MATHONSI J: The
2 accused persons were convicted of 1 count of contravening section 40 of the
Road Motor Transportation Act, Chapter 13:15 (not Chapter 20:10 as cited in the
record). The 1st accused Joe
Gutuza was sentenced to 18 months imprisonment while the 2nd accused
Munyaradzi Masawu was sentenced to 20 months imprisonment. Nothing was suspended on each of the sentences.
The allegations against the accused
persons are that on the 8th December 2010 they were touting for
customers at Plumtree Border Post. They
were then arrested and taken into custody before appearing before the trial
magistrate on the 10th December 2010. They both pleaded guilty and upon conviction
they were sentenced as aforesaid.
In arriving at the sentences the
trial magistrate took into account that the 1st accused had 2
previous convictions, the first one of which relates to contravening section
113(1) of the Criminal Law Code, Chapter 9:23, that is theft while the second
one relates to contravening section 4 as read with section 3(1) of the Domestic
Violence Act, Chapter 5:16. Both
convictions arose in 2009.
In respect of accused 2 the trial
magistrate took into account 2 previous convictions. In the first one he was convicted of theft on
18 June 2010 and sentenced to 3 months imprisonment while in the second one he
was convicted on 19 October 2010 of contravening section 40 of the Road Motor
Transportation Act, touting. The trial
magistrate strongly rebuked them for coming back to court for the third time
suggesting that they “have chosen the path of crime” and have “refused to
reform”. After discounting all other
forms of punishment he settled for imprisonment “with no part suspended to show
the court's disdain to the path of life” they had chosen.
I am of the view that the magistrate
misdirected himself in considering the previous convictions of the accused
persons (except for the one where the 2nd accused was convicted of
contravening section 40 of the Road Motor Transportation Act), as these
convictions were irrelevant and had no bearing whatsoever on the charge they
were now facing. It is this misdirection
which clouded the trial magistrate's reasoning as exhibited by the rebuke he
directed at the accused persons.
There was absolutely no basis for
sentencing the accused persons to such lengthy terms of imprisonment for
touting which is a far less serious offence.
In the process the trial court completely ignored the penalty provided
for in the Act. Section 40 provides:-
“If the operator, driver or conductor of an omnibus or any
person acting on behalf of such operator, driver, or conductor, by troublesome
and frequent demands or by persistent following holds out the omnibus for hire
to the public or acts in any way so as to cause annoyance or inconvenience to
any other person, he shall be guilty of an offence and liable to a fine not
exceeding level 4 or to imprisonment for a period not exceeding 3 months or to
both such fine and such imprisonment.”
A level 4 fine is an amount of
$100,00 which clearly illustrates that the offence created by the section is
not a serious one at all. How the
magistrate was able to fathom the sentences he came up with is not easy to
comprehend. No reason was given for
overlooking the sentence of a fine other than to say that “a fine will not meet
the justice of the case.” How a fine
would not be appropriate when the enabling statute provides for it is not
explained.
It is trite that where a statute
provides for a sentence of a fine and imprisonment, the court must give effect
to a fine in the first instance and reserve imprisonment for the more serious
breaches – see S v Mlilo HB-131-10 at p 2; S v Banda
HB-67-10 at p 3. In sentencing the
accused persons the way he did the magistrate fell into error as the
appropriate sentence should have been a fine.
The same applies even to the 2nd
accused because the fact that he was previously convicted of touting on only
one occasion would not suddenly elevate a fineable offence of $100,00 to the
status of such serious offence as would attract a lengthy imprisonment period
imposed in this case.
In the circumstances, while
confirming the convictions, I quash the sentences imposed by the trial
magistrate. Considering that the accused
persons have already served a month in prison, they are therefore entitled to
their immediate release.
Accordingly, it is ordered that:-
- The conviction of the accused
persons stands.
- The sentences imposed against 1st
and 2nd accused persons are hereby quashed and in their place
is substituted a sentence of 30 days imprisonment for each accused person.
- As both have already served that
period they should be released immediately.
Ndou
J …………………………………………………………………. I agree
