BERE
J: The 23 year old accused was properly convicted of two counts of
unlawful entry as defined in s 131 of the Criminal Law (Codification
and Reform) Act [Cap
9:23].
The
brief facts are that on 17 December 2014 and at 473 Zororo Sakubva,
Mutare, the accused unlawfully and intentionally stole a proline
laptop and a samsung galaxy cellphone worth $320-00. There is no
indication as to whether anything was recovered.
In
count two the same accused stole various clothing items and cash in
the same neighbourhood. The value of the clothes and cash was put at
$243.00 and that only $10.00 was recovered from the accused person.
Both
counts were treated as one for purposes of sentence and the accused
was sentenced as follows:
24
months imprisonment of which 6 months imprisonment is suspended for 5
years on condition accused person does not commit any offence which
has unlawful entry as an element within that period for which he will
be sentenced to imprisonment without the option to pay a fine”.
Without
attempting to understate the seriousness of the two offences involved
in this case, I am extremely concerned with the casual approach to
sentence adopted by the Magistrate who handled the plea. There is
nothing in his approach which shows that he is oblivious of the
current trends in sentencing.
This
court has chained out several decisions which make it abundantly
clear that where the trial court determines that an appropriate
sentence falls within the range of 24 months imprisonment or below,
then serious considerations must be given to the imposition of
community service as an alternative to a straight prison term. See
ZIMBABWE NATIONAL COMMITTEE ON COMMUNITY SERVICE – REVISED
GUIDFILLINGS FOR MAGISTRATES, PROSECUTORS AND
OTHER
COURT OFFICIALS;
State v
Tapiwa
Shariwa
HB 37/2003; A Guide to Sentencing in Zimbabwe 2nd
ed @ pp 28-29 by G. Feltoe.
The
recommended sentencing approach comments itself in basically two
ways; viz, it addresses the practical ways of decongesting our
prisons and secondly, it gives the accused a second chance to undergo
some kind of self-rehabilitation without having to subject him/her to
the rigous of incarceration and its effect.
Various
studies have been carried out and concluded that imprisonment per se
is not the best form of sentence particularly for first offenders.
This explains why there is a paradigm shift in our sentencing
approach. Every Judicial Officers must be conscious of such trends in
sentencing.
In
casu,
it is clear that the Magistrate blindly sentenced the accused person
without exploring community service as an alternative. It is
precisely for these reasons that I deem the proceedings not to be in
accordance with real and substantial justice and I accordingly
withhold my certificate.
BERE
J: …………………………………….
