Review
judgement
MATHONSI
J: The trial magistrate in this matter has seen it fit to provide
early comic relief for 2015. In response to a query raised as to why
he sentenced the two accused persons each to 20 years imprisonment of
which 1 ½ years imprisonment were suspended on conditions upon
convicting them of one count of stock theft involving 2 beasts, this
is what he had to say:
“The
above matter refers and in particular to the review minute by his
Lordship Justice MATHONSI where he queried why the accused were
sentenced to 20 years when the mandatory minimum sentences (sic)
of 9 years is on its own already stiff. The trial magistrate opted
for the 20 years for the following reasons:
-
The
accused's conducts are more reprehensible as they stole cattle on
the eve of the rain season. Moreso, they stole oxen which are
critical at this stage of the season. They deprived the owner of
the beasts which are vital to conduct his farming and usher misery
into that household.
-
The
accused executed their criminal enterprise under cover of night and
moreso entered a kraal to execute their crime.
-
Accused
are rural dweller (s) who should have protected the cattle of their
fellow rural dweller.
-
Accused
were motivated by economic gain as they intended to sell and indeed
sold the beasts.
So
as a result of these aggravatory factors which are reprehensible, the
court found that the minimum mandatory sentence would not meet the
justice of the case, that is why it opted for a 20 year jail term.”
Never
mind that there was not the slightest of evidence placed before the
court in respect of all that the trial magistrate so gratuitously
alluded to. The state never led evidence in aggravation of sentence.
In fact the prosecutor did not even address the court on sentence.
The court was still able to find those facts clearly because the
trial magistrate allowed his mind to wander into the unknown, thereby
going astray and completely losing focus on the mandatory sentence to
be imposed.
The
2 accused persons, both aged 27 years, were arraigned before a
magistrate at Chitungwiza facing one count of stock theft, it being
alleged that on 11 September 2014 (certainly not “the eve of the
rain (y) season”) at Farm 74 Muda, Beatrice, they unlawfully took
two oxen belonging to the complainant, drove them to a nearby bush
where they slaughtered them. They hired a vehicle to ferry the
carcasses to Tomson Farm in Beatrice but were spotted by an informer
offloading them into the second accused's house. When the Police
were notified they searched the house and recovered the carcasses
leading to the arrest of the accused persons.
The
2 accused persons pleaded guilty and when the court found no special
circumstances as would enable it to impose a sentence other than the
mandatory sentence of 9 years provided for in s 114 (2) (e) of the
Criminal Law Code [Cap
9:23],
it sentenced each of them to 20 years imprisonment of which 1 year
imprisonment was suspended for 5 years on condition that each accused
person does not within that period commit any offence involving
dishonesty for which upon conviction he is sentenced to a term of
imprisonment without the option of a fine. A further ½ year
imprisonment was suspended on condition that each accused person
restitutes the complainant a sum of $800-00 (the value of each beast)
by 16 October 2014.
In
arriving at that sentence the court gave its reasons as:
“Accused
pleaded guilty showing contrition and were candid and open with the
state, police, the complainant and the court at large in avoiding a
protracted trial. A plea of guilty is essential for the effective
and efficient contribution to the administration of justice.
Accused
is (sic)
a first offender to whom there is an emphatic general policy to the
effect that wherever possible first offenders should not be sent to
prison for fear of being contaminated by hardened and determined
criminals. Imprisonment has various deleterious effects ranging from
regulation of one's personal life to personal liberty.
However,
this offence is on the increase and there is need for personal and
general deterrence. Accused benefitted from their crime when crime
must not benefit the offender. So accused's plea of guilty does
not show any contrition as they benefited from their crime. Accused
were motivated by economic gain as they intended to sell the
livestock they stole. Zimbabwe is a cattle country, that is why in
our national highways there are sign posts of cattle crossing the
roads for motorists to be wary of such cattle. This stresses the
importance of cattle. A loss to an ox at this eve of the rain season
or ploughing season would bring misery to the complainant's
household. They are deprived of their oxen which are their ploughing
tractors. Oxen are castrated to devote most of their energies to
ploughing. They are a source of draught power. Cattle are a source
of meat and cash to the owner.
Cattle
are used to pay lobola and there is no valid marriage at customary
law that can be entered without the payment of cattle.
Accused
committed this offence under cover of darkness and offences of this
nature are difficult to detect and bring criminals to book. Accused
therefore premeditated over their offence and struck at nocturnal
hours. Accused could not expect the owners of the cattle to employ
security guards to guard their kraals when retired to bed. Accused,
as rural dwellers they know the importance of cattle and had a duty
to protect them. An effective term of imprisonment which is
prolonged is called for as there are no special circumstances.”
What
a mouthful. Just where did the magistrate get all this from?
Certainly not from the record before me. I have said that the
magistrate let his mind wander and he lost track. Nothing
underscores the importance of giving reasons for sentence more than
the above cited passage of the record. It is imperative that reasons
for any decision, including sentence, be given to show that the
judicial officer has heard the evidence and arguments for each side
and has not taken into account extraneous considerations: S
v
Mkali
& Ors
HB23/93. See also the Magistrates Court (Criminal) Rules, 1966.
In
this case, the magistrate did not bother to gather necessary
pre-sentencing information relating to the particular accused persons
but had certain of his views stored in his mind which he ventilated
and then drew the conclusion that the accused persons needed to be
incarcerated for a “prolonged” period without regard to the penal
provisions of the Act.
It
should always be borne in mind by all those entrusted with the
responsibility of punishing offenders that sentencing is a process
which should be approached rationally and objectively. Magistrates
should not let their emotions cloud their judgment on what is an
appropriate sentence or allow themselves to be carried away by
imagination as this may lead to them exaggerating the seriousness of
the offence and the imposition of a disproportionate sentence; S
v
Harington
1988
(2) ZLR 344(S).
I
am also concerned about the gratuitous statements made by the
magistrate in sentencing the accused persons, statements so detached
from the facts at hand that they could have only been imagined. It
has always been said that while it is proper to express disapproval
of the criminal misconduct in formulating the sentence, the use of
extravagant and overblown language should be avoided: S
v Mahati
1988
(1) ZLR 190 (H).
Pruned
down to the bare bones of the matter, the accused persons were
convicted of one count of stock theft and the mandatory sentence for
that is 9 years imprisonment in the absence of special circumstances.
What appears to have played on the mind of the magistrate is the
fact that 2 beasts were involved. He probably thought that theft of
each beast and not the count should be visited with its own 9 years
imprisonment. Otherwise how else can one explain the sentence of 20
years? Whatever the case, it was a misdirection calling for
interference with the sentence.
The
penal provision for stock theft shows that the legislature wanted to
impose a deterrent sentence in respect of a prevalent crime. The
penalty is severe enough without the court having to add to it even
though the court has a discretion to impose a sentence of up to 25
years : S
v Zulu
HB174/11;
S
v Chitukula
& Ors
HH155/12.
In
my view nothing would be achieved by suspending a small portion of an
otherwise very stiff sentence on conditions. If a court considers
suspending part of the sentence on conditions, it must make it
possible for the affected person to fulfil the condition: S
v Mukura
& Ors
2003 (2) ZLR 596 at 599 H. If a person is already serving a minimum
of 9 years imprisonment, he would have no motivation to restitute and
avoid 6 months imprisonment. It's a futile exercise.
In
my view, the mandatory 9 year term is deterrent enough and
considering that 2 beasts were involved a further term of
imprisonment suspended on condition of future good behaviour is
sufficient recognition of the number of animals involved.
In
the result, it is ordered that:
-
The
conviction of the 1st
and 2nd
accused persons is hereby confirmed.
-
The
sentences imposed on the 1st
and 2nd
accused persons are hereby set aside and in their place is
substituted the following:
“Each
accused person is sentenced to 12 years imprisonment of which 3 years
imprisonment is suspended for 5 years on condition he does not during
that period commit an offence involving dishonesty for which upon
conviction he is sentenced to imprisonment without the option of a
fine.
Effective
sentence: 9 years.”
MAWADZE
J agrees …………………
