This
matter was referred to the Senior Regional Magistrate at Masvingo for
scrutiny. The Senior Regional Magistrate, in turn, addressed a minute
to the Registrar with the following comments:
“The
accused is a first offender who pleaded guilty to the offence. He is
someone who was willing to compensate the complainant. His sentence
falls within the range of community service.
The
reason for sentence did not show why community service was not taken
as an option.
The
Magistrate's response to my query appears misplaced. He is
referring to accused as someone who has a propensity to commit
further crimes and I do not know where the court got that from.
This
was not a case of bail pending trial were (sic) such factors are
usually considered. The most important thing in this case is he is a
first offender.
I
do not believe that being married is the pre-requisite requirement
(sic) for someone to qualify for community service. He was
disqualified from performing community service because he was not
married. This was discrimination done by the court which should not
be allowed. In any event, such reasoning did not find its way in the
reasons for sentence.
Your
views and directions.”
The
accused pleaded guilty to theft and was sentenced to nine months
imprisonment of which three months imprisonment was suspended on
condition of good behaviour. A further three months imprisonment was
suspended on condition the accused restitutes the complainant in the
sum of US$560= through the Clerk of Court, Masvingo.
When
the Senior Regional Magistrate queried the propriety of the sentence,
especially the trial court's failure to consider community service,
the trial magistrate replied thus:
“Community
service was not considered by the court on (sic)
the following reasons:-
(1)
The moral blameworthy (sic)
of the accused person was very high, the accused converted the
complainant's money for his own personal use which includes using
the money for pleasure according to his statement during plea
recording.
(2)
The court considered that the accused was not a person to be
acceptable back to society without a proper rehabilitative process.
The potential for the accused to further commit dishonesty offences
was likely to be high.
This
is further aggravated by the fact that the accused is not employed
and he had no means to start afresh and thus the likelihood of
further committing the offences was high.
Accused
is not married and thus he had no any (sic) commitments that could
not make him to defeat the course of justice if given the option of
community service.
Therefore
even though I concede that the accused was a first offender, but
proper rehabilitation could only be done if accused was afforded a
custodial sentence.
The
total amount of money that the complainant was prejudiced is also
alarming in the circumstance (sic).”
Where
a court imposes a sentence of imprisonment not exceeding 24 months it
must consider other sentencing options like a fine, community service
or a wholly suspended prison term. The trial court opted for
imprisonment without considering any other sentencing options. That
amounts to a misdirection. I am mindful that the mere omission to
specifically mention other sentencing options does not necessarily
amount to misdirection. Commenting on this aspect in S
v Gono
2000 (2) ZLR 63 (HC) BLACKIE J…, had this to say:
“I
respectfully agree with and endorse the statements made by both YOUNG
J and CHINHENGO J in their judgments concerning the importance of and
difficulty in exercising the judicial discretion in sentencing, and
the need for a judicial officer, in the exercise of that discretion,
to apply his mind to and exercise his discretion in respect of all
the relevant facts and to explain, in his reasons for sentence, to
both the accused and to society at large why he has determined on the
sentence he has imposed. It is most important that the accused, the
general public, and, if necessary, the Appeal Court, clearly
understand the reasons for which a particular punishment has been
selected.”
However,
with respect to CHINHENGO J, there is a portion of his judgment that
requires qualification. It is that portion which suggests that if the
judicial officer does not express the reasons why he has determined
on one form of punishment rather than another, he will not have
applied his mind to the most appropriate sentence and will,
therefore, have misdirected himself.
It
does not seem to me that it necessarily follows that because the
judicial officer does not expressly mention that he has considered
alternative punishments and given reasons why he has rejected those
punishments, the judicial officer has not applied his mind to them.
An express statement that all the alternative punishments have been
considered and that the one imposed has been chosen for the
particular reasons set out in the judgment is certainly the best
evidence that all the appropriate factors have been taken into
account and that they have been correctly applied. However, "….,
(m)erely because a relevant factor has not been mentioned in the
judgment on sentence, it does not mean that it has been overlooked
for 'no judgment can ever be perfect and all embracing.' See R
v Dhlumayo & Ors
1948 (2) SA 677 (A) at 702, quoted by TROLLIP JA in S
v Pillay
1977 (4) SA 531 (A) at 535 I. In any event, the reasons for accepting
one form of punishment as appropriate and another as inappropriate
may be implicit in or deducible from the context or reasoning of the
judgment.”
A
reading of the trial court's reasons does not reveal anything
implicit regarding alternative sentencing options. All it did was to
say:
“Be
it as it may, the court has considered that a custodial sentence will
meet the justice of this case. The accused person demonstrated a high
level of blameworthy (sic) and thus the court must take appropriate
measure (sic). The court will also order restitution.”
Courts
should endeavour to keep first offenders who plead guilty to less
serious crimes out of custody. A rehabilitative sentence is not one
of incarceration as the trial magistrate tried to justify in response
to the query by the scrutinizing magistrate. As was stated by ADAM J
in S
v Mabhena
1996 (1) 134 (HC)…,.:
“Further,
it has been emphasized on countless occasions by this court and the
Supreme Court that an effective custodial sentence of imprisonment is
a severe and harsh form of punishment which should be imposed on
first offenders only if no other punishment would be appropriate.
Needless to say there are certain crimes to which the foregoing does
not apply because of their nature and magnitude which necessitates
the imposition of an effective term of imprisonment. Accordingly,
such serious crimes as attempted murder, rape, attempted rape, armed
robbery, car thefts and aggravated type of assault with intent to
cause grievous bodily harm are some examples of serious offences
which generally require a magistrate to impose an effective custodial
term. Clearly, fines, compensatory orders and suspended sentences,
including those on condition of community service, would normally be
out of question for them.”
Ultimately,
the trial magistrate's response clearly shows that he or she never
considered other sentencing options. There is misdirection in the
reasons advanced for discounting community service. As correctly
pointed out by the scrutinizing magistrate, community service is not
reserved for married persons. I would also add that it is also not
reserved for employed people. It is not even clear how the trial
magistrate concluded that the accused person would commit another
offence if ordered to perform community service. The trial magistrate
could only have properly assessed the accused' suitability for
community service after referring him to a Community Service
Officer….,.
The
accused person should benefit from a suspended sentence.
In
view of the sentence that he has already served it would be dilatory
to remit the matter to the trial court in order for sentence to be
assessed afresh. It is therefore ordered that the sentence imposed by
the trial court be set aside and in its place is substituted the
following:
“9
months imprisonment of which 4 months imprisonment is suspended for 4
years on condition within that period the accused does not commit any
offence involving dishonesty for which he will be sentenced to
imprisonment without the option of a fine. The remaining 5 months
imprisonment is suspended on condition the accused restitutes the
complainant in the sum of US$560= through the Clerk of Court on or
before 30 May 2015.”
