KAMOCHA J: The
accused's criminal career started in 2004 when he was just 17 years. He was convicted of theft of stock on 9
February 2004 and was sentenced to undergo 36 months imprisonment of which 12
months imprisonment was suspended for a period of five years on the customary
conditions of future good behaviour.
On 17 January 2007 he was convicted
of unlawful entry into premises and theft for which he was sentenced to undergo
14 months imprisonment of which 4 months imprisonment was suspended for five
years on the usual conditions of future good behavior. The 12 months imprisonment suspended on 19
February 2004 which had failed to achieve the desired effect was further
suspended on the same conditions.
On 15 November 2009 he unlawfully
entered into premises and stole property valued at $100 therefrom. Two days later on 17 November 2009 he
proceeded to another village and unlawfully entered premises and stole property
valued at $303 therefrom.
He was arrested and appeared in court at Binga facing two
counts of unlawful entry into premises and theft. He tendered pleas of guilty and was found
guilty as charged.
In its reasons for sentence the court observed that the
accused was now 23 years, he is married with three children, he pleaded guilty
to both counts and was contrite. For
reasons only known to the court, it recorded that he was a first offender. This can only be attributed to lack of
concentration on the part of the judicial officer.
The aggravating factors found by the court were that the
offence was serious. It was prevalent
and on the increase in Binga. The
accused carefully planned and premeditated the commission of the two counts and
was an unrepentant criminal who had no respect for other people's
property. He was a menace to society and
deserved to be removed therefrom by being incarcerated. The court correctly held the view that the
aggravating features outweighed the mitigating ones.
The court treated both counts as one for the purpose of
sentence and sentenced the accused to 5 years imprisonment of which two years
imprisonment was suspended for 5 years on the customary conditions of future
good behavior. In addition the suspended
sentence of 12 months imprisonment suspended on 17 February 2007 was brought
into effect.
The court correctly, in my view, held that the accused was an
unrepentant criminal who no longer deserved to be treated leniently. There was, therefore, no need to suspended
part of the sentence imposed. The
purpose of a suspended sentence is to deter an offender from behaving in a
similar manner in future while the suspended sentence is in force. To some
extent the purpose of a suspended sentence reforms an offender. However, where an offender repeatedly
breaches the conditions of suspended sentences then no useful purpose would be
served by repeatedly availing him or her the benefit of a suspended sentence.
In casu, the accused first got the benefit of
the suspended sentence on 9 February 2004.
It did not deter him as he committed another offence of which dishonesty
was an element during the period of suspension.
The suspension period was 5 years but he committed the offence within 2
years.
On conviction on 17 February 2007 he was sentenced to 14
months imprisonment of which 4 months imprisonment was suspended and the
suspended 12 months was further suspended for a further period of 5 years. There was no need to suspend part of the
sentence imposed in the light of the fact that the court had decided to further
suspend the 12 months imprisonment previously suspended.
For the second time the accused breached the condition of
suspension when he committed two similar offences within two years. He was expected to keep a clean slate for at
least 5 years. The suspended sentence
has clearly failed to achieve the desired effect in this particular
matter. Suspending part of the accused's
sentence will serve no useful purpose and is therefore meaningless.
Despite
the above short comings in the proceedings I would issue my certificate since
out of a total property value of $403 property valued at only $30 was not
recovered.
