In
this matter, there were two major irregularities by the trial court.
I only picked the second one much later.
The
first irregularity that drew my attention concerned the sentence
meted out on the accused for a conviction of stock theft as defined
in section 114(2)(a) of the Criminal Law (Codification and Law
Reform) Act [Chapter
9:23]
(“the
Code”).
He stole two cows and a calf in a single act.
In
the absence of special circumstances, theft of a bovine attracts a
mandatory minimum sentence of nine years imprisonment. But, in S
v Chitate
HH568-16 we,
MAWADZE
J and I,
said:
“Where
the essential elements of the crime have been proved and there are no
special circumstances, the courts have no choice but to impose the
prescribed minimum. Undoubtedly, the court may go above the
prescribed minimum. But, by all accounts, 9 years is already a very
long stretch. The court's discretion to impose a sentence other
than the prescribed minimum has to be exercised judiciously, not
whimsically. The sentence should not be a thumb-suck.”
The
cattle the accused stole were valued at $1,150=. All were recovered.
He pleaded guilty. He was sentenced to fourteen years imprisonment of
which four years imprisonment was suspended for five years on the
usual condition of good conduct. Thus, the effective sentence was ten
years.
The
aggravating circumstances noted by the court were:
(a)
Stock theft is a very serious offence;
(b)
Stock theft has become prevalent;
(c)
There was premeditation;
(d)
The accused's intention was to deprive the complainant,
permanently, of his property given that it was over a month before he
was discovered and the cattle recovered;
(e)
It was necessary to deter the accused from committing further similar
offences;
(f)
Removing the accused from society for a long time will enable him to
mend his ways;
The
personal and mitigating circumstances were:
(a)
The accused was forty-two years old, was a farmer, and was married
with ten children;
(b)
The accused had two cattle and two calves of his own, and he earned
about $300 per season;
(c)
The accused pleaded guilty and thereby saved time;
(d)
The accused did not benefit from the theft as all the cattle were
recovered;
(e)
The accused was a first offender;
Frankly,
in cases of mandatory jail terms where there are no special
circumstances, aggravating and mitigating circumstances have
diminished relevancy. However, this is not to suggest that the
assessment should not be made. It should always be made. But,
judicial officers should be careful not to be distracted from the
duty to investigate special circumstances as appears to have happened
in this matter.
In
this case, the accused was properly convicted. Therefore, the
conviction is hereby confirmed.
I
queried the sentence. It was above the mandatory minimum.
In
the light of S
v Chitate
HH568-16 the trial court readily conceded that there was no
justification for the higher sentence. The concession was well made.
If
the irregular sentence was the only misdirection, we would probably
have simply reduced it and returned the record with appropriate
directions. Sadly, there was another irregularity in relation to the
manner the court a
quo
treated the more crucial aspect of special circumstances.
Section
114(3) of the Criminal Law (Codification and Reform) Act [Chapter
9:23] requires the court to record the special circumstances peculiar
to the case that an accused may mention. Although nothing is said
about the recording of the court's own explanation to the accused,
it is now trite that this too ought to be done: see S
v Manase
HH110-15;
S
v Chembe
HH357-15 and Ziyadhuma
v S
HH303-15.
In
the present case, the record of proceedings shows that neither the
court's explanation of special circumstances nor the accused's
response thereto was taken down. All that the record bears is:
“Special
circumstances explained and understood.
Q.
Do you have any special circumstances?
A.
No.”
That
was most perfunctory and somewhat a dereliction of duty by the trial
magistrate.
In
S v Ziyadhuma
v HH303-15,
the magistrate had merely recorded that “Special
circumstances peculiar to the case explained and understood.”
BERE J…, (HUNGWE J concurring) set aside the sentence imposed, and
said…,:
“It
is imperative, in my view, that where there is need to deal with the
issue of special circumstances, the actual explanation given by the
magistrate be recorded to avoid the Appeal Court having to speculate
on what was explained to the appellant before sentencing…,. The
proper approach should be for the magistrate to explain what special
circumstances are and also the consequences of a failure by the
convicted person to give such special circumstances. Both the
explanation given by the magistrate and the responses given by the
convicted person must be recorded.”
In
S
v Chaerera
1988 (2) ZLR 226 (S); and S
v Manase
HH110-15,
it was said that it should be further explained to the accused that
in addressing the court on special circumstances, it is his right,
should he so wish, to lead evidence from witnesses.
Accurate
recording and proper record keeping are key.
A
Magistrate Court is a court of record
(section
5(1) of the Magistrates Court Act [Chapter 7:10]).
A court record that fairly and accurately represents the proceedings
and the findings facilitates the review of, or appeal from, such
proceedings or findings. Admittedly, current resource limitations
mean that judicial officers are condemned to the tedious and
mechanical process of recording proceedings in long hand. There are
no video or audio facilities. The judicial officer's notes remain
the only evidence of the proceedings. The court record is a
reflection of what the adjudicating officer believes to have heard.
There is, of course, the obvious danger of mistake or mis-hearing.
Sometimes there are omissions on the actual questions put to a
witness, the answers thereto or the full submissions by the parties.
Generally,
the record should contain all the questions and answers. As BERE J
noted in S v Ziyadhuma
HH303-15,
it is difficult, on review or appeal, to appreciate the meaning of
responses if the questions asked are not recorded. In cases where
only answers to questions are recorded, the context in which a
response is given and the intended meaning of the response are not
clear on review or appeal.
Whilst,
from personal experience, the problem of incomplete or inadequate
records from the lower courts is not prevalent, thanks to the
dedication and industry of the majority of the presiding officers
therein, in spite of notable punishing work schedules combined with
demoralising conditions of service, continuous efforts should be made
to achieve good results with what is available. It is hoped judicial
officers in those lower courts will embrace the above explanation in
order to improve record keeping.
Sadly,
because of the deficiencies documented above, the sentence of the
court a
quo
has to be set aside and the record remitted. It is ordered as
follows:
(i)
The conviction is hereby confirmed.
(ii)
The sentence is hereby set aside.
(iii)
The record is hereby remitted to the court a
quo
for a proper investigation into special circumstances after which the
court may pass an appropriate sentence.
