KUDYA
J: These three records of proceedings
were presided over by the same magistrate at Murewa Magistrates Court and raise
the same issue. The issue that arises is
whether a magistrate can treat more than one count of theft of bovine or equine as one for sentence.
Each
accused person was correctly convicted on his own plea of guilty of the theft
of bovine in contravention of s 114 (2) (a) of the Criminal Law (Codification
and Reform) Act [Cap 9:23]. The trial magistrate properly canvassed
the question of special circumstances and correctly found them absent in each
case, respectively.
Tobias
Huni stole one black cow and one brown heifer on 4 January and 10 March 2009, respectively
from two different complainants. The cow, valued at US$ 200-00 and the heifer,
valued at US$150-00 were recovered. On 20 March 2009, both counts were treated
as one for sentence and he was sentenced to fourteen years imprisonment of
which four years was suspended for five years on condition he did not commit
any offence involving dishonesty for which he was sentenced to imprisonment
without the option of a fine.
Brighton
Chinyerere was convicted of two counts of theft of bovine on 5 and 16 April
2009 from two different complainants. In each count he stole a heifer valued at
US$150-00, respectively. Both heifers were recovered. On 19 May 2009, both
counts were treated as one for sentence and he was sentenced to nine years
imprisonment.
James
Simbi and Mike Griya Katandika jointly stole a heifer and two oxen at different
times from three complainants on 6 and 9 June 2009, respectively. They drove
each animal to a nearby mountain where they slaughtered it. They were both
arrested in Harare
selling the meat. The heifer was valued at US$150-00 while each ox was valued
at US$250-00 and US$150-00 respectively. The heifer was not recovered while
meat valued at US60-00 and US$50-00 was recovered from each ox, respectively.
On 15 June 2009, all three counts were treated as one for sentence. James Simbi
was sentenced to fifteen years imprisonment of which three years was suspended
for five years on condition of future good conduct while the twenty- two year
old Mike Griya Katandika was sentenced to thirteen years of which three years
was suspended on similar conditions as his thirty seven year old uncle. The trial magistrate treated them differently
on the basis of the differences in their ages. He took the view that the uncle
influenced the nephew to commit the two crimes. In my view there was no basis
for differentiating the penalties between the two as their moral
blameworthiness was the same. There was no evidence that the nephew acted under
the pervasive influence of his uncle.
The
penalty provision for the theft of a bovine animal in the absence of special
circumstances is set out in para (e) of subs (2) of s 114 of the Criminal Law
Code, supra. It reads thus:
(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;
Paragraph (e) above must be read
in conjunction with subs (4) of s 114, supra,
which provides as follows:
(4) A court
sentencing a person under para (e) of subs (2) –
(a) to the minimum sentence of imprisonment
of nine years, shall not order that the operation of the whole or any part of
the sentence be suspended;
(b) to imprisonment in excess of the minimum
sentence of imprisonment of nine years, may order that the operation of the
whole or any part of the sentence exceeding nine years be suspended.
The import of these provisions
is that in the absence of special circumstances an accused person will be
sentenced to an effective mandatory minimum sentence of nine years for each
count that he is convicted of. Where the accused person has been convicted of
more than one count, to treat both or all of them as one for purposes of
sentence defeats the clear intention of the legislature for the imposition of
an effective mandatory minimum penalty of
nine years per count.
In S v
Zephania Tarwirei GS 350/1981 PITTMAN J, with the concurrence of WADDINGTON
J reviewed a judgment where the trial magistrate convicted the accused person
of three separate counts of theft of cattle and treated all counts as one for
sentence before imposing the mandatory minimum sentence of nine years
imprisonment. At p 1 of the cyclostyled judgment he stated that:
“It is clear that the wording of section 8A requires
that the minimum sentence of 9 years imprisonment shall be imposed for each
such theft, and consequently it was not competent for the magistrate to treat
the three separate offences as one for sentence.”
It seems to me therefore that
it was incompetent for the trial magistrate to treat the separate counts in
each of the three cases in question as one for sentence.
The options available to the
trial magistrate were either to impose an effective minimum sentence of nine
years imprisonment per count and order the accused person to serve the
arithmetic total or to impose the minimum mandatory sentence on each count and
order both or one or more to run concurrently with each other or the others.
The result being always that the total effective sentence would be a multiple
of 9. That the sentences may run concurrently is supported by the sentiments of
BEADLE CJ in S v Pearce 1974 (2) SA 37(R) at 38A-B where the LEARNED CHIEF JUSTICE stated
that:
“I draw attention to the fact that sentences on two
separate counts each carrying a minimum sentence of imprisonment can, and often
are, made to run concurrently with each other, and a portion of the sentence of
imprisonment on a minor offence can, and often is, ordered to run concurrently
with a minimum sentence of imprisonment imposed on a more serious offence.'
See also subss (1) and (2) of s 343 of the Criminal
Procedure and Evidence Act [Cap 9:07],
the successor to s 319 of the Criminal Procedure and Evidence Act [Cap 59].
In the light of the
misdirections perpetrated by the trial magistrate I am at large on sentence. I
have the power on review to set aside the erroneous sentence and impose a new
sentence that may result in the increase of the erroneous one that had been
imposed by the trial magistrate.
.In S v Sabawu 1999 (2) ZLR
314 at 318 D-E CHATIKOBO J with reference to S v Hove 1981 ZLR 610 (H)
concluded that “the verdict was altered to the more serious offence and the
mandatory sentence was brought into effect.” In Hove's case, supra, GUBBAY J, as he then was, stated
at 612D -613C that:
“But where a mandatory sentence or some other form of
mandatory order is required, the position, in my opinion, is different. This is
because the validity of any such sentence or order stems from, and is dependent
upon, the nature of the conviction which precedes. Any consequent increase in
the punishment takes place, therefore, by operation of law. See R v
Froneman & Froneman, 1941 TPD 74 at 79. Indeed, it is difficult to
suppose that where the conviction has to be altered, an incompetent sentence
must be allowed to stand on account of the original error. Support for this
interpretation is to be found in proviso
(i) to s 29 (2) (b) (ii), which allows for the substitution of a sentence of
imprisonment in place of a fine, where the enactment under which the accused
was convicted does not permit of the imposition of a fine. As this must apply
equally where a minimum period of imprisonment is provided, the result would be
extraordinary if the minimum period could be substituted where a fine, but not
a lesser term of imprisonment, was wrongly imposed.
The same conclusion is reached by having recourse to
s 29 (2)(b) (iii) of the Act, which empowers the High Court to -
'Generally give such judgment or impose such sentence
or make such order as the inferior court or tribunal ought in terms of any law
to have given, imposed or made....'.
In the instant case, the inferior court ought to have
convicted the accused of contravening s 3 (1) of the Precious Stones Trade Act,
instead of an attempt to do so, and ought to have imposed a sentence of not
less than the minimum prescribed. By correcting the verdict to guilty of a more
serious offence, and thereby averting an injustice to the State, I will merely
be doing what the magistrate ought to have done in the first place. If he had
done so, he would have imposed the compulsory sentence. I am fortified in this
view by the decision in R v Matsebe, 1949 (4) SA 55 (T.), in which
RAMSBOTTOM, J (as he then was), on review, changed a conviction under section 1
of the Stock Theft Act, 1923, to one of stock theft (a more serious crime). The
sentence of six months' imprisonment was ordered to stand, but a mandatory
compensatory fine was added, with an alternative of further imprisonment. See,
also, R v Kandu, 1949 (4) SA 329 (SWA) at 331.
For these reasons, the conviction is altered to
guilty as charged, and a sentence of three years' imprisonment with labour
substituted. The trial magistrate is directed to explain the effect of this
judgment to the accused.”
See also S v Sithole HH 66-94 where MTAMBANEGWE J,
with the concurrence of CHIDYAUSIKU J, as he then was, set aside the financial
penalty that had been imposed for possession of a firearm and imposed on review
the mandatory minimum sentence of five years imprisonment.
In exercising the powers that
the trial magistrate should by operation of law have done, the overall sentence
that I will impose will result in the reduction of the effective sentence
imposed on Tobias Huni by one year; a standstill position for Brighton
Chinyerere and an increase to eighteen years for James Simbi and Mike Griya
Katandika.
The sentence imposed on Tobias Huni is set aside and
substituted by the following:
Count 1 - 9 years imprisonment
Count 2 - 9 years imprisonment
The 9 years in Count 2 shall
run concurrently with the period in Count 1
Total effective sentence: 9 years imprisonment.
The sentence imposed on
Brighton Chinyerere is set aside and substituted by the following:
Count 1 - 9 years imprisonment
Count 2 - 9 years imprisonment
The 9 years in Count 2 shall
run concurrently with the period in Count 1
Total effective sentence: 9
years imprisonment.
The sentence imposed on James
Simbi and Mike Griya Katandika is set aside and substituted with the following:
Each accused:
Count 1 - 9 years imprisonment
Count 2 - 9 years imprisonment
Count 3 - 9 years imprisonment
The 9 years imprisonment in
count 3 shall run concurrently with the period in Count 2
Total effective sentence -18 years imprisonment.
The trial magistrate is
directed to recall each accused person and explain to him the effect of this
judgment.
CHITAKUNYE J, agrees …………………………….
