Zvisinei Tamanikwa v The State

### Preamble
1
HH 278-13
CA 57/12
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ZVISINEI TAMANIKWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE AND MAVANGIRA JJ

HARARE, 25 July 2013

Criminal Appeal

F.Murisi for the appellant

C. Manhiri, for the respondent

MAVANGIRA J: The appellant was on his own plea of guilty, convicted by the magistrate sitting at Chinhoyi, of stock theft as defined in s 114(2) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. The court made a finding that there were special circumstances in the matter and sentenced the appellant to 4 years imprisonment of which 1 year imprisonment was conditionally suspended.

The appellant has now appealed against both conviction and sentence. The following are the grounds of appeal against conviction. Firstly, that there was no proof beyond reasonable doubt that this offence had been committed. Secondly, that the court a quo erred in failing to properly guide the accused person who was unrepresented at the trial as the facts clearly disclosed a defence. Thirdly, that the accused having been in possession of the beast for 3 years and openly, it could not be inferred that he possessed the requisite animus furandi for this possession to amount to theft. The fourth ground is that no one had ever claimed the best and it could have reasonably been inferred that it had become res judicata and thus amounting to a complete defence. The fifth ground is that there was need for a full trial to canvass and fully investigate this aspect as circumstances showed that the beast was abandoned and accused had not reason to believe that its true owner could still be found.  The sixth ground is that the accused was a bona fide possessor. The seventh and final ground of appeal against conviction is that the plea was not properly taken.

The facts reflected in the outline of the State case were that sometime in 2007 the appellant was entrusted with the care of a stray black cow by the village head and the community. They bestowed their trust in him as he was a law enforcement agent. The appellant kept the stray cow until April 2010 when he sold it to another person for $270-00.

It is evident that the facts disclose the offence charged. A perusal of the record shows that the trial magistrate canvassed the essential elements of the offence with the appellant. In the process the appellant admitted that the stray bovine had been entrusted into his custody as described in the outline of the State case. He admitted that he knew that it did not belong to him. He admitted that he appreciated that it was not abandoned by its owner. He admitted that he sold it away and that he wanted the owner to lose it forever. He admitted that he had no right to sell it and said that he had no defence to offer.

Section 114 of the Criminal Law (Codification and Reform) Act provides in the pertinent provisions:

“(2) Any person who –

takes livestock or its produce –

knowing that another person is entitled to own, possess or control the livestock or its produce or realising that there is a real risk or possibility that another person may be so entitled;

…….

shall be guilty of theft and liable -

(e) if the stock theft involved any bovine or quine 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 9 years

or more than twenty-five years”.

The responses given by the appellant as the trial magistrate canvassed the essential elements of the offence with him exhibit an admission of the essential elements of the offence and of the acts stated in the charge and in the facts. He was at all times aware that the stray cow had merely been entrusted into his care and that it was not his; neither was it given to him for it to be become his property. He was merely a caretaker. He admitted that he appreciated that it was not properly abandoned by its owner. Despite this, he admitted, he sold the stray cow and wanted the owner to lose it forever. He admitted having no right to sell the cow and also said that he had no defence to offer.

Against the above, the second ground of appeal is demonstrably baseless. As regards the third and sixth grounds of appeal, the appellant was not charged for possessing the cow. The charge that he was faced with, to which he pleaded guilty and for which he was convicted arose from his sale of the cow, not his possession of it. This grounds is therefore ill conceived. The forte ground is senseless in so far as it seeks to contend that the matter is res judicata. There is nothing on record to raise nay basis for the rising of the same and how it can be claimed to amount to a complete defence available to the appellant. If the intention was to refer to the stray cow as res derelicta, the appellant admitted that he appreciated that it had not been abandoned by its owner. In any event, the circumstances in which he came to be in possession of the cow inherently preclude the appellant from raising such a defence. He proceeded to sell the cow that had been entrusted to his care without recourse to the headman and the community who had reposed that trust in him as a law enforcement agent, to take care of the stray cow. Such a ground would also be baseless. For the same reasons the fifth ground of appeal against conviction is baseless and not supported by the record of proceedings. Insofar as the seventh ground of appeal is concerned, the basis on which it is raised, having been based on the earlier grounds of appeal which are all untenable, naturally falls away. All that can be said about the first ground of appeal is that it is no ground at all as it offences r 22 of the Supreme Court (Magistrate Courts) (Criminal Appeals) Rules, 1979.

For the above reasons the appeal against conviction is without merit and cannot succeed

The ground of appeal against conviction strangely follows after the grounds of appeal against sentence which are raised first in the appellant’s notice and grounds of appeal. Considering the lack of basis for all the grounds of appeal against conviction, this may be an indicator that the grounds of appeal against conviction were only but an afterthought on his part which requires grounds of appeal to be set out clearly and specifically. This ground is not clear nor is it specific. It is a generalised averment that there was no proof beyond reasonable doubt that the offence charged had been committed.

The grounds of appeal against sentence are the following. The first is that the sentence is so harsh and severe as to induce a sense of shock. The second is that having made a finding that there are special circumstances in the matter, the sentence finally imposed by the court is too severe and does not properly reflect the gravity (sic) of the special circumstances found and accepted. The third is that the court a quo erred in not having regard to the following considerations which would have amounted to additional special circumstances and warranting a further reduction of the sentence:- the cumulative effect of the appellant’s mitigatory factors, ignorance on the part of the appellant, that no one was directly prejudiced by the defence as there was no complainant and that the appellant was trapped by circumstances to commit this offence.

The fourth ground of appeal that is raised against sentence is that after a finding of special circumstances, the court erred in over-emphasising the offence at the expense of the appellant and in holding that aggravatory factors outweighed mitigatory factors. The fifth is that no real value was attached to the appellant’s mitigatory factors. The sixth is that the court erred in basing its finding on aggravation on a finding which was not factually proven, more so with regard to that fact that the court was dealing with someone who was a police constabulary and not a trained police officer. The seventh and final ground of appeal against sentence is that the court a quo erred in failing to consider the appellant’s plea to compensate for the cow that he had sold and also the fact that the cow was recovered; a further term of imprisonment was thus supposed to have been suspended on condition of restitution.

The above grounds of appeal against sentence are not supported by a perusal of the trial magistrate’s reasons for sentence. The following excerpt from such reasons is particularly pertinent:

“………………special reasons exist in the case. The court is therefore allowed to impose a sentence outside the mandatory minimum.

In this case however accused as a policeman of 5 years’ experience knew very well the full consequences of what he was doing.   Accused took a conscious risk when he decided to sell the cow. So his conduct exhibits an extremely high degree of moral, blameworthiness which must be properly reflected which must be properly reflected in the eventual sentence.

In addition the mitigation of the case must also be taken care of. Accused pleaded guilty, he is a first offender, his police constabulary rank is lost and a big family of 8 children and 3 wives is in a predicament as the head is gone.

The aggravation factors of the case had persuaded the court to impose a sentence of 5 years imprisonment. Mitigation outside special reasons demands amelioration of this sentence to about 4 years imprisonment with a further year suspended on conditions” (emphasis added)

It is trite an appeal court will not readily interfere with the sentencing discretion of a lower court unless there is a miscarriage of justice occasioned by the exercise of that discretion or some error or misdirection on the part of the judicial officer exercising that discretion. S.V. Mundava 1988 (2) ZLR 392(A); S.V. Ramushu SC 25/93.

A perusal of the trial magistrate’s reasons for sentence as highlighted and quoted above, clearly shows that the magistrate conscientiously assessed the appropriate sentence by properly balancing the interests of society and those of the appellant. He considered the mitigating as well as the aggravatory factors. He then, in then in the exercise of his discretion, saw it necessary to ameliorate the sentence of 5 years imprisonment that he had initially considered to 4 years imprisonment with one year suspended. On a consideration of all the circumstances, it cannot be said that the sentencing court  exercised its discretion improperly thereby  occasioning any miscarriage of justice or misdirection justifying interference by this court.

The grounds of appeal raised against sentence exhibit either a failure to read or a failure to comprehend and appreciate the reasons for sentence as clearly articulated by the trial magistrate. They are all untenable in the circumstances. The appeal against sentence cannot therefore succeed.

In the result, the appeal against both conviction and sentence is dismissed in its entirety.

HUNGWE J. agrees