Court name
Supreme Court of Zimbabwe
Case number
SC 49 of 2003
Crim. Appeal 147 of 1999

S v Moyo and Others (147/99) (SC 49 of 2003, Crim. Appeal 147 of 1999) [2004] ZWSC 49 (02 February 2004);

Law report citations
Media neutral citation
[2004] ZWSC 49



















Judgment
No. SC 49/03


Crim.
Appeal No. 147/99








(1)
ROISON MOYO (2) ROBERT MOYO


(3)
MEHLULI SITHOLE (4) MANDLA MLUNGISI NGWENYA





v
THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & CHIWESHE AJA


BULAWAYO,
NOVEMBER 25, 2002 & FEBRUARY 3, 2004








E
E Marondedze
,
for the appellants





Ms
M Cheda
,
for the respondent






CHIWESHE
AJA: The appellants appeared before the regional magistrate,
Bulawayo, charged with one count of armed robbery. They
were all
convicted on their own pleas of guilty. The regional magistrate
then referred the matter to the Attorney-General, as he
felt that the
gravity of the case required the sentencing jurisdiction of the High
Court. The Attorney-General directed, in terms
of subpara (1)
of para (b) of s 225 of the Criminal Procedure and Evidence
Act [
Chapter 9:07],
that the case be transferred to the High Court for sentence.
Pursuant to that directive, the appellants appeared before a judge
of
the High Court. They were each sentenced to eighteen years’
imprisonment with labour. In addition the motor vehicle and
the
three firearms used during the commission of the offence were
declared forfeited to the State.






The
appellants now appeal against the sentence imposed by the learned
judge on the ground that the sentence is so excessive as to
induce a
sense of shock. Further, and in particular, the appellants submit
that the learned judge
a quo
failed to give sufficient weight to the mitigatory features of the
case.






It is
contended that the appellants were young first offenders aged between
twenty-two and thirty-four years at the time and as such
should have
had a portion of the sentence suspended on conditions of good
behaviour. Further, the appellants had offered to pay
restitution.
They were in a position to do so because two of them said they owned
vehicles. It is contended therefore that a further
portion of the
sentence should have been suspended on condition of restitution. By
pleading guilty the appellants had also shown
contrition. The
learned judge
a quo,
so argued the appellants, failed to give sufficient weight to that
fact. If he had, he would have suspended a portion of the
sentence
on that account. It is further submitted that the learned judge
a quo
erred in not giving sufficient weight to the fact that out of a total
value of $1 017 695.00 of the gold and cash stolen
only
$49 307.99 remained outstanding.






In
respect of the first appellant, it is also submitted that because his
motor vehicle was forfeited to the State he had, on that
account,
suffered considerably more than his accomplices.






It is also
contended that the learned judge
a quo
erred in over-emphasising the potential danger of life created by the
appellants’ conduct without giving due regard to the fact
that no
shots were fired and that none of the victims were subjected to harm.
The appellants also argue that the learned judge
a quo
erred in coming to the conclusion that the appellants’ actions were
planned and premeditated in the absence of an investigation
as to how
and why the appellants came to commit the offence.






For these
reasons the appellants urge this Court to interfere with the sentence
passed in the court
a quo.






The question
of sentence lies primarily at the discretion of the sentencing court.
An appeal court can only interfere with the
sentence imposed if
there is an irregularity or a misdirection. In the case of
Ramushu
& Ors v S

SC 25/93 at p 5 it was held:





“… but
in every appeal against sentence save where it is vitiated by
irregularity, or misdirection, the guiding principle to be applied
is
that sentence is pre-eminently a matter for the discretion of the
trial court and that the appellate court should be careful not
to
erode such discretion. The propriety of a sentence attacked on the
ground of being excessive should only be altered if it is
viewed as
being disturbingly inappropriate.”






The
respondent has in principle conceded this appeal against sentence.
In her heads of argument at p 3 Mrs 
Cheda,
for the respondent, states as follows:





“3. It
is respectfully submitted that when considering sentence the trial
court or the judge
a quo
misdirected himself in that he did not pay careful regard to the
appellants’ youthfulness, their pleas of guilty and their offer
or
their ability to pay restitution to the complainant.”





In
my view, the concession is properly made, given the circumstances of
this case. The learned judge
a quo
emphasised the aggravating features to the exclusion (save for lip
service) of the glaring mitigating features of this case. Had
he
adopted a balanced view of the issues relevant to sentence, he would
have arrived at a sentence that fitted both the offence and
the
personal circumstances of the accused persons.





There
is no doubt that robbery is a serious offence, particularly where it
involves the use of firearms. The point made in
S
v Madondo
HH-60-89 is
pertinent. Robbery usually involves premeditation, criminal resolve
and purpose. It requires brazen execution.
It is an attack on a
human victim with the attendant disregard of that person’s right to
personal security. It constitutes a
forceful dispossession of the
victim’s property. For the victim it is usually a terrifying and
degrading experience. The sentence
of the court must reflect the
abhorrence with which the courts view this form of criminal
behaviour. A prison term is normally
imposed for this sort of
offence.





Both
the appellants and the respondent agree that it was appropriate to
send the appellants to prison. It is the duration of the
prison
term that they quarrel with and not without foundation. I agree
that the sentence is excessive and out of line with decided
cases.





In
Ramushu & Ors v S
supra
a gang of youths used an unloaded AK rifle to hold up a jeweller and
robbed him of emeralds valued between $160 000.00 and
$200 000.00.
The youths were aged between eighteen and
nineteen. It was held that the offence had been premeditated and
planned and that the
youths had full appreciation of the consequences
of their actions. It was further held that a period of imprisonment
was called
for despite the youthfulness of the accused persons. The
sentence was twelve years’ imprisonment of which five were
suspended
on conditions of good behaviour and two on condition of
restitution. The total effective sentence was therefore five years’
imprisonment.
It was further held that ordinarily in a case where a
firearm is used and a substantial sum is involved a sentence in the
region
of fifteen years’ imprisonment would be called for.





In
Gorogodo v S
1988 (2) ZLR 378 (S) at 382H-383A, GUBBAY J (as he then was)
stated that:





“What
is to be guarded against is such an excessive devotion to the cause
of deterrence as may so obscure other relevant considerations
as to
lead to a punishment which is disparate to the offender’s desserts.
I cannot conceive of any principle which can justify,
in my view,
for the sake of deterrence and public indignation, the imposition of
a sentence grossly in excess of what, having regard
to the degree of
the offender’s moral reprehensibility, would be a fair and just
punishment.”






In Skenjana
v S
1985 (3) SA 51 (A)
at 541 NICHOLAS JA had this to say:





“My
personal view is that the public interest is not necessarily best
served by the imposition of very long sentences of imprisonment.
So
far as deterrence is concerned, there is no reason to believe that
the deterrent effect of a prison sentence is always proportionate
to
its length. Indeed, it would seem to be likely that in this field
there operates a law of diminishing returns; a point is reached
after
which additions to the length of the sentence produce progressively
smaller increases in deterrent effect, so that, for example,
the
marginal deterrent value of a sentence of twenty years over one say
of fifteen years may not be significant.
”





In
S
v Hwemba

1999 (1) ZLR 234 it was held that a sentence of imprisonment is in
itself a rigorous and severe form of punishment and that where
it is
merited the court must impose the minimum effective period to do
justice to both the offender and the interests of justice.





In
Moyo
& Anor v S

1977 (1) RLR (A) a twenty-year old appellant, who was a first
offender, had pleaded guilty to fifteen counts of armed robbery and
was sentenced to an effective twelve years’ imprisonment, whilst
his thirty-two year old accomplice, who had a previous armed robbery
conviction, was sentenced to an effective sixteen years’
imprisonment.





In
S
v Dumani

HB-64-83 an effective sentence of twelve years’ imprisonment for
three counts of armed robbery was found appropriate.





In
S v Mharadze
SC 49/83
a policeman convicted of armed robbery was sentenced to seven years’
imprisonment.





In
S
v Sidat

1997 (1) ZLR 487 (S) it was stated thus:





“A
plea of guilty must be recognised for what it is – a valuable
contribution towards the effective and efficient administration
of
justice. It must be made clear to offenders that a plea of guilty,
while not absolving them is something which will be rewarded.

Otherwise, again, why plead guilty?”.





This
Court has time and again enjoined judicial officers not to pay lip
service to the mitigatory features of the cases they deal
with, more
so where the accused person is a youthful first offender who has
pleaded guilty and has shown contrition. These mitigatory
features
are all present in this appeal. In addition, the appellants
co-operated with the police during the investigations leading
to the
recovery of almost all the stolen property. One of them offered to
pay restitution to the complainant. The others had
valuable
property and savings. They were clearly in a position to make
restitution. Being unrepresented, the learned judge
a quo
should have ascertained from the appellants the extent to which each
was able to restitute and taken this into account for purposes
of
sentence.





In
the premises, I am of the view that the court
a quo
failed to give sufficient weight to the mitigatory features of this
case. If it had done so, it would have imposed a sentence
appropriate
to the circumstances of this case and in line with
decided cases. Its failure to do so constitutes a misdirection
warranting interference
by this Court.





In
my view, an effective sentence in the region of ten years’
imprisonment would have met the justice of this case.






Accordingly, the appeal against
sentence is allowed and the sentence imposed by the trial court is
hereby set aside and in its place
substituted the following –





“Each
appellant be and is hereby sentenced to ten years’ imprisonment.”








CHIDYAUSIKU
CJ: I agree.








CHEDA
JA: I agree.








Sibusiso
Ndlovu,
appellants'
legal practitioners