NDOU J: The
appellant pleaded guilty to a charge of unlawful entry into premises as defined
in section 131 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]. He was duly convicted by a
Bulawayo magistrate and nothing turns on the conviction as he only appeals against
the sentence imposed on him. The brief
facts of the case are the following. The
appellant and the complainant were both employees of the National Railways of
Zimbabwe (“NRZ”) at the time of the offence.
They were both housed in their employer's residential quarters. On 7 September 2008, the appellant used
duplicate keys to gain entry into the complainant's place of abode. Whilst inside the house, the appellant stole
750 mililitres of cooking oil, 4 kilograms of sugar, 20 kilograms of
mealie-meal and a portable radio. The
appellant took the property and concealed it in his room. When the complainant detected th breaking and
the theft he enquired from other workmates.
He was informed that the appellant was seen carrying something in a
sack. With the assistant of NRZ security officers, the appellant's residence
was searched and the stolen property was recovered. The value of the stolen property was Z$40
590,00 and all the stolen property was recovered. The appellant was sentenced to 24 months
imprisonment of which 3 months were suspended on the usual conditions of future
good behavior. The pith and marrow of
the appeal is that appellant should have been considered for a sentence of
community service. It is trite that the
trial magistrate did not consider whether or not the appellant was a suitable
candidate for community service. The
appellant was not represented by a legal practitioner during the summary
trial. The learned trial magistrate did
not canvass the issue of community service with the appellant. Not surprisingly, the appellant did not
address the court a quo on
issue. This court has previously
emphasized the need for magistrates to canvass the possibility of performing
community service with unrepresented accused persons in cases which did not
merit imprisonment for more than 24 months.
Failure to do so would amount to a misdirection – S v Manyevere HB-38-03; Ndlovu v S HB-22-09 and S v Khumalo HB-39-03. There is such misdirection in casu.
This is a case which deserved serious consideration of community
service by the trial magistrate. The
appellant pleaded guilty and showed some form of contrition. He did not benefit from the crime. He lost his employment as a result of the
conviction.
In light of the above, the appeal
against sentence should succeed. Accordingly,
the conviction is confirmed. The
sentence imposed by the trial court is set aside and substituted as follows:
24 months imprisonment of which:
1.
12
months imprisonment is suspended for 3 years on condition that accused is not
convicted of any offence of unlawful entry or an offence of which dishonesty is
an element committed within that period for which he is sentenced to
imprisonment without the option of a fine.
2.
The
remaining 12 months is suspended on condition that accused completes 420 hours
of community service at the Provincial Magistrates Court at Bulawayo on the
following terms:
(i)
The
community service starts within ten (10) days of the handing down of this
judgment and must be completed within twelve (12) weeks of that dated;
(ii)
The
community service must be performed between the hours of 8am and 1pm and 2pm
and 4pm each Monday to Friday which is not a public holiday to the satisfaction
of the person in charge of the said institution who may, for good cause, grant
the accused leave to be absent on a particular day or days or during certain
hours. Any such leave of absence shall
not count as part of the community service to be completed.
Cheda J ……………………………………………… I agree
Marondedze, Mukuku,
Ndove and Partners, appellant's legal practitioners
Criminal Division, Attorney General's Office,
respondent's legal practitioners
