The appellant was…, fined US$300= or 6 months imprisonment….,.

The appellant challenges the sentence imposed on the basis that it is unreasonably stiff.

The trial magistrate, in considering the appropriate sentence, considered that the appellant was a first offender with family responsibilities. That he has since reimbursed the complainant. The court also considered that the appellant's moral blameworthiness is very high. It considered imposing both a custodial sentence and community service and decided against such sentences.

The appellant stands convicted of a very serious offence. Theft of trust funds is viewed in very serious light. He stole from his employer and breached the trust entrusted in him and he cannot expect to be treated leniently. As put in Ndlovu v S SC84-84 per GUBBAY JA…,.;

“The offence involved a serious breach of trust placed in the appellant by his employer…,. The regrettable prevalence of theft by employees occupying positions of trust…, has resulted in the court issuing stern warnings that such offenders cannot expect to be treated leniently.”

The aggravating features of this case far outweigh the mitigating features. The magistrate properly considered that the appellant has since compensated the complainant. The court was not expected to place too much weight on the mitigating effect of restitution as the appellant was convicted of a very serious offence and his moral blameworthiness is very high. He stole from his employer and he did so out of greed rather than need as he was gainfully employed.

Our courts view seriously the offence of theft of trust funds. As put, in Mayberry v S HC-H 248/86;

“In cases involving dishonesty, a willingness or ability to make restitution is always a mitigating factor. Generally speaking, it will be given considerable weight especially where the accused is a first offender. The judicial officer should try to ensure that the complainant is compensated for his pecuniary loss at the expense of the accused, but a balance must be struck with the seriousness of the offence…,.”

Similar sentiments were expressed in S v Mpofu 1985 (4) SA 322.

The learned trial magistrate properly considered that the appellant was gainfully employed and stole out of greed rather than need. The appellant stands convicted of a very serious and prevalent offence and he stole from his employer thereby breaching the trust entrusted in him. His moral blameworthiness is very high.

What is in the appellant's favour is the fact that he is a first offender, and, ordinarily, all efforts should be made to keep first offenders out of jail.

A suspended sentence would not have met the justice of the case. A caution and discharge would also not have been appropriate regard being had to the aggravating features of this case. The appellant is lucky that he got away with a fine. A short and stiff custodial sentence would, in our view, have met the justice of the case. The appellant is lucky that he got away with a fine. If the trial court erred, it erred on the side of leniency.

In the result, the appeal is without merit and is dismissed.

It is trite that in considering sentence, such factors as the value of the property stolen, and recovered, be considered. The circumstances of the recovery are also important in assessing what weight to attach to the aspect of the recovery.

12. S v Owen Santrau CRB D17/09

He was duly convicted and sentenced as follows:-

“$500,000=, in default of payment, twelve months imprisonment.”

On scrutiny, the Regional Magistrate raised concern about the proportionate of the alternative term of imprisonment to the fine imposed.

The learned scrutiny Regional Magistrate is, indeed, correct in his observation.

In view of the misdirection by the learned trial magistrate, these proceedings require urgent interference.

The conviction is confirmed, but the sentence is set aside and substituted by the following:-

He was then sentenced to undergo ten years imprisonment, or which two years imprisonment was suspended for a period of five years on the customary conditions of future good behaviour.

Aggrieved by the sentence imposed by the court a quo, he noted this appeal complaining that the sentence was so severe as to numb and shock the sensibilities of society at large. His grounds for saying so were these.

“The appellant shall state that the learned magistrate in the court a quo over-emphasized the prevalent and seriousness of the offence, and downplayed, and paid lip service, to the mitigatory features of the case, which were:-

(i) That the appellant was a first offender;

(ii) That he pleaded guilty and was contrite;

(iii) That some stolen assets were recovered; and

(iv) That appellant benefitted very little from his criminal activity.

Appellant shall state that this amounted to misdirection by the learned magistrate a quo, and that this court is at large to sentence appellant afresh.

(b) Appellant will also state that although the value of stolen items was substantial, in terms of the value, this was the worst case to come before the courts, and that such sentence was meted out to appellant should be reserved for the worst types of cases, or those cases approximating the worst.

(c) Appellant shall also state that the fact that appellant and his colleagues had to load the loot into a wheelbarrow that was stolen from the same premises, testifies to the lack of sophistication and determination of the appellant and his colleagues in carrying out the unlawful entry and theft, and, that such a case did not deserve to be treated as harshly as it was.

Appellant shall submit that a sentence of half, or less, of what he was sentenced to, with a similar period of suspension, would have met the justice of the case.

Wherefore, the appellant prays that this honourable court may set aside his sentence and substitute it with one that is more humane and more likely to reform the appellant and not turn him into a hardcore criminal.”

A reading of the trial magistrate's reasons for sentence clearly shows that she did mention all that needed to be said in the applicant's favour. She balanced that with what was against him, and came to the conclusion that the aggravating features out-weighed the mitigating ones.

She was entirely correct, in my view, when regards is had to the premeditation, careful planning, and resolve that was taken to commit the crime.

The quantity of property stolen was by no means small, and so was the value.

The appellant wants this court to believe that his benefit from the crime was minimal. He was clearly attempting to trivialize the extent to which he benefitted. R50,000= worth of property is not a small amount, even when spread evenly between the members of the gang.

The suggestion that the trial magistrate downplayed, and paid lip service, to the mitigatory features is devoid of any merit.

The proposition that the magistrate paid lip service to the fact that the accused was a first offender, who tendered a plea of guilty, was contrite is equally baseless. He stole out of greed since he was a gold panner who realized R300= per month, and that money was likely to be his alone since he had no dependants to look after.  

The way the crime was committed calls for adequate punishment.

In casu, the appellant belonged to a gang of four, which explains how such a large quantity of property was carried from the warehouse without the use of a motor vehicle.

The appellant pleaded guilty because he had no choice in the matter.

After his arrest, he went on to make indications leading to the discovery of some of the stolen property. Pleading not guilty would not have made any sense, hence his unavoidable plea of guilty. Consequently, not too much weight can be attached to such a plea.

The sentence imposed by the trial magistrate was well within her jurisdiction. She exercised the powers conferred upon her judiciously. In my view, her approach towards the sentence she imposed is unassailable. This court, therefore, has no power to interfere with the sentence of the court a quo imposed after a proper exercise of its jurisdiction.

In light of this, the conviction is confirmed but the sentence is set aside, and is substituted by the following -

“Twelve months imprisonment of which three months imprisonment is suspended for five years on condition accused does not, during that period, commit any offence of which theft is an element, for which, upon conviction, accused is sentenced to imprisonment without the option of a fine.

Upon his conviction, the accused was sentenced to a straight term of two years imprisonment.

Ad Sentence

In the unlikely event that I am wrong in making a finding that the explanation tendered by the accused raised a potential defence, there is one other monumental mistake which the presiding magistrate appears to have committed.

Assuming that the accused person had gone for six months without being paid his salary (as he stated to the presiding magistrate), surely this would have been a very strong factor in mitigation which could not have, by any stretch of the imagination, justified the sentence imposed by the magistrate.

For the above reasons, I am unable to confirm these proceedings, and, with the concurrence of my brother BHUNU J, I make the following order -

1. The conviction and sentence are set aside.

2. The charge against the accused is remitted for trial de novo before a different magistrate.

3. In the event of the accused being convicted, any period served in prison already must be taken into account in the assessment of sentence.

They were each sentenced to fifteen years imprisonment of which six years was suspended on conditions of good behaviour. Both counts were treated as one for sentence.

The issue of great concern is the severity of the sentences imposed on the accused persons. They were each sentenced to fifteen years imprisonment, both counts being treated as one for sentence.

The trial court did not give serious consideration to the accused person's moral blameworthiness. I have already said they are circumstantial offenders in respect of the theft of the complainant's motor vehicle.  The motor vehicle was recovered intact. Only a radio and CD player were stolen from it. Therefore, their stealing a motor vehicle after unlawfully entering the complainant's premises should have been considered in its proper perspective.

Sections 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and 113(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provide for sentences ranging from a fine not exceeding level thirteen to imprisonment for a period not exceeding fifteen years; and a fine not exceeding level fourteen to imprisonment for period not exceeding twenty-five years, respectively. 

The Regional Magistrate, treating both counts as one for sentence, imposed the maximum sentence imposable for contravening section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Applying the above principles to this case I am persuaded that though theft of motor vehicle would normally attract sentences ranging from seven to ten years such sentences are not appropriate in this case. I have already pointed out that the accused persons did not set out to go and steal the motor vehicle. They stole it when they fortuitously found its key in the complainant's jacket. They can therefore not be classified as dealers in stolen vehicles.

The principles enunciated in S v Dube & Anor 1995 (2) ZLR 321 (SC) do not apply in this case. 

Although theft of motor vehicles has become rampant, in this case, the theft was induced by the accused's finding the motor vehicle's keys in the jacket they had stolen. There is no evidence of international connections in the accused's conduct. There is no evidence that they dealt with stolen motor vehicles nor that they had an interest in its preservation. A much shorter sentence is therefore called for when this case is compared to S v Dube 1995 (2) ZLR 321 (SC) and the cases therecited.

The sentence to be imposed on the accused should also take into account their youthfulness.

The sentence for unlawful entry should, because of the value stolen, and the recovery of most of the stolen property, be closer to the lower level suggested in section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. As the offence in this case is aggravated by section 131(2)(e) of the Criminal Law (Codification and Reform ) Act [Chapter 9:23] the sentence should range from a fine not exceeding level thirteen or double the value of the stolen property. This means consideration should start from a fine moving upwards to the maximum of fifteen years imprisonment. The maximum..., should be reserved for the worst contravention of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 

The present case is far from being the worst. It is merely above the lower level but below the middle level. That, coupled with the accused person's ages, must result in a sentence not exceeding two years. The theft of the complainant's motor vehicle, in the circumstances described above, must, on its own, not attract a sentence exceeding five years. When both counts are treated as one, their cumulative effect, and interrelationship, must tone down the global sentence to a total of six years.

After considering the above, I am satisfied that the accused persons have already felt the sting of imprisonment. They were sentenced on 1 August 2007. They have spent close to three years in prison. They, however, are still young and need deterrence against committing crimes. A reasonably long portion of the total term of imprisonment to be imposed should be suspended to deter them from committing similar crimes. The sentence imposed by the Regional Magistrate is set aside and is substituted by the following –

After hearing both counsel we dismissed the appeal in its entirety and indicated that our reasons for doing so will follow. These are they.

The appellant appeared before the Magistrates Court in Gweru and pleaded guilty to both charges and was duly convicted and sentenced;

- In respect of Count 1, to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition he does not within that period commit a similar offence. A further 10 months was suspended on condition of restitution. 

- In respect of Count 2, he was sentenced to 6 months imprisonment which was wholly suspended for 5 years on condition of good behavior.

The appellant was then left with an effective sentence of 8 months imprisonment assuming he made restitution.

He was aggrieved by that sentence and appealed to this court against sentence only. His grounds of appeal…., are as follows:-

“GROUNDS OF APPEAL

The court a quo erred in meeting (sic) effective 8 months imprisonment for theft by conversion in view of the Applicant's mitigatory circumstances.

(1) The court a quo erred in not considering community service as competent punishment.

(2) The court a quo erred in not considering a fine as punishment.

(3) The court a quo erred in holding imprisonment as the only deterrent punishment.

(4) The court a quo erred in holding that the case was only committed out of greediness when the applicant explained the reasons for the committed (sic) of the offence.

(5) The sentence imposed by the court a quo induces a sense of shock as it is manifestly excessive in the circumstances.

(6) The court a quo erred in not considering that the appellant is 21 years of age and capable of correction.

The Magistrates Court sitting in Beitbridge convicted the applicants of theft on the 30^th July 2010 and sentenced all of them to eight (8) years imprisonment.

He was sentenced to twenty-eight (28) months imprisonment of which four (4) months was suspended for three (3) years on condition of good behaviour. A further eight (8) months imprisonment was suspended on condition the accused made restitution of the sum of US$150= by the 30^th June 2010.

The accused was sentenced as follows:

“Sentenced to 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition accused does not within that period commit an offence of which dishonesty is an element and for which upon conviction is sentenced to imprisonment without the option of a fine. A further 18 months imprisonment is suspended on condition accused completes 630 hours of community service at Gweru Magistrates Court on the following conditions:

The community service starts on 3 June 2010 and must be completed within 19 weeks. The community service shall be performed every Monday to Friday which is not a public holiday between 8am to 1pm and 2pm to 4pm, to the satisfaction of the person in charge of the said institution who may, for good cause shown, grant accused leave to be absent on certain days or during certain hours. Such leave of absence shall not count as part of the community service to be performed. The remaining 2 months imprisonment is suspended on condition accused pays restitution to the complainant in the sum of $69= through the Clerk of Court, Gweru on or before the 15^th July 2010.”

The sentence appeared lenient and I sought the learned trial magistrate's justification for such a sentence. His response is that he wanted to rehabilitate the accused and avoid him being hardened by criminals in prison.

The learned trial magistrate's reasoning defies logic.

The accused, on two different occasions, set out to break into the complainants' premises, stole goods and nothing was recovered. These facts, on their own, are enough to sentence the accused to an effective imprisonment without an option of a fine - even if it would have been for a short prison term.

This is an appeal against sentence only; the appellant having been convicted by the Magistrates Court sitting at Gweru on 19 September 2008 of theft in contravention of section 113(1)(a) and (b) of the Criminal Law Code and sentenced to thirty-six (36) months imprisonment of which six (6) months imprisonment was suspended for five (5) years on condition of good behaviour.

Not happy with that sentence, the appellant noted an appeal to this court and the grounds of appeal, as appear on the notice of appeal filed on 24 September 2008, are as follows:

“GROUNDS OF APPEAL

1. The learned provincial magistrate misdirected herself in imposing a term of imprisonment with labour of 30 months after suspending 6 months imprisonment with labour.

2. The sentence imposed by the trial court induces a sense of shock.

3. The trial court misdirected itself in failing to give due weight and consideration to the particular circumstances of the appellant's matter in that after stealing the radio in question, it was recovered from him before he had even left the premises with it.

4. The learned provincial magistrate misdirected herself in that she failed to give due consideration to the highly mitigatory factors that the radio was recovered and appellant pleaded guilty and thus did not waste the trial court's time and was contrite.

5. The learned provincial magistrate misdirected herself in failing to consider giving the appellant the option of community service.

6. The trial court failed to give due weight to the mitigatory factors that the appellant lost his job as a result of his commission of this offence and did not benefit at all from his misdemeanour.

The appellant was sentenced as follows.

All the theft counts were taken as one for purposes of sentence and he was sentenced to 2 years imprisonment. All the fraud counts were taken as one for purposes of sentence and he was sentenced to 7 years imprisonment. Of the combined total of 4 years imprisonment, 2 years imprisonment was suspended for 5 years on condition of future good conduct. A further 1½ years imprisonment was suspended on condition of payment of restitution. The resultant effective term of imprisonment was thus for a period of 6 months….,.

As stated earlier, the conviction and sentence of 2 years imprisonment imposed in respect of the 73 counts of fraud cannot stand. The conviction is set aside. The sentence is also set aside.

On the conviction for the 66 counts of theft for which the appellant was properly convicted, he was sentenced to 2 years imprisonment. The trial court had, however, proceeded to deal with the sentence for these counts as well as the sentence that he had imposed for the fraud counts. Of the combined total of 4 years imprisonment the trial court had proceeded to suspend 2 years imprisonment on condition of future good conduct. A further 1^1/2 years was suspended on condition of restitution in the amount of $18,388=.

The effective sentence was a term of 6 months imprisonment.

The appellant is a 52 year old first offender. In his reasons for sentence, the learned trial magistrate rightly stated that the appropriate punishment in the circumstances of this matter can safely be scaled down to the minimum necessary, serving the interests of the accused, society and justice. The reasons for the sentence that he imposed are well set out in the record of proceedings. What has now changed for purposes of this appeal is the fact that the conviction for the fraud charges has been set aside and is no longer of relevance in the determination of a proper sentence. The trial magistrate had properly and justifiably suspended a substantial portion of the combined custodial sentence on condition of good behaviour. A greater portion of the remaining term was also suspended on condition of restitution and the learned trial magistrate thereby achieved the aim of scaling down to the minimum necessary the effective custodial term that the appellant was to serve. That minimum necessary, in the circumstances facing the trial magistrate, was an effective 6 months imprisonment. With the setting aside of the fraud conviction and sentence the said effective term of imprisonment cannot stand. It appears, however, that suspension of the whole of the remainder on condition of restitution would not only encourage the appellant to restitute the complainant but would also act as a personal deterrent on the 52 year old appellant who is a first offender and who, from the record of proceedings, suffers from hypertension which has apparently been worsened by stress and the criminal charges for which he has been convicted.

In the result, the sentence of the court a quo is hereby set aside and substituted with the following:-

“All counts of theft taken as one for purposes of sentence – 2 years imprisonment, of which 1½  years is suspended for 5 years on condition that during that period the accused does not commit an offence involving dishonesty or breach of trust, for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining 6 months imprisonment is suspended on condition the accused restitutes US$7,438= to the complainant company, (Aviation Ground Services) through the Clerk of Court, Harare by 4pm on 31 May 2013.”

The appellants were…, sentenced each to nine (9) years imprisonment of which three (3) years imprisonment was suspended for five (5) years on the usual conditions of good future behavior.

They have appealed against the sentence.

After hearing both counsel we allowed the appeal in part by setting aside the sentence imposed by the learned Regional Magistrate and substituting it with one of two (2) years imprisonment. We indicated then that our reasons will follow. These are they.

The appellants and their accomplice were all employed by the complainant and resided at their place of employment. The charge they were convicted of was that they jointly, and acting in common purpose, stole six hundred car tubes from their employer between October 2007 and December 2007. The appellants sold the stolen tubes and not surprisingly none of the stolen property was recovered. The stolen tubes were valued at ZS$12 billion, a considerable amount at the time of the theft. It is apparent from the record of proceedings that the learned Regional Magistrate failed to obtain detailed and meaningful mitigation from the appellants who were, at the time, unrepresented.

This was a mis-direction and the State conceded that fact….,. On account of the said misdirection, we are at large as far as sentence is concerned.

The mitigatory factors are that the appellants pleaded guilty to the charge and showed some measure of contrition. They were young offenders. They were first offenders; as a result of the conviction and sentence they will most likely lose their employment. Against this, theft from an employer is viewed as a serious offence involving breach of trust. The stolen property was sold by the appellants. None of the stolen property was recovered. The value of the stolen property, as alluded to above, was considerable. The sentence of nine (9) years with three (3) years suspended is manifestly excessive in the circumstances. It is for the above reasons that we reduced the sentence to two (2) years. We also directed that the period that the appellants served prior to their admission to bail be taken into account.

The accused is a first offender who was aged 35 years at the time he committed the offence. He is now 40 years old. He is married with 5 children. The 8 days he served before he was released on bail have been taken into account.

The donkeys he stole were fortuitously recovered, therefore, not much weight can be attached to that.  Instead what is clear is that he is a greedy man because he himself owns 4 donkeys. The theft of the complainant's donkeys was out of sheer greed. He stole for sale not because he was a poor man. He has nine (9) cattle. If he was desperately in need of money he could have sold one of his beasts or one of his donkeys to raise money. Instead, he sold the donkeys he stole. This was a mean theft indeed. Depriving a rural dweller of two donkeys is a serious matter since donkeys mean a lot to rural dwellers. They use them for ploughing their lands and as a means of transport.

The aggravating features far outweigh the mitigating ones. No other form of punishment other than a custodial sentence is appropriate in the circumstances. I shall, however, suspend a portion of the sentence on condition of future good behavior. In the result, the appellant is sentenced as follows:-

“15 months imprisonment of which 6 months imprisonment is suspended for 3 years on condition that he is not convicted of any offence of which theft or dishonesty forms an element committed within that period for which he is sentenced to imprisonment without the option of paying a fine.

The appellant was sentenced to 12 months imprisonment of which 4 months imprisonment was suspended on the usual condition of future good behaviour…,.

The magistrate's view was that due to the prevalence of cases of con-artists in Kwekwe a deterrent sentence was called for. No other form of punishment, other than imprisonment, was appropriate in this case. The magistrate gave the reason for holding that imprisonment was the only suitable form of punishment in casu. The magistrate considered other forms of punishment and held that they were inappropriate in the circumstances.

This case was carefully planned. The complainant was promised some job - albeit for a short time. The appellant chose his victim very carefully. The complainant was a rural dweller who was naive. The appellant pounced on him and took his $113= which was a lot of money to a communal home dweller. The sentence was far from being excessive for someone who does this kind of thing. There is nothing wrong with it and it is hereby upheld. 

The trial court then sentenced the appellant to undergo 6 years imprisonment of which 2 years imprisonment was suspended for 5 years on the customary conditions of future good behavior.

In his grounds of appeal, he complained that the learned magistrate had not properly balanced his mitigating and aggravating factors in her reasons for sentence. His other complaint was that the sentence imposed did not fit the circumstances of the case.

The brief circumstances giving rise to this case were that on 1 January 2011, at about 12 midnight, the complainant parked his car outside Vision Night Club situated at the corner of 13^th Avenue and Robert Mugabe Way, Bulawayo. He closed all the windows and locked all the doors and entered the night club. While he was inside, the appellant used some unknown object to open the locked car. He drove the car but ran out of luck before going far and collided into a parked car and then failed to drive away before being discovered by the complainant's young brother who found him sitting in the car. The car had been parked just before 12 midnight. The appellant was found in the car at about 3am having driven the car from where it had been parked before he collided into a parked car. When approached by the complainant's young brother and other people the appellant bolted out of the car and fled but was apprehended before he went too far. He was found with a bunch of keys on his person. The complainant's young brother said the gear box of the vehicle had been damaged during the collision with a parked car. The appellant could not drive the car any further because of the gearbox which was stuck following the collision. The appellant must have either used some keys from his bunch of keys to open and start the vehicle or some other object which he was not prepared to tell the court.

The vehicle was valued at $5,000= and was recovered.

The trial court found the appellant to have been untruthful. It rejected his story that he only wanted to steal the battery of the car. Had that been his sole intention there would have been no need to drive the car from where it had been parked….,.

Counsel for the appellant was unable to show any misdirection by the trial court.

There being no misdirection by the trial court this court cannot interfere with judicial discretion properly exercised on the basis that it would, maybe, have imposed a somewhat different sentence had it been the trial court.

Consequently, after hearing arguments from the respective legal practitioners, we concluded that the appeal was devoid of any merit and dismissed it and indicated that our reasons would follow.

This matter appeared on the unopposed motion roll for 24 July 2013. It was an application for review. It was alleged that the first respondent, a Regional Magistrate, had misdirected himself by convicting the applicant of theft of trust property as defined in section 113(2) of the Criminal Law (Codification and Reform) Act allegedly because the value of the property involved had not been ascertained.

In spite of the fact that the application had been unopposed I dismissed it. It lacked merit. No cause of action had been established. Here are the details:

The property in issue belonged to a deceased estate. It comprised a number of immovable properties and some vehicles. The applicant had been a sister of the deceased. It was common cause that she had sold one of the vehicles and had converted the proceeds for her own use. It was also common cause that she had been collecting the rents from the immovable properties for her own use. The deceased had been survived by a wife and children. In the Regional Court the second respondent had proved that the applicant had refused to surrender the administration of the deceased estate to the executor when he had eventually been appointed.

The defence proffered by the applicant to the charge in the Regional Court had apparently not succeeded. Whilst admitting to the disposal of the vehicle and to the collection of rentals, the applicant had alleged that she had been entitled to the proceeds because she had been in a business partnership with the deceased; that she had not been paid anything for the two years that she had taken care of the deceased estate prior to the appointment of the executor and that it had been the applicant herself who had added the improvements to the immovable properties from which the rents had been collected.

Finding that the case had been a unique one the first respondent had sentenced the complainant to three years imprisonment which he had wholly suspended on certain conditions. At the trial it appeared that initially there had been a dispute as to the value of the vehicle which the applicant had disposed of and the quantum of the rentals which she had collected. However, it also appeared that there been some sort of consensus between the parties and the court that the parties would reach agreement on the value of the vehicle and the quantum of the rentals. The matter had proceeded to mitigation and aggravation of sentence and the pronouncement of the penalty but without finality on the figures. However, it was abundantly clear from the record that the figures had had no bearing on the decision to convict and on the sentence imposed….,.

The accused was…, sentenced to undergo four (4) years imprisonment. 

While the conviction was proper the sentence imposed is a cause for concern.

When the court asked the accused why he had committed the offence his response was that he had sometime worked for the magistrate on a part-time basis and had just got tempted.

The court then said the following before sentencing the accused:-

“You are a first offender. You pleaded guilty to the offence. Therefore you did not waste the court's time. You showed contrition and the court interpreted this as a genuine sign of remorse. The phone you stole was recovered, therefore, you did not benefit at all from your criminal enterprise.  However, the offence you committed is very prevalent, therefore, there is need to deter you and like-minded members of our society. You betrayed the trust that has been bestowed upon you as an employee, albeit a temporary employee, by stealing from your employer. You showed utter disregard for the law by stealing from a magistrate. There is need to show all and sundry that the law has to be respected at all costs.

In view of the foregoing, a custodial sentence would suffice.”

The court clearly paid lip service to the mitigating features which it outlined. It just repeated the mitigating factors without applying its mind to them otherwise how could it have arrived at a sentence of four (4) years imprisonment for the theft of a mobile phone valued at $70= - all recovered?

The accused is a first offender who pleaded guilty.

The court exaggerated the aggravating features. The trial magistrate seems to have imposed such a grossly excessive sentence because the accused stole from a fellow magistrate. The sentence is completely out of step. It induces a sense of shock….,. What the accused did cannot be taken lightly. He went to his former employer under cover of darkness and broke into the car in order to steal a mobile phone. He used his prior knowledge of the area. The trial court was correct in holding that he deserved to be sent to prison. The sentence should have been sharp and short.

In the result, the sentence imposed by the trial court is set aside and substituted with the following:

“5 months imprisonment of which 2 months imprisonment is suspended for a period of 4 years on condition that the accused is not convicted of any offence of which theft or dishonesty forms an element committed within that period for which accused is sentenced to imprisonment without the option of paying a fine.”

The appellant was sentenced to four years imprisonment with one year suspended on the usual conditions of future good behavior. 

The appeal is against sentence only.

We accept that the fact that the appellant is a first offender who pleaded guilty is mitigatory - S v Sidat 1997 (1) ZLR 487 (S)…, and S v Bhuka 1995 (2) ZLR 130 (S).

In casu, there is no evidence that the trial magistrate paid lip service to this factor. In fact, she accorded it due weight. The same applies to the appellant's youthfulness and his personal circumstances. The problem facing the appellant is that all these mitigatory factors are overshadowed by the seriousness of his criminal conduct. The property was not recovered as a result of the appellant's change of heart. The recovery was, in fact, fortuitous. The property had been moved from South Africa only to be recovered in Zimbabwe. The appellant is a brazen thief who hired a vehicle and transported the property all the way from Johannesburg to Bulawayo. He crossed the border into Zimbabwe. If it had not been for Sikhulekile Khumalo and her tip-off, the complainant would not have recovered anything. The appellant's moral blameworthiness is heightened when considering that the appellant breached the trust placed on him by the complainant. This trust extended to accommodation and was of such a degree that the complainant left his/her home in the care of the appellant. This was a clear cunning conduct and deception. We find that there is no misdirection on the part of the trial court. 

The court which tried and convicted the appellant sentenced him as follows:

“3 years imprisonment which are wholly suspended on condition you restitute the complainant, Takundwa Madziva, his share of 70% of $54,466=73 through the Clerk of Court, Masvingo on or before 26 September 2013. The 15 months suspended at Triangle Court on 9 January 2012 are further suspended for 5 years on the same conditions.”

The accused was sentenced to 24 months imprisonment of which 6 months imprisonment were suspended for 5 years on the usual conditions of good behaviour. A further 6 months imprisonment were suspended on condition of restitution on a specified date and the remainder of 12 months imprisonment on condition the accused performs 420 hours of community service at Beit Bridge District Hospital on the usual conditions.

In my view, although the overall sentence of 24 months imprisonment is rather on the excessive side I, nonetheless, do not believe that it amounts to a misdirection which warrants the interference of this court.

The appellants were sentenced as follows-

“Accused 1 is sentenced to pay a fine of US$15,000=, or, in default, a writ of execution against its property. In addition, Accused 1 is ordered to pay restitution to the complainant of US$42,154=39 through Clerk of Court, Harare on or before 31^st August 2013.

Accused 2 and 3 are each sentenced to serve 7 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition during that period accused does not commit any offence of which dishonesty is an element to which if he is convicted will be sentenced to imprisonment without an option of a fine. Of the remaining 5 years imprisonment 3 years imprisonment is suspended on condition each accused restitutes US$42,154=39 to complainant through Clerk of Court, Harare on or before 31^st August 2013.”…,.

On sentence, counsel for the appellants submitted that the appellants should have been given the option to perform community service….,.

As regards the sentence, it is trite law that sentencing is, by and large, the discretion of the sentencing court. The Appeal Court has invariably limited powers which enable it to interfere with the sentence the trial court will have imposed. Its powers in this regard can only be exercised where, ex-facie the record, the court a quo has misdirected itself or has imposed a sentence which is manifestly disproportionate to the crime committed.

In casu, an amount of US$126,463=17 was stolen and nothing was recovered.

In our view, the sentence does not induce a sense of shock. Community service is only reserved for non-serious offences. Here, there was some pre-planning. There was an abuse of trust, and where there is a breach of trust, one cannot be treated with kid gloves. The sentence imposed upon the appellants, in our view, fits both the offence and the offenders. We will, therefore, not disturb it.

The appellants' appeal against both conviction and sentence fails. It is, in the result, ordered as follows:-

Upon conviction, the accused was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition of future good behavior. A further 6 months imprisonment was suspended on condition that he restitutes the complainant the sum of $455= by 31 March 2016.  

This left the accused person with an effective prison term of 6 months for which he was carted away to Bulawayo prison and commenced serving it on that date.

When the matter came before me for review I immediately queried with the magistrate why, after he had initiated the inquiry into the suitability of community service and the accused had been successfully vetted for it, he had then abandoned that option in favour of imprisonment for a matter falling squarely within the community service grid and the accused was found suitable for community service.

The magistrate responded by letter of 15 March 2016 which reads:

“RE: STATE V NJABULO SIBANDA CRB ENT 87/16

Kindly place the record of proceedings before the learned MATHONSI J with the following comments:

I acknowledge receipt of your review minute dated the 7^th of March 2016. I did not sentence accused to community service as I took it that this would trivialize the offence. Accused has no regard for the law or others and is so gullible as he masqueraded as a man of the cloth and stole from the innocent complainant. I also considered that a substantial amount is involved and complainant suffered prejudice.  Therefore, I had found a custodial sentence appropriate. May I be guided should the learned reviewing judge find otherwise.”

In my view, these fanciful reasons not only fail to address the simple concern raised, namely, that an effective 6 months imprisonment falls within the community service grid, they are patently an afterthought by someone who does not want to see the light. The reasons for sentence given by the magistrate in the record are as follows:

“Accused is a first offender who is a family man. It is a trite principle of sentencing to exercise leniency when dealing with first offenders. Accused pleaded guilty and did not waste the court's time. It has been held in a number of cases that weight must be attached to a plea of guilty which shows remorse on the part of accused. However, I took as aggravatory the nature of offence accused is facing. Also aggravating is the value involved. I found a custodial sentence, coupled with an order for restitution, appropriate.”

Until such time that magistrates' start taking the business of sentencing seriously and apply their minds purposefully to the task at hand we shall continue to have such problems where magistrates simply adopt an instinctive approach to sentencing which arises out of either emotion or inattention. How else can one explain the inquiry into the suitability of community service and the abandonment of the whole exercise midstream as if the magistrate just forgot that the inquiry had been conducted? 

This was clearly a misdirection.

It has been stated, repeatedly, by this court that where the sentencing court settles for an effective sentence of less than 24 months imprisonment, it is obliged to consider community service as an option.  See S v Mabhena 1996 (1) ZLR 134 (H)…,.; S v Chireyi and Others 2011 (1) ZLR 254 (H)…,.

Where the magistrate has inquired into community service and found it inappropriate in the circumstances, he or she must give cogent or sound reasons for arriving at that conclusion; which reasons must appear in the record: S v Mutenha and Another HB35-16. In the end, if the sentencer considers that only an effective term of imprisonment is the appropriate sentence he or she should give proper reasons for that decision. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Chinzenze and Others 1998 (1) ZLR 470 (H); S v Silume HB12-16.

The magistrate did not give any reasons for disregarding community service as an option. 

This is a case where the pre-sentencing information he had gathered was to the effect that indeed the accused person was a good candidate for that option of sentence. There had to be a reason for discarding it and such reason should have been recorded. 

It was not.

Instead, the magistrate proceeded as if no inquiry into the suitability of community service had been conducted, which is strange indeed. Yet, this is a case in which he had settled for an effective 6 months imprisonment and was therefore required, as a matter of principle, to consider community service. That is what happens when sentencing is explained in mystical terms; when the judicial officer is accorded svengali status imbued with magical qualities beyond the ken of mortals. When the magic fades it does so inexplicably and is seen as a terminal development hence the failure to explain the sentence by the magistrate.

Magistrates should simply follow the sentencing guidelines which have been given by the superior courts painstakingly over the years. They should not, in the exercise of their sentencing discretion, pursue other agenda divorced from the penal policies developed over time where such a departure is uncalled for and has the effect of leading to an injustice….,.

In the result, it is ordered that:

1….,.

2. The sentence is set aside and in its place is substituted by the following sentence:

“18 months imprisonment of which 12 months imprisonment is suspended for 5 years on condition the accused does not, during that period, commit an offence involving dishonesty for which, upon conviction, he is sentenced to imprisonment without the option of a fine.

A further 5 months and 6 days is suspended on condition the accused restitutes the complainant the sum of $455= by 31 March 2016 through the Clerk of Court Western Commonage.”

The appellant was sentenced to 30 months imprisonment of which 12 months were suspended for five years on the usual conditions and a further six months were suspended on condition that the appellant makes restitution in favour of the complainant in the sum of US$130= within a given period.

The parties in the present appeal are ad idem on the point that the sentence which the trial court imposed on the appellant is not only harsh and severe but it also induces a sense of shock.

The court agrees with the position which the parties took.

The appellant, who is a 27 year old first offender, pleaded guilty to, and was convicted of theft as defined in section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State allegations were that, on 20 March 2013, and at the 1.4km peg which is along Makuti-Kariba Road, the appellant went to an accident scene where a truck carrying a consignment of assorted beer had been involved in an accident. He took from the scene 10x340ml of Heinken beer valued at $13=40. The beer was recovered.

The appellant was sentenced to 6 months imprisonment; 2 months of which were suspended for 5 years on the usual condition of future good conduct. The appellant was sentenced to an effective 4 months imprisonment.

The appellant's appeal was against sentence. His five grounds of appeal were that:

(a) The sentence which the court a quo imposed was so severe as to induce a sense of shock;

(b) The trial court misdirected itself by concluding that the appellant jumped into the deeper end of the offence where the value involved was $10= when all the goods were recovered;

(c) The trial court misdirected itself by holding that a fine was not a suitable sentence when the penal provision provides for imposition of a fine;

(d) Where the court a quo remained of the view that a fine was not suitable, a term of imprisonment which was suspended on condition of performance of community service would have met the justice of the case; and

(e) Because the trial court did not place any weight on the appellant's plea of guilty, the appellant emerged worse off given the fact that he lost his employment as a result of the sentence which was imposed upon him.

The above-mentioned grounds do have a lot of relevance on the appeal.

The trial court misdirected itself in a very serious way when it imposed a custodial sentence of 6 months on the appellant. The fact that the appellant ended up with an effective sentence of 4 months imprisonment does not, in any way, detract from the severity of the sentence which the court a quo imposed.

The circumstances of the present case do not support the proposition that the appellant should have been sentenced to a term of imprisonment. The court a quo should have explored other sentencing options before it slapped him with an effective term of imprisonment.

It is pertinent to stress that a court which goes about the onerous task of assessing an appropriate sentence must apply its mind in a judicious manner in order for it to arrive at a sentence which fits both the crime and the offender. The court would, by and large, fall into the error of dispensing injustice instead of justice if it pays lip-service to the offender's mitigatory features as they appear in the record. Equally, justice would not have been served if the court imports into the record matters which are not in that record.

The trial magistrate fell into the error of importing into the record what was not in the record. The error which he made affected the balance of his thinking to a point where he ended up imposing an unrealistically harsh sentence on the appellant. He stated, in the body of his reasons for sentence, as follows:-

“The offence committed by the accused is viewed seriously by the law. Accused went to a scene of accident where a truck had been involved in an accident. People were seriously injured with one of them meeting his death. A lot of property had been damaged. Instead of rendering assistance to the injured, the accused looted property from this truck. Accused had more joy in looting the property than saving the lives of those who had been injured.”

There is no doubt that the trial court misdirected itself in a very serious way when it imported the above cited statement into the record of proceedings. The record, as it stands, is silent on the point that, when the appellant arrived at the scene of the accident, there was an injured person whom he should have assisted. The trial magistrate just made mention of matters which were not supported by anything and considered them to have been aggravatory to the appellant's case as a result of which he imposed the sentence against which the appellant appealed.

A careful analysis of what was before him would have convinced the trial magistrate that the appellant's mitigatory features far outweighed the aggravating circumstances of this case. He would, for instance, have realised that the appellant was:

(i) A young first offender who was, or is,

(ii) A family man who, in substance,

(iii) Did not waste the court's time and the State's resources as he pleaded guilty to the offence.

The above factors, coupled with the fact that the beer which he stole was valued at $13=40 and was recovered, should have persuaded the court a quo to avoid the incarceration of the appellant and to have considered such alternative sentencing options as a fine coupled with a wholly suspended prison term or performance of community service.

There was, in the court's view, nothing which was aggravatory in so far as the present case is concerned. The sentence which was imposed does induce a sense of shock in us. It will, accordingly, be interfered with.

The appellant established his case on a balance of probabilities. The appeal, therefore, succeeds. It is, in the result, ordered that the sentence which the court a quo imposed upon the appellant be and is hereby set aside. It is substituted with the following sentence:-

“The appellant is sentenced to pay a fine of $150=, or, in default of payment, 30 days imprisonment. In addition, the appellant is sentenced to 3 months imprisonment the whole of which is suspended for 3 years on condition he does not, within that period, commit any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine.”

The accused was sentenced to six (6) months imprisonment of which four (4) months imprisonment was suspended on conditions. He would serve an effective two (2) months…,.

In assessing the appropriate sentence, the trial court balanced the mitigating circumstances of the accused against the aggravating circumstances of the case. He considered that the accused pleaded guilty and hence did not waste the court's time. The accused is a family man with a wife and child to support. All the stolen money, which amounted to $525=, was recovered. The court considered that what aggravated the case was that the accused stole from his employer and that he breached the trust entrusted upon him by his employer. The trial magistrate was at the view that imposing community service would trivialise the offence.

He was correct in this approach.

He decided to impose a different sentence in order to send a message that crime does not pay and discourage theft from employers. The fact that all the money was recovered does not reduce the seriousness of the offence.

Theft from the employer is a serious offence which ordinarily calls for a custodial sentence unless there are strong mitigatory factors. The accused breached the trust entrusted onto him by his employers through his conduct. Although he is a youthful first offender who pleaded guilty, one should not lose sight of the seriousness and prevalence of the offence. Even first offenders are sent to jail for this type of offence.

The trial magistrate properly balanced the mitigating and aggravating circumstances of this case. A short stiff custodial sentence was called for. An effective sentence of 2 months imprisonment meets the justice of the case….,.

I am satisfied that the proceedings are substantially in accordance with real and substantial justice.

I hereby confirm the proceedings.

The two of them were convicted and sentenced, on 28 October 2014, to each a fine of $150= or in default of payment, 3 months imprisonment. In addition, they were each sentenced to 3 months imprisonment wholly suspended for 5 years on condition of future good behavior.

For the first Count, the accused was sentenced to 5 years imprisonment part of which was suspended on certain conditions.

I have no qualms with both the conviction and sentence in respect of this Count.

The appellant was sentenced to a fine of $400=, or, in default thereof, three months' imprisonment. He was also sentenced to an additional twelve months imprisonment of which six months' imprisonment was suspended for five years on the usual condition of good behaviour. The remaining six months imprisonment was suspended on condition that he paid the complainant restitution in the amount aforesaid.

On 28 December 2014, at 9am, the two went to Checheche Growth Point in Chipinge. They entered a shop which was unattended and stole two Nokia cellphones worth $120= which were on top of the table. They left the shop. These two cellphones were later recovered from the accused….,.

Accused One was sentenced to 10 months imprisonment which was wholly suspended on condition of performance of 350 hours of community service. Accused Two was sentenced to three months imprisonment of which one month imprisonment was suspended on condition of good behaviour…,.

Ordinarily, the offence that was committed by the accused persons calls for a fine. However, the accused had no savings at all making it difficult for the court to impose a fine. Accused One was sentenced to community service, which was quite appropriate, but, 10 months imprisonment for such a petty offence is too harsh and it induces a sense of shock….,.

I do not see why Accused Two was not also considered for community service even though he was a repeat offender….,.

I cannot confirm the sentences as being in accordance with real and substantial justice.

Both sentences are set aside and substituted with the following:-

Each accused:

“Three months imprisonment of which one month imprisonment is suspended for five years on condition the accused does not within that period commit an offence involving dishonesty and for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining two months imprisonment is suspended on condition of performance of 70 hours of community service.”

The accused person was sentenced to a $200= fine and/or alternatively two months imprisonment. In addition, six months imprisonment was wholly suspended for three years on condition the accused person does not within that period commit any offence involving theft for which upon conviction he will be sentenced to imprisonment without the option of a fine.

The accused was convicted by the Magistrate sitting at Chiredzi of contravening section 113(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to theft of trust property.

The facts proved during the trial are that the 34-year-old accused was left in custody of two 32-inch plasma television sets by his employer of seven to eight years valued at $1,500. The accused disposed of the two television sets.

Despite the accused's spirited denial of the offence, the evidence adduced clearly proves that he committed the offence. The conviction is in order and is therefore confirmed.

It is the sentence imposed which has exercised my mind.

The accused who has two minor children, a pregnant wife, and has lost his job in these difficult economic times was sentenced to 15 months imprisonment of which 3 months were suspended on the usual condition of good behaviour and a further 6 months on condition of restitution in the sum of $1,500 through the Clerk of Court, Chiredzi by 1 April 2019. This means that the accused would serve an effective prison term of 6 months.

Theft from an employer is indeed a serious offence which entails breach of trust. Be that as it may my view is that not every case of theft from an employer warrants a prison term. In casu, the accused is a first offender and has already lost his job.

It is important for magistrates to appreciate the current harsh and difficult conditions in our prisons. In the premises, only deserving persons should be sent to prison.

In the case of State vs Mundondo Zava HMA15-17 I bemoaned the failure by magistrates to properly consider the noble concept of Community Service. I also referred to a number of cases which clearly outline that failure to consider community service constitutes a reviewable irregularity and a misdirection.

I am not satisfied that after weighing both the mitigatory and aggravating features of this case the accused deserved to serve a prison term of 6 months. Instead, the effective 6 months imprisonment should have been suspended on condition the accused performs the appropriate hours of community service.

In the result, the sentence imposed by the magistrate should be set aside as the overall sentence of 15 months is unduly harsh.

Consequently, the effective 6 months imprisonment is set aside. The matter is remitted to the trial magistrate to carry out a proper inquiry into the suitability of community service in relation to the effective prison term of 6 months. Thereafter, the record should be re-submitted for review.

In the result I make the following order;

IT IS ORDERED THAT;

1. The conviction be and is hereby confirmed.

2. The sentence of the court a quo is set aside and substituted with the following;

(a) The accused is sentenced to 12 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving dishonesty for which the accused is sentenced to imprisonment without the option of a fine.

(b) Of the remaining 9 months imprisonment, 3 months imprisonment is suspended on condition the accused restitutes the complainant in the sum of $1,500 on or before 1 March 2019 through the Clerk of Court, Chiredzi.

(c) The remainder of 6 months is suspended on condition the accused performs an equivalent hours of community service at a suitable institution on the usual conditions.

(d) The matter is remitted to the trial magistrate to carry out a proper inquiry into community service and to impose the sentence of community service unless a finding is made that it is impossible to impose community service. Such reasons should be clearly articulated.

(e) The record of proceedings should be re-submitted for review.

(f) The accused should be urgently called from prison for purposes of advising him of the altered sentence and for carrying out the said inquiry.