MUTEMA J: Ex facie the summary jurisdiction form,
the accused was charged with theft in contravention of section 113 of the
Criminal Law (Codification and Reform) Act, Chapter 9:23. He pleaded
guilty to that charge and was duly convicted as pleaded.
Accused is a 23 year old single first offender who is a commuter omnibus
conductor. He stole $10 and 4 airtime juice cards valued at $4 from the
juvenile vendor. The outline of the state case avers that accused was
being charged with robbery in that on the day in question he approached the
complainant who was selling fruits and juice cards and produced a knife and
told complainant to give him some change quickly as he was in a hurry.
Complainant took out some coins from her purse, placed the purse on top of the
stand/stall and gave accused the R5 change whereupon accused left the place
running. The complainant immediately realized that accused had also taken
her purse with $10 and $4 worth of airtime juice cards. She ran after the
accused to no avail. When he was later arrested accused paid back the
$14,00.
The trial
magistrate sentenced accused to 18 months imprisonment reasoning thus:
“Accused is a
first youthful offender who pleaded guilty and did not waste the court's
time. It is a trite principle of sentencing to exercise leniency when
dealing with first offenders. However, I took as aggravating the fact
that accused produced a weapon before stealing from the complainant. The
circumstances of the theft are disturbing. I found a custodial sentence
appropriate”.
When I queried with the trial magistrate how it escaped his notice that the
charges in the two documents did not tally and which charge, on the facts
should accused have been charged with, and whether the sentence did not induce
a sense of shock, I got the following response: “I concede that the
proper charge could have been that of robbery and not theft. I apologise
as this was an oversight on my part. I also apologise for imposing a
severe sentence. My sentence was influenced by the production of a knife
which I found aggravating.”
Judicial officers wield a lot of power and deal with one of the most
fundamental rights of an individual, viz the right to liberty.
It is on this basis that they are always enjoined to apply their mind to their
work with impeccable diligence. A slipshod and slapdash way of doing
judicial work cannot be countenanced. It was the trial magistrate's duty
to put the state to terms to disclose as regards what charge it had nailed its
colours to the mast. It was a fallacy fatal to the severe sentence which
smacks of barbarism in casu to say that the trial magistrate was
influenced by the production of a knife when the facts are silent as regards
the role that the knife played. It is most probable that had the knife
played any role in committing whatever offence the trial magistrate imagined to
be the correct one, the complainant would have had the audacity to run after
the accused. The accused was charged with and convicted of theft as per
his guilty plea, period. It goes without saying that after taking
into account all relevant factors of the mitigation exitant in casu
the magistrate did not apportion any cogency to any of those factors. The
sentence was simply plucked from the air and it defies all known tenets of the
process of sentencing.
In the event the sentence cannot be allowed to stand. A non-custodial
sentence would have met the justice of the case. Accused has already
served over two months imprisonment, having been sentenced on 13 February,
2013. The sentence imposed by the trial magistrate is hereby set aside
and accused is entitled to his immediate release.
Makonese J …………………………………………………….. I agree
