UCHENA
J: The accused persons were convicted by
a Regional Magistrate for contravening
ss 131 and 113 of the Criminal Law (Codification and Reform) Act [Cap 9.23] herein-after called the Code.
They unlawfully entered the complainant's premises and stole property from his
house and a motor vehicle from his premises. They pleaded guilty to the
charges, and were convicted. They were each sentenced to 15 years imprisonment,
of which 6 years was suspended on conditions of good behaviour. Both counts
were treated as one for sentence.
The
accused persons unlawfully entered the complaint's house and stole 7 long
sleeved shirts' four pairs of trousers, a two plate stove, and a jacket which
contained car keys. They on searching the complainant's jacket looking for
money, found the complainant's motor vehicles keys. On leaving the house with
their loot the accused persons stole the complainant's motor vehicle. The motor
vehicle was recovered intact except for a missing car radio and cd player. The
complainant's other property which was stolen during the unlawful entry was
valued at $2 billion dollars and that valued at $1.86 billion dollars was
recovered. Most of the stolen property for both the aggravated unlawful entry
and theft of motor vehicle was recovered. The accused persons did not therefore
substantially benefit from the crimes they committed.
The
accused persons were at the time they were convicted and sentenced aged 17 and
18 years respectively. They are young first offenders, who pleaded guilty. They
were sentenced on 1 August
2007. The record of proceedings was submitted for review in January
2010. I raised issues on the appropriateness, of the charge in count one and
the sentence in view of the accused person's ages.
The Regional
Magistrate in response commented as follows;
“In assessing
sentence the court was heavily influenced by the daring and determination of
the accused persons.
However in
retrospect I am of the opinion that perhaps the sentence was a trifle too harsh
in view of their youthfulness.
I agree that the
charge in count 1 is not properly framed”
The
charge on which the accused persons were convicted in count one reads as
follows;
“In that on the
night between the 16 and 17 of July 2007 and at No 17 Arkden Road, Sunridge,
Mabereign, both Edwin Dino Hunda and Abison George Kariwo unlawfully,
intentionally and without permission from Martin Dangeni, the lawful occupier
of the premises concerned, or without lawful authority, entered Martin
Dangeni's premises at No 17 Arkden Road, Sunridge, Mabereign, and stole 7 long
sleeved shirts, 4 pairs of trousers, 2 plate stove and car keys of a Peugeot
306 XN, knowing that Martin Dangeni was entitled to posses or own or control
the property and intending to deprive Martin Dangeni permanently of his
ownership, possession or control of the property.”
The
charge was framed as if it was for what used to be the crime of House-Breaking
and theft. That offence no longer exists. It was replaced by two separate
offences of contravening s 131 (1) of the Code for unlawful entry, and
contravening s 113 (1)(a) of the Code for theft. There will however be no
prejudice to the accused persons if the charge is amended on review. They
admitted unlawfully entering the complainant's premises. That constitutes a
contravention of s 131 (1). They by admitting that they stole the property
already referred to, admitted committing an offence within the complainant's
house. The unlawful entry was therefore aggravated and they should therefore in
count one have been charged with contravening s 131 (1)(a) of the Code. The
correct framing of charges for the contravention of s 131 (1)(a) was dealt with
in S v S Chirinda
HH 87/09 @ pages 9-10 of the cyclostyled judgment. The charge in count one, is
therefore amended to read as follows;
“Charged with
unlawful entry into premises as defined in s 131 (1)(a) of the Criminal Law
(Codification and Reform) Act [Cap 9:23] as read with s 131 (2) (e),
In that on the
night between the 16 and 17 July 2007 and at No 17 Arkden Road, Sunridge, Mabelreign
both Edwin Dino Hunda and Abison George Kariwo, unlawfully, intentionally and
without permission or authority from Martin Dangeni, the lawful occupier of the
premises concerned, or without other lawful authority, entered Martin Dangeni's
premises by opening a broken window and gained entry into those premises
through the window”.
The offences were committed on the
night of 16 to 17 July 2007. The accused persons were sentenced on 1 August
2007, but their record of proceedings was submitted for review in January 2010,
about two and half years. The trial Regional Magistrate merely signed the
review cover and forwarded the record of proceedings for review. He should have
explained the delay. I raised the issues referred to above by letter dated 25
January 2010. The Regional Magistrate's reply is dated 9 April 2010, but was
referred to my office in May 2010. The trial Regional Magistrate did not again
explain the delay in respondent to the issues I raised.
Delays in submitting records of
proceedings for review, and responding to issues raised by the reviewing Judge
are, unlawful, and unacceptable. The compromise the quality of justice, and are
potentially prejudicial; to accused persons.
In terms of s 57 (1) of the
Magistrate's Court Act [Cap 7:10],
(herein after called the Magistrate's Court Act) the record of proceedings must
be submitted for review “not later than one week next after the determination
of the case”. In this case the case was submitted for review, two and half
years after the period stipulated by the Legislature. The Clerk of Court did not comply with the law. The Magistrate
who have ensured that he or she did, did not take notice, He too did not treat
the case with urgency it deserved. He took three months to respond to the
issues I raised. Section 57 (1) of the Magistrate Court Act provides as
follows:-
“(1) When
any court sentences any person—
(a) to be imprisoned for any period exceeding
twelve months; or
(b) to pay a fine exceeding level six;
the clerk of the court shall forward to the
registrar, not later than one week next after the determination of the case,
the record of the proceedings in the case, together with such remarks, if any,
as the magistrate may desire to append”
The magistrate's remarks in
terms of s 57 (1) can be in relation to the proceedings. He can also remark on
delays in sending the record of proceeds for review. The remarks are simply
those in relation to the case, the magistrate may desire to append. To simply
submit a record for review two and half years after the determination of the
case, without comment is unacceptable.
The
issue of greater concern is the severity of the sentences imposed on the
accused persons. They were each sentenced to 15 years imprisonment, both counts
being treated as one for sentence. The Regional Magistrate correctly treated
the two counts as one for sentence, as they were closely related in terms of
time, place of occurrence, and sequence of events. The commission of count one
led to the commission of count two. The accused persons were at the time they
committed these offences aged 17 and 18 years respectively. They set out to
unlawfully enter the complainant's house. They obviously planned and resolved
to commit that offence. They however fortuitously found the complainant's motor
vehicles' keys in the jacket they stole from the complainant's house during the
unlawful entry. They had not come to steal the motor vehicle. The circumstances
enticed them to steal it. They are therefore circumstantial offenders in
respect of the, theft of the motor vehicle. They should not have been sentenced
as if they had gone out with the intention of stealing the motor vehicle.
The
sentences on their own are not appropriate for young first offenders aged 17
and 18 years respectively. Their pleas of guilty should have been given serious
consideration. The rigors of imprisonment on young offenders should have, had
the effect of reducing the sentence to be imposed and the total effective
sentence. Youthfulness and the attendant lack of serious consideration of the
consequences of their actions should also have been considered.
In
S v Tendai and Anor (Juveniles) 1998
(2) ZLR (HC), at p 429 GILLESPIE J, commenting of the sentencing of juveniles
of about the accused's age said;
“In S v Zaranyika & Ors, this court,
through BARTLETT J, attempted to bring some rationality to the difficult area
of sentencing offenders aged 17-19 years. Such persons were not normally beaten
– corporal punishment cannot be imposed upon persons18 years and above. After a
careful review of authorities on the principle of imprisonment for young
offenders and of precedents in sentencing, the learned judge concluded:
'While Zimbabwe
would not want to be a nation where rapists of the accused's age are not dealt
with appropriate severity, it would also not, to my mind, want to be a nation
where 17- and 18-year-olds are treated
as fully grown mature adults and sent to prison for many years for
offences such as rape. As I have previously indicated, a balance needs to be
drawn.
The learned
judge drew the balance in the four cases before him by recommending;
sentences of 5
to 6 years imprisonment, with 11/2 to 21/2 years suspended - in the case of
rapes of girl children by 17 and 18 year-olds, and a sentence of 5 years, all
of which was suspended, in the case of a similar offence by a 15 year-old,
where institutionalization would have been appropriate but could not be put in
place. These sentences replaced punishments of 6 to 10 years, which had been
imposed by the magistrates concerned.
That judgment
has been successful in ensuring that a necessary distinction is drawn in
sentencing older juveniles and young adults, as opposed to more mature
offenders”.
In
this case the 17 year old could have been sentenced to corporal punishment,
plus a wholly suspended prison term. He is now above the age of 18, and must on
the consideration of the appropriate sentence on review be treated, as an
adult, in the sense that corporal punishment is no longer applicable.
In
S v Zhou 1995 (1) ZLR 329 (HC) @ page
332 to 333 CHATIKOBO J dealing with the
sentencing of a juvenile who committed an offence before attaining the age of
majority, but was sentenced after attaining the age of majority, said;
“If the accused
was a juvenile at the time of commission of the offence but was an adult at the
time of conviction should he have been sentenced as a juvenile?
Section 329(1)
(formerly s 330(1)) of the Criminal Procedure and Evidence Act [Cap 59] (the Act) provides that –
'Where a male
person under the age of eighteen years is convicted of any offence, the court
which imposes sentence upon him may -
(a) in
lieu of any other punishment; or
(b) ...
sentence him to
receive moderate corporal punishment, not
exceeding six
strokes."
'The precursor
to s 329(1), namely s 330(1) of the Act, was dealt with in S v Chitiki 1986 (1) ZLR
60 (H) where GIBSON J, with the concurrence of REYNOLDS J, held that the effect
of the provision is to make the operative date the date of conviction and not
the date of commission of the offence. In other words, if the accused who
commits an offence while he is a juvenile is convicted after the attainment of
majority status he should be sentenced as an adult. I perceive this to mean
that while the sentencing court is entitled to take into account the "frailty
and deficiencies of youth at the time of commission of the offence" (S v Pledger 1975 (2) SA 244 (E) at
246H), it is not hidebound by the accused's bygone youth in settling upon an
appropriate punishment. One of the reasons for distinguishing between juveniles
and adults in sentencing is to ensure that young and immature offenders are not
exposed to the harsh conditions which are attendant upon the fact of
imprisonment. Where the offender has attained majority and is able to withstand
the rigors of incarceration, the fact that he was a juvenile at the time of
commission of the offence should be no bar to his incarceration if the
circumstances so dictate. In any event, s 329(1) of the Act does not prohibit
the incarceration of juveniles. It merely gives the court a choice. It is a
choice which, like any other form of discretion, should be exercised
judicially.
In my view, it
would not be an improper exercise of discretion for a court to send to jail an
adult who committed a brutal rape on an infant of four years while he was a
juvenile. This is one of those cases where the accused should have been
sentenced in the normal way. The proper approach to sentence is dealt with by
BARTLETT J in a thorough review judgment in the case of S v Zaranyika & Ors
1995 (1) ZLR 270 (H). I would commend it to all magistrates. It is rewarding to
read it and commit to memory the exhortations contained therein”.
In
this case I will extend the reasoning of CHATIKOBO J to the sentencing of a
former juvenile on review. The then 17 year old, was a juvenile when he was
sentenced by the trial court but has now attained the age of majority. Even
though I am of the view that he should have been sentenced to corporal
punishment plus a wholly suspended term of imprisonment, if the record of proceedings,
had been timeously submitted for review it is now not possible to impose such a
sentence on him because he is now an adult. I am compelled to send him to
prison for the portion in leu of which he should have been sentenced to
corporal punishment. The offence he committed is a serious one. He must now be
sentenced to a term of imprisonment, as he can no longer be subjected to
corporal punishment. Other forms of punishment, like community service, or a
fine would trivialize the serious offences he committed.
The
trial court did not give serious consideration to the accused persons' moral
blameworthiness. I have already said they are circumstantial offenders in
respect of the theft of the complainant's motor vehicle. The motor vehicle was
recovered intact. Only a radio and cd player were stolen from it. Therefore their stealing a motor vehicle,
after unlawfully entering the complainant's premises, should have been
considered in its proper perspective. The ages of the accused persons should
also have been given serious consideration. It is counter productive to send 17
to 18 year olds to prison for 15 years. The length of the sentences imposed by
the Regional Magistrate, induces a sense of shock.
In
S v Zaranyika & Ors 1995 (1) ZLR 270 (HC), @ 271-272 BARLETT J dealing with
the sentencing of accused persons of accused's ages said;
“Normally a
juvenile should never be sent to prison unless the offence is so serious that
only a prison sentence can be justified. In prison he is bound to mix with the
worst elements of society. It is a sad reflection on Zimbabwean society that
the level of serious offences committed by persons in the 17-to 18-year age
group is markedly increasing. Factors such as the high percentage of the
population under the age of 18 and the dismal employment prospects are
undoubtedly large causative factors.
Rapes committed
by young offenders are regrettably becoming more and more commonplace. The prevalence and need for deterrence of
such offences are relevant considerations but have their limitations. It is not
possible to justify imposing more and more severe sentences on the grounds of
prevalence; the intrinsic moral blameworthiness of the offence is the best
guide as to the appropriate sentence. Indignation and passion must not be allowed
to sway fairness and reason. There is reason to believe that the deterrent
effect of sentence is not necessarily proportionate to its length; in this
field it is likely that there operates a law of diminishing returns. Nor should
it be assumed that retribution, and
recognition of the indignation and fears of the community at large, will
always demand a more severe sentence. The
court should have regard not only to the nature of the crime committed and the
interests of society, but also to the personality, age and circumstances of the
offender. In the case of a juvenile offender, it is above all necessary for the
court to consider whether the punishment would serve the interests of society
as well as those of the offender. The interests of society cannot be served by
disregarding the interests of the juvenile, because a mistaken form of
punishment might easily result in a distorted (or more distorted) personality
being returned to society. While Zimbabwe would not want to be a nation
where young rapists are not treated with appropriate severity, it would also
not want to be a nation where 17-and 18-year-olds are treated as fully mature
adults and sent to prison for many years for offences such as rape.” (emphasis
added)
I
agree with the comments of BARTLET J. Rape is in my view a more serious
offence, than unlawful entry, and of equal seriousness, with theft of a motor
vehicle. I am therefore persuaded that in the absence of corporal punishment,
imprisonment is unavoidable, but its length must be carefully considered. The
accused are in their formative years. They need more guidance than punishment.
As the accused in this case over stepped the line, punishable by none custodial
rehabilitative sentences, they should be imprisoned but for a period which will
let them taste the sting of imprisonment to scare them off the life of crime.
The sting should not be for too long, so that they will come out adjusted to
it. The sentence must seek to cause them to avoid it in future. If they are
imprisoned, for periods, which brings them out as hardened criminals, society
and the offenders will both lose the benefit of a rehabilitative prison
sentence. Society will be the greater loser as it will at the end of such a
sentence receive into it a schooled and hardened criminal no longer scared of
the prospects of being, send back to prison.
In
S v Katsaura 1997 (2) ZLR 102 (HC) @
p. 109 BARTLETT
J commenting
on this issue said;
“The
blameworthiness of the appellant in defrauding his employer of some $44 000 was
such that only an effective term of imprisonment was appropriate but as
REYNOLDS J stated in S v Ngombe
HH-504-87 at p 2:
It has been
repeatedly stressed that a sentence of imprisonment is a rigorous and severe
form of punishment, often bearing drastic and destructive consequences for the
accused and the members of his immediate family. This form of penalty should be
resorted to only if absolutely essential in the circumstances of the case, and
only if no other available form of punishment would be preferable and appropriate."
A corollary of this approach is that where imprisonment is
imposed the minimum effective period necessary should be imposed. GREENLAND J
in S v Teburo HH-517-87 (at p 2)
explained the rationale behind this approach as follows:
"Given the
limited avenues available to a judicial officer, he can attempt to achieve this
by tempering the sentence with mercy and compassion, especially here when the
accused is a contrite first offender. Such an approach is more likely to induce
a positive response from the accused than a sentence which will simply
brutalise him and lead ultimately to the man redefining himself as a criminal
and behaving accordingly.
Moreover,
overlong incarceration is counter-productive. It destroys and contaminates. See
S v Khumalo & Anor l984 (3) SA C 327 (A) at 331. The court therefore ends
up contributing to the criminalisation of society.
For the above
reasons, it is a better approach for a judicial officer to appeal to the good
sense of responsibility residual in the contrite first offender and impose the
least punishment which will still achieve the objectives of punishment.
A further
salutary explanation was made by BLACKIE J in S v Hope HB-18-
93 at p 3-4,
quoting the words of MACDONALD JP (as he then was) in S v Wood l973 (2) RLR (A) 11 at p 13H-14C: D”
'In imposing a prison sentence on a first
offender, sight should never be lost of the fact that, for the greater part,
the form of punishment itself, much more than the length of the sentence, is
likely to reform him and act as a deterrent to others. This is particularly
true where the offender belongs to a class, the members of which, whatever
their race, feel deeply the shame and stigma of a prison sentence. The
publicity of the trial, the exposure as a criminal, the far reaching and often
devastating effect of imprisonment on
his social, family and economic life are, in the case of a first offender,
aspects of punishment which should never be overlooked or underestimated. It is these consequences attendant on
serious criminal conduct, much more than the length of the prison sentence,
which are likely to deter other persons and to reform the first offender. If
they do not, it is unlikely that the length of the prison sentence will, in the
majority of cases, have a significant effect on bringing about the desired
results. In this connection I should
make the point that it should not be thought that to deprive a first offender
of his liberty, even for a short period of six months, is not to impose a
substantial term of imprisonment. To the first offender, accustomed to liberty
and deprived of it for the first time, even such a period would, I would think,
seem to be interminable. It is of course, of the utmost importance that a
person should not be kept in prison for longer than is necessary in the
interests of the offender, of society, or both. The reasons for this need
hardly be stressed, nor is it necessary to stress that in a civilised society,
the retributive effect of punishment should not receive great weight.
These salutary
explanations are, however, it seems seldom given meaningful effect by
magistrates. Like the inability to give proper weight to a plea of guilty, the
need to impose only the minimum appropriate term of imprisonment, is a custom
more noted in the breach than in the observance”. (Emphasis added)
Sections
131 (1)(a) and 113 (1)(a) of the Code
provide for sentences ranging from a fine not exceeding level thirteen to
imprisonment for a period not exceeding 15 years, and a fine not exceeding
level fourteen to imprisonment for a period not exceeding twenty five years
respectively. The Regional Magistrate treating both counts as one for sentence
imposed the maximum sentence imposable for contravening s 131 (1)(a) of the
Code The ranges provided by ss 131 and 113 of the Code are fairly wide. This
gives judicial officers a very wide discretion in assessing the appropriate
sentence. A judicial officer must thus avoid the temptation of imposing ever
increasing sentences for these offences. He or she must avoid imposing
sentences around the maximum, level of the range for cases which, are far from
being the worst under that crime. He or she must carefully consider the
appropriate sentence for each case bearing in mind that the least sentence is
for the least offence, above, the trivial level referred to in s 270 of the
Code, under that crime, and the maximum sentence for the worst offence under
that crime. Each case must be assessed and be punished according to the
offender's moral blameworthiness, which pegs the level of punishment deserved
by the accused. The sentence must suit the offence and the offender.
In S v
Butau (1) ZLR 240 (H) at p 242 to 243 GARWE J (as he then was) said;
“The principle
is now established that the maximum penalty should be reserved for the most
serious offences or persistent offenders.
In
S v Mutusva HH-156-86, the accused
was charged with wrongfully and unlawfully:
Carrying on the
business of an ivory dealer without being in possession of the necessary
licence, contrary to the provisions of the Parks and Wild Life Regulations
1981. On conviction, he was sentenced to pay the maximum possible fine. In
reducing the sentence”, REYNOLDS J remarked that –
...the maximum
sentences prescribed should be reserved for the worst or most persistent of
offenders...Once again...the magistrate attempts to justify the most severe
sentence allowed by the Legislature on the basis of prevalence. I can only
repeat that this approach is improper. It is to be hoped that the magistrate
will now bear this well-recognized principle in mind in future cases.
In
S v Mathe HB-104-83 the accused, who
was 18 and a first offender,
killed a heifer
on a commercial farm and took away the meat. He was subsequently convicted, on
his plea of guilty, of theft of stock and sentenced to receive 10 cuts with a
light cane and in addition to a wholly suspended prison term of 18 months'
imprisonment with labour. Having considered that ten strokes was the maximum
number of strokes imposable under the Criminal Procedure and Evidence Act,
GUBBAY J (as he then was) remarked:
'I do not
question the propriety of ordering the accused to receive a moderate correction
co-joined with a period of conditional imprisonment. After all he committed a
serious offence and one which is particularly prevalent in the Gwanda area. But
the number of cuts inflicted was grossly excessive. Ten cuts is the maximum
that may be imposed on a juvenile in terms of s 330 (1) of the Criminal
Procedure & Evidence Act [Cap 59]. I venture to think that very few
crimes would demand a juvenile being visited with such a degree of judicial
barbarism. Perhaps offences of unprovoked and extreme violence or of bestial or
wanton cruelty to the person of another might qualify. The present offence
certainly does not'.
The same
sentiments were expressed by REYNOLDS J in S
v Bote HH-340-87 and by SANSOLE J in S
v Maposa & Ors HH-395-85”.
Applying
the above principles to this case, I am persuaded that though theft of a motor
vehicle would normally attract sentences ranging between 7 to 10 years, such
sentences are not appropriate in this case. I have already pointed out that the
accused persons did not set out to go and steal the motor vehicle. They stole
it when they fortuitously found its key in the complainant's jacket. They can
therefore not be classified as dealers in stolen motor vehicles. The principles
enunciated in S v Dube & Anor
1995 (2) ZLR 321 (SC), do not apply in this case. Although theft of motor
vehicles has become rampant, in this case the theft was induced by the
accuseds' finding the motor vehicle's keys in the jacket they had stolen. There
is no evidence of international connections in the accuseds' conduct. There is
no evidence that they deal with stolen motor vehicles, nor that the motor
vehicle was found intact because, as dealers they had an interest in its
preservation. A much shorter sentence is therefore called for when this case is
compare to S v Dube (supra) and the cases there cited. The
sentence to be imposed on the accused should also take into account there
youthfulness. The sentence for unlawful entry should because of the value
stolen, and the recovery of most of the stolen property, be closer to the lower
level suggested in s 131 (1)(a) of the Code. As the offence in this case is
aggravated by subsection (2)(e), the sentence should range from a fine not
exceeding level thirteen or double the value of the stolen property. This means
consideration should start from a fine moving upwards to the maximum of 15
years imprisonment. The maximum as already said should be reserved for the
worst contravention of s 131 (1)(a) of the Code. The present case is far from
being the worst. It is merely above the lower level, but below the middle
level. That coupled with the accused persons' ages, must result in a sentence
not exceeding 2 years. The theft of the complainant's motor vehicle, in the
circumstances described above, must on its own not attract a sentence exceeding
5 years. When both counts are treated as one, their cumulative effect, and
interrelationship must tone down the global sentence to a total of 6 years.
After
considering the above I am satisfied that the accused persons have already felt
the sting of imprisonment. They were sentenced on 1 August 2007. They have spent, close to three
years in prison. They are however still young, and need deterrence, against
committing crimes. A reasonably long portion of the total term of imprisonment
to be imposed should be suspended to deter them from committing similar crimes.
The
sentence imposed by the Regional Magistrate is set aside, and is substituted by
the following;
Each
accused, both counts being treated as one for sentence; 6 years imprisonment of
which 3 years is suspended for five years on condition the accused does not
during that period commit any offence of which dishonesty is an element and for
which he will be sentenced to imprisonment without the option of a fine.
BHUNU J, agrees------------------------
