MANGOTA
J:
The
parties in the present appeal are ad
idem
on the point that the sentence which the trial court imposed on the
appellant is not only harsh and severe but it also induces a sense of
shock. The court agrees with the position which the parties took.
The
appellant who is a 27 year old, first offender pleaded guilty to, and
was convicted of, theft as defined in s 113(1) of the Criminal Law
(Codification and Reform) Act [Cap
9:23].
The State allegations were that, on 20 March 2013 and at 1.4km peg
which is along Makuti - Kariba Road, the appellant went to an
accident scene where a truck carrying a consignment of assorted beer
had been involved in an accident. He took from the scene 10 x 340ml
of Heinken beer valued at $13-40. The beer was recovered.
The
appellant was sentenced to 6 months imprisonment; 2 months of which
were suspended for 5 years on the usual condition of future good
conduct. The appellant was sentenced to an effective 4 months
imprisonment.
The
appellant's appeal was against sentence. His five grounds of appeal
were that:
(a)
the sentence which the court a
quo
imposed was so severe as to induce a sense of shock;
(b)
the trial court misdirected itself by concluding that the appellant
jumped into the deeper end of the offence where the value involved
was $10-00 when all the goods were recovered;
(c)
the trial court misdirected itself by holding that a fine was not a
suitable sentence when the penal provision provides for imposition of
a fine;
(d)
where the court
a quo remained
of the view that a fine was not suitable, a term of imprisonment
which was suspended on condition of performance of community service
would have met the justice of the case; and
(e)
because the trial court did not place any weight on the appellant's
plea of guilty, the appellant emerged worse off given the fact that
he lost his employment as a result of the sentence which was imposed
upon him.
The
abovementioned grounds do have a lot of relevance on the appeal.
The
trial court misdirected itself in a very serious way when it imposed
a custodial sentence of 6 months on the appellant. The fact that the
appellant ended up with an effective sentence of 4 months
imprisonment does not, in any way, detract from the severity of the
sentence which the court a
quo
imposed.
The
circumstances of the present case do not support the proposition that
the appellant should have been sentenced to a term of imprisonment.
The court
a quo
should have explored other sentencing options before it slapped him
with an effective term of imprisonment.
It
is pertinent to stress that a court which goes about the onerous task
of assessing an appropriate sentence must apply its mind in a
judicious manner in order for it to arrive at a sentence which fits
both the crime and the offender. The court would, by and large, fall
into the error of dispensing injustice instead of justice if it pays
lip-service to the offender's mitigatory features as they appear in
the record. Equally, justice would not have been served if the court
imports into the record matters which are not in that record.
The
trial magistrate fell into the error of importing into the record
what was not in the record. The error which he made affected the
balance of his thinking to a point where he ended up imposing an
unrealistically harsh sentence on the appellant. He stated, in the
body of his reasons for sentence, as follows:-
“The
offence committed by the accused is viewed seriously by the law.
Accused went to a scene of accident where a truck had been involved
in an accident. People were seriously injured with one of them
meeting his death. A lot of property had been damaged. Instead of
rendering assistance to the injured, the accused looted property from
this truck. Accused had more joy in looting the property than saving
the lives of those who had been injured.”
There
is no doubt that the trial court misdirected itself in a very serious
way when it imported the above cited statement into the record of
proceedings. The record, as it stands, is silent on the point that,
when the appellant arrived at the scene of the accident, there was an
injured person whom he should have assisted. The trial magistrate
just made mention of matters which were not supported by anything and
considered them to have been aggravatory to the appellant's case as
a result of which he imposed the sentence against which the appellant
appealed.
A
careful analysis of what was before him would have convinced the
trial magistrate that the appellant's mitigatory features far
outweighed the aggravating circumstances of this case. He would, for
instance, have realised that the appellant was:
(i)
a young first offender who was; or is,
(ii)
a family man who, in substance,
(iii)
did not waste the court's time and the State's resources as he
pleaded guilty to the offence.
The
above factors, coupled with the fact that the beer which he stole was
valued at $13-40 and was recovered, should have persuaded the court a
quo
to avoid the incarceration of the appellant and to have considered
such alternative sentencing options as a fine coupled with a wholly
suspended prison term or performance of community service.
There
was, in the court's view, nothing which was aggravatory in so far
as the present case is concerned. The sentence which was imposed does
induce a sense of shock in us. It will, accordingly, be interfered
with.
The
appellant established his case on a balance of probabilities. The
appeal, therefore, succeeds. It is, in the result, ordered that the
sentence which the court a
quo
imposed upon the appellant be and is hereby set aside. It is
substituted with the following sentence:-
“the
appellant is sentenced to pay a fine of $150-00 or in default of
payment 30 days imprisonment. In addition, the appellant is sentenced
to 3 months imprisonment the whole of which is suspended for 3 years
on condition he does not, within that period, commit any offence
involving dishonesty for which he is sentenced to imprisonment
without the option of a fine.”
CHATUKUTA
J agrees:………………………………
Phiri
and Partners, Appellant's
Legal Practitioners
National
Prosecuting Authority, State's
Legal Practitioners
