The appellants were convicted and sentenced for contravention of section 78(1) of the Forest Act [Chapter 19:05]. The appellants were convicted of having removed 32 gum trees by cutting them down unlawfully and without authority from the Forestry Commission of Zimbabwe.The appellants were sentenced to 24 months imprisonment of which ...
The appellants were convicted and sentenced for contravention of section 78(1) of the Forest Act [Chapter 19:05]. The appellants were convicted of having removed 32 gum trees by cutting them down unlawfully and without authority from the Forestry Commission of Zimbabwe.
The appellants were sentenced to 24 months imprisonment of which 4 months imprisonment were suspended on condition of restitution of the complainant.
Aggrieved by both conviction and sentence both the appellants lodged the present appeal with this court.
The respondent partly opposed the appeal in that it conceded the sentence imposed was unduly harsh, whilst it opposed the appeal against conviction.
The appellants raised grounds of appeal as follows:
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1. The trial Court erred in disregarding the fact that there was no evidence linking the accused person to the cutting of the trees.
2. The trial Court erred in disregarding the fact that there was no evidence showing any transport system to ferry the logs from the alleged crime scene.
3. The trial Court erred in placing credence in witness evidence of Artwell who had a peculiar interest to safeguard his job by ensuring that anyone was charged and convicted as the trees has been cut under his watch.
4. The trial Court erred in accepting that the Appellants were the persons who cut down the trees whilst not giving due weight to the fact that no tool, cart, or any material was discovered that had been used in the commission of the alleged crime.
5. The trial Court erred by finding the accused persons guilty based only on circumstantial evidence.
6. The trial Magistrate erred by ignoring evidence which tended to be in favour of the accused person.
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7. The trial Court erred by failing to give due weight to the following mitigatory factors which would have resulted in a lessor sentence…,.”...,.
Turning to the sentence imposed, it is apparent the court a quo did not give due weight to the circumstances of the commission of the offence, mitigatory and aggravatory factors.
Lip service was paid to the laid out sentencing principles of seeking to strike a balance between the offence and the offender while at the same time tempering justice with mercy.
A reading of the penalty provision of the relevant charge provides for the option of a fine.
It has been said, on countless times by this court, that, to consider imprisonment where the penalty provision gives the option of a fine, without cogent reasons, is a misdirection.
Imprisonment is a preserve for the very bad and serious cases - not minor infractions.
In casu, both appellants were first offenders, family men with dependants. The value of the poles forming the subject of the offence was given as $320 most of which were recovered. The court opted for imprisonment of which no portion was suspended on conditions of good behaviour.
There are no reasons recorded why first offenders were not granted the opportunity to have a suspended prison term act as a deterring factor.
Punishment is not meant to break the individual but should be appropriately considered so as to have the positive effects of rehabilitating the offender.
The reasons for sentence are devoid of the thought process of how the trial court discarded the other sentencing options, namely, a fine and/or community service.
To this end, therefore, the court a quo did not properly exercise its sentencing discretion. We are at large to interfere with the sentence which, in the circumstances, is viewed as unduly harsh.
In the result, the appeal against conviction is dismissed and the appeal against sentence is upheld.
Accordingly it is ordered that:
1....,.
2. The appeal against sentence succeeds. The sentence imposed by the court a quo is set aside and substituted as follows:
Each accused is to pay a fine of RTGS$500, or, in default of payment, 3 months imprisonment. In addition, 3 months imprisonment is suspended for 3 years on condition accused does not within that period commit any offence involving dishonesty for that he is sentenced to imprisonment without the option of a fine.
