THE State V Stanbreck Kapambarongwe

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HH363-2012
CRB G 165-2012
THE STATE
versus
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THE STATE
versus
STANBRECK KAPAMBARONGWE

HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 19 SEPTEMBER 2012

Criminal Review

MUTEMA J: The accused was convicted by a provincial magistrate sitting at Gokwe of one count of theft of property valued at $103.00 which was all recovered. He was sentenced to pay a fine of $100.00 or in default of payment to 6 months imprisonment. In addition he was sentenced to 3 months imprisonment, the whole of which was suspended for 5 years on the usual condition of future good conduct.

The same provincial magistrate also convicted the accused of robbery of property valued at $220.00 of which property worth $20.00 was recovered. He was sentenced to pay a fine of $100.00 or in default of payment, 3 months imprisonment.

The learned regional magistrate before whom the matter came on scrutiny opined, correctly in my view, that in view of the seriousness of robbery and also that property worth $200.00 was not recovered, the sentence imposed for that count was too lenient and referred the record of proceedings for review.

It behoves me to utter the following strictures concerning the sentence in issue. Sentencing is a process of legal reasoning which is arrived at, not willy-nilly, but after weighing a number of relevant factors. Those factors include the accused’s age, family responsibilities, whether he is a first offender, remorse which is often exhibited by a plea of guilty, seriousness of the offence, its prevalence, value involved or recovered, premeditation and modus operandi etc.


An astute judicial officer should consider all the foregoing factors and others such as are relevant to the case at hand before settling for a particular punishment. He/she must give informed reasons that justify the sentence settled upon.

In the instant case, the trial provincial magistrate justified the sentence for the robbery in these words: “Accused is a first offender. Being a first offender I consider that he has been in custody since 02 April 2012 (was sentenced on 03 August 2012). Whatever lessons a person can learn from prison it has already been learnt by the accused during that stint in prison. A fine is appropriate since it will hit the accused in the pocket where it will hurt him more.”

While it is encouraged to consider pre-trial incarceration when sentencing, that alone should not be allowed to cloud other relevant sentencing factors that are aggravating. Surely the reasons cited above are not only scanty and sterile from a provincial magistrate but not at all justify the inordinately lenient sentence that was imposed.

I noticed that the accused was granted time to pay the fine up to 31 August, 2012. How could the accused’s pocket be hit more by a paltry fine of $100 for robbing property worth $220 of which only $20 worth was recovered?. It means that to the accused in particular and to society in general crime does pay!.

Despite the pre-trial incarceration of 4 months robbery by its very nature is always regarded in serious light as it involves theft, violence, premeditation and invasion of privacy. In casu the allegations reveal that the accused trailed the female complainant to the bank where he observed that she withdrew some money. Lured her to a place where she left her items for safekeeping and then followed her to a bakery where at a secluded spot in broad day light grabbed and tripped her and forcibly took her purse containing $200 and a cellphone handset. This modus operandi clearly shows premeditation on the accused’s part, not to mention determination and perseverance for the complainant did manage during the “wrestling” to take the accused’s shoes which were later used as exhibit. The accused pleaded not guilty proferring a mendacious defence when the evidence was clearly overwhelming against him. He was not remorseful. Despite being a 34 year old first offender and widowed with four children
 (whose ages were not disclosed) the accused was employed as a lorry driver earning $350 per month and has six head of cattle. It cannot be said that he robbed out of need but sheer greed. He certainly deserved an effective custodial sentence.

If one compares the two counts of theft and robbery in this case, the respective values involved and the actual prejudice occasioned in either and then the respective sentences imposed, it baffles logic why for the less serious theft involving a lesser prejudice the trial provincial magistrate in his wisdom decided that the less serious theft merited a harsher sentence. He did not state the reasons why he made that distinction.

On the totality of the foregoing, I agree with the observations by the learned regional magistrate.

The sentence for robbery induces a sense of shock on account of its leniency. While confirming proceedings regarding the theft count as being in accordance with real and substantial justice, I decline to certify that the sentence for the robbery is in accordance with real and substantial justice.
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