S v HALL 2014 (2) ZLR 278 (H)

Flynote

Criminal law — offences under Criminal Law Code — kidnapping (s 93) — elements — private person detaining employee overnight on suspicion of theft — such detention constituting an attack on and an infringement of the personal liberty of the employee — offence committed

Criminal procedure (sentence) — offences under Criminal Law Code — D kidnapping — prison sentence almost unavoidable — factors to consider

Headnote

The appellant, a company director, had left his wallet, which contained a large amount of cash, in the company vehicle he had been driving before an evening meeting at the company premises. Because that vehicle had a problem, he was given a lift home after the meeting by a fellow director. In the meantime, the complainant, who was a security guard employed at the company's premises, had found the wallet and took it into the office for safekeeping. The appellant, realising that his wallet was missing, went back to the premises. Upon his arrival, the complainant announced that he knew what the appellant was looking for. The appellant orderedthe complainant into the office, together with two other security guards. Inside, the appellant started to count the money, before stating how much he expected to find. After the process he announced that US$1 200 was missing. He ordered that the complainant be searched immediately. The complainant was stripped, frisked and searched in a most humiliating manner. Everyone present was asked to search everywhere for the money. The complainant protested his innocence and asked to be taken to the police as he proclaimed his innocence. The appellant's co-directors also urged him to report the matter and leave the police to deal with the complainant. The hour long search yielded nothing. The complainant was then ordered to dress. Upon being satisfied that the search would not yield anything, the appellant ordered that the complainant be taken intothe workshop and be locked up for the night. The next morning, upon being released from the workshop, the complainant was driven to another part of the premises by the appellant. The appellant later learnt that in fact no money had gone missing in the first place.

The appellant was subsequently charged with and convicted of kidnapping and assault and sentenced to a separate term of imprisonment on each count. On appeal, it was argued that since the complainant was expected to perform his duties around the premises in which he was confined that night till 8 a.m. the following morning, his detention was not unlawful. In any event, the appellant was entitled to effect a citizen's arrest and take steps to recover his stolen property. As such, the appellant acted under a claim of right in effecting such an arrest.

Held, that deprivation of free bodily movement is at the heart of the crime of kidnapping or unlawful detention. The crime constitutes an attack on and an infringement of the personal liberty of the individual. By being confined inside a locked workshop overnight, the complainant suffered a serious deprivation of his liberty. Since the complainant was detained on the orders of the appellant, it was the appellant who was legally liable for any infringement of the complainant's liberty. When performing his guard duties, the complainant exercised free will as to his movement on such duties. On the other hand, once confined to the locked workshop against his will, he clearly could not be free to do that. He was virtually held against his will and imprisoned. Ordinarily, an employee is free to exercise the freedom of movement even if it is circumscribed to a certain area of his jurisdiction. The same cannot be said of someone who is locked up against his will inside a workshop which he was guarding prior to losing his freedom. Once the freedom to move was lost, the right to liberty was infringed and the crime of kidnapping was committed.

Held, further, that the appellant's claim that he had acted under a claim of right in effecting a citizen's arrest could not withstand scrutiny. Whatever good faith he may have had when he initially "arrested" the complainant was destroyed and betrayed by his subsequent behaviour. He was not effecting a citizen's arrest so could not rely on the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07]. The Act permits an arrest by a private person where a First Schedule offence has been committed in that person's presence (s 27); or where the person is involved in an affray (s 28) or such other circumstances as set out in ss 28, 29, 30, 31 and 31A. Where a private person effects an arrest in

Where violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all. They very often rise as a sequel to family tiffs or lovers' disputes, and seldom require anything more than 18 months' imprisonment, and sometimes a great deal less. Among factors deemed as aggravating are the following; degree of planning or premeditation, number of perpetrators, vulnerability of victim, duration of loss of liberty, using, brandishing, threatening with or possession of weapons, other offence(s) committed, sophisticated concealment, unpleasant circumstances of detention, such as degradation, effect upon victim, effect upon persons other than the person kidnapped, particularly family, other offence(s) committed, sinister motive, such as terrorist background, any ransom involved, threats intended to discourage victim from reporting the offence and so on.

Held, further, that a custodial sentence is generally unavoidable for kidnapping, though there is a wide possible variation in seriousness between one instance of kidnapping and another. At the top of the scale comes the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded. Such offences will seldom be met with less than eight years' imprisonment or thereabouts. Where violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all. They very often rise as a sequel to family tiffs or lovers' disputes, and seldom require anything more than 18 months' imprisonment, and sometimes a great deal less. Among factors deemed as aggravating are the following; degree of planning or premeditation, number of perpetrators, vulnerability of victim, duration of loss of liberty, using, brandishing, threatening with or possession of weapons, other offence(s) committed, sophisticated concealment, unpleasant circumstances of detention, such as degradation, effect upon victim, effect upon persons other than the person kidnapped, particularly family, other offence(s) committed, sinister motive, such as terrorist background, any ransom involved, threats intended to discourage victim from reporting the offence and so on.

Held, further, that here, the assault and the kidnapping had been committed during the same time. They were both committed with one dominant intent, which was to punish the complainant for stealing cash. Although a distinct and separate mens rea was required for each of these two offences, the offences were so closely linked as to justify an approach which served to reduce the net effective sentence. The court ought to have ordered the two sentences to run concurrently, to give an effective sentence of 18 months' imprisonment.