Criminal Appeal
UCHENA J:
The
appellant was convicted on one count of armed robbery by the regional
court sitting at Harare. He had been charged with two counts of armed
robbery of two motor vehicles. He was due to lack of evidence
acquitted on the other count.
He was sentenced to 10 years imprisonment
of which one year was suspended on conditions of good behaviour and
another one and a half years on conditions of restitution.
At
the hearing of the appeal Mr Tokwe
for the respondent conceded that the regional magistrate erred when
he convicted the appellant of armed robbery when there was no
evidence linking him to the robbery. Mr Simpson
agreed with Mr Tokwe
that the appellant should have been convicted of receiving the motor
vehicle knowing it to have been stolen.
The complainant in the count for which
the appellant was convicted only had 30 seconds in which he observed
the robbers. Thereafter he was ordered not to look at his assailants
and a gun was pointed at his head. In the 30 seconds he said he
observed that the robber who approached his motor vehicle from the
right was short, dark and stout. It is common cause that the
appellant does not fit that description. The complainant said the
robber who approached his motor vehicle from the left was tall and
slim. Again the appellant does not fit that description.
It must be noted that the complainant did
not have sufficient time to observe the robbers. His brief
observation which was split between the robbers on either sides of
his motor vehicle could not have founded the appellant's conviction
even if the description he gave fitted the appellant. On the contrary
the complainant said he was not able to identify the appellant as one
of the robbers.
In
view of the above we were satisfied that the regional magistrate
erred when he convicted the appellant of armed robbery in the absence
of evidence identifying him as having been at the scene of the
robbery. We therefore found that the concession made by Mr Tokwe
was properly made.
Mr
Tokwe
in making the concession submitted that the applicant should be
convicted on the competent verdict of receiving stolen property
knowing it to have been stolen. He said this was to be premised on
the appellant being in possession of the stolen motor vehicle the
next morning after it had been robbed from the complainant after
10.00p.m. the previous night. He further pointed out that the
appellant's conduct after taking possession of the motor vehicle
proves he knew it was stolen. He pointed to the following as proof of
such knowledge;
(1) That the appellant used an illegal
exit from Zimbabwe to Mozambique resulting in the motor vehicle being
stuck in Mukumbura river.
(2) He gave Cst. Muchira incorrect
information about his identity and that of the motor vehicle;
(a) He told Cst. Muchira that he was
Victor Mujuru Chatibva.
(b) He showed him a driver's licence in
the name of Victor Mujuru Chatibva.
(c) He gave an incorrect registration
number and colour of the motor vehicle.
This proves the appellant did not want to
be linked to the motor vehicle he had driven from Harare to Mukumbura
River. This can only be because he knew the motor vehicle had been
stolen.
Mr
Simpson
for the appellant agreed with Mr Tokwe
that the evidence proved that the appellant received the motor
vehicle knowing it to have been stolen.
We
were satisfied that the concessions made by counsel for both parties
were properly made. We after hearing counsel's submissions on
sentence and hearing the appellant's father's evidence in
mitigation set aside the appellant's conviction on armed robbery
and substituted it with one of receiving stolen property knowing it
to have been stolen. We also set aside the regional magistrate's
sentence of 10 years imprisonment with 1 year and 1½
years suspended on conditions of good behaviour and restitution and
substituted it with one of 7 years imprisonment with 2 suspended on
conditions of good behaviour. We gave our brief reasons on tapes and
indicated that a detailed judgment would follow.
In
his submissions against the appellant's conviction on armed robbery
Mr Simpson
submitted that the doctrine of recent possession does not apply to
robbery.
Mr
Tokwe
in his submissions submitted that he has not been able to find a case
were it was applied to robbery but submitted that it has been used in
housebreaking with intent to steal and theft cases.
This is an important point of law which
this court must determine even though this case can be resolved
without relying on the doctrine of recent possession.
In
the case of S
v Parrow
1973 (1) SA 603 (A) referred to by Mr Tokwe,
HOLMES JA at page 604 B-E said:-
“I
pause here to refer briefly to the so-called doctrine of recent
possession of stolen property. In so far as here relevant, it usually
takes this form. On proof of possession by the accused of recently
stolen property, the court may (not must) convict him of theft in the
absence of an innocent explanation which might be reasonably true.
This is an epigrammatic way of saying that the court should think its
way through the totality of the facts of each particular case and
must acquit the accused unless it can infer, as the only reasonable
inference that he stole the property. (Whether the further inference
can be drawn that he broke into the premises in a charge such as the
present one will depend on the circumstances). The onus of proof
remains on the State throughout. Hence even if, after the closing of
the cases for the State and the defence, it is inferentially probable
that the accused stole the property, he must be acquitted unless the
only reasonable inference is that he did so for the law demands proof
beyond reasonable doubt.”
I
respectfully agree with the learned judge of appeal. The important
aspects of HOLMES JA's decision in S
v Parrow supra
are:-
(1) The doctrine of recent possession is
based on an inference being drawn that the possessor of recently
stolen property stole the property;
(2 If he cannot give an innocent
explanation of his possession; and
(3) The inference that he stole the
property is the only reasonable inference that can be drawn from such
possession.
In other words recent possession can be
used to found a conviction if the court after sifting through the
whole evidence before it finds that the only reasonable inference
which can be drawn from the recent possession is that the accused
stole the property.
In
the case of S
v Parrow
the doctrine was applied to a house breaking with intent to steal and
theft case. In my view there is no reason why the doctrine cannot be
used in any case of which theft is a component like robbery. It
would be absurd for the court in a robbery case to be satisfied that
if it was only dealing with theft it could have drawn the inference
that the accused stole the property but hesitate to find that since
he stole the property he is the robber. There is in my view no reason
for the hesitation. If the doctrine can be applied to house breaking
with intent to steal and theft cases there is no reason why it cannot
be applied to robbery cases. The issue should simply be does the
evidence of recent possession prove he is the thief. If it does and
the stealing was during a robbery then he will have been proved to be
the robber just as such evidence can be used to prove that the thief
is the housebreaker.
In
the case of Black
Samson v The Queen AD
106/69 BEADLE CJ at page 2 of the cyclostyled judgment said:-
“It
appears from these cases that where fairly shortly after a
housebreaking, the accused is found in possession of some of the
articles which were stolen at the time and does not give an
explanation that he received the stolen goods from a third party who
may have stolen them, the court is perfectly justified in finding him
guilty not only of housebreaking but also of the theft of the
articles stolen at the time when the housebreaking occurred. The
reasoning behind these cases is that where the evidence is sufficient
to establish the fact that the accused stole a particular article
from the complainant and if the theft of that particular article
involved housebreaking, that evidence is sufficient to establish that
the housebreaking which occurred at the time of the theft was
committed by the accused.....”
(emphasis added)
In my view this also applies to a person
who is found in recent possession of goods stolen during a robbery.
If the only inference that can be drawn from the totality of the
evidence is that he stole the goods then he can be convicted of the
robbery of those goods and others robbed from the complainant at the
same time.
On
the question of sentence Mr Tokwe
for the respondent having urged the court to substitute the
conviction for robbery with that of receiving the stolen motor
vehicle knowing it to have been stolen submitted that the appellant
still deserved a custodial sentence. He submitted that there should
be little difference between the sentence imposed on a motor vehicle
thief and the receiver, as in both cases the victim is grounded. He
submitted that the offence becomes serious and is more reprehensible
if the motor vehicle is received with the intention of smuggling it
out of the country for commercial gain.
He
referred us to the cases of Gabriel
Manyika v S
SC 175-93; Cephas
Chimanga v S
SC 51-93; and Chimbwanda
v S
SC 110-93.
In
the case of Manyika
supra
the appellant was convicted of receiving a stolen motor vehicle
knowing it to have been stolen. He was found in possession of the
motor vehicle in 1991 after it had been stolen in 1988. He bought the
motor vehicle in circumstances which revealed that it could have been
stolen. His sentence of 7 years, 2 suspended was reduced to 5 years
imprisonment of which two years imprisonment was suspended on
appropriate conditions.
In the present case the appellant had the
motor vehicle hours after the robbery. He immediately thereafter
drove it to an illegal exit into Mozambique for gain. He said he was
to be paid for driving it into Mozambique and handing it over to an
Indian on behalf of Mike Zengeya.
In
the case of Chimanga
supra
the appellant was convicted of theft of motor vehicle. He had
surrendered it to the police saying he suspected it could have been
stolen. Evidence proved he had dealt with the motor vehicle in a
manner showing he knew it was stolen. On appeal his conviction of
theft was set aside and substituted with one of receiving the motor
vehicle knowing it to have been stolen. The sentence of 7 years, 2
suspended which had been imposed by the magistrate was not interfered
with.
In
Chimbwanda's
case
the appellant received a truck knowing it to have been stolen a
sentence of 6 years imprisonment with 2 and a half years suspended
was considered to be on the lenient side. He had acquired the vehicle
in exchange for his Peugeot truck and twenty head of cattle and it
had been re-registered in his name. He therefore had bought a stolen
motor vehicle distinguishing the case from the appellant's case on
the basis that the appellant received the motor vehicle for purposes
of smuggling it out of the country.
Mr
Simpson
for the appellant in the Heads of argument dated 3 October 2005
suggested a sentence of 7 years imprisonment with 2 years suspended
on conditions of good behaviour. In his supplementary heads dated
9th
November 2005 he suggested a sentence of 7 years of which 4 years
could be suspended.
The appellant's father gave evidence
and told this court that his son's conduct in committing this
offence was out of character. He told the court that his son was
managing a family business before he was imprisoned and that he was a
good and humble young man. He believes that the appellant may have
been tempted into committing the offence.
The appellant is a first offender. He is
28 years old. He is married with two children aged 6 and 4 years.
His parents are high blood pressure patients. He himself suffers
from migraine headaches and since May 2004 when he was admitted into
remand prison he suffers from swollen legs. He spent 10 months in
remand prison prior to his being sentenced.
He has now been convicted of receiving a
stolen motor vehicle knowing it to have been stolen.
The motor vehicle was fortuitously
recovered. If it had not been stuck in Mukumbura river he would have
smuggled it into Mozambique where he was to hand it over to an Indian
man as instructed by his principal Mike Zengeya.
The motor vehicle was not damaged. This
was obviously in the appellant and his principal's interest as the
motor vehicle had to be delivered in good condition. The complainant
however fortuitously benefits from the undamaged state of the motor
vehicle.
In assessing sentence afresh I have been
guided by case law and counsel for both parties whose submissions
were to the effect that a sentence of 7 years with 2 or 4 years
suspended would be appropriate.
In arriving at the sentence of 7 years 2
suspended, I considered the accused's age and his status as a first
offender and weighed this against the gravity of the offence. I
considered it aggravating that appellant received the motor vehicle
for the purposes of smuggling it out of the country to Mozambique. He
almost succeeded. He failed because it got stuck in mud at the
crossing point in Mukumbura river.
After he got stuck in the mud he lied
about his identity and that of the motor vehicle to Constable
Muchira. He obviously still intended to smuggle the motor vehicle out
of the country. He travelled back to Harare so that the motor vehicle
could be removed from the mud and be smuggled to Mozambique. It is
only the timeous reaction of the police which prevented him and
Zengeya from achieving their purpose. They had brought a Nissan Sunny
to the scene but were intercepted by the police.
The appellant was therefore determined to
smuggle the motor vehicle out of the country. He was acting with
conscious deception to cover his tracks. He used someone else's
driver's licence with a picture which could have passed as his when
he was younger. This shows careful planning on his part. His
deception succeeded to the extend that the police at Kamutsenzere
accommodated him overnight and Cst. Muchira travelled with him on the
bus up to Mount Darwin. He had carefully planned the offence. It is
his determination, deception and careful planning which aggravates
the offence and diminishes his status as a youthful first offender.
When the appellant's case is compared
to the cases referred to above it becomes more serious because he
intended to smuggle the motor vehicle out of the country. When the
appellant was arrested he attempted to escape by running away from
police custody. This was after he had indicated Mike Zengeya to the
police. As Zengeya got off the bus the appellant ran away from the
police. In the confusion Zengeya shot and killed a police officer.
This demonstrates the appellant's determination to avoid arrest
even after he had been positively identified by Cst. Muchira and had
himself told the police that Mike Zengeya was the owner of the stolen
motor vehicle he had driven to Mukumbura river. He clearly was not
remorseful for the offence he had committed.
Though no statistics were given on the
prevalence of motor vehicle thefts, the facts of this case proves
that organised motor vehicle thefts and robberies are still to be
deterred. Two complainants were robbed of their vehicles the same
night within four hours of each other in the same neighbourhood. The
robbers and thieves are encouraged by the receivers who provide a
market and outlets for the stolen motor vehicles.
In this case the appellant had taken the
motor vehicle to the illegal exit point in less than a day after the
robbery.
It is for these reasons that we suspended
only 2 years of the sentence of 7 years imprisonment which counsels
for both parties had urged us to impose. The sentence had to be one
with a deterrent effect in spite of the appellant's status as a
young first offender.
The portion of the sentence suspended
against restitution could not be retained as a receiver of stolen
property cannot be held responsible for property stolen by the thief
which was not passed onto him.
These then are our reasons for setting
aside the appellant's conviction on armed robbery and substituting
it with one for receiving stolen property knowing it to have been
stolen and reducing his sentence to 7 years imprisonment of which 2
years imprisonment are suspended for 5 years on condition the
appellant does not during that period commit any offence involving
dishonesty.
GARWE JP,
agrees......................................
Manase & Manase,
the appellant's legal practitioners
Attorney-General's Criminal
Division, the respondent's
legal practitioners