CHEDA J: This is an application for bail pending appeal
which was not opposed.
The allegations against applicant which are common cause are briefly
that accused was employed by Volcano Investments, at Beitbridge as a clearing
agent. During his employment he
committed fraud. It is alleged that on
the 3rd day of July 2009 at Beitbridge border post accused together
with two of his
co-accused
persons committed fraud. He was arraigned
before the court and he pleaded guilty and was sentenced as follows:-
“24
months imprisonment, six of which were suspended for three years on condition
that he does not commit any crime involving misrepresentation or fraud and
another six months on condition that he reimburses the complainant Tichaona
Samere US$2000-00 on or before 31st July 2009.”
His companions pleaded not guilty and their trial is pending. Applicant's application for bail is on the
basis that the sentence imposed is too harsh because he is a first offender and
he pleaded guilty which shows contrition.
He also submitted that he did not gain from the commission of the
offence as he was caught red-handed. It
is also his further submission that the offence is a fiscal one. For that reason it should have attracted a
non-custodial sentence, namely community service. The respondent fully supports this stance.
The common position adopted by these courts with regards to bail is that
first offenders should be kept out of custody where possible and that a plea of
guilty should be considered in accused's favour. This, is however, the general rule. In order for a first offender to benefit from
a non-custodial sentence in my view, some of the following factors should be
taken into consideration, the gravity of the offence, prevalence and any other
factors depending on the circumstances of the offence. In casu this type of fraud, where the
state was prejudiced in the sum of $2230-83 can not be by any stretch of the imagination
be regarded as a small amount. The
question of being a first offender to qualify for community service is in my
view unlikely to sway the appeal court to his favour. For that reason, I am not persuaded that his
appeal has any prospects of success.
I am live to the fact that the respondent is not opposed to this
application. There seems to be a popular
but wrong perception that the state's concession to the granting of bail automatically
guarantees applicant's success in his application. The court has the final say after satisfying
itself that the concession made by the state is properly made. The court cannot and should not be used as a
rubber stamp on concessions and/or agreements reached by the applicant and
respondent.
In the circumstances, I am of the opinion that applicant's chances on
appeal are nil.
I find that applicant has failed to prove on a balance of probabilities
that he is likely to succeed on appeal.
This application is accordingly dismissed.
Dube-Banda, Nzarayapenga and partners, applicant's legal
practitioners
Criminal Division, Attorney General's Office, respondent's legal practitioners
