Criminal Appeal
MATHONSI
J: This
is an appeal against sentence only the Appellant having been
convicted by the Magistrates Court sitting at Gweru on 19 September
2008 of theft in contravention of section 113(1)(a) and (b) of the
Criminal Law Code and sentenced to 36 months imprisonment of which 6
months imprisonment was suspended for 5 years on condition of good
behaviour.
Not happy with that sentence
the Appellant noted an appeal to this court and the grounds of appeal
as appear on the notice of appeal filed on 24 September 2008 are as
follows:
“GROUNDS
OF APPEAL
1.
The
learned provincial magistrate misdirected herself in imposing a term
of imprisonment with labour of 30 months after suspending 6 months
imprisonment with labour.
2.
The sentence imposed by the trial court induces a sense of shock.
3.
The trial court misdirected itself in failing to give due weight and
consideration to the particular circumstances of the Appellant's
matter in that after stealing the radio in question, it was recovered
from him before he had even left the premises with it.
4.
The learned provincial magistrate misdirected herself in that she
failed to give due consideration to the highly mitigatory factors
that the radio was recovered and appellant pleaded guilty and thus
did not waste the trial court's time and was contrite.
5.
The learned provincial magistrate misdirected herself in failing to
consider giving the appellant the option of community service.
6.
The trial court failed to give due weight to the mitigatory factors
that the appellant lost his job as a result of his commission of this
offence and did not benefit at all from his misdemeanour.
7.
The trial court failed to give due consideration to the fact that
appellant is a youthful first offender.”
The facts are that the
Appellant was employed by Renown Panel Beaters of Gweru as a security
guard. He was guarding the employer's premises on the night of 16
September 2008 alone when he broke into a Mazda 323 motor vehicle
parked at the premises and stole a Technic car radio which was fitted
onto the dashboard of the vehicle. The radio was valued at
$400,000-00 (Zimbabwe currency). He put the radio in his bag
intending to leave with it at the time he knocked off but was
discovered by the other security guard who was relieving him, who
promptly arrested him.
At the time of the commission
of the offence the Appellant was aged 25, was unmarried and had no
children.
When he appeared before the
magistrates' court, the Appellant pleaded guilty. He was convicted
and sentenced as aforesaid.
It was argued on behalf of the
Appellant that the sentence imposed induces a sense of shock regard
being had to the fact that the Appellant is a young first offender
who had pleaded guilty to the charge and therefore should have been
given a sentence other than imprisonment.
Mr
Dube
for the Appellant suggested that a sentence of imprisonment suspended
on condition the Appellant completes hours of community service would
meet the justice of the case.
The
position of our law is that in sentencing a convicted person, the
sentencing court has a discretion in assessing an appropriate
sentence. That discretion must be exercised judiciously having
regard to both the factors in mitigation and in aggravation. For an
appellate tribunal to interfere with the trial court's sentencing
discretion there should be a misdirection: see S
v Chiweshe
1996 (1) ZLR 425 (H) at 429D; S
v Ramushu
and Others S-25-93.
It is not enough for the
Appellant to argue that the sentence imposed is too severe because
that alone is not a misdirection and the appellate court would not
interfere with a sentence merely because it would have come up with a
different sentence.
In
S
v Nhumwa
S-40-88 (unreported) at page 5 of the cyclostyled judgment it was
stated that:
“It
is not for the court of appeal to interfere with the discretion of
the sentencing court merely on the ground that it might have passed a
sentence somewhat different from that imposed. If the sentence
complies with the relevant principles, even if it is severe than one
that the court would have imposed sitting as a court of first
instance, this court will not interfere with the discretion of the
sentencing court.”
See
also S
v Mundowa
1998 (2) ZLR 392 (H) at 395B-C and S
v De Jager and Another
1965 (2) SA 616 (A) at 628-9.
As already stated, the court
has the sentencing discretion and the appeal court does not have a
general discretion to modify the sentences of trial courts. It will
only interfere where the sentence is vitiated by irregularity or
misdirection or is so severe that no reasonable court could have come
up with it.
In the case before us the
trial magistrate considered all the factors in mitigation and
concluded that they were outweighed by the aggravation namely that
the Appellant was employed to guard the employer's property but
chose to steal the very same property he was employed to guard.
I
do not consider that the effective sentence of two and a half yeas is
too severe either.
The Appellant has failed to
show any irregularity or misdirection as would vitiate the sentence
imposed by the trial court. I therefore come to the conclusion that
the appeal is without merit. Accordingly it is dismissed.
Kamocha J agrees.............
Gundu
and Dube legal practitioners C/o Danziger and Partners,
appellant's legal practitioners
Criminal
Division Attorney General's Office,
respondent's legal practitioners
