Obey Makichi v The State

### Preamble
1
HH 131-21
CON 435/20
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OBEY MAKICHI

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 26 March 2021

Chamber Application for condonation for late noting of appeal, extension of time within which to appeal and leave to prosecute appeal in person

CHIKOWERO J: This is an application for condonation for late noting of appeal against conviction and sentence, extension of time within which to appeal and leave to prosecute the appeal in person.

Applicant, a 26-year-old security guard employed at Bak Storage in Harare, appeared before the magistrates’ court sitting at Mbare on 15 September 2020 facing a charge of theft as defined in section 113 (1) (a) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations were that on a date unknown to the Prosecutor but between August and September 2020 he stole 37 tobacco bales from his employer’s warehouse, property belonging to Tobacco Processors Zimbabwe.

He pleaded guilty whereupon he was convicted and sentenced to 48 months’ imprisonment. 12 months were suspended for 5 years on the usual condition of good behaviour. A further 18 months’ imprisonment was suspended on condition he paid restitution in the sum of US$5100, being the value of the property stolen.

A draft notice of appeal is attached to the application, so is a copy of the record of proceedings a quo.

As against conviction, it is sought to be contended that the court a quo erred in convicting him when the respondent had not proved its case beyond reasonable doubt. He says he was not asked to explain why he was pleading guilty.

Further, he says the court below erred by accepting evidence “made by the police which had nothing tangible in itself and to show the appellant’s link to the commission of the said offence but only because he was employed as a security guard of the company-Bak Storage.”

In respect of sentence, the proposed ground of appeal is that the sentence imposed is manifestly harsh and excessive as to induce a sense of shock. Three reasons are tendered for proposing to take this ground. First, there were no aggravating circumstances. Second, being a first offender, he ought not to have been incarcerated for such a petty offence. Third, the court below did not accord due weight to his plea of guilty. He was deserving of leniency and did not waste the court’s time.

I consider that there are no prospects of success in the proposed appeal against both conviction and sentence.

Applicant pleaded guilty. The provisions of s 191 (a) of the Criminal Procedure and Evidence Act [Chapter 9:07]) (“the Act”) relating to his right to be legally represented, to state his defence and to have witnesses examined and cross-examined were all explained to him. Applicant elected to represent himself.

Thereafter, the charge was put to him and, after he confirmed understanding it, he was asked to plead. He pleaded guilty. The facts set out in the state outline were read to him, and understood. He admitted the truthfulness and correctness of those facts as well as stating that he had no variations to those facts.

The essential elements were put to him, all of which he admitted. He stated that he had no defence to the charge. Only then did the learned magistrate enter a verdict of guilty. In short, the court below complied with the procedure on a plea of guilty as set out in s 271 (2) (b) of the Act before convicting the applicant. It was satisfied that the applicant understood the charge and the essential elements of the offence and that he admitted the elements of the offence and the acts on which the charge was based. Going through the record for myself, I am satisfied that this was a genuine plea. In the circumstances, the proposed grounds of appeal against conviction are bad. They do not have any prospects of success. The respondent did not have to prove its case beyond reasonable doubt because the applicant pleaded guilty to the charge. By the same token, the learned magistrate correctly convicted the appellant after going through the procedure set out in s 191 (2) of the Act and satisfying himself that the plea of guilty was correctly and understandingly made. After all, when asked why he committed the offence (in mitigation) applicant said it was out of poverty yet he also stated that he was on a US$6 000 monthly salary.

There is no prospect of an appellate court upholding the appeal against the sentence. I do not consider that there is any prospect of substance being found in the contention that the sentence imposed is manifestly harsh and excessive as to induce a sense of shock. The reasons for sentence disclose that the court a quo considered the applicant’s status as a first offender as well as his plea of guilty. It found that applicant’s moral blameworthiness was high. There was connivance with a co-worker to commit the offence.  Being a security guard, he breached the duty of trust by stealing from his own employer. He stole the very same goods he was employed to guard. The value of the goods, at US$5100, was high. Nothing was recovered.

The 12 months’ imprisonment suspended was in recognition of applicant’s status as a first offender. The further 18 months’ imprisonment suspended on condition of restitution was meant to ensure that applicant would not benefit from the commission of the offence.

In all the circumstances, I do not think there is any prospect of successfully challenging the sentence on appeal.

There being no prospect of successfully appealing against both conviction and sentence, it becomes unnecessary to set out and analyse the other factors which otherwise arise in an application of this nature that is the explanation for not appealing in time as well as the delay in seeking condonation and extension of time, the reasonableness of that explanation as well as the extent of the delay.

In the result the chamber application for condonation for late noting of an appeal against both conviction and sentence, for extension of time within which to appeal and for leave to appeal in person be and is dismissed.

National Prosecuting Authority, respondent’s legal practitioners