THE State V LAST Mandere

### Preamble
1
HH 496-18
CRB KADP 49/18
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THE STATE

versus

LAST MANDERE

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 23 March 2018

Review Judgment

KWENDA J: The accused was convicted by the Provincial Magistrate sitting at Kadoma on two charges. The first conviction was on a charge of stock theft as defined in section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for stealing one cow. The other conviction was on charge of theft as defined in section 113 of the Criminal Law Code for stealing a plough and a board. The charge of stock theft calls for a minimum mandatory sentence of nine years if there are no special circumstances. (See s 114 (2) e as read with subsection 3). Subsection 3 imposes the burden on the person convicted to satisfy the court that such special circumstances exist.

The trial court sentenced the accused to nine years on charges of stock theft and to pay a fine of $100 in default of payment one month, in addition one month suspended on condition of good behaviour.

It is the sentence in the first count which has given me difficulties. The trial court imposed the mandatory minimum sentence after concluding that the facts placed before it by the accused did not reveal special circumstances.

The trial court did enquire into the existence of special circumstances. The enquiry commenced with the court warning the accused that the offence of stock theft called for a mandatory minimum sentence of nine years unless he can present before the court “extra ordinary factors” that are not mitigatory factors surrounding the commission of the offence. The accused replied that he had only mitigatory factors and no special circumstances. He went on to add that he is the sole breadwinner and if incarcerated his family would suffer as he is also an orphan. He submitted that he was actually dependent on the complainant for his upkeep. The produce that he gets from farming at complainant’s farm enabled him to survive.

Clearly the submissions by the accused person did not go beyond mere mitigation. However my reading and understanding of s 114 (2) e is that in considering whether or not special circumstances exist, the sentencing court is not confined to the accused person’s responses during the enquiry on special circumstances after conviction.

In all the circumstances of the case, the sentencing court must pass an appropriate sentence. The court may not ignore facts emerging from the agreed facts just because they were not mentioned by the accused in the context of an enquiry into special circumstances after conviction.

The agreed facts are that the accused who was working for the complainant took a scotch cart and complainant’s two cows to ferry his (accused’s) wife who was ill to Sanyati hospital. At Sanyati hospital the accused person’s wife was referred to Kadoma Hospital for further management. At Kadoma hospital, the accused person sold one of the beasts to pay for his wife’s treatment because he had been unable to raise the hospital fees. The stolen cow was recovered.

Those facts reveal special circumstances. This is not the usual case of stock theft where the accused set out to steal. It appears the nature of the illness, the nature of the treatments required and the urgency thereof created an emergency. The cumulative effect of circumstances of a case can and quite often do give rise to special circumstances. See State v Stephen Kambuzuma HH 175/15.

While the law imposes the burden on the accused to reveal facts that constitute special circumstances, where such facts are emerge in the agreed facts, the court can properly take them into account. The court must make a value judgment based on the facts before it. There is plethora of authority that the area of special circumstances gives problems even to a trained legal mind. The court should assist as much as possible if the accused is unrepresented.

I am satisfied that the disease afflicting the accused person’s wife was of a serious nature necessitating immediate referral to a superior hospital for management. While the accused had no right to sell another person’s beast he clearly made, the decision to sell the cow in a situation of emergency to save life. There was no premeditation and the beast was recovered.

There are special circumstances in this matter. This court is at large to interfere with the sentence imposed by the trial court and impose a sentence below the mandatory minimum sentence.

There is need for deterrence. However given the mitigating circumstances in this matter a wholly suspended sentence will meet the justice of the case.

Accordingly the sentence imposed by the trial court in respect of the 1st count is set aside and substituted with the following:

“The accused is sentenced to two years imprisonment wholly suspended on condition that he does not commit any offence involving dishonesty for which he is convicted and sentenced to imprisonment without the option of a fine.”