Criminal
Appeal
MAKONESE
J:
The
appellant was arraigned before a Zvishavane Magistrates court on an
alleged contravention of section 114(1)(a) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23],
that is to say one count of stocktheft.
Following
his tendering of a plea of guilty, the appellant was convicted by the
trial court in terms of the provisions of section 271(2)(b) of the
Criminal Procedure and Evidence Act [Chapter
9:07].
Appellant
was sentenced to a term of 9 years imprisonment which is the minimum
mandatory penalty provided for in the penal provision of the section
under which he was charged.
The
court failed to find any special circumstances after going through a
detailed explanation of what amounts to special circumstances.
The
appellant must have come to terms with the gravity of the sentence
and subsequently filed a Notice of Appeal against both conviction and
sentence.
The
appellant framed his grounds of appeal in the following terms:
“Notice
of appeal
The
court a
quo
erred in:
1.
Conducting a trial and convicting appellant using a defective state
outline. The state outline lacks essential elements of the offence.
(sic)
2.
Conducting a trial and convicting the Appellant without satisfying
itself that unrepresented accused understand the nature of the
offence and the defences he may tender. (sic)
3.
Convicting Appellant on his own plea of guilty without ascertaining
that the accused had applied his mind to the true import of the
charge and was properly aware that anything he may wish to say on his
behalf could not constitute a defence.
The
court a
quo
misguided itself treating a plea of guilty as a reason to be cursory
in the explanation of essential elements.
The
court a
quo
merely paraphrased the definition of the offence but that cannot
assist accused to understand the important of the elements, more so
if they are of technical legal nature such as “intent
to deprive the owner permanently.(sic)
4.
Failing to satisfy the requirements of section 271(2)(b) of the CODE
thus rendering the conviction unsafe.
The
scanty information contained in the Magistrates questions was a
complete failure to achieve the object of the enquiry envisaged by
section 271(2)(b) of the CODE.
It
must be remembered that the enquiry is a mechanism to ensure that
prior to the conviction the Magistrate satisfies himself, beyond
doubt, that the accused's plea of guilty or admission to the charge
is an unqualified or unequivocal and genuine plea.
The
Magistrates merely stated section 271(2)(b) which amounted to lip
service failing dismally to be bona
fide
and proper to the prejudice of the accused. (sic)
5.
Failing to conduct any inquiry into the existence or otherwise of
special circumstances.
The
court
a
quo
misdirected itself in only defining special circumstances which can
be held to be just lip service.
That
alone was a glaring irregularity.
What
is conspicuous is the absence of any evidence that he carried out an
investigation on the question notwithstanding his restatement and
paraphrasing of the definition thereof. It would appear that the
Magistrate was either unaware of the need to conduct an enquiry or
was just a derelict of duty. Thus without an enquiry into the
existence or otherwise of the same, the trial court went on to
sentence accused to the mandating minimum sentence. (sic)
Prayer
WHEREFORE
appellant prays that the conviction and sentence be set aside and he
be found not guilty and acquitted.”
The
brief allegations against the appellant as borne out by the charge
sheet are that on a date unknown to the Prosecutor but during the
month of January 2013 and at village Chizvaure Headman Shuku, Chief
Masunda, Zvishavane, the appellant unlawfully took one bull knowing
that the complainant was entitled to own, possess or control the
property or realising that there was a real risk or possibility that
the complainant may be so entitled to own, possess or control the
property intending to deprive the owner permanently of his ownership,
possession or control of the said bull.
When
the charge was put to the appellant, the following exchange took
place between the trial magistrate and the appellant:
“charge
put and understood
Plea
– guilty section 271(2)(b)
Facts
understood
Q:
Are the facts true and correct?
A:
Yes
Q:
Any variations to make?
A:
None
Essential
elements
Q:
Do you admit that on the date unknown to the Prosecutor but during
the month of January 2013 and at village Chizvaure, Chief Masunda,
Zvishavane you stole complainant's bull in the alleged manner?
A:
Yes
Q:
What did you want to do with the bovine?
A:
To use it to plough
Q:
You admit that your intention was therefore to deprive the owner
permanently of his bovine?
A:
Yes
Q:
Any defence to tender?
A:
None
Verdict
– Guilty as pleaded
PP
– He is a first offender.”
The
transcript of proceedings indicates that immediately after the
pronouncement of the guilty verdict the trial magistrate recorded his
explanation of the meaning of special circumstances in the following
terms:
“Special
circumstances means any extraordinary factor arising out of the
commission of the offence or which is peculiar to the offence. A
clear distinction must be drawn between special circumstances and
mitigating features which are of general application such as good
character and peculiar hardship. The latter do not constitute special
circumstances, nor co-operation on the part of the accused.
However,
for example, the accused was forced by circumstances to commit the
offence or was bona-fide,
ignorant of some statutory provision of the law, such factor could
constitute not only mitigating factors but special circumstances.
Q:
Have you understood my explanation?
A:
Yes
Q:
Would you like to address the court on special circumstances?
A:
I do not have anything to say except that I wanted to include the
bull as part of my herd. I only have six bovines so I wanted to
increase my herd.
Q:
What I want you to address me on is whether there are any special
circumstances in your case since I have explained the meaning of
special circumstances to you?
A:
No there are no special circumstances in my case.
Q:
You understand that a charge of stock theft involving the theft of a
bovine carries a mandatory minimum sentence of nine years. You risk
being incarcerated for that period if you fail to address the court
on special circumstances.
A:
I have nothing to say on special circumstances.”
The
appellant was then asked to address the court in mitigation.
He
indicated that he was 66 years old. He had seven children and was
unemployed. He survived from peasant farming.
When
asked why he had committed the offence his final words were that he
had erred. He wanted to use the beast for ploughing.
The
allegations in the outline of the state case reveal that the
appellant had upon stealing the bull proceeded to castrate it and cut
the tips of its horns thereby assuming full ownership of the bull.
I
do accept that the appellant is an elderly man and that imprisonment
would not be an ideal sentence for a man of his age. The trial
magistrate did take this into consideration.
I
am of the view that the court a
quo
properly canvassed the essential elements of the offence. This is
supported by the record of proceedings.
The
trial court properly ascertained that the appellant was pleading
genuinely and unequivocally to the charge when it convicted him in
the truncated trial procedure as provided for under section 271(2)(b)
of the Criminal Procedure and Evidence Act [Chapter
9:07].
The
appellant's argument that the state outline was defective has no
merit and is not supported by a proper reading of the record of
proceedings.
Further
there is absolutely no basis for the contention by appellant that the
trial court did not satisfy itself that the unrepresented appellant
understood the nature of the offence he was facing.
The
trial magistrate clearly explained all the essential elements of the
offence and the responses from the appellant did not indicate that he
had a defence to offer.
The
magistrate did not summarily enter a verdict of guilty, but not only
explained the essential elements but extensively canvassed the issue
of special circumstances.
Mr
T. Hove
appearing for the respondent drew the court's attention to the case
of State
v Mudzingwa
1999 (2) ZLR 225.
In
this case, the court held that in an appeal against conviction where
there has been a plea of guilty an appeal against conviction will
only be entertained where from the words of the accused in pleading
to the charge it is demonstrated that the accused was raising some
defence which could legitimately be raised to the charge.
See
also the cases of S
v Kwainona
1993
(2) ZLR 354 and R
v Mamba
1957 (2) SA 420.
As
I have already stated, in all the responses he gave in the court a
quo,
the appellant did not raise any issue that could in the slightest
degree amount to a possible defence to the charge. In fact he said he
stole the bull because he wanted to increase his herd. That was his
objective.
He
castrated the complainant's bull and cuts its horns showing that he
had assumed total and effective control over the bull in question.
In
the case of S
v Matimbe
and others
1984 (1) ZLR 283 the court indicated that it is our law that in
recording an accused's plea of guilty under section 271(2)(b) of
the Criminal Procedure and Evidence Act, the court must seek to
satisfy itself whether or not the accused indeed understands and
admits to the charge and the essential elements of the offence.
In
S
v Dube
and Another
1988 (2) ZLR 385 (SC) at page 391(B), the court pointed out that the
purpose of the inquiry under section 271(2)(b) is not to test the
credibility of the accused person or to trap him into further
submissions but simply to determine precisely what it is that he is
admitting to.
It
is patently clear that the appellant tendered a plea of guilty after
the essential elements had been put to him.
The
appeal against conviction is therefore futile and in my view the
appellant genuinely admitted having committed the offence.
The
conviction on a charge of stock theft is therefore unassailable.
As
regards sentence, it was contended on behalf of the appellant that
the court a
quo
failed to conduct an inquiry into the existence or otherwise of
special circumstances in this case, as envisaged in section 114(3) of
the Criminal Law Codification and Reform Act.
Nothing
can be further from the truth.
The
excepts of the transcript which I have referred to show that the
learned magistrate explained to the appellant the meaning and import
of special circumstances. He even went further to record the
explanation which he had given.
It
should be noted that the trial magistrate gave examples of the
factors which could possibly amount to special circumstances and went
out of his way to distinguish between special circumstances and
everyday and ordinary mitigatory factors.
The
learned magistrate can therefore not be faulted.
The
inquiry into the existence or otherwise of special circumstances was
conducted and the court made a specific finding that no special
circumstances existed.
The
attack on the learned magistrate and the casting of aspersions of
dereliction of duty on his part are clearly unwarranted and
unjustified.
Counsel
for the appellant, Ms
Kwande
could not highlight what factors should have been held by the court
to amount to special circumstances.
If
such factors had been pointed out this would have tended to support
the appellant's case that no proper inquiry into special
circumstances was undertaken by the court a
quo.
In
the result, the appeal against conviction and sentence is hereby
dismissed.
TAKUVA
J agrees………………………………………………
T.
Tafa and Associates,
applicant's legal practitioners
National
Prosecuting Authority's office,
respondent's legal practitioners
