THE State V Katiyo Solomon

### Preamble
1
HH 686-18
CRB HRE P8060/16
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THE STATE

versus

KATIYO SOLOMON

HIGH COURT OF ZIMBABWE

CHITAPI & WAMAMBOJJ

HARARE, 24 October 2018

Review judgment

CHITAPI J: The proceedings in this matter would not have been referred to this court for review because the sentences imposed qualified the proceedings to be scrutinized by the Regional Magistrate in terms of s 58 of the Magistrates Court, [Chapter 7:10]. In terms of the said section, in proceedings where the accused appearing before the provincial court and has been convicted and sentenced to imprisonment of between 3 and 12 months or a fine of between level 4 and 6, the record of proceedings is scrutinized by the regional magistrate. In terms of s 58 (3) (b) where the scrutinizing regional magistrate is in doubt whether the proceedings under his or her scrutiny are in accordance with real and substantial justice, the regional magistrate will cause the record to be forwarded a judge of this court through the registrar to be dealt on review. The regional magistrate’s comments including those which may have been elicited from the trial magistrate will form part of the record. The record of proceedings as explained in this matter has been placed before me in terms of s 58 (3) (b).

The accused was convicted on two charges by the magistrate at Harare. Firstly, of theft as defined in s 113 of the Criminal Law (Codification and Reform Act [Chapter 9:23] and secondly of negligently causing serious damage to property as defined in s 141 of the same Act. The facts of the case were as follows in summary; The accused was aged 48 years. On 7 June, 2016, the accused and his accomplices entered the complainant’s shop in the Harare City Centre pretending to be buying customers. The accused then picked up a home theatre and a radio and proceeded to the payment point. He however did not pay for the goods and made off without payment. The complainant apprehended the accused who was still holding on to the goods. In the ensuing struggle, the accused pushed the complainant. The complainant lost her balance and fell on top of a television stand which broke. The value of the stolen property was put at $155.00 and was recovered.

The accused pleaded guilty to the two charges. On the first count the accused was sentenced to pay a fine of $100.00 in default 30 days imprisonment. In the second count, the accused was sentenced as follows:

“4 months imprisonment of which 2 months imprisonment is suspended for 5 years on 	condition accused does not during that period commit any offence involving dishonesty for 	which he is sentenced to imprisonment without the option of a fine.

2 months imprisonment is suspended on condition accused makes restitution to complainant 	in the sum of $155 through the Clerk of Court on or before 30 June, 2016.”

The regional magistrate queried the propriety of the sentence. The regional magistrate’s query is contained in a letter dated 11 July, 2016. I reproduce the query.

“May the trial magistrate please comment.

With respect to count 1, was it competent in the light of the sentencing provisions i.e. s 113 (1) (b) (i) to sentence accused to a fine of $100.00 for theft of property whose value was $155.00. (See the attached case of State v Moses Sithole C.R.B CH79/15 and State v Thomas Benhura HH 528-15.

With respect to count 2 i.e contravening section 141 of the Criminal Law (Codification and Reform) Act (Negligently causing serious damage to property), the Court suspended 2 months imprisonment on the condition that accused would not, during a period of 5 years, commit any offence involving dishonesty.

Was it not more appropriate to suspend this 2 months on condition that accused did not within the 5 year period, commit any offence involving violence, the use of force or damage to property since this offence (count 2) does not involve dishonesty.

Since the TV stand was only damaged but recovered, was it necessary or judicious to order accused to restitute complainant the full value of the TV stand, i.e. $155. Should the amount of the restitution not have been limited to the value of damage only with the State having to adduce evidence to this effect e.g. by producing a quotation or with receipts from the repairers.”

The trial magistrate responded and I reproduce the response dated 3 August, 2016 as follows:

“I have gone through the issues raised by the Honourable Acting Regional Magistrate and 	wish to respond as follows:

Ad Para 1

I have gone through the attached case of (State v Moses Sithole C.R.B. CH7915) and State v 	Benhura HH-528-15. I confirm that I erred.

Ad Para 2

That was also an error on my part, it should have read, “commit any offence involving 	violence, the use of force or damage to property.”

As Para 3

I have noted the mistake, the amount of restitution should have been limited to the value of 	the damages to the property. I was of the view that since the accused admitted to the value 	being alleged, there will be no prejudice on the part of the accused since it was a plea matter.

I stand guided and to be corrected.”

The regional magistrate after receiving the magistrate’s response in which the magistrate agreed that he had committed errors, then referred the record of proceedings under cover of his letter dated 18 October, 2016. The content of the letter is as follows:

“RE: STATE v KATIYO SOLOMON CRB NO. HRE P8060/16

May you kindly place the attached record of proceedings for review before an Honourable Judge of the High Court in terms of section 58(3)(b) of the Magistrates Court Act [Chapter 7:10] with my comments as follows:

I was not convinced that these proceedings are in accordance with real substantial justice because of the following:

The court sentenced accused to a fine of $100 for theft of property valued at $155. I do not believe that this was a competent fine in the light of section 113 (1) (b) (i) of the Criminal Law (Codification and Reform) At for reasons mentioned in the 2 cases I have attached i.e S v Moses Sithole (CH79/15) and S v Benhura (HH-578-15).

With respect to count 2 i.e contravening section 141 of the Criminal Law Codification and Reform Act (Malicious damage to property), a prison term was suspended on condition that accused, within 5 years would not commit any offence involving dishonesty instead of being suspended on condition that accused did not commit another offence involving damaging property.

In its order for restitution, the court awarded the full value of the damaged TV i.e $155, although the TV was recovered and was not completely destroyed.”

I should mention in passing that the regional magistrate on scrutiny does not enjoy any powers to correct proceedings of the lower court. The regional magistrate’s powers are limited to certifying proceedings as being in accordance with real and substantial justice as given in s 58 (3) (a). Where the proceedings in the assessment of the regional magistrate, present doubt as to whether they are in accordance with real and substantial, the process of review by a judge of this case ensues upon reference by the regional magistrate. For the avoidance of doubt then, this court is the one that is empowered to correct mistakes made by the lower courts on review in terms of the review procedure set out in ss 57, 58 and 59 of the Magistrates Court Act.

From the record, the trial magistrate acknowledged that he made an error in imposing an incompetent sentence on count 1, the theft charge. From the agreed facts, the value of the property, that is, the home theatre and radio was $155-00 in total. The magistrate imposed a fine of $100-00 in default of payment 30 days imprisonment. The sentence for the crime of theft as defined in s 113 (1) of the Criminal Law (Codification & Reform) Act is set out in that section and is provided for as follows:

“(i)	A fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater; or

(ii)	imprisonment for a period not exceeding twenty-five years;

or both

Provided that a court may suspend the whole or any part of a sentence of imprisonment

imposed for theft on condition that the convicted person restores any property stolen by him or her to the person deprived of it, or compensates such person for its loss.”

In S v Benhura HH 528/15, Dube J interpreted the sentencing provisions in s 113 (i)

and (ii). Although the case involved theft of trust property, the sentence provision applicable is the same as quoted above. Dube J lamented that there was a “growing tendency on the part of magistrates to ignore the criteria set out and to impose whatever fines they deemed fit without adhering to the requirements of s 113 (1) (b) (1) in convictions of theft. The learned judge admonished that “this approach offends the concept of uniformity of sentences.” I would comment that a failure to follow or adhere to the sentencing provisions provided for in the Act amount to an irregularity and misdirection that calls for interference and correction on review and appeal.

I will once again unpack the provisions of s 113 (1) on sentence and interpret it more simply it as follows:

It is competent to impose a fine or a term of imprisonment upon an offender following a conviction for theft. It is also competent to impose both a fine and a term of imprisonment.

If the court in the exercise of its discretion considers that a fine is the suitable           or appropriate sentence to impose, the court should first consider the proven or agreed value of the stolen property. After establishing the value, that value must be aggregated by two or doubled. If say the value of the property is $200.00, then double the value will be $400.00.

(c) Next step is for the court to refer to its jurisdictional limits. In the case of an 	ordinary or junior magistrate, the ordinary sentencing jurisdiction is on 	summary trial, imprisonment not exceeding two years. As regards a fine, the 	maximum which such magistrate may impose is up to level seven. On remittal 	by the Prosecutor General, the period of imprisonment is increased to a 	maximum of 4 years and the fine to a maximum of level nine. Therefore, if a 	fine is deemed appropriate, and subject to the minimum of double the value of 	the property involved the magistrate should not impose a fine that exceeds his 	or her jurisdiction.

(d)	Next step is to consider the maximum fine which is permissible. The 	maximum fine which can be imposed for theft in terms of the quoted sentence 	provision is level fourteen which it is noted is the highest level that any court 	may impose.

(e)	Next step is to consider the catch, which I see as the one that presents a 	challenge of comprehension. It is the phrase “whichever is the greater.” 	Taking the example of $200.00 given in (b) above, the minimum fine should 	always be taken as twice the value of the property. In order to comply with the 	provision, the fine which may be imposed would be an amount of or above 	$400.00 but should not exceed the jurisdictional limit of the level of 	magistrate concerned and in any event should not exceed level fourteen, the 	maximum fine.

Simply put, the fine should always be double the value of the property as a minimum. In casu, the magistrate misdirected himself in imposing a sentence of less than twice the value of the property which would have been $310.00. An appropriate fine would have been $310.00 or a greater amount than $310.00 subject to the monetary jurisdiction of the magistrate and further subject to the cap of level 14. It is hoped that the explanation given above has been adequately simplified as to leave no confusion in the mind of magistrates on how to assess a fine on a conviction for theft where a fine is deemed appropriate to impose.

The second part pertaining to imposition of imprisonment is straight forward. Imprisonment is provided for as an alternative to the imposition of a fine. The further alternative is the imposition of both a fine and imprisonment. The decision to impose both a fine and imprisonment is again in the discretion of the magistrate and will be informed by the circumstances of each case balanced with those of the offender. The point I make however is that, the assessment of a fine even where it is to be imposed in combination with imprisonment will remain subject to the minimum fine calculated as extrapolated above.

The other point which I made pertains to restoration of the stolen property or payment of compensation for the loss of the property to the complainant. It is a matter of common sense and quite implicit in the proviso to s 131 (1) (i) (ii) that the court seeking to order restitution or compensation must establish the value of the property. It may well be said to be the rule of practice that in cases involving theft of property as defined in s 112 (a) of the Criminal Law Codification & Reform Act, the court should strive to establish through admissible evidence, the value of the property in involved. This is so because the discretion to impose a fine cannot be properly exercised in the absence of the value being agreed to or proven.

The award of compensation for loss or damage to property is governed further this by s 362 of the Criminal Procedure 7 Evidence Act, [Chapter 9:07]. The provisions of the said section read as follows

“362 Compensation for loss of or damage to property

(1) Subject to this Part, a court which has convicted a person of an offence may forthwith award compensation to any person whose right or interest in property of any description has been lost or diminished as a direct result of the offence.

(2) For the purposes of subsection (1)—

(a) if a person has been obliged as a direct result of an offence to incur expenditure in connection with any

property, a court may regard the whole or any part of the expenditure as being the amount by which his

right or interest in the property has been diminished, and may award him compensation accordingly;

(b) where damage is occasioned to stolen property or to property that is the subject of an attempted theft

while the property is out of the owner’s possession, such damage shall be deemed to have been occasioned

as a direct result of the theft or attempted theft, as the case may be, of the property concerned.”

Compensation should not be confused with restitution. Restitution is provided for in s 365 of the same Act. The section provides as follows

“365 Restitution of unlawfully obtained property

(1) Subject to this Part, a court which has convicted a person of an offence involving the unlawful obtaining of property of any description may order the property to be restored to its owner or the person entitled to possess it.

(2) For the purposes of subsection (1), where the property referred to in that subsection consists of—

(a) money, the court may order that an equivalent amount be paid to the injured party from moneys—

(i) taken from the convicted person on his arrest or search in terms of any law; or

(ii) held in any account kept by the convicted person with a bank, building society or similar institution;

or

(iii) otherwise in the possession or under the control of the convicted person;

(b) fungibles other than money, the court may order that an equivalent amount or quantity be handed over to the injured party from similar fungibles in the possession or under the control of the convicted person.”

In simple terms restitution connotes restoration, return or surrender of property stolen or removed from its owner.  As evident from the provisions on restitution quoted under section 365 above, the court may order the property to be restored to its owner or the person entitled to possess it”. The rest of the contents of the provisions of s 365 are self-explanatory.

Compensation within the confines of the provisions of s 362 targets making good the loss or diminution in value of property caused by the convicted person when he or she committed the offence.  The award of compensation is made to the complainant or person whose rights or interest in the property in issue has been lost or diminished. The extent of the loss or decrease in value of the property informs the amount of compensation which can be awarded. Under the provisions of the section, compensation can include costs incurred as a direct result of the offence.  Such costs are not easy to outline and it would be to fetter the discretion of the court to determine what costs in any given case can be said to fall within the acceptable ambit if I was to engage in a listing exercise.  Each case will have to be determined on its facts.  The compensation extends to an award of damages for any damage occasioned to the stolen property whilst out of the hands or possession of the complainant.  Such damage is deemed to have been caused as a direct result of the theft or attempted theft. Compensation or damages award only apply where the offence involved is theft or attempted theft.

In casu, both the trial and regional magistrates confused restitution and compensation. The trial magistrate ordered restitution of $155.00 which amount the regional magistrate questioned because, it constituted full value of the damaged property yet the complainant retained the residue which had value. Both magistrates in this regard were misdirected because the order of restitution was in actual fact an order of compensation. I also noted that from the admitted facts, the $155.00 did not represent the value of the damaged television. No value was placed on the television and no enquiry was made in regard to its value or the value of the damage for which compensation could have been ordered.  The $155.00 was the combined value of a home theatre and radio. The two items were recovered. No order of compensation or restitution should have been made in relation to the $155.00.

Under the circumstances, the problem which arises is how to correct the error which was made in relation to compensation.  I am of the view that to order that the complainant should return the $155.00 would be unjust because assuming that she recovered the amount and cannot now repay it, she is the one who now would be liable to the accused yet she was the wronged party. A feature of this case which exercised my mind was the imposition of separate sentences for what were essentially offences committed during one course of conduct. The justice of the case will be served by correcting the conditions of suspension in count 2 by deleting the word “dishonesty” and substituting it with “violence, the use of force or damage to property” as suggested by the regional magistrate. The period of suspension is also altered to 3 years from 5 years as the 5 year suspension is too long given the gravity of the offence. For the rest, the convictions and sentence are left as they are, as there does not appear to be a substantial miscarriage of justice which resulted. I however withhold my certificate. In view of the fact that I have given directions on how to deal with sentence in such matters. I considered it appropriate to seek the views of another judge and Wamambo J agrees with this judgment.

WAMAMBO J agrees………………………..