MAWADZE J: The
accused was convicted after a protracted trial of contravening s 60A (3) (a) of
the Electricity Act [Cap13:19] and
sentenced to the mandatory minimum of 10 years imprisonment.
The proved facts are as follows;
In November 2013 the accused was
left at No. 623 Gonville Gutu by the complainant as a caretaker at the
house. It is alleged that the accused
decided to by-pass the meter box and connected electricity directly to the
distribution box. The consumption of the
electricity was therefore not recorded and accused was using the electricity of
the house with fellow tenants. The
matter came to light in February 2014 when employees from Zimbabwe Electricity
Transmission and Distribution Company discovered the offence and alerted the
complainant who reported the matter to Police.
The actual prejudice caused is not quantified.
What exercised my mind is the
propriety of the charge in view of the facts of this case.
The relevant s 60 A (3) (b) provides
as follows;
“(3)
Any person who without lawful excuse the proof whereby shall lie on him or
her___
(a)
tampers
with an apparatus for generating transmitting distributing or supplying
electricity with the result that any supply of electricity is interrupted or
cut off; or ……
(b)
…….
(Not relevant)
shall be guilty of an offence, and if there are no
special circumstances peculiar to the case as provided for in subsection (4),
be liable to imprisonment for a period of not less than ten years” (emphasis is
my own)
While it is common cause that the accused
tampered with the apparatus transmitting, distributing or supplying electricity
by passing the metres box for it not to read consumption, such conduct did not
result in the supply of electricity being interrupted or cut off as is
envisaged in s 60 A (3) (a) of the Electricity Act [Cap 13:19]
The accused should have been charged and
convicted of contravening s 60 A (i) (a) of the Electricity Act [Cap 13:19] which provides as follows.
“60
A offences in relation to electric current and apparatus
(1)
Any
person who, without lawful excuse, the proof whereby shall lie on him or
her ___
(a)
Abstracts
or diverts any electric current or causes any electric current to be abstracted
or diverted; or
(b)
Uses
any electric current knowing it to have been abstracted or diverted;
Shall be guilty of
an offence and liable to a fine not exceeding level fourteen or imprisonment
for period not exceeding five years or
both such fine and such imprisonment.”
The facts found proved clearly show
that the accused diverted the electric current by passing the metre box for it
not to read or record the consumption.
While it is clear that the accused
was charged and convicted of a wrongly cited provision of the Electricity Act [Cap13:19], the fact remains that the
accused's conduct amounts to criminal conduct as explained above. There is therefore no prejudice if the charge
is altered in order to reflect the correct citation of the charge, that is
contravening s 60 A (1) (a) of the Electricity Act [Cap 13:19].
The penalty provisions for
contravening s 60 A (1) (a) provides for
a fine not exceeding level fourteen or imprisonment for a period not
exceeding 5 years or both. It is
different from the penalty provision for contravening s 60 A (3) (a) which
provides for a mandatory minimum of 10 years in the absence of special
circumstances.
The charge for which the accused
stands convicted is therefore amended is therefore amended to read;
“Contravening s 60 A (1) (a) of the
Electricity Act [Cap13:19]”
The conviction is otherwise
confirmed.
In view of the amendment to the
charge, the minimum permissible sentence is a fine not exceeding US$5 000 or
imprisonment not exceeding 5 years.
The accused is not a first
offender. As per the record he was on 3 November
2014 convicted of two counts of theft as defined in s 113 of the Criminal Code
[Cap 9:23] and sentenced to 12 months
imprisonment of which 6 months imprisonment were suspended on condition of
restitution. As per the record accused
failed to pay restitution and on 2 December 2014 was ordered to serve the 6
months imprisonment which had been suspended on condition of restitution. As per the record accused failed to pay
restitution and on 2 December 2014 was order to serve the 6 months
imprisonment.
The accused is 28 years old, married
with one child. He is employed as a
vendor earning about $75 per month and looks after 4 orphans. The accused has neither savings nor assets.
On the other hand accused's moral
blameworthiness remains high. He went
out of his way to divert the electric current by by-passing the metre box in
order to ensure that he did not pay for the electricity used. There is therefore actual prejudice to
Zimbabwe Electricity Transmission and Distribution Company. Unfortunately the extent of the actual
prejudice was not quantified. There is
therefore need for a deterrent sentence and to ensure that accused desists from
the pursuing the criminal path he seems determined to embark on. In view of the fact that accused has a
criminal record and is currently in prison, a fine is not appropriate.
In the result, the sentence of 10
years imprisonment imposed by the court aquo
is set aside and substituted with the following;
“6 months imprisonment.”
MUREMBA
J agrees: ………………………
