The
accused was convicted by the Magistrate sitting at Chiredzi of
contravening section 113(2)(a) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23]
which relates to theft of trust property.
The
facts proved during the trial are that the 34-year-old accused was
left in custody of two 32-inch plasma television sets by his employer
of seven to eight years valued at $1,500. The accused disposed of the
two television sets.
Despite
the accused's spirited denial of the offence, the evidence adduced
clearly proves that he committed the offence. The conviction is in
order and is therefore confirmed.
It
is the sentence imposed which has exercised my mind.
The
accused who has two minor children, a pregnant wife, and has lost his
job in these difficult economic times was sentenced to 15 months
imprisonment of which 3 months were suspended on the usual condition
of good behaviour and a further 6 months on condition of restitution
in the sum of $1,500
through
the Clerk of Court, Chiredzi by 1 April 2019. This means that the
accused would serve an effective prison term of 6 months.
Theft
from an employer is indeed a serious offence which entails breach of
trust. Be that as it may my view is that not every case of theft from
an employer warrants a prison term. In
casu,
the
accused is a first offender and has already lost his job.
It
is important for magistrates to appreciate the current harsh and
difficult conditions in our prisons. In the premises, only deserving
persons should be sent to prison.
In
the case of State
vs Mundondo Zava
HMA15-17 I bemoaned the failure by magistrates to properly consider
the noble concept of Community Service. I also referred to a number
of cases which clearly outline that failure to consider community
service constitutes a reviewable irregularity and a misdirection.
I
am not satisfied that after weighing both the mitigatory and
aggravating features of this case the accused deserved to serve a
prison term of 6 months. Instead, the effective 6 months imprisonment
should have been suspended on condition the accused performs the
appropriate hours of community service.
In
the result, the sentence imposed by the magistrate should be set
aside as the overall sentence of 15 months is unduly harsh.
Consequently,
the effective 6 months imprisonment is set aside. The matter is
remitted to the trial magistrate to carry out a proper inquiry into
the suitability of community service in relation to the effective
prison term of 6 months. Thereafter, the record should be
re-submitted for review.
In
the result I make the following order;
IT
IS ORDERED THAT;
1.
The conviction be and is hereby confirmed.
2.
The sentence of the court
a
quo
is set aside and substituted with the following;
(a)
The accused
is sentenced to 12 months imprisonment of which 3 months imprisonment
is suspended for 5 years on condition the accused does not commit
within that period any offence involving dishonesty for which the
accused is sentenced to imprisonment without the option of a fine.
(b)
Of the remaining 9 months imprisonment, 3 months imprisonment is
suspended on condition the accused restitutes the complainant in the
sum of $1,500 on or before 1 March 2019 through the Clerk of Court,
Chiredzi.
(c)
The remainder of 6 months is suspended on condition the accused
performs an equivalent hours of community service at a suitable
institution on the usual conditions.
(d)
The matter is remitted to the trial magistrate to carry out a proper
inquiry into community service and to impose the sentence of
community service unless a finding is made that it is impossible to
impose community service. Such reasons should be clearly articulated.
(e)
The record of proceedings should be re-submitted for review.
(f)
The accused should be urgently called from prison for purposes of
advising him of the altered sentence and for carrying out the said
inquiry.
