The
applicant in this matter filed an application for condonation of late filing of
Notice of Appeal on 17 March 2014 which was dismissed on 24 April 2014.
He
has now requested written reasons for the dismissal. These are they.
The
background information giving rise to this case is as follows:
Sometime
during the month of October 2012, the applicant and one Perfidia Nkomo agreed
that the applicant would sell the latter's Sumsang S4 Galaxy mobile phone,
worth US$900=, on her behalf.
The
applicant received the phone and went on to sell it and converted the proceeds
to his own use.
The
applicant evaded the complainant from October 2012 until the complainant
fortuitously spotted him in town in January 2014 and caused his arrest. He
had been on the run for 1 year 4 months.
The
applicant was taken to court on 30 January 2014, where, on arraignment, he
pleaded guilty to a charge of having sold the mobile phone valued at US$900=
and converted the proceeds to his own use. He agreed with the facts as
outlined by the State in toto. He
also accepted the essential elements of the charge he was facing and went on to
agree that his plea was a genuine admission of the charge, facts and essential
elements as put to him.
The
court then proceeded to find him guilty as charged. He was sentenced to
undergo 18 months imprisonment of which 5 months imprisonment was suspended for
5 years on the customary conditions of future good behaviour. A further 7
months imprisonment was suspended on condition that he restituted the
complainant in the sum of $900= through the Clerk of Court on or before 31
March 2014. That left him with an effective sentence of 6 months
imprisonment.
He
now wishes to file an appeal against both conviction and sentence out of time
and seeks his late filing of appeal condoned.
He
contends that although he had been denying the charge and disputing the facts,
as outlined by the State, the public prosecutor misled him by advising him to
plead guilty and save the court time and that would make the court
happy. He said because that was his first time to appear in a court of law
he took the ill-advice of the public prosecutor. He went on to plead
guilty and accepted the facts and essential elements.
This
is clearly untenable and unacceptable in the light of the fact that he was on
the run after taking the mobile phone for 1 year 4 months.
He
also complains against the sentence imposed against him. He alleged that
the trial court did not take into account his personal circumstances.
There
is no truth in that assertion either because the court had this to say:
“Accused
is a first offender who was contrite by pleading guilty to the offence so he
did not waste the court's invaluable time.”
He
also contended that the trial court failed to consider community service which
was fatal to the proceedings in light of the sentence imposed on him. The
magistrate reasoned that in a bid not to trivialize the offence he felt that
the only appropriate sentence was a custodial sentence to act as a deterrent to
the accused in future and others with like minds. Hence, there was no need,
in his view, to consider other forms of punishment - including community
service.
Although
the court did not specifically regurgitate that it had considered that it had
considered community service and the option of a fine it felt that the only
appropriate sentence was imprisonment in the circumstances.
It
seems to me the sentence imposed is not out of step with the sentence normally
imposed in cases of this nature were a fine and community service are held to
be inappropriate forms of sentence.
There
are no prospects of success on appeal and the application was dismissed ipso facto.
