Criminal
Review
MAWADZE
J: The
challenge in this matter is how to rectify the incompetent sentence
imposed by the learned Provincial Magistrate following the wrong
procedure adopted in respect of Count 2. One would have thought that
the experienced learned Provincial Magistrate would not make such
elementary mistakes.
Both
accused persons were convicted on their own pleas of guilt in both
Counts by the learned Provincial Magistrate. In Count 1 the charge
relates to unlawful entry into premises as defined in section 131(1)
of the Criminal Law (Codification and Reform) Act [Cap
9:23].
Count 2 relates to theft as defined in section 113(1) of the same
Act.
I
mention in passing that in order to avoid such errors both accused
should have simply been charged with the offence of unlawful entry
into premises in aggravating circumstances as defined in section
131(1) as read with section 131(2) of the Criminal Law (Codification
and Reform) Act, [Cap
9:23].
The
agreed facts are that on 20 December 2017 at about 0300hrs both
accused persons proceeded to Timmy Bar in Mushayabvudzi, Mvuma owned
by Wellington Tsambayo after the bar was closed. They both climbed
onto the roof and pulled up an asbestos sheet which was not nailed on
both sides. Accused 1 then entered the bar through the roof as
Accused 2 stood guard. They proceeded to steal cash $36.00, 4 quarts
of black label beer, 4 pints of Zambezi beer and 2 x 20 packets of
Madison all valued at $40.40. After their arrest property valued at
$30.40 was recovered. The actual prejudice is property valued at a
paltry $10.00.
Accused
1 is a repeat offender. He has two previous convictions. The first
relates to theft for which he was sentenced on 5 October 2015 to
receive moderate correction of 4 strokes with a rattan cane. In
addition, 10 months imprisonment were suspended for 5 years on the
usual conditions. Accused 1 was back in court on 30 June 2016 facing
two counts, one of unlawful entry into premises and the other of
theft. Both counts were treated as one and he was sentenced to 6
months imprisonment. In addition, the 10 months imprisonment
conditionally suspended on 5 October 2015 were brought into effect.
This means that this current conviction is the third one for Accused
1 who is 18 years old.
Accused
2 who is 33 years old is a first offender.
As
regards sentence both counts in
casu
were treated as one for purposes of sentence and each accused was
sentenced to 18 months imprisonment. In respect of Accused 1, 5 days
were suspended on condition Accused 1 paid restitution to the
complainant in the sum of $5. As regards Accused 2 who is a first
offender 6 months imprisonment were suspended for 5 years on the
usual conditions of good behaviour and a further 5 days on condition
of restitution to the complainant.
In
relation to the order for restitution I enquired from the learned
Provincial Magistrate if it was really necessary and prudent to order
restitution of a mere $5?
The
response by the learned Magistrate although robust is misplaced.
Firstly,
the order of restitution was not made under section 362(1) of the
Criminal Procedure and Evidence Act [Cap
9:07]
as the learned Provincial Magistrate rather boastfully states. The
correct position is that the restitution was made as a condition of
suspending part of the prison term as provided for in section
358(3)(b) of the Criminal Procedure and Evidence, Act [Cap
9:07].
This however was not the import of my query but only arises from the
learned Provincial Magistrate's response.
The
simple import of my query is that it is a sheer waste of time and
resources to order restitution in the paltry amount of $5. My
experience is that this paltry amount would be receipted by the Clerk
of Court (if paid that is). Thereafter it would be banked by the
court after which it would then be paid out to the complainant.
Surely such a process is not worthy the paltry amount of $5 no matter
the heightened sense of justice the learned Provincial Magistrate may
possess. Common sense would dictate otherwise.
The
bulwark of my query however relates to the competence of the sentence
imposed by the learned Provincial Magistrate in view of the procedure
adopted in Count 2. In relation to Count 1 the trial court proceeded
in terms of section 271(2)(b) of the Criminal Procedure and Evidence
Act [Cap
9:07].
In relation to Count 2 the trial court then decided to proceed in
terms of section 271(2)(a) of the Criminal Procedure and Evidence Act
[Cap
9:07]
which provides as follows;
“271. Procedure
on plea of guilty
1.
Irrelevant.
2.
Where a person arraigned before a Magistrates Court on any charge
pleads guilty to the offence charged or for any other offence of
which he might be found guilty in that charge and the prosecutor
accepts the plea –
(a)
the court may, if it is of the opinion that the offence does not
merit punishment of imprisonment without the option of a fine or a
fine exceeding level three, convict the accused of the offence to
which he has pleaded guilty and impose any competent sentence other
than –
(i)
imprisonment without the option of a fine; or
(ii)
a fine exceeding level three; or deal with the accused otherwise in
accordance with the law;”
It
was improper in this case for the learned Provincial Magistrate to
treat both counts as one for purposes of sentence and impose a
sentence of 18 months imprisonment after having proceeded, in Count
2, in terms of section 271(2)(a) of the Criminal Procedure and
Evidence Act, [Cap
9:07].
That course of action clearly falls foul of the clear provisions of
section 271(2)(a) of the Criminal Procedure and Evidence Act [Cap
9:07]
since a term of imprisonment cannot be imposed without the option of
a fine and the fine should not exceed level three. The procedure
adopted by the learned Provincial Magistrate in respect of Count 2
and ultimately the whole sentence is therefore incurably bad and
wrong at law.
This
court in the exercise of its review powers may not be able to correct
this anomaly despite the fact that prima
facie
the convictions in Counts 1 and 2 may be in order. I say so because
it is not possible in the circumstances to correct the sentence in
respect of Count 2. This is informed by the fact that Accused 1 is an
incorrigible offender with two previous convictions who cannot be
sentenced to a fine not exceeding level three in Count 2. That would
offend any notions of justice and would be a mockery to my sense of
fairness.
It
is my considered view that the best course of action to take in the
circumstances would be to quash the proceedings in their entirety and
allow the learned Provincial Magistrate to hear the matter de
novo
in line with the correct procedure. Further, the accused persons if
convicted in respect of both counts should not be sentenced to a term
of imprisonment not exceeding 18 months for each of the accused
persons (which
is rather too harsh anyway
in
view of the value of the property involved).
Further, the period the accused persons have already served should be
taken into account.
Lastly,
I do not believe that it is necessary and prudent to order
restitution of a mere $5 for each accused person (unless
either of the accused person has already paid the $5).
In
the result, I make the following order;
1.
The proceedings in respect of both counts be and are hereby quashed.
2.
The convictions and sentence in respect of both accused persons in
both counts are set aside.
3.
A trial de
novo
be and is hereby ordered before the same learned Provincial
Magistrate.
Mafusire J agrees...................
