The Sunday Mail
Tichawana Nyahuma Legal Matters
There were two recent criminal cases brought before our courts and caused shock and consternation among members of the public with regards to how the respective magistrates who presided over the matters arrived at the sentences they imposed on the convicted persons. The first is the very sad story of Wadzanayi Mabika, the commuter omnibus driver who ran over and killed a Girls High School pupil in a hit-and-run accident in Harare — “the omnibus case”. Mabika was sentenced to an effective jail term of six years and eight months.
The other was the case of Chidochemoyo Munaku who was convicted on his own plea of guilty and was jailed for an effective nine years at Murehwa Magistrates’ Court “for stealing a fore-quarter of a meat carcass worth US$70” — “the carcass case”.
When looked at from an uninformed angle, it is easy to come to the conclusion that justice was not done particularly in the former case where a young girl’s life was abruptly, recklessly and needlessly lost.
I will look at the two cases from a legal helicopter’s vantage viewpoint with the aim of throwing light on how courts sentence accused persons after a trial.
To start with, there are basically two broad forms of crime.
There are crimes that involve intention and others that encompass negligence. The first mentioned are those that involve planning and execution on the part of the criminal. There is a deliberate intention to commit the crime. These are such crimes as assault, robbery, fraud, murder, treason, theft and others of their ilk.
On the other hand, crimes of negligence are culpable homicide, negligent driving, negligently causing damage to property and, so on. The common thread that runs through both species of crime is “the mental element”. The said mental element refers to whether the crime was committed intentionally or unintentionally.
It may, therefore, be said that in crimes that involve intention, it is the “presence” of intention in the mind of the criminal to commit the offence.
In crimes of negligence, it is the “absence” of the intention to commit the offence in the mind of the wrong-doer. In both of them, however, a crime would have been committed.
During the course of a trial, the court is consequently enjoined to, if you want, explore the state of mind of the accused person at the time he committed the offence. Take for example, the crime of fraud, it can never be said under any circumstance that a person committed fraud negligently or accidentally.
By its very nature, fraud is a crime that requires careful planning and execution. Accordingly, a person who commits fraud would naturally possess the requisite mental intention to do so.
The same can be said of the crime of theft. One cannot steal something unless he has the actual intention to do so. There will be present, in the mind of the criminal, the intention to commit the offence.
However, when we look at crimes involving negligence, it is correct to say that the opposite is true. By this is meant that when he committed the offence, the perpetrator lacked or did not possess the requisite mental state of mind being the intention to commit the offence.
When we look at the omnibus case, under no circumstance can it ever be said that when he drove the commuter omnibus at the relevant time on that fateful day, Mabika actually intended to cause the death that then resulted. Mabika was simply reckless, irresponsible and even foolish to act that way. The law calls his conduct negligence.
The result of his negligent conduct is called culpable homicide because it culminated in death, “accidental death”.
It was an accidental death because there was no evidence at all that was placed before the trial magistrate which pointed to or indicated that when Mabika drove the motor vehicle in question in the manner that he did, he consciously and intentionally intended to cause that death. There was, in his mind, an absence of the intention to cause the death.
Coming to the carcass case, it is easy to see that Munaku had the requisite state of mind to commit the offence. It was reported that he sneaked into the butchery’s cold room in which the carcass was stored, presumably armed with a knife by which to execute his mission.
Thereafter, he cut the fore-quarter and sneaked out after which he hid the loot somewhere behind the butchery. He was arrested upon being spotted by another person who was suspicious of his actions.
Now, it cannot be said that when he carried out this series of actions, Munaku was not possessed of the intention to commit the offence. He cannot say that he was merely negligent or that the whole incident happened by accident. Clearly, there was a deliberate intent to steal.
So this then distinguishes the crimes of intention and those of negligence.
But why is that when we look at the sentences imposed in the two cases under discussion, there seems to be an injustice that ensued in that in the omnibus case, where a young life was needlessly lost, the perpetrator “got away” with “only” six years and eight months?
In the carcass case, the criminal who stole a mere fraction of a meat carcass worth US$70, itself really a pittance by any measurement, is doing time for nine years which might be said to be a lengthy prison term.
One might ask, is this logical? How is this so? Where is the justice?
When it comes to sentencing a convicted person after a trial, courts are guided by whether or not it has a discretion in the matter. By discretion it is meant the freedom or latitude to pass a sentence that, in the mind of the court, suits both the offender and the offence.
This, of course, will be done after taking into consideration all the relevant circumstances which include but are not limited to the following: prevalence of the offence, the gravity of the offence, any mitigation or aggravation presented and so on.
If there are any special circumstances associated with how the crime itself was committed, they will also be taken into account as well as the sentences passed to other offenders in similar situations in the past. The sentence itself can range from as little as a warning, community service work, a fine, a term of imprisonment or death. The length of the prison term will also be at the discretion of the sentencing court although the law would normally have already laid out a maximum penalty.
In the omnibus case, the court had that discretion and the sentence it imposed on Mabika was what was fair and just in the eyes of the magistrate who presided.
However, in the carcass case, the court’s discretion was limited.
Contrary to belief, the offender was not charged “with theft of a meat carcass”. He was charged with “stock theft” in terms of Section 114(1)(c) of the Criminal Law (Codification) & Reform Act (Chapter 9;23).
In terms of the code, “livestock” means “(c) the carcass or any portion of a carcass of any slaughtered livestock”. Also in terms of the code, the minimum sentence for a person found guilty of stock theft is nine years in jail unless there are special circumstances.
That is how Munaku was slapped with the lengthy prison term.
Much as this might seem to be out of proportion with the offence charged, the magistrate’s discretion to impose a lesser penalty was curtailed by Parliament when legislators decreed that the minimum sentence in such cases is nine years.
Where a law prescribes a minimum measure of punishment, that is what is commonly referred to as a mandatory sentence.
It is only in exceptional circumstances that a court will impose a lesser penalty if special circumstances are found to exist. By special circumstances is meant “. . . features arising either out of the commission of the offence or peculiar to the offender which are out of the ordinary either in their degree or their nature,” per Justice Takuva in Talent Mtunzi & Anor vs the State (HB45/15).
As a way of checks and controls, the law allows convicted persons to appeal against sentences if it is felt they are too harsh or disproportionate to the offence.
Even where there is no appeal and provided there was legal representation at trial, and where the sentence is in excess of 12 months, the court record is forwarded to a judge of the High Court for further scrutiny and confirmation.
If the judge takes the view that the special circumstances were not considered or that scant regard was paid to them, he will order a reduction of the sentence or even release the prisoner from jail.
The carcass case could have special circumstances.
For instance, the fact that Munaku stole the meat from a butchery tends to work in his favour. It is unlike a situation where he was found in possession of the carcass in a bush. This, coupled with the low value of the carcass suggests, to me, special circumstances.
Any way, the reason why Parliament saw it fit to prescribe such a high minimum penalty for stock theft finds grounding in both the financial and sentimental value of cattle in our society.
Cattle are considered a symbol of wealth and besides, they are also easy to steal as they hardly ever protest even when driven by a stranger.
TichawanaNyahuma is a lawyer and he writes in his personal capacity. Feedback: [email protected]
