MATHONSI
J: The
appellant was arraigned before a magistrate at Beitbridge on 30
December 2015 facing a charge of assisting a person to depart from
Zimbabwe in contravention of section 36(1)(c) as read with section
36(1)(j) of the Immigration Act [Chapter 4:02].
He
pleaded guilty and upon conviction he was sentenced to 12 months
imprisonment of which 6 months imprisonment was suspended for 3 years
on condition he does not, within that period, commit an offence for
which assisting a person enter or depart from the country without a
valid travel document for which he is sentenced to imprisonment
without the option of a fine, is an element.
In
mitigation, the court a
quo
recorded that the appellant was a 40 year old married man with three
children. He is self-employed and had savings of R2,000-00 and a sum
of R400-00 on his person. In addition he had four head of cattle, a
house and other valuable assets.
The
facts are that the appellant had tried to proceed to South Africa
with two of his sister's children aged 12 and 9 years who did not
have valid travel documents. His luck ran out when he was
intercepted by police detectives who were on duty at the exist gate.
In
arriving at the sentence that it imposed, the court a
quo
reasoned as follows:
“The
accused was treated as a first offender and pleaded guilty to the
offence he was charged with. In mitigation he told the court that he
wanted to travel back to South Africa with his sister's children.
However as a responsible adult the accused should have made sure that
all travelling documents for the children were in perfect order
before proceeding with them out of the country. These are children
we are talking about and because of the prevalence of child
trafficking cases the courts have to take sterner measures to ensure
that people do not just bring or take out of the country children
without proper procedures being done. A custodial sentence was seen
as the most deterrent form of punishment in this case.”
The
trial court must have been seeing things none of us can see.
For
a start, the appellant was not assisting the children to depart for a
fee. These were his own relatives that he was travelling with.
Granted, what he did was an offence hence the reason why he was
brought to court for him to be punished in accordance with the law,
not in accordance with some other considerations whether real or
imagined.
In
terms of section 36(1):
“A
person who assists any person, whether or not such person is doli
capax,
to enter, remain in or depart from Zimbabwe in contravention of this
Act shall be guilty of an offence and liable to a fine not exceeding
level twelve or to imprisonment for a period not exceeding ten years
or to both such fine and such imprisonment.”
Where
a statute provides for a penalty of a fine or imprisonment, it is a
misdirection on the part of the sentencing court to impose
imprisonment without giving serious consideration first and foremost
to a fine. See S
v Chawanda
1996 (2) ZLR 8 (H) 10 C –G; S
v Zuwa
2014
(1) ZLR 15 (H) 18 A-C. This is particularly so when the accused
person is a first offender who has pleaded guilty to the charge.
Imprisonment should be reserved for repeat offenders and the most
serious of such cases.
The
court a
quo
only said that imprisonment was more attractive to it. It did not
explain why it saw it necessary to depart from that celebrated
sentencing policy of the courts in this jurisdiction.
The
appellant has appealed against the sentence imposed by the court a
quo
on the grounds, inter
alia
that the court a
quo
misdirected itself by not considering other sentencing options and in
not considering the mitigating circumstances of the accused person.
I
have already alluded to the misdirection in the sentence and with
that glaringly obvious misdirection, Mr
Hove
for the respondent conceded that the sentence imposed was
inappropriate.
In
fact the sentence preferred by the court a
quo
cannot be sustained at all and for one other reason. It is that the
moment the court settled for a sentence of 12 months imprisonment and
an effective imprisonment term of 6 months it was obliged to inquire
into the suitability of community service. See S
v Mabhena
1996
(1) ZLR 134 (H) 140E; S
v Chireyi
and Others
2011 (1) ZLR 254 (H) 260D.
If
the court came to the conclusion, following the inquiry, that
community service was inappropriate, it was required to give proper
reasons for doing so which should appear on the record. They cannot
be stored in the mind of the court. See S
v Antonio
and Others
1998 (2) ZLR 64 (H); S
v Chinzenze
and Others
1998 (1) ZLR 470 (H); S
v Silume
HB12/16.
The
fact that the court a
quo
did not inquire into the suitability of community service was yet
another misdirection. Clearly therefore the sentence cannot stand.
Mr
Mlaudzi
who appeared for the appellant submitted that the appellant had been
in custody for 21 days after sentence before he was admitted to bail.
Mr
Hove
did not dispute that assertion which we therefore accepted. In our
view, considering that the appellant should have received a sentence
of a fine, the period of 21 days which he served atones for whatever
sentence of a fine he would have received.
In
the result, it is ordered that:
1.
The appeal against sentence is hereby upheld.
2.
The sentence of the court a
quo
is hereby set aside and in its place is substituted the sentence of
21 days imprisonment, which the appellant has served.
3.
As the appellant has already served that sentence, he is entitled to
continue enjoying his freedom.
Samp
Mlauzi and Partners,
appellant's legal practitioners
National
Prosecuting Authority,
state's legal practitioners
