S v Damba; S v Chanakira (HH 69 of 2004) [2004] ZWHHC 69 (17 March 2004)

HH 69-2004 CRB C87/03 1. 2. THE STATE versus BERNARD DAMBA THE STATE versus NHAMO CHANAKIRA HIGH COURT OF ZIMBABWE MAKARAU J HARARE 18 MARCH 2004 Criminal Review MAKARAU J: The above two matters raise the same issue and it is convenient that the issue be dealt with in the same judgement. In the first matter, the accused pleaded guilty to one count of assault common and the one count of malicious injury to property. He was duly convicted. On 11 January 2003, whilst outside the complainant's house, he assaulted the complainant with open hands upon her face. The complainant ran indoors to take refuge whereupon the accused forced open and broke the key to the door of the house into which the complainant had run. He also broke the door and shattered two windowpanes to the house. Both counts were taken as one for the purpose of sentence and the accused was sentenced to a fine of $5 000.00 or in default of payment, to 3 months imprisonment. In addition, 3 months imprisonment was suspended on condition the accused paid the sum of $15 500.00 to the complainant. The Regional Magistrate who scrutinized the record of the proceedings in terms of the Criminal Procedure and Evidence Act [Chapter 9:07] queried the propriety of treating the two counts as one for sentence. In response to the query, the trial magistrate was of the view that since the two offences were closely related in terms of time and purpose, she could treat them as one for the purpose of sentence. In the second matter, the accused was convicted of two counts of attempted rape. On 11 January 2004, he attempted to rape the complainant in the first matter who was in the bush, looking for firewood. He approached the complainant suddenly and felled her to the ground. At that stage, the HH 69-2004 CRB C 87/03 complainant's sister arrived at the scene and the accused fled. On 1 February 2004, he approached the complainant who was bathing in a river and, grabbing her by the neck, pushed her to the ground. Whilst the complainant was on the ground, he attempted to insert his penis into her vagina but was overpowered by the complainant. The complainant's father arrived at the scene and the accused fled. Both counts were treated as one for the purposes of sentence. The accused was sentenced to 36 months imprisonment. In addition, 2 years imprisonment that had been suspended for an earlier transgression was brought into effect. The approach that a sentencing court should take in a case where the accused stands convicted of multiple counts has been dealt with extensively by this court. The position at law is quite settled and simple in my view. It was spelt out in S v Chawasarira 1991(1) ZLR 67 (HC) at 69 by SMITH J in the following words: "Separate punishments should, save in exceptional cases, be imposed for each separate charge. One globular sentence for two or more offences should only be considered where the offences are of the same or similar nature and are closely linked in point of time. If these two requirements are not satisfied then a separate sentence must be imposed in respect of each offence." In arriving at his decision, the learned judge was persuaded by the views expressed in two South African cases that followed the English practice of entering judgement and sentence separately for each charge. These views were expressed in the cases of S v Nkosi 1965 (2) SA 414 (C) and S v Leshaba and Others 1968(4) SA 576(T). In S v Leshaba (supra), the rationale for entering judgement and sentence on each separate charge was given as the need to attach relevant importance to each transgression. This view also appeals to me and in my view, lays a sound basis for imposing a separate sentence for each conviction generally unless the exceptional factors referred to by SMITH J are present and the resultant sentence will not distort the gravity of each conviction. The approach enunciated by SMITH J in the Chawasarira case was approved of by CHATIKOBO J in S v Mudzingwa 1999(2) ZLR 225 (HC) and by HH 69-2004 CRB C87/03 GILLESPIE J in S v Sawyer 1999(2) 390 (H). The approach that a sentencing court must take in sentencing an accused convicted of more than one count can in my view be summarised as follows: 1. The general position is to impose a separate sentence for each conviction. 2. Where the multiple counts are similar in nature and not merely kindred, and are closely related in terms of time, the sentencing court has an option to either take each count separately or to take all counts as one. 3. The option to take all counts as one need not be taken. It is however preferable that it be taken. 4. The option to take all counts as one is not available where the multiple charges are not similar in nature, even if they are closely linked in terms of time. 5. The option to take all counts as one is not available where the multiple counts are not closely linked in terms of time even if they are similar in nature, unless they are committed as part of an ongoing course of conduct especially in fraud and theft by conversion matters, involving the same complainant and using the same modus operandi. GILLESPIE J succinctly summarises points 4 and 5 the above in S v Sawyer at 393 B when he said: "Where the counts are all disparate in name and nature, time or circumstances, then it is improper to impose a globular sentence". In the first matter under review, the accused was convicted of two offences that are different in nature. The different nature of the offences makes it improper to impose a single sentence in their respect although they were closely linked in terms of time. According to the ratio decidendi in Chawasarira case, the two criteria have to be met before the sentencing court may impose a single sentence. In this case, the facts fail the test on the first rung. The imposition of a single sentence for the two offences blurs the relevant importance that the sentencing court attached to each transgression. The impropriety of the sentence is further revealed when one has regard to the second part of the sentence. The accused was sentenced to 3 months imprisonment, wholly suspended on condition he paid to the complainant the sum of $15 500.00 representing the value of the damaged HH 69-2004 CRB C 87/03 property. In this case, fortuitously, the accused had indicated a willingness and ability to pay the compensation to be ordered. Assuming the same sentence had been passed on an accused without the means to pay the compensation, that accused might have to serve a term of imprisonment for common assault had he failed to pay the value of the damaged property. This would outrage the public's sense of justice. A single sentence for disparate offences is undesirable and improper as it does not give the relevant importance to each transgression and may bring the administration of justice into disrepute. A further practical complication that may arise is in suspending a portion of the sentence on account of good behaviour. It would not only be difficult but most inelegant to frame the condition upon which to suspend a portion of the sentence where the accused stands convicted of two different offences. I now turn to the second matter. The accused was convicted of two counts of attempted rape. The complainants in the two counts are different. The offences were committed on different dates and in different circumstances. It is accepted that the two convictions are for the same offence and that the accused used a similar unsuccessful approach in each case. He would suddenly pounce on unsuspecting women whom he perceived to be alone. The offences are however separate and distinct. They are disparate in terms of circumstances and in terms of time. In the first count, the complainant's sister disturbed the accused after he had felled the complainant. In the second count, the accused approached the complainant who was bathing in the river. She was without her clothes for the purposes of bathing and was thus more vulnerable. The accused went a step further in the second matter and may have succeeded in raping the complainant had she not overpowered him. In my view, the circumstances of the second matter make the attempt therein more serious than in the first count and thus deserving of stener censure. To treat both as one for the purpose of sentence blurs the relative degrees of the gravity of each offence. It is on this basis that the approach becomes improper. In the result, in respect of the first matter, I make the following order: HH 69-2004 CRB C87/03 The sentence imposed by the trial court is hereby set aside and is substituted by the following: "Count 1. A fine of $2 000.00 or in default of payment, 4 days imprisonment. Count 2. A fine of $3 000.00 or in default of payment, 4 days imprisonment. In addition 3 months imprisonment is wholly suspended on condition the accused pays the sum of $15 500.00 to the complainant through the Clerk of Court, Chiredzi by 30 April 2004." In respect of the second matter, I decline to certify the sentence as being in accordance with real and substantial justice. GOWORA J agrees.