MATHONSI J: This matter came before me for review in terms
of Section 57 of the Magistrates Court Act [Chapter7:10]. The accused was convicted of theft as defined
in section 113(1) (a) of the Criminal Law (Codification and Reform) Act,
[Chapter 9:23] by the Magistrates Court sitting at Western Commonage, Bulawayo
on the 18th June 2010.
He was sentenced to 28 months imprisonment of which 4 months was suspended
for 3 years on condition of good behaviour.
A further 8 months imprisonment was suspended on condition the accused
made restitution of the sum of US$150-00 by the 30th June 2010.
After examining the record, I was of the view that the sentence imposed
was excessive in the circumstances especially as the accused had stolen vehicle
spares which were resold as scrap metal to someone before the bulk of them were
recovered and the Magistrate appeared to have had misgivings about the value
but did not investigate it. I also
considered that having sentenced the accused to an effective imprisonment term
of 12 months the Magistrate should have considered community service.
I then invited the trial
Magistrate to justify the sentence that was imposed but was not satisfied with
the explanation he subsequently gave. I
then ordered the immediate release of the accused person from prison
considering that by then he had been in custody for a period of more than 1 ½ months.
The accused is a youthful person being 21 years old. He is a first offender who pleaded guilty to
the offence. He committed the offence
because of poverty and told the Court that he wanted to raise money to buy
food. The value of the stolen items
could not be reliably ascertained and it appeared exaggerated.
Although in his reasons for sentence the trial Magistrate made reference
to the mitigating factors; he appears to have only paid lip service. In S v Madembo
and Another 2003(1) ZLR 137 at 140 B-D it was stated as follows:
“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.”
It has been stated before that where the Court has accepted any factor
as mitigation, such must be specified and the amount by which it has reduced
the sentence must be stated. see S v Madembo and Another (supra).
In casu, the main mitigating factors are youthfulness, poverty,
guilty plea, meritorious past conduct and restitution.
Young people are more susceptible to making ill-considered and unwise
decisions and are not expected to exhibit the same stability, responsibility
and indeed self restraint as mature adults.
Accordingly more weight should be attached to age in assessing
sentence. It is the policy of the courts
to, as much as possible, keep young people out of prison. See S v
Van Jaarsveld HB 110/90 and S v
Shariwa HB 37/03; see also S v
Muvhami HB 89/10 at page 3.
The accused committed the offence because of poverty as he required food
and that reason for the offence is quite important see S v Ngulube HH 48/02. So is
the guilty plea as it goes towards remorse fullness.
In S v Sidat 1997(1) ZLR 487
(S) at 493B McNALLY JA said:
“A plea of guilty
must be recognised for what it is – a valuable contribution towards the
effective and efficient administration of justice. It must be made clear to offenders that a
plea of guilty, while not absolving them, is something which will be
rewarded. Otherwise, again, why plead
guilty.”
See also S v Dhliwayo 1999(1)
ZLR 229(H) at 231B.
Meritorious past conduct is also critical in assessing sentence. The accused is a first offender. I stated in S v Muvhami (supra) at page 3 of that cyclostyled report
that:
“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.”
The trial magistrate settled for an effective 12 months
imprisonment. He was therefore obliged
to consider community service. If he was
of the view that such would not be appropriate he should have stated his reasons
for not doing so. This was clearly
pronounced in S v Mabhena 1996 (1)
ZLR 134(H) at 140 C-F. Failure to do
that can only lead to the conclusion that the Magistrate did not properly
exercise his discretion.
I therefore come to the conclusion that the appropriate sentence in this
matter should have been either a fine or community service. The accused has already serviced more than 1
½ months imprisonment.
Accordingly it is ordered that:
1. The conviction of the accused stands.
2. The
sentence imposed against the accused is hereby quashed and in its place is
substituted a sentence of 45 days imprisonment.
3. As
the accused has already served that period, he should be released immediately.
Mathonsi
J...................................................................
Ndou
J agrees...............................................................
