CHEDA J: This is a
review case.
The brief facts of the matter are that accused appeared before the
Magistrate Court of the 31st January 2008 being charged with stock
theft.
It is alleged that the accused connived to go and hunt at Two Tree Farm,
Matobo district. While hunting they
spotted a cow which they shot using an AK- rifle. They then skinned it, carted the meat to a
hiding place. The crime was later
discovered by a herdboy who followed the two accused's footprints to their
hiding place. They were then arrested
for this offence.
They were arraigned before the court wherein they pleaded guilty, were
convicted and sentenced to 48 months imprisonment of which 12 months
imprisonments is suspended for 5 years on condition each accused does not
within this period commit an offence of which dishonesty is an element and for
which upon conviction each is sentenced to a term of imprisonment without the
option of a fine.
The learned trial magistrate ruled that there were special circumstances
which caused his departure from imposing the mandatory sentence. To him the special circumstances are that the
accused had compensated the complainant and that they were first offenders. With due respect to the learned trial
magistrate, payment of compensation can never be treated as a special
circumstance. Special circumstances
relate to the commission of the crime and not the circumstances surrounding the
accused himself without more.
That is mitigation.
The following are what the trial magistrate says persuaded him to find
special circumstances:
(1)
that they were members of the armed
forces
(2)
they used their service firearms to kill the beast, and
(3)
that they were employed at the time, therefore
the offence was not committed out of need but greed,
Having found these factors as a fact, it is a
contradiction for him to have departed from the mandatory sentence. If anything these findings are aggravating
and not at all mitigatory.
Accused appeared before him on the 31st
January 2008 and pleaded guilty. He did
not pass sentence on that day but postponed the case to the 17th
September 2008. No explanation is given
for this conduct. It is common cause
that where an accused appears on a plea, the case is invariably finalised on
the same day. In my opinion, the postponement
was ill motivated as it was designed to allow the accused time to pay
compensation thereby receiving a sentence other than the mandatory one. It is clear therefore that the magistrate's
sympathy lay squarely on accused's laps
for one to yield to such unjustified lenience is very unfortunate and it
therefore casts the court in bad light and should be condemned.
This conduct on the part of the magistrate is
condemned.
There has been a serious miscarriage of justice
in this matter as there was no reason why the mandatory sentence should not
have been imposed.
The following is the order:-
(1) The conviction is confirmed,
(2) The
sentence is set aside, and
(3) The
case is referred back to the same magistrate to impose the mandatory sentence
as there are no special circumstances.
Cheda
J..........................................................................
Kamocha
J agrees...........................................................
