Jasper Siziba v The State

1
                                                                                  HH 135/21
                                                                                CA 684/12
                                                                            REF CON 61/12
                                                                          REF CRB 256-7/12


JASPER SIZIBA
versus
THE STATE


HIGH COURT OF ZIMBABWE
ZHOU & CHITAPI JJ
HARARE, 22 March, 2021


Criminal Appeal


R. Chikosha, for the State


       CHITAPI J: The appellant appeared before the provincial magistrate at Kwekwe
Magistrates’ Court on 28 August, 2009 for trial. He was charged with and pleaded guilty to 5
counts of unlawful entry as defined in s 131 of the Criminal Law Codification and Reform
Act, [Chapter 9:23] and 5 counts of theft as defined in s 131 of the same enactment. The
appellant was sentenced to 2 years imprisonment on each of the 10 counts as aforesaid. The
total sentence imposed therefore was 20 years imprisonment. 3 years of the sentence was
suspended for 5 years on the usual condition of future good behaviour leaving a sentence of
17 years imprisonment.

       The appellant noted an appeal against sentence. The upshot of the grounds of appeal
was that the sentence imposed was overally so severe as to induce a sense of shock given the
circumstances of the commission of the offence balanced against the appellant’s personal
circumstances and interests of society. The appellant was not in attendance at the hearing of
the appeal due to non-service of the notice of set down. Mr Chikosha for the respondent in his
heads of argument had opposed the appeal arguing that the appellant was properly convicted
and that the sentence was fair and therefore supportable. The Court having considered that
the appellant was a self-actor invited Mr Chikosha to reflect on the charges and comment on
their propriety in review of the appellant’s submission in the heads of argument that there
was a splitting of charges in that the charges of unlawful entry and the concomitant theft
following the unlawful entries were made separate charges, on which separate convictions
                                                                                            2
                                                                                    HH 135/21
                                                                                 CA 684/12
                                                                             REF CON 61/12
                                                                           REF CRB 256-7/12


and separate sentences were imposed. After considering the issue, Mr Chikosha properly
conceded that there was a duplication of charges which amounted to a gross irregularity
which resulted in a failure of justice. Mr Chikosha submitted that rather than for the matter to
be struck off the roll, the appeal be disposed of by way of review. The Court was satisfied
that Mr Chikosha’s submission would result in the interests of the justice being realized by
adopting such a course.

       In terms of s 29 (4) of the High Court Act, the review powers of this Court can be
exercised at any stage that it comes to notice of the Court or Judge that Criminal proceedings
from the magistrates or any subordinate Court are not in accordance with real and substantial
justice. The provisions of s 29 (4) are designed to permit intervention by a Court in
proceedings or in respect of a judgment or sentence of the lower Court to achieve real and
substantial justice. Indeed real and substantial justice should prevail over strict adherence to
legal principle. Acting under the review powers aforesaid, the Court considered the
proceedings not to accord with real and substantial justice. The way the charges were framed
is that the appellant was charged with unlawful entry in count 1, then theft after the same
unlawful entry as count 2. The remaining counts 3 -8 were similarly drawn up in that the first
count would charge unlawful entry followed by theft of goods after the unlawful entry. This
was irregular. Where a person commits unlawful entry and then commits a theft after the
unlawful, the act constitutes one offence. The unlawful entry is then qualified as having been
committed in aggravating circumstances which call for a heavier penalty than where the
unlawful entry is not followed by any one of the defined factors spelt out in s 131 (2) of the
Criminal Law (Codification & Reform) Act. The charges should have been crafted as
unlawful entry as defined in s 131 (1) as read with (2) thereof.

       The appellant on 5 occasions between 25 December, 2008 and 18 February, 2009
unlawful entered premises in Kwekwe within the City Centre. On each occasion the appellant
stole certain property whose value was not given. The determination of values of stolen,
destroyed or damaged property are important in cases of unlawful entry because the Court
may impose a fine which is computed using the value of such goods. This aside, the applicant
ought not to have been charged with 5 further counts of theft apart from the unlawful entry.
Due to this irregularity which is gross and resulted in proceedings not according with real and
                                                                                            3
                                                                                    HH 135/21
                                                                                 CA 684/12
                                                                             REF CON 61/12
                                                                           REF CRB 256-7/12


substantial justice, the 5 convictions for the offences of theft will be quashed and set aside
leaving the 5 counts of unlawful entry extant.

       It is necessary to disturb the sentence imposed because it is in all the circumstances so
severe as to induce a sense of shock. The appellant was 20 years old. He committed the
offences with an accomplice who was 24 years old. He was a youthful first offender who can
be rehabilitated back into society. The trial magistrate in the reasons for sentence expressed
in six lines did not meaningfully interrogate the usual factors which should be considered. He
reasoned that a long term of imprisonment was necessary to get the appellant “out of
circulation.” Such approach was wrong. The correct approach is to employ the triad approach
which takes into account, the serious nature of the offence, circumstances of the offender and
interests of society. Taking into account the triad of factors aforesaid the Court determined
that the sentence imposed was unduly harsh for a youthful first offender who is clearly an
immature and misguided youth. He deserves a second chance. A rehabilitative sentence must
be imposed.

       In the view of the Court the appropriate sentence should be 1 year imprisonment for
each count making a total of 5 years imprisonment. 2 years imprisonment is suspended for 5
years on condition the appellant is not within that period convicted of the offence of unlawful
entry or theft for which he is sentenced to imprisonment without the option of a fine.

       Since the appellant has served more than the substituted sentence he is entitled to his
immediate release. The Registrar shall issue a warrant for the release of the appellant
forthwith.




ZHOU J agrees………………………………..




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