The State v Paul Hari

The accused was charged with theft of an ATM card in contravention of section 113(1)(a) and (d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused stole an ATM card and subsequently used it to purchase goods worth ZW$153,180. He was convicted and sentenced to 12 months imprisonment, of which 3 months was suspended on condition of good behaviour and 3 months suspended on condition of restitution, resulting in an effective sentence of 6 months imprisonment. The regional magistrate raised concerns about whether the charge was appropriate, suggesting that sections 167 and 168 of the Criminal Code would have been more suitable given that the accused used the ATM card to purchase goods. The matter was referred for automatic review.

• Whether the charge of theft of an ATM card under section 113 of the Criminal Code was appropriate in circumstances where the accused subsequently used the card to purchase goods
• Whether the accused should have been charged under sections 167 and 168 of the Criminal Code for the unauthorized use of the ATM card
• Whether the trial magistrate misdirected himself in treating the unauthorized use of the ATM card as an aggravating factor in sentencing rather than as a separate charge

The proceedings were confirmed as being in accordance with real and substantial justice.

The offence of theft under section 113 of the Criminal Law (Codification and Reform) Act is complete when the essential elements are satisfied: (1) taking property capable of being stolen, (2) knowing it belongs to another, and (3) with intention to permanently deprive the owner of ownership. The subsequent unauthorized use of stolen property (such as using a stolen ATM card to purchase goods) constitutes separate and distinct conduct that could be charged under sections 167 and 168 of the Criminal Code. However, the choice of charges lies within prosecutorial discretion, and where an appropriate charge has been brought, the failure to charge additional offences does not constitute a misdirection. Unauthorized use of stolen property may properly be considered as an aggravating factor in sentencing for the theft offence.

The court observed that it would have been competent to charge the accused under sections 167 and 168 of the Criminal Code for the unauthorized use of the ATM card to purchase goods, as the accused's conduct in using the card resonated with the essential elements of those offences. The court noted that the regional magistrate's concern did not extend to questioning the sentence or conviction, but was limited to the choice of charges.

This case clarifies the approach to charging theft offences where stolen property (an ATM card) is subsequently used for further criminal conduct. It confirms that theft is complete upon satisfaction of its essential elements, and that subsequent unauthorized use of stolen property constitutes separate and distinct conduct that could be charged separately under sections 167 and 168 of the Criminal Code. The case also demonstrates the principle that prosecutorial discretion in choosing charges will not invalidate proceedings where the chosen charge is legally appropriate, and that subsequent criminal use of stolen property can properly be considered as an aggravating factor in sentencing even if not charged separately.