THE State V Ndweleun NDOU

### Preamble
1
HB 204/20
HCAR 1251/20
---------


THE STATE

Versus

NDWELEUN NDOU

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 1 OCTOBER 2020

Criminal Review

The 25 year old accused appeared before a Provincial Magistrate at Beitbridge facing a charge of contravening section 4 (1) (b) of the Firearms Act (Chapter 10:09), that is possession of a firearm without a licence.  The accused pleaded guilty and was duly convicted and sentenced to 4 years imprisonment of which 1 year was suspended for 5 years on the usual conditions of future good conduct.

The brief facts are that on the 2nd day of June 2020 and at around 1400 hours Rabekani Mafela, Amon Ngulube and Fungai Zuze were on their way to South Africa through an undesignated port of entry along the Limpopo River.  Upon arrival at Chingineli crossing point, the two noticed the accused hiding behind a rock in the middle of the river.  They continued with their journey.  The accused quickly moved towards the three men, met them in the river and had a brief conversation with them.  The accused then placed his hands in his trouser pockets.  The three men suspected that accused may be carrying a firearm.  They searched him.  Their suspicion was correct.  Accused was found to be carrying a firearm strapped to his waist.  The accused was disarmed and a loaded CZ pistol with 5 rounds of ammunition was confiscated.

On those facts, the accused was convicted on his own plea of guilty.  In mitigation accused stated that he had been given the firearm by someone he only knew by sight.  In other words accused was unable to provide the court with the identity of the person who had handed the firearm to him and the circumstances under which he took possession of the firearm.  In his reasons for sentence, the magistrate in the court a quo states as follows:

“… from the look of things the accused must have intended to rob the men who approached him …  There are a lot of armed robbery cases in the Limpopo River …  In my view an effective sentence of imprisonment would be appropriate.”

Section 4 (2) of the Firearms Act (Chapter 10;09) provides that;

“(2)	Any person who contravenes section (1) should be guilty of an offence and liable to a fine not exceeding level ten or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”

It is clear that the penal provision for the possession of a firearm without a licence gives the discretion to the sentencing court to impose a fine or a custodial sentence.  In   my view, where an accused is convicted of the offence of possession of a firearm without a licence, the court should take into account the following broad considerations:

the circumstances in which the offence was committed.

the explanation given by an accused for the unlawful possession of the firearm.

whether or not the firearm was loaded with ammunition

whether or not the accused was using the firearm in an illegal act at the time of his arrest.

the conduct and attitude of the accused upon his arrest.

Whilst the considerations are not exhaustive, the court should in all circumstances deliver a sentence that is not unduly harsh.  In the present case the accused pleaded guilty to the offence.  His explanation of how he acquired the firearm is in all probability false.  The learned trial magistrate, however, erred when he came to the conclusion that the accused intended to rob the three men who were crossing the river.  The accused’s presence in the Limpopo River gave a reasonable suspicion that he was waiting to pounce on persons crossing the border through undesignated entry points.  The evidence on the record is, however, that accused was searched and a loaded CZ pistol with 5 rounds of ammunition was recovered.

In the case of Sithole & Vengai v The State HH-54-15, the court held that a sentence of 18 months imprisonment with six months suspended on the usual conditions was appropriate for the offence of possession of a firearm without a licence.  In that case the appellants were found in possession of a firearm next to a service station were cash was usually kept.  It was held by the court that service stations are usual targets for armed robberies.  In S v Mphumelelo Moyo HB-09-11, the court held that a sentence of 12 months imprisonment was appropriate for the unlawful possession of a firearm.

In this case, the effective custodial sentence of 3 years induces a sense of shock and is inappropriate.  As I have already indicated, the learned magistrate in the court a quo misdirected himself when he concluded that the accused must have intended to rob the three men he met them in the river.  From the circumstances attempted robbery or robbery is not the only reasonable inference.  This  court is therefore at large as regards sentence.

Accordingly, and in the circumstances the following order is made:

The conviction is confirmed

The sentence of the court a quo is set aside and substituted with the following:

“The accused is sentenced to 24 months imprisonment of which 12 months is suspended for 5 years on condition accused is not within that period convicted and sentenced of any offence involving a contravention of the Firearms Act.

In addition the firearm and rounds of ammunition are forfeited to the state.”

Makonese J …………………………………………

Takuva J agrees …………………………………..