THE State V Talent Makonora AND Richard ZULU

HH 42-11
                                                                                CRB N 732-3/06

THE STATE
versus
TALENT MAKONORA
and
RICHARD ZULU


HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, February 14, 2011.


Criminal review


        CHITAKUNYE J: The two accused persons were jointly charged with four counts of
stock theft. They pleaded not guilty to all the counts but were convicted of all the counts at the
end of a full trial.
        In the first count the accused were alleged to have stolen two heifers in March 2005 of
which one was recovered in July 2006. In the second count they were alleged to have stolen
two black steers in March 2006 of which one was recovered in July 2006. In the third count
the accused were alleged to have stolen two cattle from the grazing area on 2 May 2006 of
which one was recovered in July 2006. In the last count the accused were alleged to have
stolen two heifers from a cattle pen in the midst of the night on a date in May 2006. The two
heifers were both recovered in July 2006.
        The accused were both convicted of all the counts after a contested trial. The
convictions are proper as there was overwhelming evidence against the accused persons. The
convictions will thus be confirmed.
        In assessing sentence the trial treated all the four counts as one and sentenced each
accused as follows:

        “36 years imprisonment of which 11 years imprisonment is suspended for 5 years on
        condition that the accused does not within that period commit any offence involving
        dishonest for which upon conviction he is sentenced to imprisonment without a fine
        option.”

        Two issues concerned me in this case. Firstly, the appropriateness of treating all the
counts as one for sentence and secondly, the efficacy of suspending a lengthy imprisonment
term when an accused is to serve a long term of imprisonment.
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          In his reasons for sentence the trial magistrate did not state his reasons for treating all
the counts as one for sentence. I am of the firm view that where a sentencing officer decides to
treat multiple counts or some of them as one for sentence he ought to give his reasons for such
option. Treating multiple counts as one for sentence should not be done arbitrary. Failure to
give the rationale for treating multiple counts as one for sentence is a misdirection. Apart from
assisting the reviewing judge in ascertaining whether the counts were properly treated as one
for sentence, the accused person being so sentenced must be told why the counts are being
treated as one.
          In S v Chawasarira 1991(1) ZLR 66 (H) SMITH J had occasion to deal with this issue.
At p 69D-E he stated that-
          “Separate punishments should, save in exceptional cases, be imposed for each separate
          charge. One globular sentence for two or more offences should only be considered
          where the offences are of the same or similar in nature and are closely linked in point
          of time. If these two requirements are not satisfied then a separate sentence must be
          imposed in respect of each offence.”

          Equally in S v Banda 1984 (1) ZLR 96(H) WADDINGTON J held that:

          “Before counts are treated as one for sentence, there should be some relationship
          between them. It is wrong to treat as one for sentence counts which are separated in
          time and place. It is also wrong to impose inappropriate sentences on individual counts
          in order to arrive at an appropriate aggregate sentence. Each count should be treated
          separately on its own merit. If the cumulative sentence is excessive, then the court may
          order some sentences to run concurrently or suspend portion of the total sentence.”

          In casu, whilst the offences are similar, in that they are all stock theft offences, they
were however not closely linked in point of time and place. The offences were committed over
a period of a year. If for some reason the sentencing officer felt that justice required that such
counts be treated as one for sentence he ought to have provided reasons for treating the counts
as one.
          My other concern is on the appropriateness of suspending a lengthy prison term on
condition of good behavior. I am of the view that no useful purpose is served by the
suspension of a long imprisonment term where the effective term is very long. In Attorney
General v Paweni Trading Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (2) at p 43G-H KORSAH
JA opined that:
          “I do not think that were a convicted person is to under go a very lengthy sentence,
          such as was imposed by the trial court, anything is to be gained by suspending seven
          years on condition of good behavior.”
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          Similar sentiments were expressed in S v Kanhukamwe 1987 (1) ZLR 158 (S).
In casu clearly no useful purpose would be served by suspending eleven years.
Another aspect militating against treating all the counts as one is that the offences for which
the accused were convicted of carry a mandatory minimum sentence of nine years per count
unless the court makes a finding that there are special circumstances why the mandatory
minimum sentence should not be imposed. To that effect s 114(2) (a) of the Criminal Law
(Codification and Reform) Act, Chapter 9:23 provides that:-
   “Any person who takes livestock or its produce-

   (i)       knowing that another person is entitled to own, possess or control the livestock or
             its produce or realizing that there is a real risk or possibility that another person
             may be so entitled; and
   (ii)        intending to deprive the other person permanently of his or her ownership,
             possession or control, or realizing that there is a real risk or possibility that he or
             she may so deprive the other person of his or her ownership, possession or control;

   shall be guilty of stock theft and liable-

   (e) if the stock theft involved any bovine or equine animal stolen in the circumstances
       described in para (a) or (b), and there are no special circumstances in the particular
       case as provided in subs (3), to imprisonment for a period of not less than nine years or
       more than twenty-five years..”

          In casu no special circumstances were found and so the accused faced imprisonment
for a period of not less than nine years in respect of each count. Instead of passing individual
sentences of nine years per count the trial magistrate aggregated the sentences of nine years
per count to arrive at a total of thirty six years and imposed it as one sentence. That approach
is wrong.
          As noted by KUDYA J in S v Huni & Ors HH 147-09:

           “where the accused has been convicted on more than one count, to treat both or all of
          them as one for the purposes of sentence defeats the clear intention of the legislature,
          that there should be an effective mandatory minimum penalty of nine years per count..”

          The trial magistrate ought to have passed individual sentences for each count. The
options would then be to either order the accused to serve the total of thirty six years or to
order that some of the counts run concurrently if the trial magistrate felt an effective thirty six
years imprisonment was too harsh.
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       It was also not competent for the trial magistrate to suspend portions of the mandatory
minimum sentence. The portion that may be suspended is a portion that is in excess of the
mandatory minimum sentence. For instance if in a count he had sentence the accused to say
twelve years instead of nine years then the portion available for suspension would be a period
of three years.

       Accordingly, the globular sentence is hereby set aside and is substituted by the
following sentences:

For each accused-

                  Count 1. 9years imprisonment;
                  Count 2. 9 years imprisonment;
                  Count 3. 9years imprisonment; and
                  Count 4. 9years imprisonment.

       The sentence in count 2 will run concurrently with the sentence in count 1 and the
sentence in count 4 will run concurrently with the sentence in count 3.
The total effective sentence – 18 years imprisonment.



KUDYA J: agrees………………………