S v Makunike (CRB M 75 of 2015; REF NPA 63 of 2015) [2015] ZWHHC 770 (15 September 2015)

1 HH 770-15 CRB M 75/15 REF NPA 63/15 STATE versus VIOLET MAKUNIKE HIGH COURT OF ZIMBABWE CHIGUMBA J HARARE, 16 September 2015 Review Judgment CHIGUMBA J: This is a matter which brings to the fore the question of the circumstances in which it is appropriate for a trial magistrate to refer a matter to the High court for sentencing, upon convicting an accused person in criminal proceedings of a serious nature. This matter was referred to the High Court in terms of s 54 (2) of the Magistrates Court’s Act [Chapter 7:10], as read with s 225 of the Criminal Procedure and Evidence Act [Chapter 9:07] by a Senior Magistrate who had convicted the accused of a charge of kidnapping on 11 April 2015. The magistrate’s ordinary sentencing jurisdiction is: imprisonment for a period not exceeding 4 years or a fine not exceeding level nine. The accused person was charged with kidnapping on alternatively unlawful detention as defined in s 93 (1) (b) (ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it being alleged that; On 7 March 2008 at Kahonde Village, Chief Matombo, not being the lawful custodian of Tatenda Gube, she deprived Tatenda Gube of his right to freedom of movement by taking him to Moroko Village Ramokgwebane Republic of Botswana, intending to deprive Martin Gube, the lawful custodian, Martin Gube of this control over Tatenda Gube, or realising that there was a real risk or possibility that such deprivation may result. A plea of guilty was entered before the trial magistrate at Karoi and the accused admitted that she abducted the minor child and took him across the border to Botswana without lawful authority to do so. She admitted that she intended to permanently deprive the two legitimate custodians of the child of control over the child. The accused told the court that she kept the child from 2008 to 2010. Her reasons for doing were that she was barren and desperate to save her marriage so she stole the minor and presented him to her husband as his biological child borne by her. HH 770-15 CRB M 75/15 REF NPA 63/15 The report prepared by the trial magistrate, in terms s 54 (2) of the Magistrates Court Act states that the minor child was 10 years old at the date of conviction of the accused and that he was yet to be repatriated back to Zimbabwe. In the trial magistrate’s opinion the offence of kidnapping was committed in aggravating circumstances because; (a) of the age of the minor (b) of the fact that the minor was smuggled across the border and was subsequently abandoned there (c) the mental stress and trauma on his guardians who presumed him dead (d) the loss of identity of the minor who has been away from home for 7 years (e) the high moral blameworthiness of the accused and total disregard of the feelings of the child and its guardians and the selfish self interest she exhibited. The trial magistrate considered that the accused had pleaded guilty and showed contrition. He was of the view that there was little to recommend mitigation in respect of the accused. The trial magistrate recommended that a sentence of seven years imprisonment be passed. A stiff penalty was called for as a deterrent in light of the fact that minors are being kidnapped for ritual purposes each day. The record was then referred the National Prosecuting Authority. The National Prosecuting Authority is required to give directions in terms of s 255 (b) of the Criminal procedure and Evidence Act [Chapter 9:07] which reads as follows: “225 Powers of Prosecutor-General Where a magistrate has adjourned a case and submitted a report to the Prosecutor-General in terms of section 54 of the Magistrates Court Act [Chapter 7:10], the Prosecutor-General may— (a) if the magistrate acted in terms of subsection (1) of that section, in writing— (i)… (i) direct that the case be continued by such magistrate; or (iii) where such magistrate is not a regional magistrate, direct that proceedings be commenced afresh in the court of a regional magistrate; or (b) if the magistrate acted in terms of subsection (2) of that section, in writing direct that the case— (i) be transferred to the High Court for sentence; or ii) be continued by such magistrate.” After considering the report submitted by the trial Magistrate the National Prosecuting Authority directed that the record of proceedings be forwarded to us for sentencing. It is this HH 770-15 CRB M 75/15 REF NPA 63/15 court’s considered view, in light of the sentence that it will pass that the National Prosecuting Authority has a duty to carefully consider any request by a trial magistrate to have a matter referred to us for a stiffer penalty; before directing that the record be so placed before us. The National Prosecuting Authority must consider, (a) the relevant provisions of the law in terms of which the accused was charged and convicted (b) the aggravatory and mitigatory factors (c) relevant case law and determine whether if in fact the trial magistrate is correct that a stiffer penalty is appropriate. In my view in this case the trial magistrate misdirected himself when he made a finding that there were aggravatory factors which militated for a penalty that was not within his sentencing jurisdiction. In terms of s 93 of the Criminal Law (Codification and Reform) Act; 93 Kidnapping or unlawful detention (1) Any person who (a) ……… or (b) not being the lawful custodian of the child concerned (i) deprives a child of his or her freedom of bodily movement, intending to cause such deprivation or realising that there is a real risk or possibility that such deprivation may result; or … shall be guilty of kidnapping or unlawful detention and liable A. to imprisonment for life or any shorter period, except in a case referred to in subparagraph B; or B. where the kidnapping or unlawful detention was committed in the mitigating circumstances referred to in paragraph (b) of subsection (3), to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both. ….. (3) In determining an appropriate sentence to be imposed upon a person convicted of kidnapping or unlawful detention, and without limitation on any other factors or circumstances which a court may take into account (a) a court shall regard it as an aggravating circumstance if (i) the kidnapping or unlawful detention was accompanied or motivated by the demand of a ransom for the safe return of the adult or child; or (ii) the kidnapping or unlawful detention was accompanied by violence or the threat of violence; (b) a court shall regard it as a mitigating circumstance if, in the case of the kidnapping or unlawful detention of a child, the accused is a parent of or closely related to the child and the kidnapping or unlawful detention was not accompanied by violence or the threat of violence.” Clearly the trial court correctly convicted the accused person of unlawfully and intentionally depriving the minor child of his liberty of movement. The accused admitted to HH 770-15 CRB M 75/15 REF NPA 63/15 all the essential elements of the offence. I hereby certify that the proceedings before the trial court were in accordance with real and substantial justice. In terms of the Magistrates Court Act s 58 (2) a magistrate can refer a case to this court if he is of the opinion that the appropriate sentence is beyond his jurisdiction. This opinion on the point of the trial magistrate however, is subject to the check and balance that the National Prosecuting Authority must consider and decide if that opinion has any merit in the circumstances of the case, before directing that the matter be placed before us. The National Prosecuting Authority must decide for itself what the appropriate sentence would be in the circumstances instead of rubber stamping the opinion of the trial magistrate. It is not every case in which a trial magistrate forms the opinion that a stiffer penalty - would be more appropriate, which must be referred to us for sentencing unless the circumstances of the case, and the law, support such an opinion. A careful analysis of the issues to be taken into consideration in assessing sentence should be undertaken by the National Prosecuting Authority. The powers of a Judge on a referral for sentencing purposes are set out in the CPEA as follows; “227 Powers of judge in respect of case transferred to High Court for sentence (1) Upon receipt of the documents mentioned in subparagraph (ii) of paragraph (c) of section two hundred and twenty-six, the registrar of the High Court shall with all convenient speed lay them before a judge in chambers and, if the judge considers the proceedings to be in accordance with real and substantial justice, he shall cause the accused to be brought before him in open court, on a date and at a place to be notified by the registrar to the accused and to the Prosecutor-General, to receive sentence in respect of the offence of which he was convicted by the magistrate or such other offence as the judge, in the exercise of the powers conferred upon him by section (2), has substituted for such first-mentioned offence. The judge may in respect of the proceedings exercise such of the powers conferred upon the High Court by subsections (1) and (2) of section 29 of the High Court Act [Chapter 7:06], as may be appropriate. (2) 228 Sentence by judge When an accused is brought before a judge in terms of subsection (1) of section two hundred and twenty-seven, he shall not be called upon to plead to the charge but shall be dealt with as if he had been convicted by the High Court of the offence concerned.” At the hearing of the matter, after confirming that the proceedings of the court a quo were in accordance with real and substantial justice, the court proceeded to consider the following, prior to passing its sentence. In terms of s 93 A or B of the Criminal Law (Codification and Reform) Act a person convicted of kidnapping is liable to life imprisonment or a shorter period, or, where there are mitigating circumstances, to a fine not HH 770-15 CRB M 75/15 REF NPA 63/15 exceeding level seven or two years imprisonment or both. S 93 (3) (b) of the Criminal Law (Codification and Reform) Act provides that where the kidnapping is not accompanied by violence or the threat of violence this shall be considered as mitigatory. Similarly, where there is a close family relationship between the kidnapper and the victim this shall be taken to be mitigatory. In assessing sentence the court should take the following factors for consideration: 1. seriousness of the offence and aggravation Although a sentencing Judge is entitled to take into account individual circumstances of the accused, the nature and seriousness of the crime ought to take precedence in awarding punishment. See Criminal Procedure in Zimbabwe1. In assessing the seriousness of a kidnapping offence, it has been said that: “…it is always a serious offence since it involves deprivation of liberty, particularly freedom of movement, freedom to be where one wants to be…the degree of seriousness of the deprivation nevertheless depends on the period of the detention, the conditions of the detention…” See S v Morgan2.” However in S v F3, it was held that there was no reason to require that the deprivation of liberty or custody should endure for any length of time. It has been suggested that in considering the seriousness of the crime factors such as harm, both actual and potential, gain, both actual and potential, and the prevalence of the offence should be taken into account. See The Magistrate’s Handbook4 2. Mitigating factors i. Motive for the crime It has been held that an offender’s moral guilt and his motive for committing the offence has strong bearing. Kidnapping for the purpose of rape or ransom has generally attracted stiffer penalties. Whereas offenders who have altruistic or other non- violent motives have been treated with leniency. See Moyo5 ii. Plea of guilty 1 1997 @p25-9 2 1993 (2) SACR 134(A) @ 177g 3 1983 (1) SA 747 (O) @751-2 4 G. Feltoe 1992, @p91 5 1979 (4) Sa 61 RZA HH 770-15 CRB M 75/15 REF NPA 63/15 A plea of guilty should attract a discount. See S v Dube6. However, a plea of guilty is not in itself a mitigating factor, there ought to be honest contrition and co-operation with the police before weight can be attached to this factor in sentencing. iii. First Offenders The fact that the accused is a first offender will often be taken into consideration in mitigation in assessing sentence; however it should be weighed with other factors such as the gravity of the offence. ‘The principle is now established that the maximum penalty should be reserved for the most serious offence and persistent offenders. See S v Butau7. The courts have often also taken into account the individual circumstances of the accused, and the incidental effects of a particular sentence on the accused, for example the effect on the dependants and loss of employment. iv. Aims of sentencing Finally, it is important to consider the aims of sentencing in deciding what is appropriate and proportionate in each individual case. Some of the aims of sentencing are; preventive; deterrent; reformative; and retribution. ‘Just as a court should not, in an excess of compassion or pity, show a criminal convicted of a serious and prevalent crime undue leniency, so it should not be over-zealous in its protection of the society, or denigrate the concepts of justice and fairness in relation to the individual offender’. See Khulu8, and S v Chiwome9 v. The normal range of sentencing The normal range of sentencing for a particular offence should not be overlooked in assessing an appropriate sentence. The normal range of sentences for a kidnapping case is three years imprisonment. See S v Ngwenya10. 6 2000(1) ZLR 386 7 1994 (1) ZLR (H) @ 242 8 1975 (2) SA 518 (N) 9 HCA 81-05 10 HCAR 2810-13 HH 770-15 CRB M 75/15 REF NPA 63/15 Reasons for Sentencing Kidnapping is a serious offence which occasions emotional trauma on the victim and on those left behind who assume the worst and fear that they will never see their loved one again. It is important however that the process of sentencing be a rational and objective one and trial magistrates must strive to balance the interests of society and the need to deter other would be offenders. The court must have regard to the rights of the accused to be punished in accordance with the circumstances of the case, and the need to rehabilitate the victim, while appeasing the anger and despair of the victim’s loved ones. Magistrates should not allow their emotions to cloud their judgment as to which sentence is appropriate in the circumstances. In my view, the trial court misdirected itself by alluding to the current prevalence of kidnappings for ritual purposes. No evidence exists in the record of any such motive on the part of the accused. The trial court in effect took an irrelevant factor into consideration. If magistrates allow themselves to be carried away by emotions they may end up exaggerating the seriousness of the offence and imposing a disproportionate penalty for the offence In order for a stiffer penalty to be considered, there must an express finding that there are aggravatory factors from the circumstances of the case. The aggravatory factors include violence or a threat of violence or a demand for ransom. The factors considered aggravatory by the court a quo are not recognised as constituting aggravatory factors in the offence of kidnapping. The trial court again misdirected itself by taking those factors to be aggravatory, such as the age of the victim, the fact that the victim was apparently abandoned in Botswana and so on. Accused is a first offender who pleaded guilty and showed contrition. She is gainfully employed and has two minor children. These are mitigatory factors in s 93 (3) (b) of the Criminal Law (Codification and Reform) Act. A lengthy custodial sentence will have a negative impact on the accused’s minor children and on her prospects of remaining gainfully employed in the harsh economic circumstances. The sentence recommended by the trial magistrate is not in line on the normal range of sentences for kidnapping. A sentence of seven years or more would be excessive and manifestly unjust under the circumstances and would induce a sense of shock. For these reasons, the accused is hereby sentences as follows; SENTENCE The accused is hereby sentenced to four years imprisonment of which one year’s imprisonment is suspended on condition that she does not commit an offence involving HH 770-15 CRB M 75/15 REF NPA 63/15 kidnapping or unlawful detention within the next five years. Effective 3 years imprisonment. The three year effective imprisonment sentence is to be reduced by five months (date of conviction 11 April 2015) for time served since the date of conviction. Effective two years seven months.