Anesu Maponde Versus THE State

### Preamble
1
HMT 40-20
CA 04/20
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ANESU MAPONDE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 10 June 2020 and 2 July 2020

Criminal Appeal

K. G Muraicho, for the appellant

J Chingwinyiso, for the respondent

MWAYERA J: In this matter the appellant approached this court dissatisfied with the conviction and sentence imposed by the court a quo. The appellant was charged with the offence of theft of a motor vehicle as defined in s 113 (1) of the Criminal law (Codification and Reform) Act, [Chapter 9:23]. The appellant was convicted on his own plea of guilty following which he was sentenced to 10 years imprisonment of which 4 years imprisonment was suspended on usual conditions of good behaviour. The appellant raised grounds of appeal as follows:

“AD CONVICTION

The Learned Magistrate erred in convicting the Appellant when the facts and essential elements of the offence had not been adequately explained to him leading to his ingenuine and equivocal plea.

The Learned magistrate erred by convicting Appellant for theft when the issue of intention to permanently deprive the complainant was not properly canvassed.

AD SENTENCE

The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of Appellant outweighed factors in aggravation.

The Learned Magistrate erred upon her arrival at the effective sentence of 6 years imprisonment failing to consider alternatives thereof.

The Learned Magistrate erred in her failure to consider that a wholly suspended prison sentence coupled with an alternative thereof such as community service would have met the justice of the case in Appellant’s situation a youthful first offender who pleaded guilty.”

The appellant in criticising the conviction has questioned the propriety of the procedure adopted in canvasing essential elements leading to the conviction. The appellant contended that the court a quo did not adequately explain the facts and essential elements of the charge as mandated by the law. Section 271 (2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07] is instructive, it states when an accused person has pleaded guilty to an offence,

“…the court shall-

explain the charge and essential elements of the offence to the accused and to that end require the prosecutor to state, in so far as the acts or omissions which the charge is based, and inquire from the accused whether he understands the charge and essential elements of the offence and whether his plea of guilty is an admission of essential elements of the offence and of the acts or omissions stated in the charge or by the prosecutor.”

The peremptory provision makes it clear the court is duty bound to explain the facts and essential elements or components of the offence by going through question and answer session breaking down the essential elements in such a manner that an unrepresented accused understands he is pleading guilty so as to endorse a genuine plea of guilty. See S v Gwande and Another 2008 (Z) ZLR 281 H and S v Mangore 1996 (2) ZLR 88 (SC).

A close look at the record of proceedings reveal that the prosecution disclosed the charge of theft of a motor vehicle and sufficient facts were placed before the accused and court of the precise allegations against the accused.

The question is given the charge, facts informing the charge and the record of proceedings can one conclude that the facts and essential elements of the offence were not properly, clearly and adequately explained by the court.

The charge and facts were read to the appellant as captured in the record of proceedings. Further the charge and facts were understood by the accused person. The court then went on to canvass essential elements of theft as defined in s 113 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. A close reading of the section reveals that theft consists of the unlawful taking of another’s property with an intention actual/dolus directos or legal intention occasioned by realisation that is dolus eventualis. Theft simply is unlawful and intentional taking of another’s property without authorisation with an intention to permanently deprive the owner. It is important and worth noting that in canvassing the essential elements of an offence the court ought to know the essential ingredients of the offence so as to avoid being distracted by answers not relevant to the charge before him and erroneously hold the accused guilty or not guilty. The law and essential elements have to be clear. See S v Maselu 2013 (1) ZLR 223 H in which it was stated as follows

“A judicial officer is expected to know the law applicable to the offence charged. This will enable him/her to avoid being distracted by answers not relevant to the issue before him”

In casu essential elements were canvassed on pages 13-14 of the record. The appellant admitted having taken the complainant’s vehicle from AFM church where it was parked. He further admitted to having no authority to take the motor vehicle. Further probing occurred.

“Q.	What did you intend to do with the vehicle?

A.	to drive to our rural areas to celebrate christmas.

Q.	did you realise that by taking the vehicle you would permanently deprive the complainant of his property.

A. 	yes.”

These questions were after the accused admitted and agreed with facts which revealed that the appellant had abandoned the motor vehicle, sold the battery and removed the motor vehicle’s number plates inclusive of the third number plate. Such actions admitted connote intentions to deprive permanently. In the circumstances of this case one cannot successfully argue that essential elements were not properly and clearly canvassed. The unlawful taking coupled with the abandonment of vehicle after sell of battery and removal of number plates speaks volumes to intention. The accused realised that by unlawfully taking the complainant’s vehicle, abandoning it having removed the battery and number plates there was a real risk or possibility that his conduct would lead to permanent deprivation of the complainant of his vehicle. The questions asked after admission of facts and answers given make it apparent that the appellant with the realisation of permanent deprivation went ahead to drive away complainant’s car and then abandoned it in a distorted shape. Worth nothing in this case is the appreciation by the court a quo of the nature of offence and essential elements thereof. The court in canvassing essential elements did not end on actual intention but proceed to the second rung of intention under realisation or legal intention as per the formulation of the charge of theft as defined in s 113 of The Criminal Law (Codification and Reform) Act. Further to confirm the plea of guilty as a genuine plea are the admitted facts outlined of having abandoned the vehicle. Section 115 of The Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:-

“without limiting the expression in any way a person shall be deemed for the purpose   of s 113 act 114 to intend to deprive another person permanently of the person’s ownership, possessing or control of property if:-

Having taken possessing or assumes control of the property, he or she

abandons it without regard to whether or not it is restored to the other person; or ……..”

The appellant in this case did not dispute having abandoned the complainant’s car in a manner indicative of permanent deprivation. The conduct of abandonment of the complainant’s vehicle in this case gives rise reckless disregard of what would befall the motor vehicle. Moreso having removed the number plates the prospects of restoration to the owner were diminished hence the inference of legal intention to deprive the owner permanently. See R v Oliver 1921 TPD 120 and R v Lafate 1922 CPD 487.  In both cases the accused after unlawfully taking vehicles belonging to the complainants abandoned the vehicle and were convicted of theft of respective motor vehicles. The same reasoning was adopted in R v Sibiya 1955 (4) SA 247 AD and 257 the court stated “ it must be borne in mind that even at common law the unauthorised borrower commits theft if he abandons the thing with a reckless disregard for whether it will ever be restored to its owners. In casu the appellant admitted having unlawfully taken the complainant’s vehicle. He admitted to driving for leisure Christmas at his rural home and admitted to removing and selling the battery. He admitted to removing the number plates including the third number plate. The plea recording was with the services of a court interpreter such that questions and answers were given in the language the appellant understood see S v Pikatholo HB 36/07.

The plea of guilty was a plea to a clear charge whose essential elements were properly canvassed in simple language. The facts informing the charge were also read out accepted and understood. The plea was therefore a genuine and unequivocal plea of guilty of theft as defined in s. 113 of the criminal Law (Codification and Reform) Act [Chapter 9:23]. To this end therefore the appeal which has no merit fails.

We now turn to sentence, I am alive to the fact that sentencing domain is a matter of discretion by the trial court as such sentence should not be lightly interfered with by the appellant court. Only in circumstances were it appears that the sentencing discretion was not judiciously exercised will sentence be interfered with. In this case the accused pleaded guilty to the offence and the vehicle in question was recovered. Further the accused was 20 at the time of commission of the offence, and thus a youthful offender prone from external pressure and excitement. All those mitigatory factors coupled with the need to reform and rehabilitate offenders in a progressive society should have weighed heavily in favour of a shorter prison term. In the case S v Chera and another 2008 (2) ZLR 58 (HB) the court made pertinent remarks when it stated,

“The most popular theory today is that the proper aim of criminal procedure is to reform the criminal so that he may become adjusted to the social order. Is it not better to save such youthful offenders for a life of usefulness rather than punish them by lengthy imprisonment which generally makes them worse after they leave than before they entered in an enlightened judicial officer will recognise the futility of severely punishing unavoidable retrogression in human dignity.”

A survey at decided cases of ilk shows the trend of shorter imprisonment especially when the property is recovered see Kasikayi Munetsi v State HB 93/11, S v Hwemba 199 (1) ZLR 234, S v Ronald Ngwerume and Another HH 377/18 and Tembo v State HH146/13. Upon balancing the mitigatory and aggravatory factors and also considering the circumstances of the matter in seeking to strike a balance between the offence and the offender the sentence by the court a quo is too severe and ought to be set aside.

Accordingly it is ordered that:

The appeal against conviction be and is hereby dismissed

The appeal against sentence be and is hereby upheld.

The sentence by the court a quo is set aside and substituted as follows:-

6 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the accused does not within that period commit any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine .

MUZENDA J agrees _____________________

Mugadza Chinzamba & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners