These courts have, on a number of occasions, emphasized the need to avoid a tariff approach to sentencing. In S v Dube & Anor 1995 (2) ZLR 321..., KORSAH JA has this to say:

“It has been said time and again in our courts that the punishment should not only fit the crime, it should fit the person as well. If that is to be, there can be no place for a tariff sentence in respect of any crime with regard to which the court's discretion is not fettered by statute law; for the circumstances of the offender, and other factors of mitigation, or aggravation, may vary infinitely. Be it as serious as murder, the sentencing authority is enjoined to consider all factors, both in aggravation, and in mitigation, of sentence, and, in the exercise of its discretion, to impose a just punishment. A sentence based on a tariff is indicative of an abortion of judicial discretion which is tantamount to a misdirection.”

In S v Mugwenhe & Anor 1991 (1) ZLR 66, EBRAHIM J cited with approval the words of BOTHER JA in S v Reddy 1975 (3) SA 757 (A)..., wherein he said that:

“Though uniformity of sentences, that is of sentences imposed upon accused persons in respect of the same offence, or in respect of similar offences of a kindred nature, may be desirable, the desire to achieve such uniformity cannot be allowed to interfere with the free exercise of his discretion by a judicial officer, in determining the appropriate sentence in a particular case, in the light of the relevant facts in that case, and the circumstances of the person charged.”   

In short, it is the responsibility of each judicial officer to consider all the factors, and circumstances placed before him, in arriving at a just sentence. The sentence must be individualized to the particular offender. Failure to individualize the sentence is a misdirection. It makes a mockery of the reasons for sentence that the judicial officer purports to have taken into account in assessing the sentence, yet time and again these courts have strongly warned judicial officers against paying lip service to mitigatory features. It is an act of dishonesty to tell an accused person that the court has considered their personal mitigatory features, when in fact no such features have been considered.

The trial magistrate's reasons for sentence are short but full of fury against male members of society, and do not cover all the aspects to be considered in passing sentence for the contravention of section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. She reasoned –

“Accused pleaded not guilty to the charge of rape. He is a paternal grandfather to the child, and was actually staying with the child in a loco parentis relationship. C/S 65(1) is a very serious and heinous offence if perpetrated on a minor by a relation. It calls for stiffer sentences that send a message to society that crime does not pay. It is the duty of the courts to curb this monster of child sexual abuse and teach men that they should learn to control themselves. It is difficult, these days, to trust any man with a female child, even if the man is her father. Who is there to protect children if parents turn into rapists and grandparents have lost their role in society of protecting, and teaching, and guiding children through life? What the accused did was unspeakable, and should be punished severely. He has tarnished the image of the family, and made him lose the respect of his children and grandchildren. His submissions in mitigation are outweighed by the seriousness of the offence, and must be given a custodial sentence.”

A judicial officer must, in considering sentence, be dispassionate and avoid being propelled by emotions into passing ever-increasing sentences. He, or she, must look at all the factors which can be considered in passing the appropriate sentence for the offence under consideration. He, or she, must avoid over-emphasizing some factors while playing down, or ignoring, others. He, or she, must avoid language which displays gender insensitivity, or bias, against a class of people, as that gives an impression that the offender is, over and above being punished for his offence, being punished for belonging to a class which the judicial officer has displayed bias against.

Where the factors to be considered are provided by statute, he, or she must consider all such factors. If he, or she, does not consider factors which the statute requires him, or her, to consider, the sentence may be set aside, if it is shown that a consideration of the omitted factors would have resulted in the court arriving at a different sentence.

In this case, the magistrate said the offence calls “for stiffer sentences that send a message to society.” While deterrence is a valid consideration, a judicial officer must avoid giving the impression that the sentence is a tag which society must read for it to be deterrent.

The sentence must suit the offence and the offender. If others have to be deterred, they should be deterred by a deserved sentence and not one which over-emphasizes deterrence, and punishes the offender beyond the level his offence deserves.

The magistrate said she was out to “teach men that they should learn to control themselves.” The question is: which men? The magistrate fell into the danger of purporting to be dealing with a class of persons she wants to teach through the convicted person.

The magistrate goes further to say:

“It is difficult, these days, to trust men with a female child, even if the man is her father.”

Sentencing requires a serious consideration on the part of the court.

This brings me to the question of social responsibility.

While it is common that we are all responsible for our actions, in my view, sight should not be lost that society has a duty to accommodate, and counsel, wrongdoers, thereby preventing the resultant fatal consequences which may flow from those who are mentally and physically distressed.

In my view, such persons should receive the court's sympathy rather than receive further condemnation by the courts, which end up imposing very harsh sentences...,.

Further, in S v V 1972 (3) SA 611 (A), the court stated -

The court has a discretion in assessing a suitable sentence. However, such discretion should be judicially exercised....,.

The courts recognize the need for judicial officers to always strive to impose sentences which find favour in society, as it is society which is also affected by such offences. The need to impose a sentence designed to give an offender a second chance is indeed sound, as this is the hallmark of our jurisprudence. However, such approach must not be over-emphasized to the extent of overshadowing the expected reasonableness on the part of the court.

The common position adopted by these courts with regards to bail is that first offenders should be kept out of custody, where possible, and that a plea of guilty should be considered in the accused's favour. 

This, is however, the general rule. 

In order for a first offender to benefit from a non-custodial sentence, in my view, some of the following factors should be taken into consideration;

(i) The gravity of the offence;

(ii) Prevalence; and

(iii) Any other factors depending on the circumstances of the offence.

In casu, this type of fraud, where the State was prejudiced in the sum of $2,230=83 cannot be, by any stretch of the imagination, be regarded as a small amount. The question of being a first offender to qualify for community service is, in my view, unlikely to sway the Appeal Court to his favour. 

For that reason, I am not persuaded that his appeal has any prospects of success.

The thrust of the criminal justice delivery system in sentencing adults is to punish them for their wrongdoing, whilst in dealing with juveniles, the thrust is to reform – see S v Zaranyika & Ors 1995 (1) ZLR 270 (HC).

Magistrates should always endeavour to avoid the temptation of imposing the so called “sharp and short” custodial sentences which often results in sending undeserving persons to prison for seemingly non-serious offences. The court should, as a matter of principle, and at all material times, strive to ensure that the cardinal principle that the punishment should fit both the crime and the offender is observed and applied. All relevant factors, both in mitigation and aggravation, should be carefully considered and an appropriate balance struck. See S v Sparks 1972 (3) SA 396 and S v Manwere 1972 (2) RLR 139 (A).

It is always important to carry out a full pre-sentence inquiry before arriving at an appropriate sentence.  In casu, the pre sentence inquiry carried out by the trial magistrate is unhelpful and perfunctory. It is recorded as follows -

“Aged 21. Not married. A mother of one child. No savings. No movable assets.

Q:  Why did you assault compl?

A:  I had been angered because he had promised to fix me.” …,.

In my view, such scant pre-sentence information is unhelpful in arriving at an appropriate and just sentence. This approach deservedly received censure from NDOU J in S v Shariwa 2003 (1) ZLR 314 (H)..., in which NDOU J also referred to similar sentiments he expressed in S v Ngulube 2002 (1) ZLR 316. The pertinent words I find very instructive are captured in S v Shariwa 2003 (1) ZLR 314 (H)..., -

“It is true that our courts have, over the years, followed the rational approach to sentencing. In this approach, the sentencing judicial officer determines the limits set by the legislature as far as the type and quantum of punishment is concerned and then, within this, the limit set by the culpability of the offender.  He then carefully considers the differing purposes of punishment, and, if they conflict, rationally balances them against each other, according to each its due in the final sentence he imposes.” ...,.

In casu, a number of mitigatory factors were not given due consideration by the trial magistrate. In this case, the accused pleaded guilty to the charge. One may argue that she had no choice as she was caught in the act as it were, but, none-the-less, a plea of guilty remains a major mitigatory factor as it contributes to the swift administration of justice.  See S v Sidat 1997 (1) 487 (S) and S v Katsaura 1997 (1) ZLR 102 (H).

The accused, although she has one child, is only twenty-one years old, and she is regarded as a youthful offender. She is a first offender. As a single mother she has the additional burden of looking after her child. Can one seriously say she is the type of an offender to be condemned to prison, most probably with the child (or leaving the child with no one to fend for the child.)?

As already stated, no meaningful inquiry into mitigation was carried out. However, the offence the accused was convicted of, and the circumstances of the case, cannot, by any stretch of the imagination, be described as serious. The accused struck the complainant once with a walking stick, probably in the heat of the moment. The complainant did not suffer any injuries at all.

The trial magistrate placed undue weight on the fact that the assault took place at the court premises. In fact, the trial magistrate equated the accused's conduct to contempt of court. The reasons for sentence by the trial magistrates are instructive and I quote -

“In assessing sentence, I took into account that you are a first offender who pleaded guilty, this showed contrition. Against you, I took into account that you assaulted the complainant with a stick, at the magistrates court, in full view of the court staff and other litigants, such that the proceedings had to be stopped. Your actions display utter contempt of the institution of the court. An exemplary sentence is called for if the decorum of the court is to be maintained.”  (These are the full reasons for sentence.)

While one should always take a dim view of persons who fail to respect the court decisions, the trial magistrate failed to fully appreciate the accused's conduct. In fact, the Statement of Agreed Facts and the record of proceedings do not, at all, show that the accused's conduct resulted in all what the trial magistrate alludes to in the reasons for sentence. One can only assume that the trial magistrate should have been a witness to this incident, and, therefore, became privy to certain facts not stated by either the State or the accused. Such a scenario may be undesirable as this would cloud the mind of the judicial officer, who, like in the case, would end up considering certain facts not stated in the record. Suffice to state that the Statement of Agreed Facts is clear that the incident occurred outside the courtroom and there is no mention at all that court proceedings were disrupted. While the accused's conduct deserves censure, it cannot be viewed in the same light as being in contempt of court.

The ranges provided by section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are fairly wide. This gives judicial officers a very wide discretion in assessing the appropriate sentence.

A judicial officer must thus avoid the temptation of imposing ever-increasing sentences for these offences. He or she must avoid imposing sentences around the maximum level of the range for cases which are far from being the worst under that crime. He or she must carefully consider the appropriate sentence for each case, bearing in mind that the least sentence is for the least offence..., the trivial level referred to in section 270 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] under that crime, and the maximum sentence for the worst offence under that crime. Each case must be assessed and be punished according to the offender's moral blameworthiness which pegs the level of punishment deserved by the accused.

The sentence must suit the offence and the offender.

In S v Butau (1) ZLR 240 (H)..., GARWE J..., said –

“The principle is now established that the maximum penalty should be reserved for the most serious offences or persistent offenders.”

In S v Mutusva HH156-86 the accused was charged with wrongfully and unlawfully “carrying on the business of an ivory dealer without being in possession of the necessary licence contrary to the provisions of the Parks and Wildlife Regulations 1981.” On conviction he was sentenced to pay the maximum possible fine. In reducing the sentence, REYNOLDS J remarked that-

“..., the maximum sentences prescribed should be reserved for the worst or most persistent of offenders...,. Once again..., the magistrate attempts to justify the most severe sentence allowed by the legislature on the basis of prevalence. I can only repeat that this approach is improper. It is to be hoped that the magistrate will now bear this well–recognised principle in mind in future cases.”

In S v Mathe HB104-83, the accused, who was eighteen and a first offender, killed a heifer on a commercial farm and took away the meat. He was subsequently convicted, on his plea of guilty, of theft of stock and sentenced to receive ten cuts with a light cane, and, in addition, to a wholly suspended prison term of eighteen months imprisonment with labour. Having considered that ten strokes was the maximum number of strokes imposable under the Criminal Procedure and Evidence Act, GUBBAYJ..., remarked-

“I do not question the propriety of ordering the accused to receive a moderate correction co-joined with a period of conditional imprisonment. After all, he committed a serious offence and one which is particularly prevalent in the Gwanda area. But the number of cuts inflicted was grossly excessive. Ten cuts is the maximum that may be imposed on a juvenile in terms of section 330(1) of the Criminal Procedure and Evidence Act [Cap.59]. I venture to think that very few crimes would demand a juvenile being visited with such a degree of judicial barbarism. Perhaps offences of unprovoked and extreme violence or of bestial or wanton cruelty to the person of another might qualify. The present offence certainly does not.”

The two matters landed on my desk for review, having been forwarded from the office of the Regional Magistrate in Mutare. Both were dealt with by the same trial magistrate, who is a Provincial Magistrate stationed at Chipinge. I have decided to review both cases in one judgment because I formed the opinion that this trial magistrate seems to have no clue whatsoever regarding basic principles of sentencing.

These two cases paint a sad story of a judicial officer of the grade of Provincial Magistrate who not only has no clue regarding sentencing principles but has a knack for cruelty.

In the case of State v Ronald Ndangana, for unlawful entry and theft of a cellphone and charger valued at $45= which was recovered, the nineteen year old first offender accused who had pleaded guilty to the charge was sentenced to six months imprisonment of which two months were suspended for five years on the usual conditions of good behaviour by the trial Provincial Magistrate.

When the matter went for scrutiny, the learned Regional Magistrate commented on the sentence as follows-

“Is it not that the sentence you imposed is brutalizing him?...,. Won't you think this was ideal that a sentence of community service should have been imposed? I am doubtful whether the accused would have refused to do community service if this was properly explained to him than for him to go to prison.”

In response to the query the trial magistrate said -

“…,.Maybe the explanation by the Court could have been inadequate leading to the unfortunate decision to incarcerate the accused. I…, request that, if possible, may corrective measures be instituted.”

The learned scrutiny Regional Magistrate withheld his certificate and referred the proceedings to this Court.

I am constrained to lend my excoriating voice to the learned scrutiny Regional Magistrate's sentiments regarding the trial magistrate's failure to diligently and judiciously sufficiently explain the benefits of community service to the accused and convince him to appreciate the same and agree to such sentence, instead of perfunctorily asking the accused whether he knew “what community service is all about.” Following the accused's answer that he knew very well, the following exchange ensued -

“Q. Are you prepared to do community service?

A. No. I would request to be given an option to pay a fine.

Q. Do you have cash?

A. No.”

In his reasons for sentence, the trial magistrate correctly observed that mitigatory factors far exceeded the sole exitant aggravating factor; he found viz “prevalence of cases of dishonesty of a major concern.” He then misdirected himself by reasoning thus -

“It is on this basis therefore that the court had been very desirous to place the accused on the community service type of punishment but regretably (sic) is the fact that accused said he would rather prefer to be given an option to pay a fine when he in fact does not have the money. This is deplorable and moreso unwarranted for the court to allow an accused person to choose his own form of punishment. Unacceptable indeed it is. In the circumstances accused has been incarcerated and with a portion of the sentence suspended to act as deterrence.”

From the perfunctory manner the enquiry into the accused's suitability for community service was conducted, it is crystal clear that the trial magistrate did not genuinely endeavor to eschew imprisonment. Even if the accused had no cash on his person, he could have been sentenced to pay a fine and be given time to pay if the trial magistrate had been judicious and humane enough to avoid brutalizing the young offender by incarcerating him for such a fairly petty offence. The sentence imposed will not rehabilitate or deter the accused. On the contrary it is most likely going to achieve the opposite.

In view of the mitigatory factors, viz the accused's status as a first offender, his young age of nineteen years, his plea of guilty, the paltry value of the stolen property ($45=), coupled with its recovery certainly merited a non-custodial sentence in any civilized society. It is only in a medieval society that values human liberty less than a teaspoon that such a sentence can be imposed, given the attendant facts of this case.

In the result, I too shall withhold my certificate.

Regarding the factor of deterrence, GUBBAY JA…, stated in S v Borogodo 1988 (2) ZLR 379 (S)…, that-

“What is to be guarded against is such an excessive devotion to the cause of deterrence as may so obscure other relevant considerations, as to lead to a punishment which is disparate to the offender's desserts. I cannot conceive of any principle which can justify, for the sake of deterrence and public indignation, the imposition of a sentence grossly in excess of what, having regard to the crime and to the degree of the offender's moral reprehensibility, would be a fair and just punishment.”

As for the prevalence of an offence, while it is a relevant and appropriate aggravating feature, it should not be over-emphasized and should never be regarded as a warrant to impose unduly harsh sentences; S v Katsaura 1997 (2) ZLR 102 (HC).

On the length of the period of imprisonment imposed, REYNOLDS J, in S v Ngombe HH504-87…, stated -

Re: State v Kudakwashe Nyawera

The accused pleaded guilty to two counts of malicious damage to property and to one count of theft.

The trial magistrate indicated that she proceeded with those guilty pleas in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act. However, nowhere does it reflect that that procedure was followed through for the essential elements of the three counts were never canvassed to the accused.

 As regards the fourth count of malicious damage to property, the accused pleaded not guilty and a trial followed. However, in her written judgment, the trial magistrate did not complete the judgment. The judgment does not allude to any verdict at all and the last sentence of it is incomplete. The verdict portion at the back of the charge sheet simply says “guilty as charged” without stating in respect of which counts.

The sentence merely says “all counts as 1 for sentence” without stating which counts since the accused was not convicted of the 4^th count he pleaded not guilty to.

What this all boils down to is that in respect of the three counts the accused pleaded guilty to, he was wrongly sentenced for want of the trial magistrate's failure to proceed in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act.

The sentence meted out is therefore incompetent.

Regarding the 4^th count, it seems the accused was also sentenced in respect of it yet the judgment had not convicted him of it.

This slipshod and slapdash way of performing judicial work constitutes a grave irregularity fatal to both conviction and sentence as regards all the four counts.

The accused was sentenced on 6 July, 2009 to six months imprisonment portions of which were suspended on certain conditions of good behaviour and restitution, leaving him with an effective two months imprisonment. He has long served that.

Re: State v Joseph Kaseke

The learned scrutinising Regional Magistrate queried why the sentence on the scrutiny cover differed from the one in the record and whether the trial magistrate ever bothered checking her work prior to submitting it for scrutiny. The sentence as reflected on the scrutiny cover reads -

“9 months imprisonment of which 4 months imprisonment is suspended; 2 months is suspended on condition accused pays a fine of US$50= on or before 30/04/09. 3 months is suspended on condition accused performs 105 hours of community service at Chembira Primary School. Community service shall commence on 08/04/09.”

The sentence in the record is complete and somewhat adequately worded as reflected on what is termed Community Service Sentence Formula 'A' as follows -

“9 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition...(of good behaviour). The remainder of 3 months imprisonment is suspended on condition… (of community service). A further 2 months imprisonment is suspended on condition accused pays a fine of US$50= on or before 30/04/09 through the Clerk of Court Mbare by 4 p.m.”

It certainly reveals that the trial magistrate did not exhibit the required diligence when she forwarded the record for scrutiny without ensuring that the sentences captured above were in tandem. However, the sentence, as reflected in the record, seems to be the actual one that was imposed and its wording is clear enough. I would have been minded to correct the one on the scrutiny cover to match the one in the record had that been the sole irregularity.

Over and above the foregoing irregularities, and, most importantly, is this one committed by the trial magistrate. She indicated that following the plea of guilty, she proceeded in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act.

However, the record of proceedings has nothing showing that that procedure was ever embarked upon. The only notes present are ones pertaining to reasons for sentence. No explanation of the facts and the essential elements of the offence and no mitigation was recorded.

In the result, the purported conviction and sentence are incompetent.

It is surprising that the scrutinising Regional Magistrate missed this material irregularity, only managing to detect the peripheral one alluded to above. The accused has long finished serving the sentence. This is like closing the stable door after the horse has bolted. The conviction and sentence, which are patently incompetent, cannot be allowed to stand. In the event, both are quashed and set aside. If the accused paid the $50= fine, he is entitled to its refund.

The sentence reads -

“9 months imprisonment, 3 months imprisonment wholly suspended for 5 years on condition of good behaviour. 6 months imprisonment suspended on condition accused pays a fine of US$50=.”

On the scrutiny case cover the sentence was allegedly passed on 19 March, 2009 and reads-

“4 months imprisonment wholly suspended for 5 years on condition accused completes 140 hours of Community Service at Waterfalls Police Station during midweek between 08.00-13.00 and 14.00 16.00…., Community Service to commence on 21 March, 2009 and to be completed within 3 weeks of that date.” ...,.

When the matter went for scrutiny the Regional Magistrate queried the difference between the sentence on the charge sheet and that on the scrutiny cover. While the trial magistrate conceded the error, the sentence on the face of the summary jurisdiction cited above was crossed out. The papers do not ventilate as to when that was done. However, at the back of the summary jurisdiction appears this sentence seemingly written on 21/03/09 -

“4 months imprisonment wholly suspended for 5 years on condition accused perform (sic) 140 hours of c/s at Waterfalls Police Station; c/s to be performed on Saturday and Sunday between the hours of 8 a.m.-1 p.m -2 p.m-4 pm excluding public holidays; c/s to be performed to the satisc. C/s to commence on 21/03/09.” signed Ruwona, 21/03/09.” ...,.

The foregoing gives testimony of a maze of confusion as regards the exact sentence that was meted out. The deleted sentence is totally different from the other two sentences and those other two are also materially different from each other - if one compares the underlined words and or phrases. For instance, the sentence on the scrutiny case cover was passed on 19 March 2009 while that at the back of the summary jurisdiction was passed on 21 March 2009. In the former, the community service was to be performed during midweek (whatever that means) whilst in the latter it was to be performed on Saturday and Sunday. In the former, passed on 19 March, the community service was to commence on 21 March whilst in the latter, passed on 21 March, it was to commence on the same date. In both, the 4 months were “wholly suspended for 5 years on condition accused performed 140 hours of community service.” Such a condition of suspension of a sentence is glaringly incompetent. If the accused worked Saturdays and Sundays doing 7 hours a day, in 3 weeks he would only have done 42 hours and not 140 hours.

The community service having been long completed, it behoves me to adopt and correct the sentence at the back of the summary jurisdiction to read as follows -

This matter was forwarded to me on review as per the usual procedure.

On the 20^th January 2011, the two accused locked a consignment of copper cables into a bus destined for South Africa. At the Beitbridge Border Post, they were arrested after the bus was searched by police who found the said copper weighing 1621.6 kgs which they had not declared. They were arraigned before the courts, they pleaded guilty, convicted and sentenced to pay a fine of $500= each and the copper was forfeited by the State.

Upon perusal of the record, I noticed that the learned trial magistrate sentenced them without ascertaining the value of the copper. I queried this, as I was of the view that it was improper.

The learned trial magistrate, in his response, agrees that it was essential for him to know the value before passing sentence.

Sentencing is the last step in meting justice on an accused. It is, therefore, necessary that such sentence should be just to both the State and the accused. That justice can only be attained if the court passes it after taking into consideration all the important factors which guide him in that determination.

A sentence where the value of the subject matter is unknown, either as actual or potential prejudice, is invalid as it would not have been properly assessed.

What it means is that the ends of justice would have been defeated. As such, these proceedings are not in accordance with real and substantial justice. In light of the serious miscarriage of justice in this matter, the following order is made:

IT IS ORDERED THAT:

(1) The conviction is confirmed.

(2) The sentence is set aside.

(3) The matter is referred back to the same magistrate to deal with the question of sentence in terms of the act after ascertaining the value of the copper.

Our courts' approach to sentencing is that;

(1) Punishment should fit both the criminal and the crime;

(2) It should be fair to the State and the accused; and

The accused is a thirty-five (35) year old first offender who pleaded guilty to the charge and made full restitution. Although he is not married he has a two (2) year old child and committed the offence because he needed money to buy food. These are very compelling mitigating factors which the Magistrate does not appear to have taken into account in assessing sentence. The only aggravating factor is that he stole from five (5) people but even then this is extinguished by the fact that he repaid them within a month of the offence, and, as such, prejudice is not there at all.

The accused appeared before the trial magistrate on the 31st January 2008 and pleaded guilty. He did not pass sentence on that day but postponed the case to the 17th September 2008. No explanation is given for this conduct.

It is common cause that where an accused appears on a plea, the case is invariably finalized on the same day.

In my opinion, the postponement was ill-motivated as it was designed to allow the accused time to pay compensation thereby receiving a sentence other than the mandatory one. It is clear therefore that the magistrate's sympathy lay squarely on the accused's laps for one to yield to such unjustified lenience is very unfortunate and it therefore casts the court in bad light and should be condemned. This conduct on the part of the magistrate is condemned. There has been a serious miscarriage of justice in this matter as there was no reason why the mandatory sentence should not have been imposed.

The following is the order:-

(1) The conviction is confirmed;

(2) The sentence is set aside; and

In as much as the accused has indeed offended both the complainant and society, he should not be punished almost to a breaking point. Regard should be had to the fact that he has the right to life after squaring his debt with society. A sentence which tends to leave an accused with no life after serving his term in prison should be discouraged.

In advocating for community service as punishment against the appellant, counsel for the appellant relied heavily on the case of S v Gumede 2003 (1) ZLR 408.

In that case, the accused was aged fifteen (15) years and was charged with assault with intent to do grievous bodily harm. The court reasoned that courts should regard community service as their first port of call when it comes to sentencing and went on to say -

“Our sentencing policy has changed as it is now focusing on non-custodial sentences for less severe crimes. Where a court contemplates a prison term of less than 24 months imprisonment, it should, as a rule, consider community service first.”

As pointed out in S v Madembo and Another 2003 (1) ZLR 137…,. -

“Judicial officers have often been criticised for failing to take into account factors of mitigation in assessing sentence even where, as in this case, they said that they did so. In some instances, they have been criticised for failing to accord due and appropriate weight to factors of mitigation. In other cases, they have been criticised for paying lip-service to those factors. In S v Buka 1995 (2) ZLR 130 (S) EBRAHIM JA said that judicial officers do not always give sufficient weight to a plea of guilty.”

This court has previously emphasized the need for magistrates to canvass the possibility of performing community service with unrepresented accused persons in cases which did not merit imprisonment for more than twenty-four (24) months. Failure to do so would amount to a misdirection – S v Manyevere HB38-03; Ndlovu v S HB22-09 and S v Khumalo HB39-03.

In its reasons for sentence, the court observed that the accused was now twenty-three (23) years; he is married with three children; he pleaded guilty to both counts; and was contrite. For reasons only known to the court, it recorded that he was a first offender.

This can only be attributed to lack of concentration on the part of the judicial officer.

The aggravating factors found by the court were that the offence was serious. It was prevalent and on the increase in Binga. The accused carefully planned and premeditated the commission of the two counts and was an unrepentant criminal who had no respect for other people's property. He was a menace to society and deserved to be removed therefrom by being incarcerated.

Although in his reasons for sentence the trial magistrate made reference to the mitigating factors; he appears to have only paid lip service. In S v Madembo and Another 2003 (1) ZLR 137…., it was stated as follows -

“Judicial officers have often been criticised for failing to take into account factors of mitigation in assessing sentence even where, as in this case, they said that they did so. In some instances, they have been criticised for failing to accord due and appropriate weight to factors of mitigation. In other cases, they have been criticised for paying lip-service to those factors. In S v Buka 1995 (2) ZLR 130 (S) EBRAHIM JA said that judicial officers do not always give sufficient weight to a plea of guilty.”

It has been stated before that where the court has accepted any factor as mitigation, such must be specified and the amount by which it has reduced the sentence must be stated. See S v Madembo and Another 2003 (1) ZLR 137.

In casu, the main mitigating factors are youthfulness, poverty, guilty plea, meritorious past conduct and restitution.

The accused committed the offence because of poverty as he required food and that reason for the offence is quite important. See S v Ngulube HH48-02. So is the guilty plea as it goes towards remorsefulness.

In S v Sidat 1997 (1) ZLR 487 (S)…, McNALLY JA said -

“A plea of guilty must be recognised for what it is – a valuable contribution towards the effective and efficient administration of justice. It must be made clear to offenders that a plea of guilty, while not absolving them, is something which will be rewarded. Otherwise, again, why plead guilty.”

See also S v Dhliwayo 1999 (1) ZLR 229 (H)…,.

While sentencing is the most difficult aspect of a trial, judicial officers should always bear in mind the need to balance the interest of society against those of the accused. Many a time, the interests of society will always far much outweigh those of an individual.

The learned magistrates' reason that his sentence was out to rehabilitate the accused lacks merit as he could have been rehabilitated by a suspension of part of the sentence. This is a case where the trial court should have followed case authorities and imposed a just sentence. In my opinion, there has been a miscarriage of justice as far as sentence is concerned.

To sentence an accused who was found in possession of such a large quantity of dagga to community service defeats the spirit and purpose of community service. In fact, this is a serious and brazen abuse of the court's jurisdiction.

I must remark that this is the second case, see S v Inken Nyamaha HB121-10, to come before me from the same magistrate….., within a week.  In that case, I questioned the reasons given for an apparently lenient sentence. I again re-iterate that judicial officers should take their work seriously as failure to do so will shake society's confidence in the judiciary…..,.

While appeal courts are reluctant or slow to interfere with a trial court's sentencing discretion, they will readily do so in circumstances where the sentence imposed is disturbingly inappropriate or the sentencing discretion has been exercised capriciously or upon the wrong principles. S v Ncube & Anor 1983 (2) ZLR 1; S v Gono 2000 (2) ZLR 63.

In casu, as the appellant was convicted of a statutory offence, the trial court ought to have been guided in its assessment of an appropriate sentence by the penalty provisions of the contravened Act. The sentence imposed by the trial court does not fall within the range of sentences stipulated by the relevant provision of the Road Traffic Act [Chapter 13:11]. As the appellant was not driving a heavy vehicle or a commuter omnibus, even if imprisonment might have been found to be appropriate, he ought not to have been sentenced to a period of imprisonment that exceeds 6 months. In S v Harington 1988 (2) ZLR 344…, DUMBUTSHENA CJ stated -

“The Legislature prescribed a sentence of twenty-five years' imprisonment as a maximum penalty for contravening s3 of the Official Secrets Act. It is the ceiling of a range of sentences which a court may impose for a contravention of the section.”

At 359H he also stated:

“Fairness and justice exclude a passionate approach to sentencing. Courts should also, when assessing sentence, avoid insensitivity to one side or an exaggerated sense of the wrong done to society.”

He proceeded at 360c:

“Fairness does not exclude the element of mercy and it does not also exclude a robust approach to sentencing.”

DUMBUTSHENA CJ further stated…., that what had gone wrong in that case was that the leaned Judge President in the court below had pitched his sights too high and scanned sights far beyond the ambit of section 3.

In casu, the learned trial magistrate passed an incompetent sentence. She erred and the sentence must, and, therefore, will, for that reason be set aside.

In her reasons for sentence, the learned trial magistrate said that she attached “little weight to the (appellant's) plea of guilty which is not a sign of contrition but rather had no other option but to so plead because the negligence was so gross and glaring.” In S v Sidat 1997 (1) ZLR 487 (S) McNALLY JA said…, -

“…, a plea of guilty must be recognised for what it is - a valuable contribution towards the effective and efficient administration of justice. It must be made clear to offenders that a plea of guilty, while not absolving them, is something which will be rewarded. Otherwise, again, why plead guilty?”

Further, in S v Mpofu (2) 1985 (1) ZLR 285 REYNOLDS J stated.., -

“…,. What a plea of guilty does accomplish, though, is to contribute to the smooth and efficient administration of the system of criminal justice…,. But, in the first respect mentioned, the plea merits recognition and credit to an extent. It is a fact that a significant portion of offenders, although knowing full well that they are guilty of a crime charged, still hotly protest their innocence. It is by no means uncommon for such persons to attack the bona fides and veracity of the most honest and impartial of witnesses, to prolong trials extensively and unnecessarily, to concoct specious and spurious defences, and generally to cause a considerable waste of public time and money. This is against public interest. I believe that it is more for this reason than any other, such as the so called automatic right based on a supposed declaration of contrition, that the courts generally allow an offender some mitigation of sentence if he pleads guilty. In this way, such an offender is encouraged to adopt the more honest and laudable procedure of making a clean breast of his culpability and of facing up to the consequences of his misconduct.”

In casu, the trial magistrate appears to have unduly minimised the value of or the weight to be attached to the appellant's plea of guilty. This led to a miscarriage of justice, moreso when viewed in light of her imposing a sentence that is not only outside, but also in excess, of the permissible maximum in matters where imprisonment is found to be appropriate.

It appears that the trial magistrate gave excessive devotion to the need for the court to “register its displeasure by imposing stiffer penalties and in the process further proceeded to not only impose an unduly harsh sentence but also went on to irregularly “outshoot” the applicable and pertinent penalty provision.

The offence committed is a statutory one provided for in the Forest Act [Chapter 19:05].

In all the three matters the trial magistrate failed to carry out any meaningful pre-sentence inquiry.

As already shown, the mitigation recorded in all the three matters is unhelpful and perfunctory. In the case of S v Usavi HH182-10...., I expressed the strong view that such scant pre-sentence information is unhelpful in arriving at an appropriate and just sentence. See also S v Shariwa 2003 (1) ZLR 314 (d); S v Ngulube 2002 (1) ZLR 316.

Given that surrounding circumstances are indeed of paramount importance in arriving at any decision, if the magistrate was swayed in ordering marriage and setting aside part of the sentence, by the stark reality that the complainant had fallen pregnant, and had little capacity and no resources to fend for herself, there is no indication that her views were heard on this matter.

His decision appears not to have been determined by any articulation on her part of what would be in her best interests but by averments which highlighted the complainant's father's interests in that he had effectively pledged her, and the accused's own interests in that he had an asthmatic wife and presumably needed a healthier one. His marriage offer might also have been influenced by his need to avoid a custodial sentence. There is nothing in the record that suggest that her views were ever factored into this unbalanced equation in terms of whose interests were being served.

It is apparent from the record of proceedings that indeed the magistrate took into consideration the fact that the accused was a first offender who pleaded guilty to the offence. The magistrate also considered that the complainant had indicated his desire to withdraw charges against the accused.

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.

It is trite that where a statute provides for a sentence of a fine and imprisonment, the court must give effect to a fine in the first instance and reserve imprisonment for the more serious breaches – see S v Mlilo HB131-10…,.; S v Banda HB67-10…,.

In sentencing the accused persons the way he did, the magistrate fell into error as the appropriate sentence should have been a fine.

It is trite that magistrates must equip themselves with sufficient and meaningful pre-sentencing in order to come up with a suitable sentence – S v Maponga HH276-84 and S v Shariwa 2003 (1) ZLR 314 (H).

In casu, the learned Regional Magistrate only obtained scant information centred on their personal circumstances. He did not attempt to seek reasons from the appellants for stealing from their employer. The result is that the trial magistrate did not attach sufficient weight to the mitigatory facts.  This was a misdirection – S v Munechawo 1998 (1) ZLR 129 (H) and S v Madembo & Anor 2003 (1) ZLR 137 (H).

In considering sentence, the magistrate converted the United States Dollars to South African rands and came up with a total of ZAR12,000= as the value of the prejudice. It is not clear why he saw it fit to make the conversion, which must have been at a rate of 1 US$ to 10 rands.

When counsel for the accused person (she had been unrepresented at the trial) perused the court record for purposes of preparing submissions for review, there were no reasons for sentence, a point that he took up in his submissions. The matter was referred back to the magistrate for his response to those submissions. His response reads in part as follows:

''Reasons for sentence were given ex tempo (sic) in court in the presence of accused person during the sentence. It could be the legal practitioner has (sic) sight of the record before the trial magistrate had placed the same in the record.''

Counsel for the accused has commented as follows:

''When counsel went to look for the record a considerable time, about two weeks, had elapsed after the passing of sentence. At that time, a review cover had been completed and the record, according to the Clerk of Court, was ready for dispatch to the Criminal Registrar for his Lordship's attention. It was dispatched on 27 January 2010, sentence having been passed on the 13^th January. One has difficulty in understanding how a judicial officer could remember, some two weeks later, what he had said orally without writing in open court. One should be forgiven for taking the view that the learned trial magistrate adopted the reasoning process of Shakespear's characters - starting with the conclusion and later going back to justify it…,. Had his worship not adopted the wrong reasoning process, he would probably not have misdirected himself on sentence, for misdirect himself he did, by exaggerating the gravity of the offence.''

It is a cardinal principle of our criminal justice system that before assessing an appropriate sentence a judicial officer must seriously engage in a pre-sentencing inquiry in order to gather as much information as possible to enable him or her to humanely and meaningfully assess sentence.  Sentencing cannot be left to the caprices and instincts of the judicial officer. A thorough investigation should be carried out by the judicial officer before arriving at an appropriate sentence.

Where the judicial officer gives an ex tempore judgment with reasons for sentence contained in his head, only to be inserted in the court record much later, he runs the risk of someone concluding that he did not apply his mind to the case at hand. Indeed, it is a misdirection for the judicial officer not to record the reasons for sentence, a misdirection which entitles the reviewing judge to tamper with the sentence.

I agree with counsel for the accused that the magistrate may have come up with reasons which were added on long after the sentence simply to justify the sentence he had already imposed. I can assign no other reason for the fact that at some stage after sentence the reasons for sentence were missing and he ''placed'' them in the record later.

It is for that reason that the trial magistrate gave overdue weight to the fact that the accused was the complainant's girlfriend who betrayed the trust bestowed to her by the complainant. There was an over-emphasis on the accused's crime which translated to an under-estimation of her personal circumstances.

The accused is a female first offender who was aged 37 at the time of the offence. She is unmarried with 4 children to look after. She stole from her boyfriend, a factor which should have weighed in her favour but which the magistrate elected to take as aggravation. Surely, a person who steals from a stranger has a higher level of blameworthiness than one stealing from a lover. She pleaded guilty showing remorse and even the State asked the court to have regard to the guilty plea in assessing sentence. The current trend is to give a lot of weight to a guilty plea and an accused person who pleads guilty has to be rewarded by a substantial reduction of sentence in recognition of that. See S v Dhliwayo 1999 (1) ZLR 229 (H); S v Katsaura 1997 (2) ZLR 102 (H).

It is not easy to understand how the magistrate was able to come up with a sentence of 3 years, if any regard was given to the mitigating factors that exist in this matter. It is even more difficult to comprehend how only 4 months of that sentence was suspended on condition of good behaviour and only 6 months was suspended on condition of restitution. The question may be asked; why restitute at all if one still remains with such a lengthy term of imprisonment?

Converting the United States Dollars component of the offence to rands gave the impression that a lot of money was involved. The question may well be asked why the rand component was not converted to United States Dollars, a more stable currency, so that the value would be reckoned simply as US$1,200=.

In my view, the sentence imposed was excessive. An appropriate sentence should have been one which left the accused with an effective sentence of 12 months.

Accordingly, I make the following order that;

1. The conviction of the accused be and is hereby confirmed.

2. The sentence of 3 years imprisonment be and is hereby set aside and in its place is substituted the sentence of 24 months imprisonment of which 12 months is suspended for 5 years on condition the accused does not during that period commit an offence involving dishonesty for which she is sentenced to imprisonment without the option of a fine.

3. Of the remaining 12 months imprisonment, a further 6 months imprisonment is suspended on condition the accused makes restitution to the complainant of the sums of US$700= and ZAR4,000=.

This matter was forwarded to my brother NDOU J for review. He has, however, left the Bench. Prior to his departure, he had raised the following queries:

“1. May the learned Provincial Magistrate explain her sentence?

2. Is the sentence for both counts treated as one?

3. It appears that Accused 1 is a first offender yet he got a more severe sentence than his two co-accused persons who have previous convictions.”

On the 17^th January 2013, the Provincial Magistrate advised the Registrar that the trial magistrate has since left service, therefore there is no one to address the issues raised by the learned Judge.

I have perused the record and, indeed, I find an anomaly in the record of proceedings with regards to sentence.

The brief facts of the matter are that the three accused aged 38, 27 and 42 were charged with and were convicted of one count of assault and 2 counts of robbery. They were sentenced as follows:

“Accused 1 - 5 years imprisonment of which 6 months is suspended for 5 years on condition the accused is not within that period commit of any offence involving violence as an element for which upon conviction he is sentenced to imprisonment without the option of a fine.

Accused 2 – 2 years imprisonment. In addition, the 2 years suspended on CRB200/08 is hereby brought into effect. 4 years effective.

Accused 3 – 4 years imprisonment. In addition, the 2 months suspended on CRB14/00 is hereby brought into effect as well as the 40 days suspended on CRB283/10 (Filabusi). 4 years 3 months and 10 days effective.”

The learned Judge's concern was with the disparity of sentences passed.

The accused were convicted of the same crimes, but, were sentenced differently. Indeed, the trial court is at liberty to treat the accused differently depending on their personal circumstances, most importantly in relation to the role each accused played in the commission of the offence. This is the general approach. However, should the court find it necessary to differentiate, it should clearly state its reasons for doing so.

In casu, the learned trial magistrate has not proffered any reasons for her departure from this general approach. In the absence of such reasons, I am left with the only irresistible conclusion that she did not apply her mind to the sentencing process.

Failure to apply one's mind to the work at hand is tantamount to a misdirection.

It is therefore clear that Accused One has been prejudiced due to the learned magistrate's misdirection. In light of this, her sentence should be interfered with: The following order is made;

Order

(1) The conviction is confirmed but the sentence for Accused 1 is set aside and is substituted by;

1.1 3 years imprisonment of which 1 year imprisonment is suspended on condition accused does not within that period commit an offence of which violence is an element for which upon conviction he is sentenced to imprisonment without the option of a fine.

We must remark here that it is of vital importance for legal practitioners to investigate the personal circumstances of the accused person in detail so the court is not left to guess on what personal circumstances to consider.

The accused was charged with contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], [stock theft].

The accused pleaded not guilty but was however convicted of the said offence and sentenced as follows:

“9 years imprisonment. In addition, the accused is sentenced to a further 4 years imprisonment. 13 years effective.”

There is no State outline contained in the record and the trial magistrate has now left service after my query of the 28^th November 2012 regarding the propriety of the sentence. I queried the propriety of a further imposition of a sentence of 4 years. There is no explanation to this query as the magistrate has left service.

In as much as the sentence of 9 years imprisonment is mandatory, I have a problem with an additional sentence of 4 years in prison imposed without any explanation. To me, it appears to have been erroneously passed on the accused.

The courts should always work within the four corners of the statute, as they themselves are a creature of such. The empowerment and jurisdiction accorded the courts by the Legislature should be judicially exercised. The exercise should not result in the passing of sentences which may lead a reasonable man of the judicial officer's status into concluding that the sentence was passed without proper and deligent application. In the absence of an explanation by the learned trial magistrate; this apparent misdirection cannot be allowed to stand.

Accordingly, the following order is made:

Order

(1) The conviction is confirmed.

(2) The sentence is set aside and substituted by the sentence of 9 years imprisonment.