This is an appeal against sentence only following the
conviction and sentence of the appellant by the Magistrates Court sitting at
Lupane on three counts of theft in contravention of section 113 of the Criminal
Law Code [Chapter 9:23].
The appellant had initially pleaded not guilty to all the
charges but midway through the trial, after the State had led evidence from all
its witnesses, closed its case and the appellant had testified in defence and
closed his case, the appellant underwent some damascene experience. Seeing the
light for the first time, he changed his plea to that of guilty.
Down on his knees he then pleaded for mercy.
The magistrate was not impressed as to him the appellant's
plea for mercy was nothing more than the fuminations of a well and soundly
beaten man, who, seeing no escape route ahead decides to capitulate after
wasting the court's energy, time and resources on a trial whose outcome was as
predictable as ABC. He came down hard on the appellant, sentencing him to 24
months imprisonment of which 8 months imprisonment was suspended for 5 years on
the usual condition of future good behavior. A further 2 months was suspended
on condition of restitution.
Left with an effective sentence of 14 months imprisonment,
the appellant was dissatisfied.
He then lodged this appeal against sentence only on the
basis that the sentence is so harsh as to induce a sense of shock. To him, the
magistrate did not consider the effect of compensation which he had offered,
did not consider imposing a fine or community service, paid lip-service to the
mitigating factors set out, and, in the end, came up with a sentence that was
disproportionate to the crime.
At the hearing of the appeal, counsel who appeared for the
appellant, ill-prepared, as the matter was being handled by a colleague at his
firm who had been taken ill, abandoned the request for community service, and,
instead, urged of us a sentence of a fine. In my view, that was not a smart
move at all especially as the sentencing court is not only at liberty to
consider community service but is enjoined to do so where it comes up with an
effective imprisonment sentence of less than 24 months.
Counsel for the respondent conceded that in sentencing the
appellant to a term of incarceration the court a quo misdirected itself
especially as the offences occurred contemporaneously as to amount to one
criminal transaction.
In arriving at the sentence that it imposed, the court a
quo reasoned as follows:
“It is accused's first appearance in court facing a
criminal charge. He is married and has some dependents to take care of. Due to
this case, he is now on suspension from his workplace (in fact, he was later
dismissed). He has been given credit for having a change of heart. He pleaded
guilty. His plea has hence save(d) much of the court's time. However, what is
aggravating is that he committed three counts of theft. Theft from a motor
vehicle, per se, is a serious offence. Accused did not only cause unnecessary
prejudice to the complainants in question but he greatly inconvenienced them.
The motor vehicles in question were meant to take them to and from work but on
that day in question they failed to do so as fuel had been drained. I did not
lose sight of the value involved in this case. It, however, cannot be taken
into (sic) isolation. Analysing the circumstances of this case, it is my view
that a fine or community service would rather trivialize the case. I believe a
custodial sentence would be in the interest of justice. The sentence which is
not only meant to punish the accused but also to send a message to would be
offenders as well.”…,.
The sentencing court has a discretion in assessing an
appropriate sentence. The appeal court will not just interfere with that
sentencing discretion and will only do so where there is a misdirection or the
sentence imposed is manifestly excessive;
S v Chiweshe 1996 (1) ZLR 425 (H) 429 D; R v Ramushu SC25-93;
S v Nhumwa SC40-88.
Where it can be shown that the sentence imposed is vitiated
by a misdirection, the appeal court will step in to correct the misdirection.
Where the sentence imposed falls within the sentencing discretion of the trial
court and it has not been shown that there exists a misdirection, the appeal
court will not interfere merely to substitute its own opinion regarding
sentence;
S v Mundowa 1998 (2) ZLR 392 (H)…,.; S v De Jager and
Another 1965 (2) SA 616 (A)…,.
However, this is a matter in which the trial magistrate
settled for an effective sentence of 14 months imprisonment. He was therefore
obliged to consider community service.
In S v Mabhena 1996 (1) ZLR 134 (H)…, ADAM J made the following
pronouncement;
“There is little doubt that the magistrate erred about
community service. The sentence he imposed was 18 months' imprisonment with
labour of which 8 months was suspended on condition of good behavior, leaving
an effective sentence of 10 months imprisonment. This court has, on a number of
occasions, indicated in the past that for first offenders in appropriate cases
where a sentence a court imposes (is) 12 months effective imprisonment or less
then community service should be considered and sound reasons given for not
imposing it.”
MAWADZE J took that point further in S v Chireyi and Others
2011 (1) ZLR 254 (H)…,.
The learned judge took the view that it was a misdirection
for a trial magistrate not to inquire into the suitability of community service
where he or she settles for effective imprisonment of 24 months or less. I must
add that it is not enough to simply pay lip-service to the factor of community
service by merely mumbling something to the effect that it is inappropriate,
without more, or that it will trivialize the offence.
Where the trial magistrate is of the view, after making a
real inquiry into it, that community service is inappropriate, cogent or sound
reasons for arriving at that conclusion must be given. This is the point
underscored by CHINHENGO J in S v Antonio and Others 1998 (2) ZLR 64 (H); that,
if a fine is a permissible sentence for the crime in question, the sentencer
should consider first whether a fine with or without an alternative of
community service should be imposed. If he considers that a fine is not
appropriate, he should then consider whether a direct sentence of community
service is appropriate. If it is not, he should consider whether a term of
imprisonment suspended on condition of performance of community service is
appropriate. In the end if the sentencer decides that none of these options are
appropriate but that an effective term of imprisonment should be imposed, he
should give proper reasons for his decision.
See also S v Chinzenze and Others 1998 (1) ZLR 470 (H).
To my mind, it is an injudicious exercise of the sentencing
discretion for the sentencer to merely state that a fine or community service
would trivialize the offence and end there. This is especially so where what is
regarded as aggravation is nothing out of the ordinary but the usual incidence
of theft like the convenience to the complainant.
The moment the trial magistrate settled for an effective 14
months imprisonment, he was obliged to inquire into the suitability of
community service. To just divine that community service would be inappropriate
without the requisite inquiry was a misdirection calling for interference with
the sentence….,.
This is a matter in which the appellant should have been
given a sentence of community service….,.
In the result, it is ordered that;
1. The sentence imposed by the court a quo is hereby set
aside and in its place is substituted the following sentence:
“24 months imprisonment of which 12 months
imprisonment is suspended for 5 years on condition the accused does not, during
that time, commit any offence involving dishonesty for which, upon conviction,
he is sentenced to imprisonment without the option of a fine. A further 10
months imprisonment is suspended on condition he restitutes Sibongile Dube in
the sum of US$50=, Thomas Suga in the sum of US$94= and Gildert Dube in the sum
of $44=.”
