CHEDA J:
This matter was referred to me by the learned scrutiny magistrate as he
observed that the sentence imposed was manifestly lenient.
The accused aged 30 and 19
respectively were charged with five counts of contravening section 131 of the
Criminal law Codification and Reform Act [Chapter 9:23], commonly referred to
as House Breaking. They pleaded not guilty but were however convicted.
All the counts were treated as one for the purposes of sentence and were
each sentenced to 12 months imprisonment.
The learned scrutiny Regional
Magistrate was not satisfied with the learned trial magistrate's sentence and
referred the record to me. In my view his dissatisfaction with this
sentence was indeed justified in circumstances.
Accused persons went on a
housebreaking spree for three months in the low density suburbs and stole property
valued at $1150-00 and only $360-00 was recovered. The learned trial
magistrate conceded that the sentences are lenient, but, he was persuaded by
the fact that they had been in custody for over a year and that they are young
offenders, therefore, there is according to him a need for restorative justice.
With all due respect to the learned
trial magistrate even if they had been in custody for over a year, that should
have been taken into account by suspending part of the sentence after
harsh sentences were imposed. He goes on to categorise them as
young offenders, it boggles one's mind to define a 30 year old person as young,
this is with respect to accused 1.
Indeed accused 2 is 19 years of age,
but however, there is no justification for him being treated as young in view
of the circumstances surrounding the commission of the offences. This, in
my view should remove him from category of young offenders who normally find
judicial favour with young offenders.
In casu, it is not the value for the
stolen property alone which matters, but, it is the number of break-ins.
It should be borne in mind that when an accused breaks into someone's
property his aim would be for the most valuable property the fact that the stolen
property turns out to be of a small value is nothing other than a misfortune on
his part and not by design.
In my view this is a matter where an
effective sentence of between 2-3 years would have met the justice of this
case.
The second point which is of great
concern is the increasing and fashionable trend of sentencing by this
particular magistrate (T Chimiso). I have in the past few months in my
review judgments raised concern about the ability, competency and/or
professionalism by the said magistrate. Unfortunately he/she does not
seem to realise where he/she is going wrong.
In that regard the office of the
Chief magistrate is ordered to investigate the said magistrate for his/her
competence or otherwise in view of the number of cases which seem to be out of
step with decided cases.
In light of the above, I am in total
agreement with the learned scrutiny Regional magistrate that these
proceedings are not in accordance with real and substantial justice.
My certificate is withheld accordingly.
Cheda
J.....................................................................
