Criminal review
CHITAKUNYE J: The two
accused persons were jointly charged with four counts of stock theft.
They pleaded not guilty to all the counts but were convicted of all
the counts at the end of a full trial.
In the first count the accused were alleged to have stolen two
heifers in March 2005 of which one was recovered in July 2006. In the
second count they were alleged to have stolen two black steers in
March 2006 of which one was recovered in July 2006. In the third
count the accused were alleged to have stolen two cattle from the
grazing area on 2 May 2006 of which one was recovered in July 2006.
In the last count the accused were alleged to have stolen two heifers
from a cattle pen in the midst of the night on a date in May 2006.
The two heifers were both recovered in July 2006.
The accused were both convicted of all the counts after a contested
trial. The convictions are proper as there was overwhelming evidence
against the accused persons. The convictions will thus be confirmed.
In assessing sentence the trial treated all the four counts as one
and sentenced each accused as follows:
“36 years imprisonment of which
11 years imprisonment is suspended for 5 years on condition that the
accused does not within that period commit any offence involving
dishonest for which upon conviction he is sentenced to imprisonment
without a fine option.”
Two issues concerned me in this case.
(a) Firstly, the appropriateness
of treating all the counts as one for sentence; and
(b) secondly, the efficacy of
suspending a lengthy imprisonment term when an accused is to serve a
long term of imprisonment.
In his reasons for sentence the trial magistrate did not state his
reasons for treating all the counts as one for sentence.
I am of the firm view that where a sentencing officer decides to
treat multiple counts or some of them as one for sentence he ought to
give his reasons for such option. Treating multiple counts as one for
sentence should not be done arbitrary. Failure to give the rationale
for treating multiple counts as one for sentence is a misdirection.
Apart from assisting the reviewing judge in ascertaining whether the
counts were properly treated as one for sentence, the accused person
being so sentenced must be told why the counts are being treated as
one.
In S
v
Chawasarira 1991 (1)
ZLR 66 (H) SMITH J had occasion to deal with this issue. At p 69D-E
he stated that -
“Separate punishments should,
save in exceptional cases, be imposed for each separate charge. One
globular sentence for two or more offences should only be considered
where the offences are of the same or similar in nature and are
closely linked in point of time. If these two requirements are not
satisfied then a separate sentence must be imposed in respect of each
offence.”
Equally in S
v Banda
1984 (1) ZLR 96 (H) WADDINGTON J held that:
“Before counts are treated as
one for sentence, there should be some relationship between them. It
is wrong to treat as one for sentence counts which are separated in
time and place. It is also wrong to impose inappropriate sentences on
individual counts in order to arrive at an appropriate aggregate
sentence. Each count should be treated separately on its own merit.
If the cumulative sentence is excessive, then the court may order
some sentences to run concurrently or suspend portion of the total
sentence.”
In casu,
whilst the offences are similar, in that they are all stock theft
offences, they were however not closely linked in point of time and
place. The offences were committed over a period of a year. If for
some reason the sentencing officer felt that justice required that
such counts be treated as one for sentence he ought to have provided
reasons for treating the counts as one.
My other concern is on the appropriateness of suspending a lengthy
prison term on condition of good behavior.
I am of the view that no useful
purpose is served by the suspension of a long imprisonment term where
the effective term is very long. In Attorney
General v
Paweni Trading Corp (Pvt)
Ltd & Ors 1990 (1)
ZLR 24 (2) at p 43G-H KORSAH JA opined that:
“I do not think that where a
convicted person is to undergo a very lengthy sentence, such as was
imposed by the trial court, anything is to be gained by suspending
seven years on condition of good behavior.”
Similar sentiments were expressed
in S v
Kanhukamwe
1987 (1) ZLR 158 (S).
In casu,
clearly, no useful purpose would be served by suspending eleven
years.
Another aspect militating against
treating all the counts as one is that the offences for which the
accused were convicted of carry a mandatory minimum sentence of nine
years per count unless the court makes a finding that there are
special circumstances why the mandatory minimum sentence should not
be imposed. To that effect section 114(2)(a) of the Criminal Law
(Codification and Reform) Act, [Chapter
9:23] provides that:-
“Any person who takes livestock
or its produce -
(i) knowing that another person
is entitled to own, possess or control the livestock or its produce
or realizing that there is a real risk or possibility that another
person may be so entitled; and
(ii) intending to deprive the
other person permanently of his or her ownership, possession or
control, or realizing that there is a real risk or possibility that
he or she may so deprive the other person of his or her ownership,
possession or control;
shall be guilty of stock theft and liable-
(e) if the stock theft involved
any bovine or equine animal stolen in the circumstances described in
para (a) or (b), and there are no special circumstances in the
particular case as provided in subs (3), to imprisonment for a period
of not less than nine years or more than twenty-five years.”
In
casu no special
circumstances were found and so the accused faced imprisonment for a
period of not less than nine years in respect of each count.
Instead of passing individual sentences of nine years per count the
trial magistrate aggregated the sentences of nine years per count to
arrive at a total of thirty six years and imposed it as one sentence.
That approach is wrong.
As noted by KUDYA J in S
v
Huni & Ors
HH147-09:
“where the accused has been
convicted on more than one count, to treat both or all of them as one
for the purposes of sentence defeats the clear intention of the
legislature, that there should be an effective mandatory minimum
penalty of nine years per count.”
The trial magistrate ought to have passed individual sentences for
each count. The options would then be to either order the accused to
serve the total of thirty six years or to order that some of the
counts run concurrently if the trial magistrate felt an effective
thirty six years imprisonment was too harsh.
It was also not competent for the trial magistrate to suspend
portions of the mandatory minimum sentence. The portion that may be
suspended is a portion that is in excess of the mandatory minimum
sentence. For instance if in a count he had sentence the accused to
say twelve years instead of nine years then the portion available for
suspension would be a period of three years.
Accordingly, the globular sentence is hereby set aside and is
substituted by the following sentences:
For each accused -
Count 1: 9 years imprisonment;
Count 2: 9 years imprisonment;
Count 3: 9 years imprisonment; and
Count 4: 9 years imprisonment.
The sentence in Count 2 will run
concurrently with the sentence in Count 1 and the sentence in Count 4
will run concurrently with the sentence in Count 3.
The total effective sentence – 18 years imprisonment.
KUDYA J: agrees………………………
