MATHONSI J: The Appellant was charged with two counts of contravening
Section 113 of the Criminal Law (Codification and Reform) Act, [Chapter
9:23]. The first count related to
contravening section 113(2)(d) it being alleged that during the period
extending from 21 January 2009 to 24 April 2009, whilst employed by the
complainant Style Zone (Pvt) Ltd in Gweru as a manager, he had received various
sums of money which he held in trust for his employer. During that period he converted various sums
of money totalling US$3376-00 to his own use and nothing was recovered.
The second count related to contravening section 113(1)(a) and (b) of
the Criminal Code it being alleged that during the same period he had stolen
clothing belonging to his employer the total value of which was US$90-00 all of
which was recovered.
The Appellant appeared before the Magistrates Court in Gweru and pleaded
guilty to both charges and was duly convicted and sentenced, in respect of
count 1, to 24 months imprisonment of which 6 months imprisonment was suspended
for 5 years on condition he does not within that period commit a similar
offence. A further 10 months was
suspended on condition of restitution.
In respect of count 2, he was sentenced to 6 months imprisonment which
was wholly suspended for 5 years on condition of good behaviour.
The Appellant was then left with an effective sentence of 8 months
imprisonment assuming he made restitution.
He was aggrieved by that sentence and appealed to this court against
sentence only. His grounds of appeal as
appear on the notice of appeal dated 22nd May 2009 are as follows:-
“GROUNDS OF
APPEAL
The Court a quo
erred in meeting (sic) effective 8 months imprisonment for theft by conversion
in view of the Applicant's mitigatory circumstances.
(1) The court a quo erred in
not considering community service as competent punishment.
(2) The court a quo erred in
not considering a fine as punishment
(3) The Court a quo erred in
holding imprisonment as the only deterrent punishment.
(4) The Court a quo erred in
holding that the case was only committed out of greediness when the Applicant
explained the reasons for the committed (sic) of the offence.
(5) The sentence imposed by the Court a
quo induces a sense of shock as it is manifestly excessive in the
circumstances.
(6) The Court a quo erred in
not considering that the Appellant is 21 years of age and capable of
correction. WHEREFORE, Appellant prays
that the sentence be squashed (sic) and replaced by a non-custodial sentence of
a fine or community service.”
In advocating for community service as punishment
against the Appellant, Mr Dube relied
heavily on the case of S v Gumede
2003(1) ZLR 408. In that case the
accused was aged 15 years and was charged with assault with intent to do
grievous bodily harm. The Court reasoned
that Courts should regard community service as their first port of call when it
comes to sentencing and went on to say:-
“Our sentencing
policy has changed as it is now focusing on non-custodial sentences for less
severe crimes. Where a Court contemplates
a prison term of less than 24 months imprisonment it should, as a rule,
consider community service first.”
See also S
v Mabhena 1996(1) ZLR 134(H)
It was further argued that the Appellant had
committed the offence out of immaturity he having stolen in order “to please
(his) girlfriend” and that as a youthful first offender he was still capable of
correction.
The Appellant is indeed a young first offender who
pleaded guilty to the charges. Young
offenders as well as first offenders should, as much as possible be kept out of
prison. In fact it is now generally
accepted that imprisonment is a severe punishment which should be considered as
a last resort S v Mpofu (2) 1985(1)
ZLR 285(H)
As pointed out in S v Madembo and Another 2003(1) ZLR 137 at 140 B-D;
“Judicial officers
have often been criticised for failing to take into account factors of
mitigation in assessing sentence even where, as in this case, they said that
they did so. In some instances, they
have been criticised for failing to accord due and appropriate weight to
factors of mitigation. In other cases,
they have been criticised for paying lip-service to those factors. In S v
Buka 1995(2) ZLR 130(S) EBRAHIM JA said that judicial officers do not
always give sufficient weight to a plea of guilty.”
In that case the court went on to say that where
a judicial officer has accepted any factor of mitigation he must clearly
specify the amount by which he has reduced the sentence on account of that
factor.
In cases of theft, as in this particular matter,
restitution is also an important component of the sentence. This addresses the concerns of the
complainant who has to benefit from the recovery of the stolen property. R v
Zindoga 1980 RLR 86 (AD) Society is interested in restitution as the complainant
would be content while the accused also attempts to restore his status in
society.
In S v
Mabhena (supra) at 140 C-F ADAM J said:-
“It must be
reiterated that it is of vital importance that all presiding officers should,
when dealing with first offenders, initially consider what would be an
appropriate sentence in the circumstances of that particular case. Once a magistrate comes to the conclusion
that, a sentence of 12 months effective imprisonment or less would be adequate
in such a case, he should then, if he is exercising his discretion property
under section 358, give due consideration to the options provided under that
section. Failure to do so including
providing specious reasons will result in this court either altering the
sentence of declining to certify the proceedings as being in accordance with
real and substantial justice----. This
court has on a number of occasions indicated in the past that for first
offenders in appropriate cases where a sentence a court imposes (is) 12 months
effective imprisonment or less, then community service should be considered and
sound reasons given for not imposing it.”
In the case before us the magistrate imposed an
effective sentence of 8 months imprisonment.
No reason whatsoever was given for not imposing community service and
there is nothing suggesting that other than paying lip-service to the factors
in mitigation referred to above the magistrate took those into account in
assessing the sentence. There is
therefore no doubt that the magistrate erred on the issue of community service.
Subsequent to the hearing of this matter, the
legal practitioners representing the complainant made representations regarding
restitution to the effect that Appellant has not made restitution to the
complainant as erroneously submitted by counsel. In light of that a portion of the sentence
will be suspended on condition of restitution to encourage the Appellant to
restitute.
Accordingly the appeal succeeds and the sentence
is altered as follows:-
“Count 1-24 months
imprisonment of which 6 months imprisonment are suspended for 5 years on
condition the accused does not within that period commit an offence of which
dishonesty is an element for which, upon conviction, he is sentenced to
imprisonment without the option of a fine.
A further 10 months imprisonment are suspended on condition the accused
makes restitution to the complainant in the sum of US$3376-00 through the Clerk
of Court Gweru on or before the 30th September 2010.
The remaining 8 months
imprisonment is suspended on condition that he performs 240 hours of community
service to be completed within 6 months of the commencement of the community
service.”
The matter is remitted to the Provincial
Magistrate, Gweru for necessary arrangements to be made for the due performance
of the community service.
Mathonsi
J.......................................................................
Cheda J
agrees..................................................................
Gundu
& Mawarire C/o Danziger & Partners' applicant's legal
practitioners
Criminal Division Attorney General' Office
respondent' s legal practitioners
