Criminal
Appeal
MWAYERA
J:
On
30 September 2020 we dismissed an appeal against sentence lodged by
the appellant. We gave an ex
tempore
judgment and undertook to avail the written reasons in due course.
These
are they.
The
appellant was convicted by the Regional Magistrate Mutare following
his plea to Robbery as defined in section 126(1)(a) of the Criminal
Law (Codification and Reform) Act [Chapter
9:23].
The
brief facts of the matter being that the appellant together with
accomplices used force and violence threatening the complainants with
a pistol, machete using a rope to assault the complainants caused the
complainants to relinquish control of a chub safe containing
USD$25,000-00, 97 grams gold, US$5,000-00, 1 HP Samsung laptop, 2
cell phones, Samsung galaxy tablet and 2 wrist watches.
The
property of total value US$35,690-00 of which on property of value
US$1,200-00 was recovered.
Pursuant
to the plea of guilty the appellant was convicted and sentenced to 12
years imprisonment of which 3 years imprisonment was suspended for 5
years on usual conditions of good behaviour and a further 2 months
imprisonment suspended on conditions of restitution leaving an
effective sentence of 7 years imprisonment.
The
appellant's accomplice who had a previous conviction was sentenced
differently for the obvious reason that he was not a first offender.
He was sentenced to 12 years of which 2 years were suspended on
conditions of restitution and the previously suspended 6 months
prison term was brought into effect. The accomplice had an effective
prison term of ten and a half years imprisonment.
The
appellant dissatisfied with the conviction and sentence imposed on
him by the trial court lodged the present appeal.
The
appellant abandoned the appeal against conviction and persisted with
the appeal against sentence.
The
appellant raised 5 grounds of appeal as follows:
“1.
The court a
quo
erred in passing an excessively harsh sentence that induces a sense
of shock.
2.
The court a
quo
erred in failing to appreciate that the appellant was a first
offender who pleaded guilty to the offence and therefore deserved
lenient sentence.
3.
The court a
quo
erred in failing to note that the sentencing trends have since
changed and courts must endeavour to pass corrective, educational and
retributive sentences as opposed to punitive sentences that condemns
and destroys the offenders.
4.
The court a
quo
erred in paying a lip service to the strong and compelling mitigatory
factors advanced by the appellant which should have resulted in
substantial reduction of sentence.
5.
The court a
quo
erred in imposing a similar sentence with co-accused who had previous
convictions in circumstances where appellant was a first offender and
ought to have been treated differently with his co-accused.”
The
appellant in his prayer suggested a sentence of 5 years imprisonment
of which 2 years is suspended on conditions of good behaviour. A
further 2 years suspended on conditions of restitution, leaving an
effective 1 year imprisonment.
During
the hearing Mr Chatambudza
for
the appellant suggested 6 to 7 years sentence 2 years being suspended
on conditions of good behaviour and 3 years for restitution leaving
an effective 1 or 2 years.
I
propose to comment on reasons for the variance in the suggested
sentences latter.
The
brief facts of the matter are as follows:
The
appellant together with 2 accomplices hatched a plan to rob the
complainant at his place of residence. The appellant was armed with a
pistol while his accomplices were each armed with a rope and a
machete. The appellant and accomplices approached the complainant
under the pretext of selling gold to him. The appellant and
accomplices then produced the weapons including pointing a pistol at
the complainant while at the same time demanding money.
By
using force and violence the appellant stole US$25,000-00, phones,
laptop, a Samsung galaxy tablet, wrist watch and 97 grams of gold.
The
total value of property stolen is US$35,690 of which property of
value US$1,200-00 was recovered.
A
reading of the record of proceedings reveals the Magistrate's
reasons for sentence.
The
Trial Magistrate ably weighed the circumstances of the matter in
conjunction with mitigatory and aggravatory factors. The trial court
appreciated the sentencing principle of matching the offence to the
offender and ensuring that justice is done.
In
an appeal against sentence the question is not really whether the
sentence imposed is wrong or right neither is it a matter of
suggesting that if I was presiding over I would have imposed 6 years
and not 7 years. See Muhomba
v State
SC57/13.
What
falls for consideration is simply whether or not the sentencing court
properly and judiciously exercised its sentencing discretion.
I
earlier mentioned that the appellant's counsel oscillated from
suggesting a sentence between 5 and 7 years in a clear indication
that sentencing task is a discretion aspect which is not stone
casting to the extent of sentence being one size fits all.
What
is central in assessing an appropriate sentence is the fact that the
sentencing court considers all the circumstances of the matter, the
nature of the offence, the offender and precedents on similar
offences; weighing the offence to the offender in a manner enabling
attainment of justice.
The
first ground of appeal that the sentence passed is excessively harsh
and induces a shock cannot be sustained when one looks closely at the
well-reasoned basis for sentence.
A
gang armed with weapons including a pistol used force and violence to
induce submission into taking property of high value.
A
sentence in the region of 12 years with portions suspended for good
behaviour and restitution is in sync with sentences imposed for gang
armed robbery.
This
ably dispels the third ground of appeal.
The
second ground that the court a
quo
failed to appreciate that the appellant was a first offender who
pleaded guilty is just an assertion not backed by any substance.
The
court a
quo
actually recognised the plea of guilty and that appellant is a first
offender. The court did not pay lip service to the plea as evidenced
by suspension of 3 years on conditions of good behaviour. The plea of
guilty and that the accused is a first offender was reflected and
credited by suspension of a portion of the sentence on conditions of
good behaviour and suspension
of another portion on conditions of restitution.
The
criticism of the trial court on not having due regard and credit to
the plea of guilty is baseless.
The
fourth ground of appeal again crumbles since the court a
quo
considered all mitigatory factors.
The
last ground of appeal that the court a
quo
erred by imposing a similar sentence to the appellant's co-accused
who had a previous conviction is false.
It
is settled that co-perpetrators should ordinarily be treated
uniformly when it comes to sentence. Different sentences should only
be imposed in circumstances where it is just to differentiate
perpetrators who acting with common purpose and in concert accomplish
an unlawful enterprise.
In
this case the co-accused and repeat offender was sentenced to 12
years of which 2 years were suspended on conditions of restitution.
Nothing was suspended on conditions of good behaviour as was done for
the appellant. The suspended prison term of 6 months emanating from
the previous conviction was also brought into effect. The appellant's
effective prison term of 7 years is certainly not the same as the ten
and half years effective prison term for the co-accused.
The
last ground of appeal lacks merit and therefore it cannot stand.
It
is apparent that the court a
quo
was alive and conscious to sentencing principles. All relevant
factors namely the plea of guilty, aggravatory and mitigatory factors
and circumstances of the case were properly canvassed in an endeavour
to come up with an appropriate sentence.
See
State
v Makunike
2015 (2) ZLR 404 in which the court emphasized the need to consider
the aims of sentencing in deciding an appropriate and proportionate
sentence for each individual case.
Both
counsel in their heads cited relevant cases of robbery and/or armed
robbery which reveal the trend in sentence for the serious and
prevalent offence of robbery which invariably involves premeditation
and determination.
See
Farai
Kambarami and Another v The State HH 273/14;
Bothwell
Taurai Nyamade v The State
HMT 6/20; and S
v Madondo
1989 (1) ZLR 300 (H).
In
the Madondo
case comments by GREENLAND J as he then was are pertinent…..
“The
starting point is to accept that robbery is an inherent serious
offence. It may properly be regarded as iniquitos
as it usually involved premeditation, criminal resolve and purpose
brazen execution, and attack on a human victim with the attendant
disregard of that person's right to personal security and forceful
dispossession of whatever property the victim has for the victim is
often terrifying and degrading experience. He is injured in his
person and property. The perpetrator acts with contempt and
callousness. It is therefore proper to regard robbery as particularly
reprehensible form of criminal behaviour and that attitude should be
reflected in the sentence.”
In
the present case the court a
quo
cannot be faulted for imposing an effective prison term for a robbery
committed in aggravatory circumstances.
An
armed gang forcefully executed the unlawful enterprise and got away
with property of high value.
The
Trial Magistrate in reasons for sentence revealed a clear thought
process culminating in the sentence imposed.
The
sentencing court has a discretion which should not be lightly
interfered with. The sentence imposed should only be interfered with
in situations where the sentencing court would have injudiciously
exercised its discretion leading to glaring serious misdirection
amounting to injustice. (See S
v Mungwenhe
1991 (2) ZLR 66; Rumushu
and Others v The State
SC 25/93).
In
the present case there is no misdirection evinced by the court in the
manner it assessed on appropriate sentence. The sentence imposed is
in sync with sentences imposed in cases of similar nature. See Mpolis
Ndlovu and Anor v The State
HB 266/18 for robbery of similar nature, a sentence of 12 years
effective was confirmed.
In
this case the trial court in full appreciation and recognition of the
totality of the circumstances of the matter assessed a befitting
sentence that meets the justice of the case. There is clearly no
basis for interfering with the sentence imposed by the trial court.
All
the grounds of appeal raised have no merit and as such they cannot be
sustained.
Accordingly
the appeal is dismissed.
MUZENDA
J agrees______________________
Rubaya
and Chatambudza,
appellant's legal practitioners
National
Prosecuting Authority,
State's legal practitioners
