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HB16-09 - THE STATE vs TICHAWANDA FAMABI

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Criminal law-viz charge re unlawful entry  iro premises.

Criminal Law-viz sentencing re unlawful entry iro multiple counts.

Sentencing re: Unlawful Entry, Aggravated Unlawful Entry, Housebreaking and Criminal Trespass

The accused person was convicted of eighteen counts of unlawful entry into premises.,. He was sentenced to four years imprisonment on each count, resulting in a total of seventy-two years. Of that total, ten years was suspended on the usual conditions of good future behavior and thirty-six years on condition the accused pays restitution. From what the accused said in mitigation, he will unlikely pay restitution. The reality is that he has used up the stolen money and disposed of the stolen property. He is unemployed and has no meaningful assets. He is likely going to serve sixty-two years imprisonment.

In most of the counts, the individual sentences of four years imprisonment imposed are in no way excessive, but their cumulative effect is so excessive as to call for interference.

Sentencing re: Unlawful Entry, Aggravated Unlawful Entry, Housebreaking and Criminal Trespass

Whichever way one looks at it, a sentence of twenty-six years (assuming the accused affords restitution) or sixty-two years, if he fails to pay restitution, is manifestly excessive and is in excess of the outer limit our courts would ordinarily impose for offences of dishonesty.

In., McNALLY JA remarked:

"How does one begin to measure the outer limit of a sentence in a case of this magnitude? One may say that even murder with actual intent often attracts a sentence of 16-18 years. One may ask - what sentence would be appropriate where a quarter of a million dollars is stolen and nothing recovered? What sentence would be appropriate where two or six million dollars is involved? These considerations and suggestions suggest to me that a twenty year sentence for a crime of dishonesty unaccompanied by violence must be approaching the outer limit of what any court in this jurisdiction would impose for such crimes."

In light of the above, the learned Regional Magistrate misdirected herself on the question of sentence and I am at large, as far as sentence is concerned. The sentence is disturbingly inappropriate, calling for interference.

Accordingly, I set aside the sentence by the trial court and the following is substituted:

"Each count - eighteen months imprisonment. Of the total of twenty-seven years imprisonment, seven years is suspended for four years on condition the accused in that period does not commit any offence involving theft or dishonesty and for which he is convicted and sentenced to imprisonment without the option of a fine. A further ten years imprisonment is suspended on condition the accused pays restitution to the complainants as outlined in the Regional Magistrate's original sentence by not later than.,."

NDOU J:        The accused person was convicted of eighteen (18) counts of unlawful entry into premises in contravention of section 131(2)(e) of the Criminal Law Codification Reform) Act [Chapter 9:23] by a Regional Magistrate sitting in Bulawayo.  Nothing turns on the convictions. He was sentenced to four(4) years imprisonment on each count resulting in a total of seventy-two (72) years.  Of that total, 10 years was suspended on the usual conditions of good future behaviour and thirty-six (36) years on condition the accused pays restitution.  From what the accused said in mitigation, he will unlikely pay restitution.  The reality is that he has used up the stolen money and disposed of the stolen property.  He is unemployed and has no meaningful assets.  He is likely going to serve 62 years imprisonment.

            In most of the counts, the individual sentences of 4 years imprisonment imposed are not in no way excessive, but their cumulative effect is so excessive as to call for interference - S v Hassim 1976(2) PH H58(N) and S v Nyathi HB-60-03.

            Whichever way one looks at it, a sentence of 26 years (assuming the accused affords restitution) or 62 years if he fails to pay restitution, is manifestly excessive and is in excess of the out limit our courts would ordinarily impose for offences of dishonesty - S v Sawyer HH-231-99; Sifuya v S HH-77-02; S v Chikanga SC 123-99 and Chirwa v S HH-79-94.  In S v Sherman SC 117-84, McNALLY JA remarked:

"How does one begin to measure the outer limit of a sentence in a case of this magnitude?  One may say that even murder with actual intent often attracts a sentence of 16 - 18 years.  One may ask - what sentence would be appropriate where a quarter of a million dollars is stolen and nothing recovered?  What sentence would be appropriate where two or six million dollars is involved?  This considerations and suggestion suggest to me that a twenty year sentence for a crime of dishonesty unaccompanied by violence must be approaching the outer limit of what any court in this jurisdiction would impose for such crimes."

 

            In light of the above, the learned Regional Magistrate misdirected herself on the question of sentence and I am at large as far as sentence is concerned.  The sentence is disturbingly inappropriate calling for interference - S v Sidat 1997(1) ZLR 487 (S); S v Coetzee 1970(4) SA 83 (RA); S v Ramushu & Ors SC 25-93 and S v Mundowa 1998(2) ZLR 392 (H).

            Accordingly, I confirm the convictions in all 18 counts.  I, however, set aside the sentence by the trial court and the following is substituted:

"Each count    -           18 months imprisonment.  Of the total of 27 years imprisonment, 7 years is suspended for 4 years on condition the accused in that period does not commit any offence involving theft or dishonesty and for which he is convicted and sentenced to imprisonment without the option of a fine.  A further 10 years imprisonment is suspended on conditions the accused pays restitution to the complainants as outlined in the Regional magistrate's original sentence by not later than 27 February 2009."

 

 

 

 

                                    Cheda J .......... I agree
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