MATHONSI J: This matter came to me for review in terms of
section 57 of the Magistrates Court Act [chapter 7:10] following the conviction
and sentence of the accused person by the Magistrate Court at Western
Commonage. There has been an extremely
inordinate delay in bringing the matter to finality which is unacceptable
indeed.
The matter was
previously placed before my brother CHEDA J and it is not clear why it was set
down for argument on 19 November 2010.
He later recused himself and it was then placed before me. When I went through the record I ordered the
immediate release of the accused person and said that the reasons will
follow. These are the reasons.
The accused was
convicted on her own plea of guilty on 19 January 2010 of theft in
contravention of section 113 of the Criminal Law Code, [Chapter 9:23]. She was sentenced to 3 years imprisonment of
which 4 months imprisonment was suspended for 5 years on condition she does not
within that period commit an offence involving dishonesty and for which upon
conviction she is sentenced to imprisonment without the option of a fine. A further 6 months imprisonment was suspended
on condition of restitution.
The facts are that the
accused and the complainant are lovers.
She is employed as a hair dresser at Nu Look Hair Salon in Bulawayo
while he is employed by the Veterinary Services Department also in
Bulawayo. On 2 January 2010 the
complainant brought the accused to his house and they spent the night
together. During the night she woke up
as the complainant was sleeping and took the keys to the cupboard which she
opened and stole US$700-00 and
ZAR 5 000-00 belonging to her complainant boy friend.
The following morning
when the complainant discovered that his money was missing, he inquired from
the accused if she had taken it but she denied.
Instead she quickly left the place.
Of the stolen money only ZAR 1 000-00 was recovered.
In considering sentence
the magistrate converted the United States Dollars to South African rands and
came up with a total of ZAR 12 000-00 as the value of the prejudice. It is not clear why he saw it fit to make the
conversion which must have been at a rate of 1 US$ to 10 rands.
When counsel for the
accused person (she had been unrepresented at the trial), perused the court
record for purposes of preparing submissions for review, there were no reasons
for sentence, a point that he took up in his submissions. The matter was referred back to the
magistrate for his response to those submissions. His response reads in part as follows:
''Reasons for sentence were
given ex tempo (sic) in court in the
presence of accused person during the sentence.
It could be the legal practitioner has (sic) sight of the record before
the trial magistrate had placed the same in the record.''
Mr Nkiwane for the
accused has commented as follows:
''When counsel went to look
for the record a considerable time, about two weeks, had elapsed after the
passing of sentence. At that time a
review cover had been completed and the record, according to the clerk of
court, was ready for dispatch to the Criminal Registrar for his Lord - ship's
attention. It was dispatched on 27
January 2010 sentence having been passed on the 13th January. One has difficulty in understanding how a
judicial officer could remember some two weeks later, what he had said orally
without writing in open court. One
should be forgiven for taking the view that the learned trial magistrate
adopted the reasoning process of Shake - spear's characters – starting with the
conclusion and later going back to justify it ---. Had his worship not adopted
the wrong reasoning process, he would probably not have misdirected himself on
sentence, for misdirect himself he did, by exaggerating the gravity of the
offence.''
It is a cardinal
principle of our criminal justice system that before assessing an appropriate
sentence a judicial officer must seriously engage in a pre-sentencing inquiry
in order to gather as much information as possible to enable him or her to
humanely and meaningfully assess sentence.
Sentencing cannot be left to the caprices and instincts of the judicial
officer. A thorough investigation should
be carried out by the judicial officer before arriving at an appropriate
sentence.
Where the judicial
officer gives an ex tempore judgment
with reasons for sentence contained in his head, only to be inserted in the
court record much later, he runs the risk of someone concluding that he did not
apply his mind to the case at hand.
Indeed, it is a misdirection for the judicial officer not to record the
reasons for sentence, a misdirection which entitles the reviewing judge to
tamper with the sentence.
I agree with Mr Nkiwane
that the magistrate may have come up with reasons which were added on long
after the sentence simply to justify the sentence he had already imposed. I can assign no other reason for the fact
that at some stage after sentence the reasons for sentence were missing and he
''placed'' them in the record later.
It is for that reason
that the trial magistrate gave overdue weight to the fact that the accused was
the complainant's girl friend who betrayed the trust bestowed to her by the
complainant. There was an over –emphasis
on the accused's crime which translated to an under-estimation of her personal
circumstances.
The accused is a female
first offender who was aged 37 at the time of the offence. She is unmarried with 4 children to look
after. She stole from her boy friend, a
factor which should have weighed in her favour but which the magistrate elected
to take as aggravation. Surely a person
who steals from a stranger has a higher level of blame worthiness than one
stealing from a lover.
She pleaded guilty
showing remorse and even the state asked the court to have regard to the guilty
plea in assessing sentence. The current
trend is to give a lot of weight to a guilty plea and an accused person who
pleads guilty has to be rewarded by a substantial reduction of sentence in
recognition of that. See S v Dhliwayo
1999 (1) ZLR 229 (H) ; S v Katsaura
1997 (2) ZLR 102(H).
It is not easy to
understand how the magistrate was able to come up with a sentence of 3 years,
if any regard was given to the mitigating factors that exist in this
matter. It is even more difficult to
comprehend how only 4 months of that sentence was suspended on condition of
good behaviour and only 6 months was suspended on condition of
restitution. The question may be asked
why restitute at all if one still remains with such a lengthy term of
imprisonment.
Converting the United
States Dollars component of the offence to rands gave the impression that a lot
of money was involved. The question may
well be asked why the rand component was not converted to United States
Dollars, a more stable currency, so that the value would be reckoned simply as
US$ 1 200-00.
In my view the sentence
imposed was excessive. An appropriate
sentence should have been one which left the accused with an effective sentence
of 12 months.
Accordingly, I make the
following order that;
1. The conviction of the accused be and is hereby confirmed.
2. The sentence of 3 years imprisonment be and is hereby set aside and
in its place is substituted the sentence of 24 months imprisonment of which 12
months is suspended for 5 years on condition the accused does not during that
period commit an offence involving dishonesty for which she is sentenced to
imprisonment without the option of a fine.
3. Of the remaining 12 months imprisonment, a further 6 months
imprisonment is suspended on condition the accused makes restitution to the
complainant of the sums of US $700-00 and ZAR 4 000-00.
4. As the accused has already served the period of 12 months
imprisonment, she is entitled to her immediate release.
NDOU
J....................................... I agree.
S. Nkiwane, Counsel for the
Accused
Criminal Division, Attorney
General's office, Respondent's Legal Practitioners
