Criminal
Review
MAFUSIRE
J:
[1] An
integral part of the adjudication process is the exercise of
discretion. It is done judiciously. Whim, caprice, impulse,
irrationality, excitability, emotion, and all the other negative
urges or passions of that nature have no role. There are many
instances when the court is called upon to exercise its discretion.
But it is mostly in sentencing, in criminal matters, that that
function is so pronounced. Ordinarily the doctrine of stare
decisis
ensures that like cases are treated alike. In appropriate situations,
a precedent set in one case should be followed in all other
subsequent cases of a similar nature. But this is only to a degree.
Every case is judged in accordance with the peculiarities of its own
facts and circumstances. And strictly speaking, there are no two
cases that are exactly alike. That is why in sentencing, for example,
penalties may differ from case to case despite the similarities on
the face of them. It is because of the subtle differences that may
exist between seemingly similar cases and the exercise of judicial
discretion by the trial court. Because of that, the appeal court or
review judge, exercises the greatest of restraint before interfering
with the decision of the lower court. There are times when the appeal
court or review judge feels that he could have imposed a different
penalty from that of the trial court, but nevertheless refrains from
interfering because of the realisation that the lower court is
reposed with the power to exercise its own discretion. Only in
instances where the exercise of that discretion by the lower court
was not judicious would the appeal court or review judge interfere.
This particular case is a good example of an injudicious exercise of
discretion.
[2] It
was an ordinary case of unlawful entry and theft. The accused was 21
years old. He “broke into” the complainant's residence. He did
not “break in” in the sense of using force to break down any
barrier. He simply pushed open the door and walked in. It was
unlocked. That was count 1: “Unlawful entry into premises” as
defined by section 131(1) of the Criminal Law (Codification and
Reform) Act, Cap
9:13
(“the
Code”).
[3] Inside
the complainant's residence the accused stole 5 kilogrammes of
mealie meal, a pack of potatoes, a t-shirt and a pair of shorts. The
total value of all the items stolen was $53. The short was recovered.
It was worth $10. Thus, $43 was the actual value of the prejudice to
the complainant. That was count 2 of the charge: “Theft”, as
defined in section 113(1) of the Code.
[4] The
accused pleaded guilty to both counts. He was duly convicted. The
conviction is proper. It is hereby confirmed.
[5] On
sentence, the trial court took both counts as one. The accused was
sentenced to 16 months imprisonment. 4 months were suspended for 5
years on the usual condition of good behaviour. A further 2 months
were suspended on condition the accused paid the complainant $40
restitution. (It should have been $43.) That left him with an
effective 10 months imprisonment.
[6] An
effective 10 months imprisonment for unlawful entry into premises and
theft of items to the value of $53 seemed unduly excessive.
Ordinarily offenders in similar circumstances escape with community
service. So the record attracted my attention. I sought to find out
what it is that had led the trial court to be so harsh. What could
have been the peculiar circumstances of the case? I found nothing
other than plain misdirection by the court. Below are the details.
[7] The
accused was a first offender. The trial court made no mention of
this. He was married and had one child. The trial court said nothing
about this either. He was a pushcart operator earning $60 per month
on average. His savings or assets amounted to just $15 and 5 goats.
Asked why he stole, he said he had no money. Asked where he had put
the items that he had stolen, he said he had used/consumed them, but
that he was willing to pay compensation.
[8] By
all accounts the accused was a poor man. He stole the food items to
eat. The clothes he wore them. It was the pair of shorts that gave
him away. He was putting them on when he was arrested. He had just
been 8 months in the business of cart pushing.
[9] Poverty
does not justify crime. If you are poor and you steal to feed or
clothe yourself you are offending. The law will convict you. It will
judge you. It will punish you. But your sentence should fit you and
your crime. That is where judicial discretion comes in. That partly
explains why one sentence in one case may differ from the other in
another case seemingly of a similar nature.
[10] It
was clear the accused did not steal out of greed or malice. He stole
out of need. The problem is that the trial court took no account at
all of any of his personal circumstances. Not in the least did it
comment on them. So there is no telling to what extent its sentence
was influenced, if at all it was, by the fact that the accused was a
first offender; that he had several mouths to feed; that he had
pleaded guilty and saved time, and, above all, that he had shown
contrition by offering to pay the complainant compensation. That was
part of the misdirection by the court a
quo.
[11] The
other and more serious misdirection by the court a
quo
is what it took into account in arriving at the sentence. Without
commenting on the personal circumstances of the accused, the trial
court went straight to express what should amount to its personal
prejudices or whims. It said:
“The
offence of unlawful entry is a threat to the security of home owners.
Burglars are dangerous criminals. For unlawful entry even first
offenders can be sent to imprisonment. It's an offence which takes
so much courage to commit. The complainant lost $40-00 worth of
goods. It was only out of good fortune that he lost less. But this
does not take away the fact that accused must be sent to jail.”
[12] The
next bit of the court's judgment is rather shocking. The accused
was sent to prison because the court thought the approaching festive
season would be so tempting for him as to re-offend. It said:
“The
approach of [the] festive season is a time where most homes will be
left unattended. During the festive season the accused must be away
from the neighbourhood. The court simply feels imprisonment is the
most appropriate sentence.”
[13] There
is no principle like that. It was wrong for the court to allow itself
to be influenced by such a consideration, especially given that
neither had there been any evidence of such placed before it, nor of
the prosecutor having made such a submission.
[14] Ordinarily,
community service is to be considered in appropriate cases where the
court imposes an effective prison term of 24 months or less. The
court a
quo
did consider it. But it ruled against it for reasons alien to
precedence. The court thought community service is for immature
juvenile offenders only. It said:
“I
would have considered community service had the accused been 18–19
yrs old. At the age of 21 the accused could not be said to be
immature.”
That
was wrong. Community Service is not determined by the age of the
offender. Courts should follow precedence.
[15] In
conclusion, the court went back to its favourite theme of the
approaching festive season. It said:
“The
court has also taken note of the prevalence of the offence in this
district. Deterrence is called for. Accused must be removed from
society during this festive so that homes and homeowners property are
safe; the accused may repeat offend during this festive season which
is a tempting period for burglars.”
[16] The
wrongness of such an approach sticks out. There is no need to
belabour the point. It is hoped the court a
quo
learns something from this. Its sentence in this matter has to be
quashed. Even the sixteen months was excessive to begin with.
Admittedly, count 1 (unlawful entry into premises) was committed in
aggravating circumstances in the sense that the accused entered a
dwelling house
and that he committed some other crime, theft.
The Code prescribes a sentence of a fine not exceeding level thirteen
($3,000), or not exceeding twice the value of any property stolen,
destroyed or damaged by the accused (in this case, $43), whichever is
the greater; or imprisonment for a period not exceeding 15 years, or
both.
[17] For
count 2 (theft), the prescribed penalty is a fine not exceeding level
14 ($5,000), or twice the value of the property stolen, whichever is
the greater, or imprisonment for a period not exceeding 25 years.
However,
the court is empowered to suspend the whole or any part of the
sentence of imprisonment on condition that the accused restores the
property stolen by him or pays the complainant compensation.
[18] In
its discretion, the court a
quo
treated the two counts as one for the purposes of sentence. It could
properly do that. Admittedly, the top ends of the prescribed
penalties for both of these offences are very heavy. But that is to
cater for all the possible ranges of unlawful entry and theft. Prison
should not have entered the court's mind. One cardinal principle of
sentencing is to keep first offenders out of jail where possible,
especially youthful ones such as the accused was. And as pointed out
above, the court had the discretion to suspend the whole of the
sentence for theft on condition of restitution. Furthermore, where a
statute allows the payment of a fine for an offence should be the
starting point for the court.
[19] Having
combined the two counts for the purposes of sentence, and given the
value involved, and given all the other mitigating circumstances such
as the accused's age; his family responsibilities; the fact that he
pleaded guilty; that he was a first offender and the contrition that
he showed, the appropriate sentence should have been no more than 6
months imprisonment, with 3 suspended on condition of good behaviour,
2 suspended on condition of restitution and the remaining 1 month
converted to community service.
[20] Up
to the time of this judgment the accused had already served a month
of his sentence. He should be entitled to his immediate release. In
the circumstances it is hereby ordered and directed as follows:
i/ The
conviction of the accused is hereby confirmed.
ii/ The
sentence of the court a
quo
is hereby quashed and substituted with 6 months imprisonment, of
which 3 months imprisonment is suspended for 5 years on condition
that within that period, the accused is not convicted of an offence
involving unlawful entry into premises, or dishonesty for which upon
conviction he is sentenced to a term of imprisonment without the
option of a fine. A further 2 months imprisonment is suspended on
condition that the accused pays the complainant restitution in the
sum of $43 within 30 days of the date of this judgment.
iii/ Having
already served one month of the prison sentence the accused is
entitled to his immediate release.
iv/ The
court a
quo
is hereby directed to summon the accused and put into effect the
aforesaid altered sentence.
17
January 2019
Hon MAWADZE J: I agree_______________ _______
1.
Section 131(1)(a)
of the Code, as read with subsection (2)(a)
2.
Section 131(1)(a)
of the Code, as read with subsection (2)(e)
3.
Section 113(1) of the Code
