effective three years which the State suggested. A portion of that
sentence will be suspended for a period of time and for deterrent
reasons.
The
court has considered all the merits and demerits of this appeal. It
is satisfied that the appellant proved, on a balance of
probabilities, his innocence in respect of the main charge. He,
however, stands properly convicted of the alternative charge. The
appeal, therefore, succeeds in part.
It
is, in the result, ordered as follows:
1.
The conviction of the appellant in respect of the main charge be and
is hereby quashed and the sentence of 10 years imprisonment set
aside.
2.
The appellant be and is hereby convicted of contravening section
173(1) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
3.
The appellant is sentenced to 24 months imprisonment; 6 months of
which are suspended for 5 years on condition he does not, within that
period, commit any offence involving dishonesty for which he is
sentenced to imprisonment without the option of a fine.
Effective
sentence: 18 months imprisonment.
CHATUKUTA
J: agrees …………………………..
