S v Vhare (839 of 2022) [2022] ZWHHC 839 (3 November 2022)

1 HH 839-22 CA 64/22 VENGAI VHARE versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 31 October & 3 November 2022 Criminal Appeal Ms P Mtetwa, for the appellant C Muchemwa, for the respondent ZHOU J: This is an appeal against conviction and sentence on a charge of robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant was sentenced to nine years imprisonment of which two years imprisonment was suspended for five years on condition that during that period the appellant does not commit any offence that has violence on the person of another or dishonesty as an element and for which he is sentenced to imprisonment without the option of a fine. A further two years imprisonment was suspended on condition that the appellant restituted the complainant in the sum of US$3 500 on or before 31 March 2022. The remaining five years imprisonment was ordered to be effective. The court a quo found that on 14 January 2021 the appellant met with the complainant in Mazowe after the appellant had been introduced to the complainant by the latter’s relative, Shepherd Manyange. The appellant had been introduced as someone who was selling a motor vehicle. The complainant was looking for a motor vehicle to purchase. The court a quo further found that the appellant used a firearm, a pistol, to threaten the complainant to relinquish cash in the sum of US$3 500 which the appellant took away. In seeking to challenge the conviction the appellant stated three grounds of appeal. The first ground of appeal is that the court a quo “erred in not giving consideration (to the allegation) that there was bad blood between accused and the complainant from gold dealings they previously conducted.” HH 839-22 CA 64/22 The allegation of bad blood was raised by the appellant for the first time in the appeal. In the defence outline the appellant stated that complainant was his business partner. The learned Magistrate thoroughly examined the allegation of a business partnership in light of the evidence led, and found that was beyond reasonable doubt false. The unchallenged evidence led on behalf of the State from the complainant and Shepherd Manyange was that the complainant had never met the appellant prior to the date of the robbery. He also did not know the appellant until appellant contacted him pretending to be selling a car. As correctly observed by the Magistrate, the appellant’s cross-examination of the complainant majored on what happened after the robbery and not before or during the robbery. Appellant never mentioned the issue of gold dealings during interaction with the investigating officer Moffat Nyakambiri. On the evidence led, the Magistrate correctly rejected the allegation of a gold deal that had turned sour. The second ground of appeal states that the State witnesses were not credible and they were inconsistent in their evidence. No such inconsistences were stated in the appellant’s heads of argument. Indeed, even during the hearing there was no submission made to impeach the witnesses. No evidence of inconsistences was tendered. The court a quo dealt with the issue pertaining to going to Glendale. How and when the complaint went to Glendale was held not to be material. We find no misdirection in that regard. In the third ground of appeal the appellant states that the court a quo erred in convicting him in the absence of recoveries. Appellant submits that because the firearm was not recovered then there was no robbery. This submission has no substance as it is not based on any law. The mere fact that the weapon used in the robbery was not recovered does not mean that the robbery did not take place. The clear evidence of the complainant which was accepted by the court a quo was that the appellant was armed with a pistol. This court has no reason, and none has been advanced, to upset the finding of the court a quo that the appellant indeed used a firearm in the robbery. This ground of appeal is therefore meritless. In relation to sentence, the only ground of appeal is that the court a quo misdirected itself by imposing an effective custodial sentence where a non-custodial sentence would be sufficient. The submission is bad at law. This was a robbery that was committed in aggravating circumstances in that the appellant possessed a firearm that he used to threaten the complainant, see s 126(3)(a) and (b) of the Criminal Law (Codification and Reform) Act. The penalty prescribed in s 126(2)(a) HH 839-22 CA 64/22 of the Act for a robbery that was committed in aggravating circumstances is imprisonment for life or any definite period of imprisonment. In other words, there is no scope for the imposition of a fine or community service if the robbery was committed in aggravating circumstances. An effective sentence of five years imprisonment where a firearm was used to commit a robbery and where nothing was recovered is actually a very lenient sentence. The wide-spread nature of this kind of offence calls for a more severe penalty than that which was imposed in casu. The appeal against the sentence is therefore without merit. In the result, the appeal is dismissed in its entirety. ZHOU J:………………………………………………..................... CHIKOWERO J: Agrees…………………………………………. S Kampira Attorneys, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioner