KAMOCHA J: The
27 year old accused was charged with theft from a motor vehicle in
contravention of section 113 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. In that on 15 August
2011 at around 0100 hours he stole a Nokia cell phone from a car parked at
number 22 Phakamani, Plumtree. The car was
locked but the accused used some unknown object to unlock it and remove the
mobile phone which had been left on the dashboard of the car.
The complainant who is a magistrate
at Plumtree Magistrates Court disturbed the accused who then ran away but was
eventually arrested. The mobile phone
which was valued at $70 was recovered.
The accused was arraigned at the
Plumtree Magistrate Court where he pleaded guilty and was found guilty as
pleaded. He was then sentenced to
undergo 4 years imprisonment. While the
conviction was proper the sentence imposed is a cause for concern.
When the court asked the accused why
he had committed the offence his response was that he had sometime worked for
the magistrate on a part time basis and had just got tempted.
The court then said the following
before sentencing the accused:-
“You are a first offender.
You pleaded guilty to the offence.
Therefore you did not waste the court's time. You showed contrition and the court interpreted
this as a genuine sign of remorse.
The phone you stole was recovered, therefore, you did not
benefit at all from your criminal enterprise.
However, the offence you committed is very prevalent, therefore, there
is need to deter you and likeminded members of our society.
You betrayed the trust that has been bestowed upon you as an
employee, albeit a temporary employee by stealing from your employer. You showed utter disregard for the law by
stealing from a magistrate. There is
need to show all and sundry that the law has to be respected at all costs.
In view of the foregoing, a
custodial sentence would suffice.”
The court clearly paid lip service
to the mitigating features which it outlined.
It just repeated the mitigating factors without applying its mind to
them otherwise how could it have arrived at a sentence of 4 years imprisonment
for the theft of a mobile phone valued at $70 all recovered. The accused is a first offender who pleaded
guilty.
The court exaggerated the
aggravating features. The trial
magistrate seems to have imposed such a grossly excessive sentence because the
accuse stole from a fellow magistrate.
The sentence is completely out of step.
It induces a sense of shock.
When something like this happens at
a small station like Plumtree Magistrates Court a magistrate from another
station should be called to deal with the matter for justice not only to be
done but to be seen to be done. A
magistrate from another station would not have imposed such an outrageous
sentence in the circumstances. Even if
the accused deserved to be sent to prison the sentence should not have been
disturbingly excessive. It should have
matched the offence and tempered with mercy.
What the accused did cannot be taken
lightly. He went to his former employer
under cover of darkness and broke into the car in order to steal a mobile
phone. He used his prior knowledge of
the area. The trial court was correct in
holding that he deserved to be sent to prison.
The sentence should have been sharp and short.
In the result the sentence imposed
by the trial court is set aside and substituted with the following:
“5 months imprisonment of which 2 months imprisonment is
suspended for a period of 4 years on condition that the accused is not
convicted of any offence of which theft or dishonesty forms an element
committed within that period for which accused is sentenced to imprisonment
without the option of paying a fine”.
A warrant reflecting the new
sentence is hereby issued.
Ndou
J …………………………………………….. I agree
