The accused person is a 42 year old
male of no fixed abode. He is a first offender.
He was arraigned before a Senior Magistrate…,
at the Western Commonage Magistrates' Court on 4 November 2013 facing one count
of criminal trespass and one count of theft. It is alleged that he jumped
over the durawall at House Number 21/657 Mpopoma, Bulawayo. That is the
basis of the first count of criminal trespass. Regarding the theft charge,
the facts reveal that once in the yard, the accused proceeded to a fenced cage
whose fence he cut and therefrom took 6 empty quarts bottles of castle, 1 empty
castle pint bottle and 1 empty 300ml bottle of coke. These empty bottles
are valued at $2=60 and were all recovered almost immediately.
The accused pleaded guilty to both
counts and was duly convicted as charged.
He said he stole the empty bottles
to sell in order to raise money for food. For criminal trespass, he was
sentenced to 3 months imprisonment wholly suspended for 5 years on condition of
good behaviour. For the theft charge, he was sentenced to 6 months
imprisonment.
The learned acting Regional Magistrate
who scrutinized the proceedings referred the matter for review with, inter alia, the following comments:
“To therefore impose, on a first
offender, a custodial term, especially that of six months, is a clear
indication that the trial magistrate overlooked the reformative aspect of
punishment and that he needed to strike a balance between the personal
circumstances of the offender, the nature of the offences and the interest of
society. I am of the view that the trial magistrate, having suspended the
3 months for trespassing should have cautioned and reprimanded the accused on a
(sic) charge of theft of the empty bottles worth $2=60. 6 months imprisonment,
in my view, is too harsh and deserves interference. I did not return the
record to the trial magistrate for his comments as I am of the view that this
is a matter that requires urgent attention.”
I could not agree more and I fully
associate myself with the above pertinent sentiments. In his reasons for
sentence, the trial Senior Magistrate stated this:
“Accused is a first, youthful (sic), 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
aggravatory the nature of offences accused is facing. I found community
service inappropriate as accused is of no fixed abode. I found a suspended
sentence appropriate for the first count as it would deter accused from further
perpetration of the offence. I then found a custodial sentence appropriate
for the second count.”
With all due respect, I am
constrained to remark that these reasons for sentence do not justify the shock
induced by the harshness or severity of the sentences that were imposed in casu. It is only during the
Dark Ages, when capitalism was in its infancy, when the life and liberty of a
convicted felon was worth less than the value of a teaspoon that a sentence
such as the one imposed in casu
would be countenanced by society.
For criminal trespass, the maximum
statutory sentence of imprisonment is 6 months. Was the present case that
bad so as to warrant half the maximum even though it was wholly
suspended?
I think not.
What of the theft charge – theft of
empty bottles worth $2=60, all recovered, by a 42 year old destitute first
offender who pleaded guilty and who was clearly driven to commit the offences
by hunger – was the 6 months imprisonment warranted?
Certainly not.
Perhaps it would be salutary to
restate the words of BARTLETT J in S
v Hwemba 1999 (1) ZLR 234 (HC)…,
where the learned Judge had this to say:
“A sentence of imprisonment is a
rigorous and severe form of punishment. It should only be imposed as a
last resort…,. Where imprisonment is the only appropriate sentence, a
court must impose the minimum effective period to do justice to both the
offender and the interests of society…,. The rationale behind it was eloquently
described by GREENLAND J in S v
Teburo HH517-87 (at p 2):
'Given the limited chances available
to a judicial officer, he can attempt to achieve this by tempering the sentence
with mercy and compassion…,. Such an approach is more likely to induce a
positive response from the accused than a sentence which will simply brutalise
him and lead ultimately to the man redefining himself as a criminal and
behaving accordingly….,. It is a better approach for a judicial officer to
appeal to the good sense of responsibility residual in the contrite first
offender and impose the least punishment which will still achieve the
objectives of punishment.'…,.
Six months imprisonment to a first
offender must well seem interminable. If [magistrates] disagree perhaps
they might like to spend six months in prison and then see if they think is a
short period!”
See also S v Katsaura
1997 (2) ZLR 102.
In casu, the second count, in terms of the value involved, was quite
a trivial offence which did not deserve any period of effective incarceration
at all. Though the accused is not youthful – contrary to what the trial
magistrate stated (he being 42 years old) the fact remains that he did not
deserve to be incarcerated. A deterrent and reformative sentence was
warranted in the absence of community service on account of the accused's
non-suitability due to being of no fixed abode,…,.
The sentence by the trial magistrate
cannot be allowed to stand so it is hereby set aside, and, in its place,
substituted with the following:
Count 1: 1 month imprisonment the whole of which is suspended for 5
years on condition accused does not, within that period, commit any offence
involving criminal trespass and for which he is sentenced to imprisonment
without the option of a fine.
Count 2: Warned, cautioned and discharged.
The Deputy Registrar is directed to issue a
warrant for the accused's liberation forthwith.
