THE State V Honest Khumalo

### Preamble
1
HB 35/19
HCAR 415/19
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THE STATE

Versus

HONEST KHUMALO

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 14 & 21 MARCH 2019

Criminal Review

MAKONESE J:	The position is now fairly well established in our law that in cases involving multiple counts, the correct approach in sentencing is to treat all counts as one for the purpose of sentence or alternatively when a globular sentence cannot be imposed the court may take each count singly so that the seriousness of the offence is reflected.  Where the offences are factually connected in relation to time, but the essential elements are dissimilar, the court must then take each count separately for the purpose of sentence.

This matter has been forwarded by the scrutinizing Regional Magistrate, Hwange, with the following remarks:

“Kindly place this record of proceedings before any Honourable Judge of the High Court with the following comments.

The accused person was charged and arraigned before a learned magistrate stationed at Lupane facing charges of:

Unlawful entry

Assault

Malicious damage to property

He was duly convicted.  All counts were treated as one for purposes of sentence as follows:

9 months imprisonment wholly suspended for 5 years on condition accused does not within that period commit any offence of which disorderly conduct is an element for which upon conviction accused is sentenced to imprisonment without an option of a fine.

Though the three offences are factually connected, their essential elements are dissimilar.  It explains why the trial magistrate was in a quandary in formulating the conditions of a suspended prison term.  The trial magistrate conceded that it was improper to treat the three counts as one for sentence.  Instead, each count should have been treated separately.”

Factual background

The 18 year old appeared before a magistrate at Lupane facing one count of unlawful entry into premises, one count of assault and one count of malicious damage to property.  The allegations are that on the 3rd of November 2018 and around 16:30 hours, the accused and one Everton Khumalo, still at large, unlawfully and without permission or authority from the complainant, entered his kitchen through a closed door.  At that time the complainant was taking a bath in a bedroom next to the kitchen.  As complainant emerged out of the bedroom and met the accused coming out of the kitchen.  The accused and his associate then ordered the complainant to direct them to Mangwenya’s place, a girlfriend to the accused.  The complainant expressed his anger at the behaviour of the accused.  Accused person assaulted the complainant with fists and open hands.  The complainant suffered soft tissue injury.  The accused then went on to smash the window panes on complainant’s kitchen.  Upon his arrest complainant pleaded guilty and was convicted of one count of unlawful entry into premises in contravention of section 131 (2) (e) of the Criminal Law (Codification and Reform) Act Chapter 9:23.  The accused also pleaded guilty to assault in contravention of section 89 (1) of the Criminal Code.  On the last count of malicious damage to property in violation of section 140 (1) of the Criminal Code, the accused   pleaded guilty and was duly convicted.

The sentence

In this matter, nothing turns on the conviction in respect of all three counts.  From the facts it is clear that the offences were committed in one episode.  The offences are factually connected as they were committed at the same time.  The essential elements of each of these counts are however, dissimilar.  The offences have  distinct essential elements, and if treated as one for the purpose of sentence it becomes difficult, for the sentencing trial magistrate, particularly, if a prison term has to be suspended on condition of future good conduct, to formulate the conditions that would encompass all the three offences.

The trial magistrate found himself in a predicament in trying to come up with a suspended prison sentence covering the three offences.  In the end, he suspended the prison term on condition the “accused did not commit any offence of which disorderly conduct is an element”.

In this matter it was clearly incompetent and inappropriate to treat unlawful entry into premises, assault and malicious damage to property as one for the purpose of sentence.  It is noted that part of the sentence was suspended on condition accused did not commit any offence of which disorderly conduct is an element.  By definition, and for criminal purposes, disorderly conduct is a petty offence that may take the form of disturbing the public peace and decency.  This is an offence usually invoked when a person disturbs a meeting or public gathering or behaves in an indecent manner in public.  Disorderly conduct is unruly and disruptive conduct that adversely affects the peace of the public committed in a public place.  This offence has now been codified under section 41 of the Criminal Code.  The offence of unlawful entry involves dishonesty.  Assault involves the use of violence upon another person.  Malicious damage to property involves actual physical damage to property.  The three offences in this matter are not the same or of a similar nature.  There are three distinct and separate offences.  See the cases of Joseph Chirwa v The State HH-79-94; John Zacharuia v The State HH-17-02 and Anele Sifuya v The State HH-77-02.

In the circumstances, it was not appropriate for the trial magistrate to treat the three counts as one for the purposes of sentence.  I accordingly confirm the convictions on all three counts.  I,  however set aside the sentence by the trial court and the following is substituted:

“Count 1	 -	3 months imprisonment wholly suspended for 5 years on condition accused is not within that period convicted and sentenced of any offence involving dishonesty and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

Count 2	-	3 months imprisonment wholly suspended for 5 years on condition accused is not within that period convicted and sentenced of any offence involving violence and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

Count 3	-	3 months imprisonment wholly suspended for 5 years on condition accused is not within that period convicted of any offence involving damage to property and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

In addition, 3 months imprisonment is suspended on condition accused restitutes the complainant the sum of $40 being the value of the damaged window panes payable by 30 November 2018 through the Clerk of Court, Lupane Magistrates’ Court.”

Mabhikwa J agrees …………………………………..