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HH147-09 - THE STATE vs TOBIAS HUNI AND BRIGHTON CHINYERERE AND JAMES SIBINDI AND MIKE GRIYA KATANDIKA

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Theft-viz theft of bovine.

Theft-viz theft of equine.
Sentencing-viz theft re theft of bovine.
Sentencing-viz theft re theft of equine.
Theft-viz stocktheft.
Sentencing-viz theft re stocktheft.
Criminal Procedure-viz rules of evidence re pervasive influence.
Sentencing-viz doctrine of common purpose re pervasive influence iro moral blameworthiness.
Sentencing-viz general re sentencing in respect of more than one count iro order to serve the arithmetic total.
Sentencing-viz general re sentencing in respect of more than one count iro order for the counts to run concurrently with each other.
Sentencing-viz general re legislated mandatory sentences.
Sentencing-viz general re mandatory sentence iro two separate counts.
Criminal Review-viz section 29(2)(b)(iii) of the High Court Act re powers of the High Court iro amendment of any sentence imposed by an inferior court.
Sentencing-viz section 29(2)(b)(iii) of the High Court Act re review powers of the High Court iro substitution of any sentence imposed by an inferior tribunal.
Criminal Review-viz powers of the High Court re substitution of conviction made by an inferior court.
Sentencing-viz firearms violation re mandatory sentence iro possession of a firearm.

Stock Theft

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.

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= and the heifer, valued at US$150=, 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 April and 16 April 2009 from two different complainants. In each count, he stole a heifer valued at US$150= 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 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= while each ox was valued at US$250= and US$150= respectively. The heifer was not recovered, while meat valued at US$60= and US$50= 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.

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.

Each accused person was correctly convicted on his own plea of guilty of theft of bovine in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The trial magistrate properly canvassed the question of special circumstances and correctly found them absent in each case respectively.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching

The trial magistrate treated them differently on the basis of the difference 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.

Stock Theft

The penalty provision for the theft of a bovine animal, in the absence of special circumstances, is set out in paragraph (e) of subsection (2) of section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 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) of subsection (2) of section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]..., must be read in conjunction with subsection (4) of section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], 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 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 page 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, 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 others. The result being always that the total effective sentence would be a multiple of 9.

Sentencing re: Approach iro Multiple Counts, Prescribed Sentences & the Cumulative or Concurrent Running of Sentences

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 subsections (1) and (2) of section 343 of the Criminal Procedure and Evidence Act [Chapter 9:07], the successor to section 319 of the Criminal Procedure and Evidence Act [Chapter 59].

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences

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 Sabawn 1999 (2) ZLR 314 at 318D-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 brought into effect.”

In S v Hove 1981 ZLR 610 (H)..., GUBBAY J..., stated..., 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 s29(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 s29(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 s3(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 HH66-94 where MTAMBANENGWE 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.

Sentencing re: Stock Theft

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 One – 9 years imprisonment.

Count Two – 9 years imprisonment.

The nine years in Count Two shall run concurrently with the period in Count One.

Total effective sentence – 9 years imprisonment.

The sentence imposed on Brighton Chinyerere is set aside and substituted by the following:

Count One – 9 years imprisonment.

Count Two – 9 years imprisonment.

The nine years in Count Two shall run concurrently with the period in Count One.

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 One – 9 years imprisonment.

Count Two – 9 years imprisonment.

Count Three – 9 years imprisonment.

The nine years imprisonment in Count Three shall run concurrently with the period in Count Two.

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.

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       …………………………….
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