Bail
Application
MOYO
J: This is an application for bail
pending appeal.
The appellants were convicted of
contravening Section 36(1) (c) of the Immigration Act [Chapter 4:02].
They were each sentenced to 2 years imprisonment of which 6 months imprisonment
was suspended for 5 years on condition that they did not commit any
offence involving contravention of Section 36 (1)(c) of the Immigration Act.
Dissatisfied with the sentence
appellants then noted their appeal. The grounds of appeal are that:-
(1)
The court a quo erred in disregarding the option of community service
and not giving any reason why the option of community service was not
appropriate.
(2)
The court a quo erred and misdirected itself in not handing down a reasoned
judgment in opting for the form of punishment it did over the other forms of
punishment.
(3)
The court a quo misdirected itself in failing to consider the effect of
community service as a rehabilitative and constructive activity especially to first
offenders.
(4)
The court a quo misdirected itself in failing to consider the effect of
a plea of guilty and by failing to specify to what extent the plea of guilty
had reduced the sentence.
(5)
The court a quo misdirected itself in over-emphasising the issue of
deterrence, in disregard to the mitigatory factors including that the
Appellants were first offenders, that Appellants pleaded guilty, that
Appellants were family people and were gainfully employed.
It
is trite law that in an application of this nature, the Appellants must show:-
(a)
that he has prospects of success on appeal,
(b)
that there is no risk or likelihood that he may abscond,
(c)
that the likely delay in the prosecution of his trial be such that retaining
him in custody pending appeal would not be in the interests of justice.
The appellants were first offenders, who pleaded guilty and it is important to
note that
there
is no absolute rule that first offenders should not be imprisoned. Refer
to S v Venganayi
HH
52/89.
I am alive to the fact that there is a series of judgments which have
emphasised that the
courts
should consider other forms of punishment such as community service especially
where
the
sentence is 24 months or less.
I am not persuaded that the courts are strictly bound by such to an extent that
the trial
court
is stripped of its discretionary powers in assessing the appropriate
sentence. The appeal
court
would only interfere with the sentence imposed if there is a misdirection on
the part of the
trial
magistrate. Refer to S v Ramushu and others SC 25-93, S v
Nhumwa SC 40-88.
I am not satisfied that there are prospects of success on appeal more so that
this court
has
dealt with similar cases on appeal and such sentences have been upheld.
The appellants'
prospects
of success are dim and the likelihood to abscond increases since it hinges on
the
prospects
of success. Again, the lesser the chances of an appeal court interfering
with the
sentence
imposed, the more difficult it is for the appellants to substantiate the
possibility of
prejudice
being suffered as a result of the likely delay in the prosecution of the
appeal.
I accordingly decline to exercise my discretion in favour of the appellants as
already
stated
herein, this would not be in the interests of justice.
The application is accordingly dismissed.
D.
W. Mhiribidi and Company,
appellants' legal practitioners
Criminal Division, Attorney General's office, respondent's legal practitioners
