The State v Christopher Madora

### Preamble
1
HMA 35-21
CRB BKT 09-21
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THE STATE

versus

CHRISTOPHER MADORA

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO, 28 June 2021

Criminal Review

ZISENGWE J:  	The accused was convicted following his plea of guilty to seven counts of stock theft as defined in section 114 (2) (a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] (the criminal code). In all the seven counts the livestock in question were bovine beasts. The agreed facts are that in count 1 he stole 5 head of cattle and in each of counts 2,3 and 5 he stole one beast and that in respect of each of counts 4,6 and 7 he stole 2 beasts. That brought she grand total of the cattle he stole to fourteen.

In the wake of his conviction and the court not having found special circumstances as contemplated in s114 (3) of the criminal code, accused was sentenced to 12 years’ imprisonment in respect of count 1, and 9 years’ imprisonment in respect of each of the remaining six counts. Of the total 69 years’ imprisonment, the court suspended 6 years’ imprisonment on the usual conditions leaving accused facing a staggering effective sentence of 63 years’ imprisonment.

Perturbed by the severity of the punishment when the record of proceedings was submitted to this court for review in the ordinary course, I directed a query to the trial magistrate enquiring if the ends of justice would not have been better served by ordering the sentences in some of the sentences to run concurrently to as a palliative measure.

The trial magistrate has since written back conceding that with hind sight he realises that the ultimate sentence was in ordinately harsh and that he should have considered ordering the concurrent running of the sentences in some of the counts.

Stock theft is undoubtedly a very serious offence constituting as it does a wicked deprivation of the complainant of the fruits of his or her hard work and investment. It is an offence that is almost invariably premeditated and carefully planned and executed. It is an offence that remains rife despite the harsh punishments that are routinely meted out by the courts against offenders. In the present case, the accused’s conduct in literally going on a stock theft spree is despicable to say the least.

That said, the sentenced visited upon him was unduly harsh, the seriousness of the crime notwithstanding. He is twenty-seven years old and an effective sentence of 63 years’ imprisonment practically robs him of any realistic prospect of leaving goal alive.  A sentence must not be so severe as to break the offender and save in those few deserving cases, a sentence should not be so harsh as to literally condemn him to life behind bars for the remainder of his natural life, it should leave him with a realistic hope of being eventually released from prison and reintegrated into mainstream society, hopefully as a rehabilitated citizen.

It is therefore a salutary practice, when it is apparent that if the cumulative sentence imposable on an offender for multiple offences (should the sentences for the individual offences be left to run consecutively) would be unduly harsh, to order (among other options) the concurrent running of all or some of the sentences for such individual counts. There must, of course, be some rational basis upon which such an order is made.

In the present case an effective prison term of 63years is undoubtedly severe, particularly when juxtaposed against comparable cases, some of which are sampled below for illustrative purposes. In Collin Boka v The State HH 239-2010, the appellant was convicted of 9 counts of stock theft (of cattle) the court below after grouping the counts into three discrete groups for purpose of sentence and thereafter imposing a globular sentence for each such category ultimately imposed a cumulative sentence of 65 years’ imprisonment. A total of 20 years’ imprisonment was then suspended on the usual conditions leaving the accused with a total effective sentence of 45 years’ imprisonment. The appeal court overturned that sentence and treated all counts as one for sentence and imposed a sentenced of 18 years imprisonment before conditionally suspending 5 years on the usual conditions.

In Shadreck Mbedzi v The State HB 81-11, the accused was convicted in the court below of the theft of 19 bovine beasts and sentenced to 25 years imprisonments on appeal wherein the state conceded that the sentence was excessive, the sentence was accordingly reduced to 15 years’ imprisonment.

In Mehluli Dube & Anor v The State HMA 12-21, this court had occasion to deliberate over a matter steeped in circumstances (save for the number of beasts stolen) similar to the present. In that case the two accused persons were each convicted of 7 counts of stock theft involving 53 head of cattle and were sentenced in the magistrates’ court to 9 years’ imprisonment for each of those 7 counts. 30 years of the cumulative 63 years’ imprisonment were suspended for 5 years on the usual conditions. On appeal the sentence was significantly altered and the seven counts were grouped into two categories (based on some relevant criteria) and all the sentences in each of the two categories were ordered to run concurrently leaving the accused with an effective 18 years’ imprisonment.

In the present matter although, as correctly found by the trial magistrate, there were no special circumstances justifying a departure from the prescribed minimum sentence in respect of each of the 7 counts, there were nonetheless good grounds for ordering the concurrent running of the sentences in respect of some of those counts not least being the very fact of the severity of the cumulative sentence should they be left to run consecutively.

In arriving at that conclusion, regard was had to the salient mitigatory factors of this case including the fact that the accused is a first offender who pleaded guilty to the charge and that remarkably all the beasts were recovered. The accused did not benefit from his unlawful enterprise and the complaints ultimately did not suffer any loss.

The court will uphold the individual sentences for each of the 7 counts. However, to alleviate the severity of the punishment the sentences in counts 1,3,4, 5 and 7 which were all committed in the Nyahunda farms between September 2020 and January 2021 will be made to run concurrently. The sentences in of counts 2 and 6 both of which were committed at Dzinavanhu village in October 2020 will similarly be ordered to run concurrently. Further, in count 1, 3 of the 12 years’ imprisonment will be suspended for 5 years on the usual conditions.

Resultantly therefore, the following order is hereby made:

ORDER

The conviction in respect of each of the seven counts of stock theft is hereby confirmed.

The sentence imposed by the court a quo be and is hereby set aside and substituted with the following:

Count 1:	12 years’ imprisonment of which 3 years’ imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving theft of stock and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

Count 2:	9 years’ imprisonment

Count 3:	9 years’ imprisonment

Count 4:	9 years’ imprisonment

Count 5:	9 years’ imprisonment

Count 6:	9 years’ imprisonment

Count 7:	9 years’ imprisonment

The sentences in counts 1,3,4,5 and 7 are hereby ordered to run concurrently and;

The sentences in count 2 and 6 are hereby ordered to run concurrently.

Effective sentence: 18 years’ imprisonment

The accused is to be brought before the court a quo within 7 days of the receipt of this order to be informed of the alteration of his sentence.

ZISENGWE J.

MAWADZE J agrees…………………………………………………………