This matter was forwarded to me on review as per the
usual procedure.
On the 20th January 2011,
the two accused locked a consignment of copper cables into a bus destined for
South Africa. At the Beitbridge Border Post, they were arrested after the bus
was searched by police who found the said copper weighing 1621.6 kgs which they
had not declared. They were arraigned before the courts, they pleaded guilty,
convicted and sentenced to pay a fine of $500= each and the copper was
forfeited by the State.
Upon perusal of the record, I
noticed that the learned trial magistrate sentenced them without ascertaining
the value of the copper. I queried this, as I was of the view that it was
improper.
The learned trial magistrate, in
his response, agrees that it was essential for him to know the value before
passing sentence.
Sentencing is the last step in
meting justice on an accused. It is, therefore, necessary that such sentence
should be just to both the State and the accused. That justice can only be
attained if the court passes it after taking into consideration all the important
factors which guide him in that determination.
A sentence where the value of the
subject matter is unknown, either as actual or potential prejudice, is invalid
as it would not have been properly assessed.
What it means is that the ends of
justice would have been defeated. As such, these proceedings are not in
accordance with real and substantial justice. In light of the serious
miscarriage of justice in this matter, the following order is made:
IT
IS ORDERED THAT:
(1) The conviction is confirmed.
(2) The sentence is set aside.
(3)
The matter is referred back to the same magistrate to deal with the question of
sentence in terms of the act after ascertaining the value of the copper.
