Clayton Paradzai v The State

### Preamble
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HMT 35-21
CASE NO. CA 42/20
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CLAYTON PARADZAI

And

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 31 March 2021

Criminal Appeal: Reasons for Judgment

C Mukwena, for the Appellant

M Musarurwa for the Respondent

MUZENDA J: On 31 March 2021 we dismissed an appeal against both conviction and sentence noted by the appellant. We indicated that our reasons will be availed. These are they.

On 24 December 2020 appellant was convicted of Robbery as defined in s 126 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 5 years imprisonment of which 6 months was suspended for 5 years on condition of future good behaviour. A further 22 months imprisonment was suspended on condition of restitution.

Background

Appellant is aged 19 years and complainant Fortune Mutsumbei is 26 years and is a lady of the night. On 19 April 2020 at around 2030 hours, appellant in the company of his co-perpetrator approached complainant at Boka Night Club near AFM Church, Sakubva alleging that complainant was taking a lot of customers from their Sakubva suburban sisters. Appellant struck complainant on the face with an open hand and his accomplice took US$5 and ZWL75 that were in complainant’s bra. On 24 December 2020 appellant pleaded guilty to the charge of robbery and he was convicted and sentenced. On 30 December 2020 he noted an appeal against both conviction and sentence.

Grounds of appeal

Ad Conviction

The court a quo erred and grossly misdirected itself in convicting the appellant on a charge of robbery when the facts as outlined in the charge sheet, state outline and purportedly explained did not disclose such an offence.

The court a quo erred and misdirected itself by alleging that the appellant and his then co-accused were acting “in concert and common purpose” when the facts as contained in the charge sheet and state outline did not support such a finding.

The court a quo erred and grossly misdirected itself by failing to explain to the appellant what it meant that the appellant and his co-accused were acting in concert and common purpose, “thereby convicting the appellant of robbery when the state outline did not support such a finding.”

Ad Sentence

The court a quo erred in imposing a lengthy sentence of imprisonment which induces a deep sense of shock and trauma in light of the circumstances of the offence.

The court a quo erred and grossly misdirected itself in imposing a lengthy imprisonment sentence in circumstances where mitigating factors far outweighed aggravating circumstances.

The court a quo erred and grossly misdirected itself in overemphasizing the appropriateness and effectiveness of a lengthy imprisonment sentence without paying due regard to other available alternative sentences such as community service or fine in the circumstances of the matter.

The court a quo erred and grossly misdirected itself in imposing a portion of sentence as restitution of a value which was not supported by the facts or record of proceedings.

Issues for determination

Whether the court a quo covered and put the appropriate essential elements of Robbery to the appellant?

Whether the conviction of the appellant was proper?

As regards sentence.

Whether the sentence passed by the court a quo should be interfered with?

Submissions by the parties

On the date of hearing Mr Mukwena who appeared for the appellant submitted that by and large he was going to abide by heads of argument filed of record. He further added that the facts adduced by the state on its precis did not disclose an offence of robbery in respect of the appellant. He contended that for it to amount to robbery, there must be an actual intent to deprive complainant of her property. There was therefore no need for the court to consider common purpose. Appellant did not set out to rob complainant, the dispute was over a business territory where complainant was looking for potential clients. Appellant’s counsel went on to argue that the mere collusion of appellant and his co-accused was not adequate to find him liable for the crime of robbery. Appellant did not assist in taking the money and the trial court ought to have assisted appellant to understand the charge by putting the essential elements for the charge of robbery. The least that can be said about the appellant’s liability was that of assault, it was submitted and appellant’s contention is that appellant did not perceive that his accomplice would decide to take complainant’s money, hence appellant did not formulate an intention to take complainant’s belongings.

Appellant made a further submission about the doctrine of common purpose. According to appellant’s counsel the key question is whether appellant and his accomplice embarked on a joint mission to use violence to deprive the complainant of her money. Appellant admits to the assaulting but distances himself from the taking of the money. Appellant submitted that he was alive to s 196 A of the criminal Law (Codification and Reform) Act, (supra) which deals with common purpose but in this case appellant never formulated the intention to commit robbery which is the resultant offence. The affirmative answers during the plea proceedings were to the appellant erroneous and should not be relied upon, particularly when the appellant was not legally represented. The court a quo failed to explain to the appellant the meaning of “common purpose and concert” it was averred on behalf of the appellant and that misdirection by the trial court led to a wrong conviction. Counsel for the appellant cited the matter of Simbarashe Moyo v The State which emphasizes the need by a court to explain all the elements of the charge so that one is left in doubt whether an unrepresented accused correctly admitted the essential elements of the offence. It was submitted by the appellant that the court a quo failed to sufficiently extrapolate the meaning of common purpose and as such s 196 A of the Code could not be applied in this case. Appellant prayed for an acquittal.

As regards sentence, it was submitted on behalf of the appellant that he pleaded guilty thereby showing contrition, he was a first offender, youthful offender being 19 years of age. Complainant did not sustain serious injuries and a sentence of 5 years with portions suspended induces a sense of shock. The trial court, it was added, did not sufficiently give credit to the plea of guilty proffered by the appellant more particularly in the ultimate sentence it subsequently passed. Counsel for the appellant cited the case of S v Buka , Felix Madembo and Anor v The State where it was re-emphasized that a sentencing court should factor in all mitigatory factors before passing an appropriate sentence and there is need for this court to interfere with the court a quo’s sentencing discretion. The appellant further added that the order of restitution was not supported by the facts or record of proceedings. So the court was urged to set aside an order for restitution.

On the contrary the import of the respondent’s heads is that the court a quo did not err Mr Musarurwa for the respondent contends that the learned magistrate canvassed all the essential elements before convicting the appellant. The sentence was appropriate and in accordance with real and substantial justice. In principle the state’s view is that there is nothing on record of proceedings warranting interference by an appeal court on the sentencing discretion of the lower court. The state is praying for the dismissal of the appeal in its entirety.

The law

The law imposes a positive duty on the presiding magistrate when recording a plea of guilty to ensure that the rights of such persons are carefully protected, respected and upheld. Where the court decides to proceed in terms of s 271 (2)(b) of the Criminal Procedure and Evidence Act, the essential elements must be explained in such a way as is calculated to inform the accused of the nature of the charge in sufficient clarity and detail as will suggest to him, in his knowledge of the matter, whether he has a defence to offer.

The crime of robbery is defined as the unlawful, intentional violent taking of another’s movable property without the consent of the possessor and the appropriation thereof. Robbery is an aggravated form of theft committed with violence. The key considerations justifying a conviction of this composite crime are proof that the assault and theft formed part of a continuous transaction and that the assault was a means by which the unlawful possession was obtained.

Section 196 A of the Criminal law (Codification and Reform) Act (supra) provides as follows-

“(1)    if two or more persons are accused of committing a crime in association with each other and the state adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2)    The following shall be indicative (but not, in themselves necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other had the requisite mens rea to commit the crime, namely, if they-

(a)	were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

(b)   	were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

(c)	engaged in any criminal behaviour as a team or prior to the conduct which resulted in the crime for which they are charged.”

Section 126 of the Criminal Law (Codification and Reform) Act (supra), provides that a person who steals or does any act  constituting the crime by borrowing or use of the property shall be guilty of robbery if he intentionally uses violence or the threat of immediate violence. Upon conviction for robbery such person shall be imprisoned for life or any definite period of imprisonment if the crime was committed in aggravating circumstances.

Application of the law to the facts

On the date appellant pleaded to the charge of Robbery the essential elements were put to him by the court as follows.

“Q.    Is it correct that on 19 April 2020 at Sakubva Mutare, you acted in concert and common purpose and used violence before taking the complainant’s property?

Accused 1:    Yes

Accused 2:    Yes

Q.    You then took the complainant’s US$5 and ZWL75 as alleged?

A.    Accused 1:    Yes

Accused 2:    Yes

Q.    You had the owner’s consent to take the money?

A.    Accused 1:    No

Accused 2:    No

Q.    You intended to deprive the owner permanently of the money?

A.    Accused 1:    Yes

Accused 2:    Yes

Q.    You knew that it was unlawful?

A.    Accused 1:    Yes

Accused 2:    Yes”

Appellant was assisted by an interpreter assuming for a moment that appellant did not understand the charge before he pleaded and that he did not comprehend the first question on the essential elements, he should have denied the taking of US$5 and ZWL75 when that question was put to him. He should have stated his defence that he did not associate with his co-accused to assault the complainant and then take the money. He should have raised a red flag and deny that he did not participate in the taking of complainant’s belongings without her consent. The essentials of the elements of robbery as defined above apply to the appellant. In the first place he falls onto the category of s 196 A (2) of the Code, he was at the scene of the crime, he was the one who struck the complainant on the face to instill fear in her, and immediately preceding the assault, his accomplice took the money. Appellant is the perpetrator of violence that led to the taking of the money.

I am also satisfied that the court a quo followed the requirements of s 271 (2)(b) of the Criminal Procedure and Evidence Act and properly in my view put questions to the appellant to establish whether his plea was genuine and well informed. The court a quo competently assisted the unrepresented appellant and recorded a plea of guilty. I failed to discern any misdirection and I find the appeal against conviction without merit.

As against sentence, robbery is fairly an aggravated theft. It instils fear due to real risk of injury or harm or threats of unknown consequence, moreso perpetrated against a female at night and accompanied by assault on the face. The Code talks of life imprisonment or a definite fixed term of imprisonment. In the locus classicus case of S v Mundondo this court highlighted that for offences of robbery, the guiding prototype of sentence starts from 5 years with portions suspended on applicable conditions. A superior court is reluctant to interfere with the sentencing discretion of the court of first instance.I failed to detect any misdirection in the way the sentencing court exercised its discretion on choosing the appropriate sentence and the appellant failed to advance any plausible ground to justify such cause. For an offence of robbery even where insignificant sums of money are involved heavy sentences are called for. There is nothing to show that the sentence passed in this matter induces a deep sense of shock. The appeal against sentence is dismissed.

Disposition

It is hereby ordered as follows.

“The appeal be and is hereby dismissed in its entirety.”

MUZENDA J____________________

MWAYERA J agrees_________________

Chibaya and Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners