The People v Mutale Kabanki (H.N.S. 3/1970) [1970] ZMHC 12 (25 September 1970)

THE PEOPLE v MUTALE KABANKI (1970) ZR 87 (HC) I HIGH COURT 40 GARDNER J 25th SEPTEMBER 1970 H. N. S. 3/1970 Flynote Criminal law and procedure - Robbery - Necessity for violence to be used on 45 the victim with intent to steal - Ingredient of robbery under s. 262 of the Penal Code. ■ 1970 ZR p88 GARDNER J Headnote The accused was charged and convicted of robbery contrary to s. 262 of the Penal Code by a Magistrate Class II. He was committed to the High Court for sentence. The prosecution alleged that the accused was walking behind a 5 lady and then he either pushed or tripped her so she fell down and her handbag containing some money also fell on the ground nearby. The accused ran for about twenty - five yards and then turned round, came back, took the bag and ran away again. In his defence the accused pleaded that he hit the complainant 10 because she abused him as he walked near her. Held: ■ I (i) In order to be guilty of robbery an accused must have used violence with the intention of stealing. Where violence is used with no intent to steal but the accused steals thereafter he is 15 guilty of theft not robbery. (ii) In the instant case since the accused pushed the complainant and then ran away for twenty ■ - five yards before returning to pick the handbag, the assault could not have been with the intention to steal but just an afterthought after realising that it was possible to take the bag. ■ Legislation referred to: Penal Code, 1965 (Cap. 6), ss. 262, 243. Accused in person. State Advocate, for the people. Judgment Gardner J: Mutale Kabanki was convicted by the Magistrate Class II at Chingola on the 8th May, 1970, on a charge of robbery contrary to s. 262 of the Penal Code and he had been committed to this court for sentence. This is not an appeal but before sentencing the accused I propose to exercise my powers of review. The 30 prosecution case was to the effect that PW1 Miss Collen Oliver was going home from work on the 2nd April, 1970, and she had a handbag which contained a total of K32.08. The accused was walking along behind her and the accused either pushed or tripped her so she fell down. The handbag fell about a yard away from her and the accused ran away 35 for twenty - five yards and then turned round and came back and took the handbag and ran away again. PW2 heard the scream of PW1 and saw the accused running away with a handbag. After a chase, during which the accused threw down the handbag, the accused was caught and the handbag was retrieved from where it had been thrown down by the 40 accused. The accused elected to make an unsworn statement and he said that as he was walking close to PW1 she said to him, "Go away monkey", at this he was angry and hit her on her back. PW2 then came and hit the accused and the accused was later arrested by a mine policeman. ■ ■ GARDNER J In his judgment the magistrate noted that the accused admitted having hit PW1 because she had called him a monkey. He found that the accused had run away for some distance and then returned and grabbed the handbag before running away again, and he 1970 ZR p89 I accepted the evidence of PW2 that he caught the accused whilst he was running away with the 5 handbag. The magistrate then went on to say that the only intention of the accused was to run away with the handbag whilst PW1 was still on the ground and that by pushing or hitting PW1 on the back the accused used violence before he grabbed and ran away with the bag. The magistrate completed his judgment by saying, "I am ■ satisfied beyond all 10 reasonable doubt accused used violence on PW1 intending to rob her of the property." Section 262 of the Penal Code reads as follows: "Any person who steals anything and at or immediately before or immediately after the time of stealing it uses ■ ■ ■ or threatens to use 15 actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained shall be guilty of the felony of robbery." I interpret the words "to obtain or retain" as meaning "in order to obtain or retain", that is to say the violence used must be so used with the 20 intention of obtaining the thing stolen. It is quite apparent that if the accused's attack had been with the intention to steal he would have pushed the complainant to the ground and snatched the handbag immediately and run away with it. In this case the accused pushed the complainant to the ground and then ran away immediately for a distance 25 of twenty - five yards before returning to pick up the handbag which had fallen from the complainant's grasp. The assault therefore could not have been with the intention to steal, and the intention to steal was only an afterthought when the accused saw the bag lying on the ground and realised some time later, namely the time that it took him to run away 30 for twenty - five yards and return, that there was an opportunity for him to steal the bag. I do not accept therefore that the accused is guilty of the offence of robbery. It is not clear why the accused assaulted the complainant in the first place. He says that this was because he was insulted, but the 35 complainant denies any insult and the ■ magistrate believed the complainant. It is, however, quite clearly established that he ran away with the handbag without any claim of right and the ingredients of theft are fully proved. I set aside the conviction for robbery contrary to s. 262 of the Penal Code and I substitute therefore a conviction for theft contrary to 40 s. 243 of the Penal Code. The maximum sentence for robbery is fourteen years' imprisonment with hard labour, and the maximum sentence for a first offence of theft is three years' imprisonment with hard labour. The accused has no previous convictions for theft and I take this into account. Sentence, 45 18 months' imprisonment with hard labour. Sentence substituted ■ ■ ■