The
challenge in this matter is how to rectify the incompetent sentence
imposed by the learned Provincial Magistrate following the wrong
procedure adopted in respect of Count 2. One would have thought that
the experienced learned Provincial Magistrate would not make such
elementary mistakes.
Both
accused persons were convicted on their own pleas of guilt in both
Counts ...
The
challenge in this matter is how to rectify the incompetent sentence
imposed by the learned Provincial Magistrate following the wrong
procedure adopted in respect of Count 2. One would have thought that
the experienced learned Provincial Magistrate would not make such
elementary mistakes.
Both
accused persons were convicted on their own pleas of guilt in both
Counts by the learned Provincial Magistrate. In Count 1, the charge
relates to unlawful entry into premises as defined in section 131(1)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Count 2 relates to theft as defined in section 113(1) of the same
Act....,.
The
agreed facts are that on 20 December 2017, at about 0300hrs, both
accused persons proceeded to Timmy Bar in Mushayabvudzi, Mvuma owned
by Wellington Tsambayo after the bar was closed. They both climbed
onto the roof and pulled up an asbestos sheet which was not nailed on
both sides. Accused 1 then entered the bar through the roof as
Accused 2 stood guard. They proceeded to steal cash $36=, four
(4)
quarts of black label beer, four
(4)
pints of Zambezi beer and 2x20 packets of Madison all valued at
$40=40. After their arrest, property valued at $30=40 was recovered.
The actual prejudice is property valued at a paltry $10=.
Accused
1 is a repeat offender. He has two previous convictions. The first
relates to theft for which he was sentenced, on 5 October 2015, to
receive moderate correction of four (4)strokes with a rattan cane. In
addition, 10 months imprisonment were suspended for 5 years on the
usual conditions. Accused 1 was back in court on 30 June 2016 facing
two counts, one of unlawful entry into premises and the other of
theft. Both counts were treated as one and he was sentenced to 6
months imprisonment. In addition, the 10 months imprisonment
conditionally suspended on 5 October 2015 were brought into effect.
This means that this current conviction is the third one for Accused
1 who is 18 years old.
Accused
2, who is 33 years old, is a first offender.
As
regards sentence, both counts in casu were treated as one for
purposes of sentence and each accused was sentenced to 18 months
imprisonment. In respect of Accused 1, five (5) days were suspended
on condition Accused 1 paid restitution to the complainant in the sum
of $5=. As regards Accused 2, who is a first offender, 6 months
imprisonment were suspended for 5 years on the usual conditions of
good behaviour and a further five (5) days on condition of
restitution to the complainant....,.
The
bulwark of my query..., relates to the competence of the sentence
imposed by the learned Provincial Magistrate in view of the procedure
adopted in Count 2. In relation to Count 1, the trial court proceeded
in terms of section 271(2)(b) of the Criminal Procedure and Evidence
Act [Chapter 9:07]. In relation to Count 2, the trial court then
decided to proceed in terms of section 271(2)(a) of the Criminal
Procedure and Evidence Act [Chapter 9:07] which provides as follows;
“271.
Procedure on plea of guilty
1.
Irrelevant.
2.
Where a person arraigned before a Magistrates Court on any charge
pleads guilty to the offence charged or for any other offence of
which he might be found guilty in that charge and the prosecutor
accepts the plea –
(a)
The court may, if it is of the opinion that the offence does not
merit punishment of imprisonment without the option of a fine or a
fine exceeding level three, convict the accused of the offence to
which he has pleaded guilty and impose any competent sentence other
than –
(i)
Imprisonment without the option of a fine; or
(ii)
A fine exceeding level three; or deal with the accused otherwise in
accordance with the law;”
It
was improper, in this case, for the learned Provincial Magistrate to
treat both counts as one for purposes of sentence and impose a
sentence of 18 months imprisonment after having proceeded, in Count
2, in terms of section 271(2)(a) of the Criminal Procedure and
Evidence Act [Chapter
9:07].
That course of action clearly falls foul of the clear provisions of
section 271(2)(a) of the Criminal Procedure and Evidence Act [Chapter
9:07]
since a term of imprisonment cannot be imposed without the option of
a fine and the fine should not exceed level three. The procedure
adopted by the learned Provincial Magistrate, in respect of Count 2,
and, ultimately, the whole sentence is therefore incurably bad and
wrong at law.
This
court, in the exercise of its review powers, may not be able to
correct this anomaly despite the fact that, prima facie, the
convictions in Counts 1 and 2 may be in order. I say so because it is
not possible in the circumstances to correct the sentence in respect
of Count 2. This is informed by the fact that Accused 1 is an
incorrigible offender with two previous convictions who cannot be
sentenced to a fine not exceeding level three in Count 2. That would
offend any notions of justice and would be a mockery to my sense of
fairness.
It
is my considered view that the best course of action to take in the
circumstances would be to quash the proceedings in their entirety and
allow the learned Provincial Magistrate to hear the matter de novo in
line with the correct procedure. Further, the accused persons, if
convicted in respect of both counts, should not be sentenced to a
term of imprisonment not exceeding 18 months for each of the accused
persons (which is rather too harsh anyway in view of the value of the
property involved). Further, the period the accused persons have
already served should be taken into account....,.
In
the result, I make the following order;
1.
The proceedings in respect of both counts be and are hereby quashed.
2.
The convictions and sentence in respect of both accused persons, in
both counts, are set aside.
3.
A trial de novo be and is hereby ordered before the same learned
Provincial Magistrate.
