The State v Blessing Nyandoro & 6 Ors

### Preamble
1
HH 186-2013
THE STATE
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THE STATE

versus

(1) BLESSING NYANDORO                                                               CRB 1812/12

(2) HAPPY TANYARADZWA AND ANOR                                    CRB 1761-2/12

(3)  ROBERT CHIKWARA AND ANOR                                        CRB 2189-90/12

(4)  STEWART GORE                                                                            CRB 2740/12

(5)  BLESSING PEMAUNGA                                                                CRB 1785/12

(6)  ROBERT CHIKWARA AND ANOR                                         CRB 2191-93/12

(7)  TENDAI MACHENGA AND ANOR                                           CRB 1782-3/12

HIGH COURT OF

UCHENA AND CHITAKUNYE JJ

, 14 May 2013

Criminal Review

UCHENA J:  The records of proceedings of these 7 cases were placed before me for review in terms of section 29 (4) of the High Court Act [Cap ]. The sentence imposed in each case is not subject to automatic scrutiny or review. The Provincial Magistrate Mutare, picked them up during Criminal Record Book checks. The sentences imposed follow a disturbing pattern. A uniform sentence was imposed for cases whose circumstances, seriousness, mitigatory and aggravatory factors vary so greatly that it is inconceivable that they could be punishable by the imposition of the same sentence.

I caused my clerk to ask the trial magistrate to comment on his not signing review covers and the appropriateness of the sentences he imposed in each case. He in his response blamed the Provincial Magistrate in charge whom he derogatively described as the Resident Magistrate for sending the records for review without affording him an opportunity to properly prepare the records for review.

On the crucial issue of the inadequacy of the sentences he imposed he in respect of each case unconvincingly tried to justify the unjustifiable by arguing that he imposed the sentences to deter the accused and in some cases conceded that the sentences he imposed where too lenient.

Section 131 (1) (a) and (b) of the Code, which applies, to 6, of these cases, provides for a wide sentencing discretion. It calls for careful consideration of the facts of each case before a judicial officer arrives at the appropriate sentence. It provides as follows;

“(1) 	Any person who, intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable;

(a) 	to a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); or

(b) 	in any other case, to a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both.

(2) 	For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry into premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person:-

(a) 	entered a dwelling-house; or

(b) 	knew there were people present in the premises; or

(c) 	carried a weapon; or

(d) 	used violence against any person, or damaged or destroyed any property, in effecting the entry; or

(e) 	committed or intended to commit some other crime.”

Section 131 (1) (a) provides for sentences ranging from a fine not exceeding level thirteen or double the value of the property stolen, destroyed or damaged by the offender as a result of the unlawful entry, whichever is the greater or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2);

Section 131 (2) provides for aggravating circumstances which should distinguish one unlawful entry from the other. The trial magistrate did not bother to consider them in arriving at the sentences he imposed. He clearly had abandoned his judicial role and imposed inadequate sentences.

Section 131 (1) (b) provides for a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both. if the unlawful entry is committed in circumstances other than those mentioned in subsection (1) (a).

A judicial officer sentencing an offender for contravening section 131 (1) (a) as read with subsection (2), or (1) (b), must carefully consider the circumstances of the unlawful entry and impose a sentence which takes into account the provisions of section 131 (1) (a) and (b). The fact that the legislature provided for fines of various levels and imprisonment of various levels or both such fines and imprisonment means it intended that each case must be punished according to how it was committed. It is therefore unlawful for a judicial officer to impose a standard sentence for any contravention of section 131 he presides over as was done by the trial magistrate in this case.

In addition to the principles provided by section 131 (1) (a) and (b), a judicial officer must consider other general; sentencing principals such as the age of the offender, sex of the offender, whether or not he is a first offender, a plea of guilty, the need to keep first offenders and young offenders out of prison, the need to consider other sentencing options like community service, restitution, the rigors of imprisonment etc. The trial magistrate did not consider the provisions of section 131 and the general sentencing principles in sentencing the accused persons in the seven cases. He imposed a uniform sentence of 3 months imprisonment despite the wide range of circumstances distinguishing the cases from each other.

The inadequacy of the sentences imposed by the trial magistrate is demonstrated by the facts of the seven cases as narrated and analysed below.

In case number 1 the accused who was aged 19 at the time he was sentenced on 26 June 2012, was charged with two counts of contravening section 131 of the Criminal Law (Codification and Reform ) Act [Cap:9:23], (unlawful entry.). He pleaded not guilty but was convicted after a trial. In count one he in the company of an accomplice who had not yet been arrested at the time of his trial broke a window pane to enable them to gain unlawful entry into the complainant’s Boutique. The unlawful entry took place during the night and property valued at US$700-00 was stolen of which property valued at US$25-00 was recovered. In count 2 he again during the night at 01.40 hours broke a window pane to gain unlawful entry into Pioneer Sales Shop and stole property valued at US$1065-00 of which property valued at US$20-00 was recovered. He was sentenced to 3 months imprisonment.

The facts of the case show the offences were committed with premeditation and persistence. The first count was committed on . The second count was committed a few days later on . The property stolen was valued at US$700-00 and US$1065-00, respectively and very little was recovered. In spite of the accused’s age the sentence imposed is inadequate. The magistrate did not say whether or not he treated both counts as one for sentence but seems to have done so as he only imposed a sentence of 3 months imprisonment. A total sentence in the region of 4 years imprisonment should have been imposed whether or not the two counts had to be treated as one for sentence or separate sentences had to be imposed for each count. Parts of the sentence should have been suspended on conditions of good behaviour and restitution and an effective sentence of about 18 months would have been appropriate. See the case of S v Mpofu HC- B 38/88. The accused’s age would not have mattered much as a 17, 18 or 19 year old who commits a serious offence can be imprisoned though the prison term should not be as long as that of an adult. See the case of S v Innocent Mutsinze HC- H  18/95.

In case number 2 the two accused aged 29 and 40 respectively were charged with theft from a motor vehicle in contravention of section 113 of the Code. They connived to steal from the complainant. They teamed up with two others who had not been arrested at the time they appeared before the trial magistrate. The accuseds jumped over the dura wall and proceeded to a Hino Ranger where they stole two batteries and handed them to their two colleagues who had remained outside the durawall. The batteries are valued at US$236-00 and they were not recovered. The agreed facts and the canvassing of the elements do not indicate at what time of the day the offence was committed. They were each sentenced to 3 months imprisonment.

Theft from a motor vehicle is a serious offence. In this case it was committed by a gang of four with premeditation. Nothing was recovered. There was need for a deterrent sentence which takes into account other sentencing principles. A sentence of 12 months imprisonment with parts suspended on conditions of good behaviour, restitution and community service would have been appropriate.

In case number 3 the two accused aged 28 and 30 were charged with contravening section 131 of the Code. They pleaded guilty and were convicted on their own pleas. They planned to steal from the complainant’s house during the night. They used a sharp object to force open the complainant’s door. They stole property valued at US$135 of which property valued at US$70-00 was recovered. They were each sentenced to 3 months imprisonment.

The sentence imposed on these accused persons is the same as those imposed in cases 1 and 2 yet the value stolen in this case is fairly low compared to those in cases 1 and 2. They however committed the offence in aggravated circumstances. They damaged the complainant’s door when they forced it open with a sharp object. A sentence of 9 months imprisonment with parts suspended on conditions of good behaviour, restitution and community service would have been appropriate.

In case number 4 the accused aged 18 was charged with the contravention of section 131 of the Code He pleaded guilty and was convicted on his own plea. He together with another who was still at large at the time he appeared before the trial magistrate went to the complainant’s shop at 1900hours. They climbed to the roof of the complainant’s shop and removed one asbestos sheet to gain entry. They stole property valued at US$1845-00 of which property valued at US$719 was recovered. He was sentenced to 3 months imprisonment.

The sentence imposed by the trial magistrate in this case is inadequate and a mockery of justice. The accused and his accomplice committed this offence in a sophisticated manner. They climbed to the roof of the complainant’s shop. They removed part of the roof to gain entry. They stole property valued at US$1845-00. In view of his age and his having started the life of crime from the deep end he should have been sentenced to no less than 3 years with parts suspended on conditions of good behaviour and restitution. He should have served an effective sentence of not less than 12 months imprisonment. See the case of S v Chirara & Ors 1990 (2) 156 at page 162 A to B.

In case number 5 the 22 year old accused was charged with contravening section 131 of the Code (unlawful entry). He at 0300 hours climbed up a pillar of the building to the first floor where he forced open the complainant’s door, and stole two packets of milk valued at US$1-60. The milk was recovered as the accused was caught while he was still in the complainant’s house. He pleaded guilty and was sentenced to 3 months imprisonment wholly suspended on conditions of good behaviour. The magistrate did not record the answer to one of the questions he put to the accused person during the canvassing of essential elements. The question was on whether he intended to steal. It is not relevant for determining the accused’s guilty on the charge of unlawful entry but will off course be relevant in passing sentence. The aggravating fact of his having stolen is however admitted through the accused’s acceptance of the agreed facts. Nothing therefore turns on the magistrate’s failure to record the accused’s answer besides demonstrating that the magistrate does not take his work seriously.

The time and manner in which this offence was committed is aggravating. The fact that the complainant was asleep in the house is also aggravating.  The provisions of section 131 (2) (a) (b) and (e) are relevant in this case. An unlawful entry into a dwelling house at 03-00hrs when the complainant is sleeping therein puts the complaint’s life at risk. An encounter between him and the intruder is likely to endanger him and the occupants of the house. I accept that the accused stole property valued at US$1-60. That however is not decisive. When one unlawfully enters into premises he in most cases will not be aware of what he may find. He may therefore find things of high or minimal value. The offence is unlawful entry, which is merely aggravated by the fact that the offender intended to commit an offence therein. In this case the accused was interrupted before he had done all he could have done in the complainant’s house. The critical factor is that he had to climb the building up a pillar to the first floor. That demonstrates an unusual resolve and determination to unlawfully enter the complainant’s house. The effect of the value of the stolen property being small, was commended on by Waddington J in the case of S v Banda 1984 (1) ZLR 96 at 102 D to H where he said;

“The small difference in the value of the property is not sufficient to merit any distinction being made in the level of sentence. In this regard it might be useful to repeat the remarks of BEADLE CJ in R v David and Alfred 1964 RLR 2 at 5 E-H:

"I believe magistrates would welcome some guide as to the extent to which value should be taken into account, but I am afraid I think it would be dangerous to attempt to give any mathematical formula, as such a formula might in itself have the effect of fettering judicial discretion. I would suggest, however, that where the value of the thing stolen in one case is £1 and in another case as much as £20, the difference in value should have some bearing on the sentence, all other things being equal. I would not, however, consider that a difference of a few pounds in the value of the thing stolen would necessarily have any bearing at all. Each case must, however, depend on its own circumstances. I can conceive of many cases where a theft of an article worth £1 would be more serious than the theft of another worth £1 and I must emphasise that it is only in assessing moral blameworthiness that the value of the article stolen must be taken into account. There may be cases where the value of the thing stolen is irrelevant where, for example, the accused does not know the value of the thing stolen, or intends to steal all he can get. A pick-pocket, for example, who steals a wallet intends to steal everything that is in it, and his moral blameworthiness is not affected by the amount of money, if any, that happens to be in the wallet at the time." (emphasis added)

In view of the above a sentence of no less than 18 months imprisonment would have been called for, with parts suspended on conditions of good behaviour and community service.

In case number 6 the 28, 30, and 39 year old accused persons were charged with contravening section 131 of the Code. The three of them hatched a plan to unlawfully enter the complainant’s house and steal the complainant’s property. They broke a window pane to gain entry. They stole property valued at US$240-00 of which property valued at US$200-00 was recovered. They committed the offence during the night, when the complainant was sleeping in that house. They were each sentenced to 3 months imprisonment.

The analysis given in case number five applies to this case. The accused persons unlawfully entered a dwelling house where the occupants were sleeping. They stole from the complainant’s house. Sections 131 (2) (a) (b) and (e) should be considered in assessing the appropriate sentence. The fact that the three of them unlawfully entered the complainant’s house at night when he was asleep seriously compromised the complainant’s safety. A sentence in the region of 24 months with parts suspended on conditions of good behaviour restitution and community service would have been appropriate in this case.

In case number 7 the two accused persons aged 18, and 30 years respectively, were charged with the contravention of section 131 of the Criminal Law Codification and Reform Act [Cap 9:23] (unlawful entry into premises). They pleaded guilty to the charge and were convicted on their own pleas. They forced open the complainant’s bedroom and stole property value at US$21-70 of which property valued at US$9-70 was recovered. They committed the offence during the day when the complainant was not at home. They were each sentenced to 3 months imprisonment.

It is apparent from the analysis of cases 1 to 6 that the sentence imposed in this case is also inadequate. A sentence in the region of 18 months imprisonment with parts suspended on conditions of good behaviour, restitution and community service would have been appropriate.

The trial magistrate therefore passed inadequate sentences in the 7 cases.

A review in terms of section 29 (4) of the High Court Act, is done at the instance of anybody who becomes aware of an injustice and brings it, to the attention of a judge of this court. The injustice which prompted the Provincial Magistrate Mutare to forward the records of these proceedings for review was discovered when he was checking the Criminal Record Book. The records of proceedings had been filed away because the sentences imposed are neither scrutinable nor reviewable.

The facts of the seven cases are such that they should not have been sentenced to the same sentence. An unlawful entry aggravated by theft of property valued at US$1-60 was treated equally to an unlawful entry aggravated by theft of property valued at US$1845-00 and the clear determination to commit the offence demonstrated by the accuseds climbing to the roof and removing an asbestos sheet to gain entry. This is clearly a case of a sinister and deliberate under punishing of offenders by a judicial officer, accompanied by an equally sinister and deliberate avoiding of the scrutiny and review of his work. There is no doubt in my mind that these are deliberate acts of meeting out injustice by a judicial officer, who took oath to do justice to all manner of people without fear or favour. They are acts of dishonesty aimed at the judicial officer’s own convenience at the expense of justice. It is both unethical and unprofessional for a judicial officer to deliberately impose inadequate sentences and hide his work from automatic scrutiny or review.

The trial Magistrate is a Provincial Magistrate. He is obviously experienced and knows what he should have done in each case. He can not therefore hide behind inexperience or lack of knowledge. The number of cases involved takes his conduct outside the ordinary occasional slip in ones work. It can only be a deliberate act of dishonesty and a hiding away of work he knew he had not done properly.

The cases were dealt with a long time ago, as they were only discovered during CRB checks. The accused persons have already served their inadequate sentences. The injustice can no longer be corrected. The only available remedy is to refuse to certify the proceedings as being in accordance with real and substantial justice. I therefore withhold my certificate in respect of each of the 7 cases.

A copy of the review judgment shall be sent to the Chief Magistrate’s office as this could be a tip of an iceberg, and may call for an administrative intervention.

CHITAKUNYE J : agrees.