Transfer
for Sentence
KAMOCHA
J: The
three accused persons were sentenced on 21 March, 2014. The following
are the reasons for the sentences imposed by the court.
These
three accused were arraigned before a provincial magistrate in Gweru
and all pleaded not guilty to 18 counts of contravening section
60A(3) of the Electricity Act (Chapter 13:19) as read with section
2(3)(b) of the Electricity Amendment Act published in Statutory
Instrument number 12 of 2007 i.e. vandalise, cut, damaged, destroyed,
or interfered with any apparatus for transmitting and distributing or
supplying electricity.
They
had been jointly charged with a fourth colleague who was found not
guilty and acquitted of all the 18 counts at the end of the trial.
Accused
Jacob Chibhunhe and James Mahachi were found not guilty and acquitted
of one count but were found guilty as charged of 17 counts. Accused
Masimba Chibhunhe was found guilty as charged of all the 18 counts.
The
trial magistrate referred the matter to this court for sentence as
she felt that in view of the penalty provided by the Act and the
number of counts involved, she lacked jurisdiction to sentence the
accused properly.
After
going through the record of proceedings I held the view that the
convictions were proper and accordingly confirmed them.
After
special circumstances were explained to the accused persons they all
said they understood them and each one was invited to address the
court if they had any such special circumstances.
Each
one of them did address the court.
All
of them raised their personal circumstances which did not amount to
special circumstances. There was nothing extraordinary about what
they said.
For
instance Masimba Chibhunhe said the reason why he committed the
offences was to raise money for the hospitalization of his wife who
had undergone an operation. The complication was that the stitches of
the operation got broken. Further, he said he had two very young
children aged 4 years and 10 months respectively. In addition he has
two of his late brother's small children to look after. They are
school going. He also has the burden of looking after his mother who
suffered a stroke.
Committing
a crime due to financial hardships does not amount to special
circumstances.
This
court held that what the accused persons said did not amount to
special circumstances.
Section
60A(3) of the Electricity Act [Chapter 13:19] provides thus:
“(3)
any person who, without lawful excuse, the proof whereof shall lie on
him or her –
(a)
tampers with any apparatus for generating, transmitting, distributing
or supply 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, and if there are no special
circumstances peculiar to the case as provided for in subsection (4),
be liable to imprisonment for a period of not less than ten years.”
A
court sentencing a person where it is held that there are no special
circumstances peculiar to the case is not permitted to suspend any
part of the sentence.
Subsection
5 of section 60A of the Act provides as follows:
“(5)
a court sentencing a person to imprisonment under subsection (2) or
(3) shall not order the suspension of any part of the sentence if the
effect of such suspension is that the convicted person will serve –
(a)
in the case of subsection (2), a period of less than one year; or
(b)
in the case of subsection (3) a period of less than ten years.”
Jacob
Chibhunhe and James Mahachi were found guilty of 17 counts out of the
18 counts they were facing while Masimba Chibhunhe was found guilty
of all the 18 counts.
During
the months of February to June 2013 the accused persons went on a
spree of draining transformer oil in Gweru. They drained transformer
oil from no less than 18 transformers. They drained a total of 11,530
litres of oil. The value of the oil and damage caused to the
transformers was no less than $96,750,00.
Their
gang operated under cover of darkness between the hours of 2000 hours
and 0800 hours. They meticulously planned the executions of the
crime.
Their
actions had far reaching consequences to the community where the
transformers were tempered with. Industries in the affected areas
were not spared by the non availability of electricity resulting in
loss of production.
The
level of sophistication of the accused persons was very high, that is
why they were able to execute such perilous operations. There is high
voltage at the transformers but they still managed to drain large
quantities of oil.
They
had ready market where they were able to dispose of the oil.
The
offences were committed within short spaces of each other.
Jacob
Chibhunhe and James Mahachi who were convicted of 17 counts would
have been sentenced to 17 x 10 years = 170 years imprisonment while
Masimba Chibhune would have been sentenced to 18 x 10 years = 180
years imprisonment.
These
sentences, in my view, are draconian, abnormal and excessive to the
extreme and induce an extreme sense of shock.
Even
if one were to order that half of the sentences of the 17 counts run
concurrently with the sentences of the second half at 10 years
imprisonment per count and do the same with the sentences on the 18
counts the end result would be effective sentences ranging from 80
years imprisonment to 90 years imprisonment which would, in my view,
still be excessive to the extreme and draconian.
In
the circumstances, I would hold that there are special circumstances
peculiar to this particular case in so far as the total sentences are
concerned.
The
circumstances are out of the ordinary, in my view, and I would, in
the result impose sentences which are less than the minimum mandatory
sentence of ten years imprisonment on each count. The sentences will
be ameliorated by making some of them run concurrently.
Jacob
Chibhunhe and James Mahachi are each sentenced to 3 years
imprisonment for each of the 17 counts. The sentences on count one
and two shall run concurrently with the sentences on counts 3 to 17.
Their total effective is 45 years imprisonment.
Masimba
Chibhunhe is sentenced to 3 years imprisonment on each of the 18
counts. The sentences on counts 1 and 2 shall run concurrently with
counts 3 to 18. His total effective is 48 years imprisonment.
Prosecutor
General's Office,
counsel for the State
