2
HH 574 - 24
HCHCR 3006/24
THE STATE
versus
ISRAEL MAPFURE
and
CHARLES MURINDA
HIGH COURT OF ZIMBABWE
MAWADZE DJP & MUREMBA J
HARARE, 26 November 2024
Criminal Review Judgment
MUREMBA J: The two accused persons, Israel Mapfure and Charles Murinda, were each charged with and convicted of five counts of robbery and one count of unlawful entry into premises, as defined in sections 126 and 131 respectively, of the Criminal Law Codification and Reform Act [Chapter 9:23] (the Criminal Law Code). They were duly convicted after a contested trial, and I hereby confirm their convictions.
Each accused was sentenced to 10 years’ imprisonment for the first to fifth counts, which were treated as one for sentencing purposes. For the sixth count, each accused was also sentenced to 10 years’ imprisonment. I have reservations regarding the sentence for the first to fifth counts, which I find to be unduly lenient considering the aggravating circumstances under which the robberies were committed.
The facts of the matter are as follows: The two accused persons, aged 22 and 55 years respectively, proceeded to a primary school near their residences in the farming area of Norton. They robbed five teachers between 23:42 and 00:10 in their individual houses and/or rooms at different intervals at gunpoint, using a pellet gun to threaten all the complainants.
In the first count, the accused forced open the complainant’s door and entered. They threatened the complainant, a female, with the pellet gun and took property worth USD 85.00. After robbing the complainant, they locked her inside the house from the outside and left. Only property valued at USD 25.00 was later recovered upon the arrest of the accused.
The accused then proceeded to the second complainant’s house, knocked on the door, and pointed the pellet gun at him when he opened. They demanded his cell phone, and after he complied, they force-marched him to the rooms of the complainants in counts three, four, and five, ordering him to knock on their doors at different intervals. Upon opening their doors, the complainants were ordered to surrender their various properties at gunpoint. From the second complainant, they stole property worth USD 190.00, with nothing recovered. From the third complainant, they stole property worth USD 350.00, with nothing recovered. From the fourth complainant, they stole property worth USD 255.00, with only USD 15.00 recovered. From the fifth complainant, they stole property worth USD 60.00, with nothing recovered.
After robbing the complainants in counts three, four, and five, the accused took the second complainant back to his house and ordered him to sleep. They then went to the headmaster’s office, broke in, and ransacked it, stealing property worth USD 1,800.00, with USD 1,000.00 recovered upon their arrest. After committing the offences in Norton, the accused hired a motor vehicle and proceeded to Gokwe with the loot, where the recovered property was found.
In sentencing the accused, the learned regional magistrate stated in her judgment that for robbery involving a firearm, the normal range of sentence is 12 years’ imprisonment. I disagree with this assertion. Firstly, she did not explain her basis for this statement. However, she did acknowledge that the statutory penalty for robbery, as provided in section 126(2) of the Criminal Law Code, is life imprisonment or any definite period of imprisonment if the crime was committed under aggravating circumstances. She also recognized that the sentencing guidelines, which came into effect in August 2023, provide for a presumptive penalty of 20 years’ imprisonment for robbery committed under aggravating circumstances.
When I queried the learned regional magistrate about the 10-year sentence for five counts of robbery committed under aggravating circumstances, given the presumptive penalty of 20 years’ imprisonment for one count, she replied that her jurisdiction in robbery cases is limited to 12 years under section 51(3) of the Magistrates Court Act [Chapter 7:10]. She provided no further explanation and did not clarify why she considered 12 years’ imprisonment as the normal range of sentence in light of the higher presumptive penalty stipulated in the guidelines.
The belief that her maximum sentencing jurisdiction represents the normal range of sentence raises serious concerns. While adhering to jurisdictional limits is necessary, this view may indicate a disconnect from the sentencing guidelines, which suggest a presumptive penalty of 20 years. It appears the learned regional magistrate has not fully embraced or given due weight to the new sentencing framework. According to section 5(1) of the Sentencing Guidelines SI 146/2023, “Where these guidelines have provided for a presumptive penalty, the courts shall pay due regard to the applicable sentencing guidelines when sentencing offenders.” Section 5(2) further states, “Where a sentencing court departs from a prescribed presumptive penalty as provided for in these guidelines, it shall give reasons for that departure.” This demonstrates the binding nature of the sentencing guidelines on judicial officers. Section 334A (8) of the Criminal Procedure and Evidence Act [Chapter 9:07] reinforces this by providing that upon publication of the sentencing guidelines, courts must pay due regard to them when sentencing offenders and must record reasons for any departure from them. In this case, the learned regional magistrate did not show that she gave due weight to the presumptive penalty or explain her reasons for departing from it, despite her jurisdictional limits.
Judicial officers must recognize that we cannot maintain old sentencing trends and ranges when the sentencing guidelines introduce presumptive penalties not previously part of the sentencing framework. The purpose of the guidelines is to standardize and update sentencing practices, ensuring consistency and fairness. They replace old norms, incorporating contemporary considerations and societal values. Consequently, judicial officers are expected to align their decisions with the guidelines rather than adhering to outdated practices. This shift should result in new sentencing trends that reflect the presumptive penalties and underlying principles of the guidelines, leading to new normal ranges of sentences. These presumptive penalties now set the standard for expected sentences, considering factors such as the crime’s severity, aggravating circumstances, and mitigating factors. Judicial officers should appreciate the impact of the guidelines on sentencing trends. Over time, the guidelines will establish new norms, setting precedents for appropriate sentences for various offences.
In terms of the sentencing guidelines, a robbery offence committed under aggravating circumstances has a presumptive penalty of 20 years’ imprisonment. This is significantly higher than the sentencing jurisdiction of a regional magistrate, which is 12 years for such offences, as per section 51(2)(b)(ii) of the Magistrates Court Act [Chapter 7:10]. The introduction of a higher presumptive penalty indicates a move toward more stringent sentencing for robbery committed in aggravating circumstances. This development impacts the normal range of sentences in robbery cases. The regional magistrate handling this matter should have been aware of this when sentencing the accused. She should have acknowledged in her sentencing judgment that the presumptive penalty exceeded her jurisdictional limits and explained her approach to sentencing the accused in light of this discrepancy.
In cases where the presumptive penalty exceeds the jurisdictional limits of magistrates, they may need to refer such cases to higher courts capable of imposing the appropriate sentence. However, referring matters to higher courts presents its own challenges, such as delayed case resolutions and increased costs for the parties involved. Higher courts are often burdened with complex and serious cases falling within their exclusive jurisdiction. Adding more cases from lower courts could increase the backlog in higher courts. To avoid overburdening higher courts, the solution lies in increasing the sentencing jurisdiction of magistrates so that their jurisdictions align with the sentencing guidelines. Allowing magistrates to impose higher sentences would streamline the judicial process, saving time and resources for both the courts and the parties involved. Additionally, aligning the sentencing powers of magistrates with the sentencing guidelines would promote greater uniformity and consistency in sentencing across different levels of the judiciary. Furthermore, magistrates are more accessible to the public, and increasing their sentencing powers would facilitate quicker case resolutions at the local level.
In the present matter, the imposition of a globular sentence of 10 years’ imprisonment for five counts of robbery committed under aggravating circumstances was grossly inadequate. Considering the seriousness of the offences and the aggravating factors involved (robbing five people at gunpoint in the middle of the night in their separate houses and rooms), a more substantial sentence was warranted to reflect the gravity of the offences. Due to the limitations of her sentencing jurisdiction, the magistrate could have adopted an approach that ensured a fair and just outcome. One option could have been to sentence the accused on a count-by-count basis, imposing her maximum permissible sentence of 12 years’ imprisonment for each count. The approach of sentencing on a count- by- count basis ensures that each offence is individually addressed, reflecting the seriousness of each act of robbery committed.
Unfortunately, the learned regional magistrate, in response to my query about the inadequate sentence, explained that she imposed a globular sentence because the five robbery offences were committed in what she termed a single transaction. She reasoned that it was a single transaction because the offences occurred at the same school, in different rooms, and during the same night. She further noted that the bulk of the stolen property was recovered.
I disagree with the learned regional magistrate’s view that the five counts of robbery were committed in a single transaction. When five people are robbed at the same school in their different rooms and at different intervals during the same night, it constitutes several distinct acts of robbery, not a single transaction. Each incident involves separate victims and distinct actions by the perpetrator, which should be individually considered. Treating these robberies as a single transaction would not accurately reflect the gravity of each offence and the individual impact on each victim. Therefore, it is appropriate to treat them as separate transactions for sentencing purposes. While imposing a globular sentence for multiple counts is not wrong at law, in some cases it may not adequately address the severity and individual impact of each crime. It may not recognize the harm done to each victim or appropriately penalize the accused for each distinct criminal act.
I am aware that sentencing an accused person facing multiple counts on a count-by-count basis can result in an aggregate sentence that is unduly harsh. The solution to this is for the court to order some of the sentences to run concurrently. In this case, given the limitations of her sentencing jurisdiction, the learned regional magistrate could have taken this approach. She could have sentenced each accused person to 12 years’ imprisonment for each count and then decided which sentences should run concurrently. This would have effectively increased the total sentence for the five robbery offences, aligning it better with the severity of the offences committed. Additionally, this approach would have respected the limitations of the magistrate’s sentencing powers while still delivering a more just and proportionate sentence.
With a maximum sentencing jurisdiction of 12 years per count, it is illogical that the learned regional magistrate settled for 10 years’ imprisonment for the five counts of robbery. Twelve years was already significantly below the presumptive penalty of 20 years by eight years. Reducing this further by an additional two years does not make sense. In her sentencing judgment, the learned regional magistrate stated that the accused had been in prison for 11 months, nearly a year, awaiting the finalization of the matter, and this period was considered mitigatory. However, this pre-trial incarceration period does not justify a two-year reduction from 12 years. Having taken an incorrect sentencing approach, the learned magistrate should have simply imposed her maximum sentencing jurisdiction. There was no need to deduct two years from her maximum sentencing jurisdiction, considering that the accused persons had already benefited from an eight-year reduction from the presumptive penalty.
It is particularly concerning that the learned regional magistrate imposed 10 years’ imprisonment for the robbery of five people at gunpoint in their separate houses and rooms, yet also imposed 10 years’ imprisonment for unlawful entry into the headmaster’s office where no person was present. Equating the robbery of five people at gunpoint with one count of unlawful entry, which resulted in the theft of property worth USD 1,800.00 (with USD 1,000.00 recovered), is problematic. It is unclear why a single count of unlawful entry, which posed no danger to human life, would attract the same penalty as five counts of robbery, which posed a significant threat to the lives of five individuals robbed at gunpoint. Does this imply that property worth USD 1,800.00 is more valuable than the lives of five people? In any case, according to the sentencing guidelines, the offence of unlawful entry committed under aggravating circumstances has a presumptive penalty of 24 months’ imprisonment. Why would an offence with such a low presumptive penalty attract a severe sentence of 10 years’ imprisonment in the circumstances of this matter? In her sentencing judgment, the regional magistrate made no mention of this presumptive penalty for unlawful entry. She simply stated, “the presumptive penalty depending on the circumstances of the case.” It is unclear what she meant by this. She then claimed that the normal range of sentence for unlawful entry offences is 10 years’ imprisonment.
It is perplexing that the learned regional magistrate would assert that the normal range of sentence is 10 years’ imprisonment when the presumptive penalty is 24 months’ imprisonment. It seems the magistrate may be conflating her maximum sentencing jurisdiction with the normal range of sentences for particular offences.
The Second Schedule in the sentencing guidelines outlines the structure of the sentencing judgment. According to this structure, the court should specify the normal range of sentence for the offence the accused is convicted of. This should include:
“[Case law in respect to the offence and suggested range and type of sentence. If a presumptive penalty is provided, state as such]”
This guideline explains how to determine the normal range of a sentence for an offence by referring to case law and suggested sentencing practices. This involves examining past judicial decisions related to the specific offence, which helps understand historical sentencing trends and provides a framework for determining an appropriate sentence. The judicial officer should also consult the guidelines that suggest the typical or expected range of sentences for the offence. If a presumptive penalty is available, it should be explicitly stated. A presumptive penalty serves as a recommended starting point for sentencing, reflecting the standard punishment for the offence, unless significant mitigating or aggravating factors are present. It acts as a benchmark for judicial officers when determining sentences.
In essence, the normal range of sentence is shaped by historical case law, recommended sentencing practices, and any applicable presumptive penalties.
The learned regional magistrate who handled this case needs to give due consideration to the sentencing guidelines and presumptive penalties when sentencing offenders. While it may have been appropriate for me to intervene in the 10-year imprisonment sentence for the unlawful entry count, I have refrained from doing so due to the excessively lenient sentence imposed in counts one to five. Reducing the sentence in count six would result in a further miscarriage of justice.
In view of the foregoing, I cannot certify the sentences as being in accordance with real and substantial justice. I therefore withhold my certificate.
In light of the current circumstances and the observations made in this judgment, it is imperative that the legislature urgently revises and increases the sentencing jurisdictions of all ranks of magistrates as provided for in sections 50 and 51 of the Magistrates Court Act [Chapter 7:10]. This revision is necessary to align their sentencing jurisdictions with the presumptive penalties for the various offences they adjudicate.
Regional magistrates, in particular, handle the majority of robbery cases committed under aggravating circumstances. Therefore, it is crucial that their sentencing jurisdiction be expanded to ensure that they can adequately and efficiently impose sentences that reflect the severity of these offences. Current alternatives to increasing magistrates’ sentencing jurisdictions, as discussed in this judgment, are time-consuming, unclear, and sometimes lack rationality depending on the circumstances.
By increasing the sentencing powers of magistrates, we can streamline the judicial process, reduce delays, and ensure that justice is served in a timely and fair manner. This adjustment will also promote uniformity and consistency in sentencing, enhancing public confidence in the judicial system.
I urge the legislature to consider this judgment and prioritize the necessary amendments to the Magistrates Court Act. Aligning magistrates' sentencing jurisdictions with the presumptive penalties will not only facilitate more effective sentencing but will also uphold the principles of justice and equity in our legal system.
Referring such cases for sentencing to the High Court is a cumbersome process that delays the finalization of these matters.
Although the concurrence of another judge is not necessary when withholding certification, I have nonetheless sought the concurrence of Mawadze Djp in light of the novel issues discussed in this judgment.
Muremba J: ……………………………………………
Mawadze DJP agrees: ……………………................................