The State v Delan Kambanje and Omega Bishi

### Preamble
1
HH 729/17
CRB NO. MBR 1037-8/17
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THE STATE

versus

DELAN KAMBANJE

and

OMEGA BISHI

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 2 November 2017

Review judgment

DUBE J: The two accused were convicted by a Harare Magistrate of three counts of theft as defined by s 113 (a) and (b) of the Criminal Law Codification and Reform Act,          [Chapter 9:23].

The brief allegations are as follows. The complainant in the first and second counts is mother to the 1st accused. On 13 February 2017 the complainant left home for work. Whilst the complainant was away, the two accused took advantage of the complainant’s absence to steal $80-00, dinner plates, window screen, blankets, spare wheel, spanner, surf, 2 litres cooking oil and a pocket of potatoes from the complainant’s home. When the complainant returned home she discovered the offence and she reported the theft to the police.

The allegations on the second count are that on the same day, the 13th of February 2017, when the complainant left home to go to work the accused took advantage of the complainant’s absence to steal a gas tank, hair blower and an iron. When the complainant  returned back from work  she discovered the theft and  reported the matter to the police.

The third count relates to a theft perpetrated against the second accused’s father. The allegations are that on the 22nd of February 2017, the two accused stole one convertor, regulator, torch, hydraulic jack, scissor cutter, commuter omnibus carrier and seat and a gas detector belonging to the complainant.

The third count actually reveals a charge of unlawful entry into premises in aggravating circumstances as defined in s 131 (1) as read with s 131 (2) of the Criminal Code. This is because when the first accused visited the second accused the two teamed up and used an object to break the garage door before stealing the aforementioned items. Perhaps it is a technical offence for the second accused who resided on the premises. It may be assumed that by virtue of his residence at the premises he had authority to enter the premises. But certainly the second accused could also have been properly charged with malicious damage to property, apart from theft. As for the first accused, the appropriate charge should have been unlawful entry into premises in aggravating circumstances.

The first accused pleaded guilty and was convicted of all three counts. He was sentenced as follows;

Count 1-10 months imprisonment

Count 2-6 months imprisonment

Count 3-12 months imprisonment

The 2nd accused was acquitted on the first and second counts after charges were withdrawn after plea. He pleaded guilty to the third count and was sentenced to a total on 22 months’ imprisonment of which one month was suspended on condition he restitutes to the complainant in the third count who is his father in the sum of $140.00 an additional 3 months imprisonment from a previous conviction was brought into effect. Effective sentence is 24 months imprisonment.

This matter came on automatic review .Nothing turns on the actual sentence imposed. Upon receiving the record, I raised a query with the trial magistrate regarding the failure to put previous convictions to the second accused and the remarks the court made in its reasons for sentence. The court records that the accused are both first offenders and that it was opting for community service when this was not the case. The magistrate’s response was that the last pages of the record are missing and that the enquiry made with regard to the previous convictions is missing. He states that the missing pages come after the copies of the previous conviction extracts. He concedes that his indications that the ‘’court would opt for community service” and that both accused were first offenders are out of place.

It is the duty of every trial court to ensure that its papers are properly paginated and that the record is complete. Trial courts are urged to check their work before submitting it for review. The record seems to be tightly clipped together. The suggestion that some pages are missing seems to me to be just a defence. There seems to me to be no good reason why the enquiry on previous convictions would be arranged in such a way that it is placed after the previous convections themselves. The appearance is that the previous convictions were never put to the accused. The practice is to clip the previous convictions at the end of the record. The attitude of the trial court in this instance is discouraged. The review process is not a witch hunt but a forum that enables and encourages judicial officers to learn. Judicial officers ought to take advantage of this learning opportunity. Where a mistake has been made, judicial officers are encouraged to readily accept their mistakes and concede instead of trying to conceal their mistakes. The failure to advise the accused of the previous convictions and put them to him is inexcusable and amounts to a misdirection.

The trial court’s reasons are great cause for concern. The trial court sentenced the accused to custodial sentences. It indicated as part of its reasons for sentence that it had opted for community service. The court notes that it had been alerted to the fact that the accused were not first offenders by the community service officer. The search by the prosecutor to find the previous convictions hit a brick wall and it decided to treat them as first offenders and sentence them to community service. The court in response to my query stated that having failed to find the previous convictions, the court decided to treat the accused as first offenders .It later turned out that second accused had previous convictions and an enquiry was accordingly made with respect to the previous convictions. He concedes that the indication that the court would opt for community service is misplaced.

What this goes to show is that the court did not pay attention to what it was doing. Further that the court did not check its work after writing its reasons. It is incumbent upon every judicial officer to check his record and work to ensure that its ideas flow. One wonders if these reasons for sentence were read out to the accused before the sentence .The trial court would certainly have realised at this stage that there was something amiss. If indeed the court changed its mind over the sentence to impose, it ought to have changed its reasons for sentence so that they are in tandem with the sentence imposed. Where a court writes out reasons for sentence and it then decides to change the sentence to be imposed, it is incumbent upon it to also change its reasons for sentence before passing sentence to make them in tandem with the sentence to be imposed. The trial court adopted a lackadisal approach.

What also struck me are the theft charges brought in respect of counts one and two. Two separate outlines were done for the two counts. The facts reveal that the thefts took place on the same date, place and from the same complainant. The complainant only discovered the thefts when she returned back from work in both cases .If the thefts took place on the same day as reported, she would only have returned back from work at the end of the day and discovered the thefts. The time that the thefts took place is not stated. Questions arise regarding whether the  two offences  committed on the same date , form part of the same transaction and whether one instead of two charges ought to have been preferred. There is an appearance either of  improper splitting of charges or simply  a failure by the state to outline essential facts in the state outlines.

The Criminal Procedure and Evidence Act [Chapter 9: 07], outlines the essentials of a summons or charge in s146 and reads as follows,

‘’146 Essentials of indictment, summons or charge

(1) Subject to this Act and except as otherwise provided in any other enactment, each count of 	the indictment, summons or charge shall set forth the offence with which the accused is 	charged in such 	manner, and with such particulars as to the alleged time and place of 	committing the offence and the 	person, if any, against whom and the property, if any, in 	respect of which the offence is alleged to have 	been committed, as may be reasonably 	sufficient to inform the accused of the nature of the charge.’’

The law requires among other requirements, the State to outline the date of commission of the offence in an indictment. However, where two or more similar charges   are committed on the same date against one complainant, as in the case of a theft, it becomes necessary to specify in addition to the actual date of the commission of the offence, the actual times of the commission of the offences in the charge sheet. The state outline should also give details of the time, place and date the offences occurred, making the charges distinct. Where two criminal offences are committed on the same date and following each other, time becomes of the essence. The interval between the commission of the offences is important and ought to be highlighted in the state outline so that it can be established whether the acts complained against constitute one continuing criminal transaction or two or more separate crimes. Where the facts disclose one single continuing offence, only one charge ought to be preferred. Where the  intention to commit a second or following offence is formulated separately,  two offences are created and  two charges may be preferred .There must be a long  interval between the offences signifying two separate transactions  and it must be clear that the intention to commit the  following offences was formulated separately. Where the second offence is borne out of the same dominant intent as the first offence and the two acts are committed within a short space of time following the other, one count ought to be preferred. In any case where time is of the essence to determine the number of counts committed, the time when the offences are committed ought to be specified in the state outline.

The state outlines produced do not disclose the times when the thefts were committed or the interval between the commissions of the offences. The accused pleaded guilty to the two counts . When  essential elements were put, the exact times when the offences took place did not become apparent. If the times of the commission of the offences had been elicited this information may possibly have cured the defect in the state outlines. It is difficult in this case, in the absence of the times when the thefts were committed, to determine whether the second theft is a continuing course of conduct constituting one transaction with the first theft or two separate offenses were committed. In the absence of specific indications on times when the two offences were committed, it becomes difficult to make such a decision. I am not satisfied that the state outlines disclose two counts.

The decision over what charge to prefer is entirely in the discretion of the prosecution. The State has a duty in the exercise of this  discretion  to ensure that correct charges are preferred. It must ensure that the charge preferred is supported by the facts alleged. The role of the court in a criminal trials is not simply to rubberstamp the charges preferred by the State. The court must read the charge  sheet and state outline and satisfy itself that the facts alleged support the charge preferred. This is so especially where an accused is unrepresented. The court plays the role of moderator in criminal prosecutions.

In a case where two counts are charged instead of one, such conduct raises constitutional issues. The accused’s right to a fair hearing as provided for in section 69 of the Constitution  is infringed in that he is required to answer to  two counts instead of one. Where he is represented by a legal practitioner at his trial, an accused is forced to defend more charges than is necessary and has to incur costs of an unnecessary defence. There is also double jeopardy in that an accused is sentenced for more offences than is necessary and is subjected to unfair and harsh punishment.

I am not satisfied that the state was justified, in the absence of the times when the offence was allegedly committed to charge two counts of theft. I am cognisant of the fact that the accused pleaded guilty to the first two counts of theft. There is no doubt in my mind that the accused stole from the complainant. Having had regard to the shortcomings of this matter, I have decided in the exercise of my discretion to   set aside both the convictions and sentence imposed for counts one and two. The two counts will be treated as one for purposes of sentences. The accused‘s sentence is altered to read as follows,

Count 1-12 months imprisonment

Count 3-12 months imprisonment

Of the total of 24 months imprisonment 1 month imprisonment  was suspended on condition the accused  restitutes Emma Kambanje in the sum of $95.00 and another 1  month is suspended on condition accused restitutes David Bishi in the sum of $140.00. The restitution to be paid through the clerk of court Mbare on or before 31/o5/17.Another 10 months is suspended for 5 years on condition that the accused does not within that period commit an offence of dishonesty for which he is sentenced to imprisonment without the option of a fine.

Effective 16 months imprisonment.

MUSAKWA J agrees ……………………