It is not normally everyday that a simple question leads to a teaching moment, but when you have students it must. As was the case today. Mine was: Is 10 years jail for robbery where only $30 was taken fair?
Having seen news reports and some limited social media comments on the recent robbery case in Plumtree, I was not surprised when one of my students asked me a version of this question. I say a version because the question I got was “if it fair to sentence someone to 10 years for stealing $30?”
As with most things to do with law in Zimbabwe, a lot of people think that they know a lot more than they actually do, and those that know better tend to correct them less than they should.
This has led to a situation where we create narratives that envelope vast swathes of economic, political and social spaces with much ignorance clothed as fact and reason. I hope other nations suffer from the malaise because of its only us, then midzimu yakafuratira kare.
Anyway, to the question.
The first point is that the relevant case did not involve “stealing $30”, but robbing $30. There is a vast difference between the two.
Yes, I know that we (well, at least those of us that did not go to private schools on corruptly awarded scholarships or parents’s labour I suppose) have largely been socialised to think that robbing someone means stealing from them, but it is not.
Theft and stealing refers to the taking of property belonging to another person who is entitled to own, possess or control it and with an intention to permanently deprive that person of the ownership, control or possession thereof.
Robbery on the other hand refers to the use of violence or threat of violence to steal. To put this in simple terms: when no violence is used to take someone’s property, it is theft, but when violence is used, it is robbery.
Nothing in that definition is concerned with the value of that which is stolen: the crime of robbery is committed when violence is used to steal or does any act that constitutes “unauthorised borrowing” of property capable of being taken, with the intention to permanently deprive the owner or other person otherwise in possession or control thereof.
In simple terms, because the Plumtree robbers (not thieves) used a gun to steal the $30, threatening the person in possession of said $30 with violence, they committed an act of robbery.
But, to my student’s real question: is the sentence of 10 years fair when all they got from their victim was $30?
This is where the limited social media comments I have seen have been focused on. Generally, it is agreed by most commentators that this sentence is indeed very harsh. After all, it was only $30!
xamples are given of more serious crimes, alleged crimes and even unfounded allegations that have been made but for which no one was ever charged.
The latter comments tended to be accompanied with comments like “10 years for stealing $30.00 yet there is this”, and “this” is usually a newspaper story alleging some corruption or other, never prosecuted.
Or, equivalence is drawn to some Rushwaya family member’s sentence for a different crime. Even Mnangagwa is thrown in there, despite no actual crime being alleged. And, naturally, everyone’s boogeyman: our captured judiciary.
Because we have all collectively decided that we understand the law very well, these comments are not called out. Lawyers that are of a certain political persuasion which needs not be mentioned herein also join in this game of parsing reason and they say that yes, this sentence is a travesty.
Sadly, the correct position is that the sentences are unduly lenient. With remissions for good behaviour and pardons for all sorts of reasons including reducing overcrowding, the sentences are even shockingly lenient to the extent of encouraging more crime.
First, the philosophical point. The crime of robbery does not punish the robber for the value they steal, but for the act of robbing.
Using values to determine sentences would mean that the law says it is okay to rob poor people, because whatever you take would be of little value and even if arrested you will be out in no time. I think we can all agree that this is not how we want to live in this country.
Second, the legal point. The law is clear that a person convicted of robbery must be sentenced to life imprisonment (or other shorter period but surely with a relationship to life) if the crime was committed in aggravating circumstances.
Where there are no aggravating circumstances, the sentence can be anything up to a maximum of 50 years.
I will say that again: where there are no aggravating circumstances, the sentence can be anything up to a maximum of 50 years.
So, anything from one day to 50 years is okay, provided there are no aggravating circumstances. And, at this point, if you are still with me reader, you are thinking that $30 must justify anything close to a day than to 50 years, and definitely not 20 percent of the maximum.
Well, in this case, you would be wrong.
The law spells out what must be done in robbery cases and defines what are aggravating circumstances in simple terms:
126 Robbery
(1) Any person who steals or does any act constituting the crime of unauthorised borrowing or use of property shall be guilty of robbery if he or she intentionally uses violence or the threat of immediate violence⎯
(a) immediately before or at the time he or she takes the property, in order to induce the person who has lawful control over the property to relinquish his or her control over it; or
(b) immediately after he or she takes the property, in order to prevent the person who had lawful control over the property from recovering his or her control over it.
(2) A person convicted of robbery shall be liable⎯
(a) to imprisonment for life or any shorter period, if the crime was committed in aggravating circumstances as provided in subsection (3); or
(b) in any other case⎯
(i) to a fine not exceeding level fourteen or not exceeding twice the value of the property that forms the subject of the charge, whichever is the greater; or
(ii) to imprisonment for a period not exceeding fifty years;
or both:
Provided that a court may suspend the whole or any part of a sentence of imprisonment imposed for robbery on condition that the convicted person restores any property stolen by him or her to the person deprived of it or compensates such person for its loss.
(3) For the purposes of subsection (2), robbery is committed in aggravating circumstances if the convicted person or an accomplice of the convicted person ⎯
(a) possessed a firearm or a dangerous weapon; or
(b) inflicted or threatened to inflict serious bodily injury upon any person; or
(c) killed a person;
on the occasion on which the crime was committed.
Now, it is very clear, without any shadow of doubt, that this robbery was committed in aggravating circumstances. They had a gun. The victim must have been terrified. A sentence of life imprisonment was warranted. It is precisely because the amount they got away with was only $30 that they equally got away with only 10 years.
That, was unfair to the victim and unduly lenient to the robbers. The PG ought to actually be appealing against this lenient sentence. No matter what street and social media lawyers think or say.
Advocate Tinomudaishe Chinyoka is a lawyer practicing in Harare
