The
trial magistrate in this matter has seen it fit to provide early
comic relief for 2015.
In
response to a query raised as to why he sentenced the two accused
persons each to 20 years imprisonment of which one and a half years
imprisonment were suspended on conditions upon convicting them of one
Count
of stock theft involving two (2) beasts, this is what he had to say:
“The
above matter refers, and, in particular, to the review minute by his
Lordship Justice MATHONSI where he queried why the accused were
sentenced to 20 years when the mandatory minimum sentences (sic)
of 9 years is, on its own, already stiff. The trial magistrate opted
for the 20 years for the following reasons:
(a)
The accused's conducts are more reprehensible as they stole cattle
on the eve of the rain season. Moreso, they stole oxen which are
critical at this stage of the season. They deprived the owner of the
beasts which are vital to conduct his farming and usher misery into
that household.
(b)
The accused executed their criminal enterprise under cover of night
and, moreso, entered a kraal to execute their crime.
(c)
Accused are rural dweller(s) who should have protected the cattle of
their fellow rural dweller.
(d)
Accused were motivated by economic gain as they intended to sell,
and, indeed, sold the beasts.
So,
as a result of these aggravatory factors which are reprehensible, the
court found that the minimum mandatory sentence would not meet the
justice of the case, that is why it opted for a 20 year jail term.”
Never
mind that there was not the slightest of evidence placed before the
court in respect of all that the trial magistrate so gratuitously
alluded to. The State never led evidence in aggravation of sentence.
In fact, the prosecutor did not even address the court on sentence.
The court was still able to find those facts clearly because the
trial magistrate allowed his mind to wander into the unknown thereby
going astray and completely losing focus on the mandatory sentence to
be imposed.
The
two (2) accused persons, both aged 27 years, were arraigned before a
magistrate at Chitungwiza facing one Count
of stock theft, it being alleged that on 11 September 2014 (certainly
not “the eve of the rain(y) season”) at Farm 74 Muda, Beatrice,
they unlawfully took two oxen belonging to the complainant, drove
them to a nearby bush where they slaughtered them. They hired a
vehicle to ferry the carcasses to Tomson Farm in Beatrice but were
spotted by an informer offloading them into the second accused's
house. When the police were notified they searched the house and
recovered the carcasses leading to the arrest of the accused persons.
The
two (2) accused persons pleaded guilty and when the court found no
special circumstances as would enable it to impose a sentence other
than the mandatory sentence of 9 years, provided for in section 114
(2)(e) of the Criminal Law Code [Chapter 9:23], it sentenced each of
them to 20 years imprisonment of which 1 year imprisonment was
suspended for 5 years on condition that each accused person does not
within that period commit any offence involving dishonesty for which
upon conviction he is sentenced to a term of imprisonment without the
option of a fine. A further half year imprisonment was suspended on
condition that each accused person restitutes the complainant a sum
of $800= (the value of each beast) by 16 October 2014.
In
arriving at that sentence, the court gave its reasons as:
“Accused
pleaded guilty showing contrition and were candid and open with the
State, police, the complainant and the court at large in avoiding a
protracted trial. A plea of guilty is essential for the effective and
efficient contribution to the administration of justice.
Accused
is (sic)
a first offender to whom there is an emphatic general policy to the
effect that wherever possible first offenders should not be sent to
prison for fear of being contaminated by hardened and determined
criminals. Imprisonment has various deleterious effects ranging from
regulation of one's personal life to personal liberty.
However,
this offence is on the increase and there is need for personal and
general deterrence. Accused benefitted from their crime when crime
must not benefit the offender. So accused's plea of guilty does not
show any contrition as they benefited from their crime. Accused were
motivated by economic gain as they intended to sell the livestock
they stole. Zimbabwe is a cattle country, that is why in our national
highways there are sign posts of cattle crossing the roads for
motorists to be wary of such cattle. This stresses the importance of
cattle. A loss to an ox at this eve of the rain season or ploughing
season would bring misery to the complainant's household. They are
deprived of their oxen which are their ploughing tractors. Oxen are
castrated to devote most of their energies to ploughing. They are a
source of draught power. Cattle are a source of meat and cash to the
owner. Cattle are used to pay lobola and there is no valid marriage
at customary law that can be entered without the payment of cattle.
Accused
committed this offence under cover of darkness and offences of this
nature are difficult to detect and bring criminals to book. Accused
therefore premeditated over their offence and struck at nocturnal
hours. Accused could not expect the owners of the cattle to employ
security guards to guard their kraals when retired to bed. Accused,
as rural dwellers, they know the importance of cattle and had a duty
to protect them. An effective term of imprisonment which is prolonged
is called for as there are no special circumstances.”
What
a mouthful. Just where did the magistrate get all this from?
Certainly not from the record before me.
I
have said that the magistrate let his mind wander and he lost track.
Nothing underscores the importance of giving reasons for sentence
more than the above-cited passage of the record. It is imperative
that reasons for any decision, including sentence, be given to show
that the judicial officer has heard the evidence and arguments for
each side and has not taken into account extraneous considerations:
S
v Mkali & Ors
HB23-93. See also the Magistrates Court (Criminal) Rules, 1966.
In
this case, the magistrate did not bother to gather necessary
pre-sentencing information relating to the particular accused persons
but had certain of his views stored in his mind which he ventilated
and then drew the conclusion that the accused persons needed to be
incarcerated for a “prolonged” period without regard to the penal
provisions of the Act.
It
should always be borne in mind by all those entrusted with the
responsibility of punishing offenders that sentencing is a process
which should be approached rationally and objectively. Magistrates
should not let their emotions cloud their judgment on what is an
appropriate sentence or allow themselves to be carried away by
imagination as this may lead to them exaggerating the seriousness of
the offence and the imposition of a disproportionate sentence; S
v Harington
1988
(2) ZLR 344 (S).
I
am also concerned about the gratuitous statements made by the
magistrate in sentencing the accused persons; statements so detached
from the facts at hand that they could have only been imagined. It
has always been said that while it is proper to express disapproval
of the criminal misconduct in formulating the sentence, the use of
extravagant and overblown language should be avoided: S
v Mahati
1988
(1) ZLR 190 (H).
Pruned
down to the bare bones of the matter, the accused persons were
convicted of one Count
of stock theft and the mandatory sentence for that is 9 years
imprisonment in the absence of special circumstances.
What
appears to have played on the mind of the magistrate is the fact that
two (2) beasts were involved. He probably thought that theft of each
beast and not the Count
should be visited with its own 9 years imprisonment. Otherwise how
else can one explain the sentence of 20 years? Whatever the case, it
was a misdirection calling for interference with the sentence.
The
penal provision for stock theft shows that the legislature wanted to
impose a deterrent sentence in respect of a prevalent crime. The
penalty is severe enough without the court having to add to it - even
though the court has a discretion to impose a sentence of up to 25
years: S
v Zulu
HB174-11;
S
v Chitukula & Ors
HH155-12.
In
my view, nothing would be achieved by suspending a small portion of
an otherwise very stiff sentence on conditions. If a court considers
suspending part of the sentence on conditions, it must make it
possible for the affected person to fulfil the condition: S
v Mukura & Ors
2003 (2) ZLR 596…,. If a person is already serving a minimum of 9
years imprisonment, he would have no motivation to restitute and
avoid 6 months imprisonment. It's a futile exercise.
In
my view, the mandatory 9 year term is deterrent enough and
considering that two (2) beasts were involved a further term of
imprisonment suspended on condition of future good behaviour is
sufficient recognition of the number of animals involved.
In
the result, it is ordered that:
1.
The conviction of the first and second accused persons is hereby
confirmed.
2.
The sentences imposed on the 1st
and 2nd
accused persons are hereby set aside and in their place is
substituted the following:
“Each
accused person is sentenced to 12 years imprisonment of which 3 years
imprisonment is suspended for 5 years on condition he 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.
Effective
sentence: 9 years.”
