KAMOCHA J: After
hearing both parties' legal representatives we dismissed the appeal and indicated
that our reasons for so doing would follow in due course. These are they.
The 31 year old appellant, who was
jointly charged with one Thembinkosi Moyo, pleaded guilty to the crime of
unlawful entry into premises and theft as defined in sections 131(1) and 113 of
the Criminal Law (Codification and Reform) Act – “the Act” and was duly
convicted as pleaded. He was then
sentenced to undergo 10 years imprisonment of which 2 years imprisonment was
suspended for a period of 5 years on the customary conditions of future good
behavior.
Aggrieved by the sentence imposed by
the court a quo he noted this appeal
complaining that the sentence was so severe as to numb and shock the
sensibilities of society at large. His
grounds for saying so were these:
“(a) The appellant shall state that the
learned magistrate in the court a quo
over emphasized the prevalent and seriousness of the offence, and down-played
and paid lip service to the mitigatory features of the case which were:-
(i)
That the appellant was a first offender;
(ii)
That he pleaded guilty and was contrite;
(iii)
That some stolen assets were recovered; and
(iv)
That appellant benefited very little from his
criminal activity.
Appellant shall state that this
amounted to misdirection by the learned magistrate a quo and that this court is at large to sentence appellant afresh.
(b) Appellant will also state that
although the value of items stolen was substantial, in terms of the value, this
was not the worst case to come before the courts, and that such sentence was
meted out to appellant should be reserved for the worst types of cases, or
those cases approximating the worst.
(c) Appellant shall also state that the
fact that appellant and his colleagues had to load the stolen loot into a
wheelbarrow that was stolen from the same premises, testifies to the lack of
sophistication and determination of the appellant and his colleagues in
carrying out the unlawful entry and theft, and that such a case did not deserve
to be treated as harshly as it was.
Appellant shall submit that a sentence
of half or less of what he was sentenced to, with a similar period of
suspension, would have met the justice of the case.
Wherefore appellant prays that
this honourable court may set aside his sentence, and substitute it with one
that is more humane and is more likely to reform the appellant and not turn him
into a hardcore criminal.”
The facts which the appellant agreed
with in toto where that on 11
February 2009 under cover of darkness i.e. between the hours of 10pm and 6am on
12 February 2009 the appellant teamed up with other people and went to PPC
Unicem Manufacturers at Cement Siding, Bulawayo. Using some object only known to them, they
cut the razor wire on the perimeter durawall.
They then scaled the durawall at that point to gain entry into the
precincts of PPC Unicem Manufacturers.
While on the premises they proceeded
to the stores department and with some object only known to them, they smashed
one window pane and gained entry into the building at that point. They went into the warehouse and stole
therefrom a large amount of property valued at R70 972,64 of which a total of
R20 000,00 worth of property was recovered.
The appellant and his colleagues had a benefit – R50 972,64. Amongst the stolen property were 2 Dell
desktop computers, 90kg industrial welding rods, 1 molded circuit breaker, 500
metres 4 core multi mode cable, 1 Brother shelve labeling machine, 10 by 14
inch size Novex prospered tubeless imported tyres etc.
The appellant and his colleagues
then cut the padlock to the back door to get out of the warehouse, they stole a
wheelbarrow which they used to carry their loot to a nearby bushy area adjacent
to the Harare road. As already allude to
in this judgment only R20 000,00 worth of property was recovered out of R70
972,564.
When the trial court was canvassing
the essential elements with the appellant he revealed that the recovered
property had been recovered from the people who had bought it. They had sold the property to those people. His explanation for committing the crime was
that he was looking for something through which he could earn a living. He further suggested to the court that the
bulk of the property valued at R50 972,00 could well have been taken by their
other two colleagues who were still at
large.
Appellant told the court in
mitigation that he was a gold panner realising R300 per month.
The suggestion that he was starving
and was therefore looking for something through which he could earn a living is
clearly false. He is aged 31 and is
still single with no family to support.
He realizes an average of R300 per
mensem. That is an amount which is
sufficient for one person for a month in the environment presently prevailing
in this country. The appellant did not
commit the crime out of need. He did so
out of greed. That is clear from the
property looted.
The offence was carefully
planned. It involved a careful study of
the place in order to know exactly where the warehouse was situated on the
premises. It also entailed substantial
determination which involved the cutting of razor wire mounted on the
durawall. It is common knowledge that
razor wire is not easy to cut. The
appellant and his colleagues had to find a special tool to cut the razor
wire. The group was so determined that
it smashed a window pane to gain entry into the building. The group made sure that it carried an object
with which to cut the padlock of the back door to exit the warehouse with their
loot.
A reading of the trial magistrate's
reasons for sentence clearly shows she did mention all that needed to be said
in the appellant's favour. She balanced
that with what was against him and came to the conclusion that the aggravating
features out-weighed the mitigating ones. She was entirely correct, in my view,
when regard is had to the premeditation, careful planning and resolve that was
taken to commit the crime. The quantity
of property stolen was by no means small and so was the value. Appellant wants this court to believe that
his benefit from the crime was minimal.
He was clearly attempting to trivialize the extent to which he
benefited. R50 000,00 worth of property
is not a small amount even when spread evenly between the members of the
gang. The suggestion that the trial
magistrate down played and paid lip service to the mitigatory features is
devoid of any merit.
The proposition that the magistrate
paid lip service to the fact that the accused was a first offender who tendered
a plea of guilty was contrite is equally baseless. He stole out of greed since he was a gold panner
who realized R300 per month and that money was likely to be his alone since he
has no dependents to look after.
The way the crime was committed
calls for adequate punishment. A first
offender who steals large quantities of property of high value out of sheer
greed should expect, if caught, a long term of imprisonment. In
casu, the appellant belonged to a gang of four which explains how such a
large quantity of property was carried from the warehouse without the use of a
motor vehicle.
The appellant pleaded guilty because
he had no choice in the matter. After
his arrest he went on to make indications leading to the discovery of some of
the stolen property. Pleading not guilty
would not have made any sense, hence his unavoidable plea of guilty. Consequently, not too much weight can be
attached to such a plea.
The sentence imposed by the trial
magistrate was well within her jurisdiction.
She exercised the powers conferred upon her judiciously. In my view, her approach towards the sentence
she imposed is unassailable. This court,
therefore, has no power to interfere with the sentence of the court a quo imposed after a proper exercise of
its discretion.
This appeal is without any merit and
was accordingly dismissed after listening to arguments presented by both legal
representatives.
Ndou
J …………………………………………….. I agree
Job Sibanda & Associates, appellant's legal practitioners
Criminal Division of the Attorney-General's
Office, respondent's legal practitioners
