MUTEMA J: The
two matters landed on my desk for review, having been forwarded from the office
of the Regional Magistrate in Mutare. Both
were dealt with by the same trial magistrate, who is a provincial magistrate
stationed at Chipinge.
I have decided to review both cases
in one judgment because I formed the opinion that this trial magistrate seems
to have no clue whatsoever regarding basic principles of sentencing.
In the case of State v Ronald Ndangana, for unlawful entry and theft of a
cellphone and charger valued at $45 which was recovered, the 19 year old first
offender accused who had pleaded guilty to the charge was sentenced to 6 months
imprisonment of which 2 months were suspended for 5 years on the usual
conditions of good behaviour by the trial provincial magistrate.
When the matter went for scrutiny,
the learned Regional Magistrate commented on the sentence as follows:
“Is it not that
the sentence you imposed is brutalizing him?...... Won't you think this was
ideal that a sentence of community service should have been imposed? I am
doubtful whether the accused would have refused to do community service if this
was properly explained to him than for him to go to prison”.
In response to the query the trial
magistrate said,
“….
Maybe the explanation by the Court could have been inadequate, leading to the
unfortunate decision to incarcerate the accused. I ….request that if possible,
may corrective measures be instituted”.
The learned scrutiny Regional
Magistrate withheld his certificate and referred the proceedings to this Court.
I am constrained to lend my
excoriating voice to the learned scrutiny Regional Magistrate's sentiments
regarding the trial magistrate's failure to diligently and judiciously
sufficiently explain the benefits of community service to the accused and
convince him to appreciate the same and agree to such sentence, instead of
perfunctorily asking the accused whether he knew “what community service is all
about”. Following accused's answer that he knew very well, the following
exchange ensued:
“Q. Are
you prepared to do community service?
A.
No. I would request to be given an option to pay a
fine.
Q.
Do you have cash?
A.
No”.
In
his reasons for sentence, the trial magistrate correctly observed that
mitigatory factors
far exceeded the
sole exitant aggravating factor he found, viz “prevalence of cases of dishonesty of a major concern”. He
then misdirected himself by reasoning thus,
“It is on this
basis therefore that the court had been very desirous to place the accused on
the community service type of punishment but regretably (sic) is the fact that accused said he would rather prefer to be
given an option to pay a fine when he in fact does not have the money. This is
deplorable and moreso unwarranted for the court to allow an accused person to
choose his own form of punishment. Unacceptable indeed it is. In the circumstances
accused has been incarcerated and with a portion of the sentence suspended to
act as deterrence”.
Regarding the factor of deterrence,
GUBBAY JA (as he then was) stated in S v
Borogodo 1988(2) ZLR 379 (S) at 382H-383 A that,
“what is to be
guarded against is such an excessive devotion to the cause of deterrence as may
so obscure other relevant considerations, as to lead to a punishment which is
disparate to the offender's desserts I cannot conceive of any principle which
can justify, for the sake of deterrence and public indignation, the imposition of
a sentence grossly in excess of what, having regard to the crime and to the
degree of the offender's moral reprehensibility, would be a fair and just
punishment”.
As for the prevalence of an offence,
while it is a relevant and appropriate aggravating feature, it should not be
over-emphasized and should never be regarded as a warrant to impose unduly
harsh sentences: S v Katsaura 1997(2)
ZLR 102 (HC).
On the length of the period of
imprisonment imposed, REYNOLDS J, in S v
Ngombe HH 504-87 at p 2 stated:
“It has been
repeatedly stressed that a sentence of imprisonment is a rigorous and severe
form of punishment, often bearing drastic and destructive consequences for the
accused and the members of his immediate family. This form of penalty should be
resorted to only if absolutely essential in the circumstances of the case, and
only if no other available form of punishment would be preferable and
appropriate”
From the perfunctory manner the
enquiry into the accused's suitability for community service was conducted, it is
crystal clear that the trial magistrate did not genuinely endeavor to eschew imprisonment.
Even if the accused had no cash on his person, he could have been sentenced to
pay a fine and be given time to pay if the trial magistrate had been judicious
and humane enough to avoid brutalizing the young offender by incarcerating him
for such a fairly petty offence. The sentence imposed will not rehabilitate or
deter the accused. On the contrary it is most likely going to achieve the
opposite.
In view of the mitigatory factors,
viz the accused's status as a first offender, his young age of 19 years, his
plea of guilty, the paltry value of the stolen property ($45), coupled with its
recovery certainly merited a non-custodial sentence in any civilized society.
It is only in a medieval society that values human liberty less than a teaspoon
that such a sentence can be imposed, given the attendant facts of this case.
In the result, I too shall withhold
my certificate.
In the case of State v David Dhliwayo the 41 year old accused initially pleaded
not guilty to assault as defined in s 89(1)(a) of the Criminal Law (Codification
and Reform) Act, [Cap 9:23]. The
matter went into a trial. Soon after cross-examining the first State witness
the accused indicated to the trial court that he wished to alter his initial
plea to one of guilty. He was asked why and his answer was that he had found
the evidence overwhelming.
The trial court altered the plea as
requested. The astute public prosecutor requested the trial court to proceed in
terms of s 271(2)(b) of the Criminal Procedure and Evidence Act, [Cap 9:07]. The trial court took no heed
and proceeded to find the accused guilty as pleaded. This constitutes the first
misdirection.
The accused, a first offender who
had had his maize crop nibbled by the 38 year old female complainant's goats
had simply clapped her once on the cheek. Accused is married with three children. He was
sentenced to a whooping 12 months imprisonment of which 3 months were suspended
for 5 years on the usual condition of future good conduct. This constitutes the
second misdirection by the trial magistrate. This happened on 10 March, 2010.
With one third remission, the accused has already finished serving the
sentence. It is not clear when the proceedings were sent for scrutiny but the
learned scrutiny Regional Magistrate first raised the query with the trial
magistrate on 10 June, 2010.
There
are countless review judgments reminding magistrates to comply with the
statutory requirements in the Magistrates Court Act, [Cap 7:10] to expeditiously transmit scrutinable and reviewable
cases for the purpose in order to obviate, inter
alia, unwarranted incarceration of humans who do not deserve such inhuman
and degrading punishment such as happened in
casu.
The
learned scrutinizing Regional Magistrate took issue, rightly in my view, with
two misdirections alluded to supra with
the trial magistrate who lamely and grudgingly conceded his errors.
Regarding the first misdirection, where an accused
enters a plea of not guilty and
subsequently alters that plea to guilty during the
course of the trial, s 271 (2) of the Criminal
Procedure and Evidence Act must be invoked. In casu
the trial magistrate seemed to have
invoked para (a) of that section but went on to impose
a sentence as if he had proceeded in terms
of para (b).
This is incompetent.
Regarding the sentence itself, given the mitigatory
features that obtained, to sentence the
accused to 12
months imprisonment even with 3 months thereof
suspended for a single clap on the cheek offends against all known
tenets of civilized justice. Such a
sentence definitely induces a sense of shock, not only to the convict but to
society as a whole including the complainant herself. In his reasons for sentence the trial
magistrate said accused's plea of guilty should be rewarded. However, it is clear that the trial
magistrate did not actually give sufficient weight to this for he went on to
say “..…the court did not wish to consider community service or option to pay a
fine………for to do so would sort of trivialize the seriousness of this particular
offence. Accused had wasted the court's
valuable time by trying to enter into trial and to change his plea midway on
noticing overwhelming evidence against himself.” This was not a serious offence by any stretch
of the imagination. A custodial sentence
of any duration was not justified given the exitant mitigation vis-à-vis the
pettiness of the offence.
These two cases paint a sad story of a
judicial officer of the grade of provincial
magistrate who not only has no clue regarding sentencing principles but
has a knack for cruelty.
In
both cases it is unfortunate that the two accused have since finished serving their
respective sentences which they
clearly did not deserve. In the event
there is nothing which this court can do to reverse the damage done other than
to refuse to confirm that the proceedings
were in accordance with true and
substantial justice.
MUTEMA J
MTSHIYA J I
agree……………………………………….
