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 395 B-C and S v De Jager ad 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 interefere 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 employers' property but chose to
steal the very same property he was employed to guard. I do not consider that the effective sentence
of 2 ½ 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
