Criminal
Review
MWAYERA
J:
The
accused was properly convicted of malicious damage to property as
defined in section 140 of the Criminal Law (Codification and Reform)
Act [Chapter
9:23].
On
17 September 2014 at Mudzingwa Village, Gutu, the accused knowingly
burnt a hut and household goods belonging to Ephraim Mudzingwa.
The
accused a 16 year old Form 4 pupil set the hut on fire after the
complainant had forcefully retrieved a cell phone from her. The
accused, in fury set the hut on fire destroying property worth
$950-00.
She
pleaded guilty to the charge and regretted the offence.
A
probation officer report was compiled and placed before the trial
magistrate. Although the probation officer's report is not binding
on the magistrate, the opinion raised therein should be taken into
consideration when passing sentence.
The
report recommended that she be given a rehabilitative sentence which
would allow her to complete her education without “upsets”. The
report further suggested that she be discharged with a strong
reprimand.
The
trial magistrate sentenced the accused to 12 months imprisonment of
which 10 months imprisonment was suspended on condition the
complainant restitutes the complainant by paying $900-00 through the
Gutu Clerk of Court on or before 3 January 2015. The remaining 2
months imprisonment was suspended on the usual conditions of good
behaviour.
The
Regional Magistrate correctly queried the logic of sentencing a 16
year old to pay restitution as there was high possibility of her
failing to raise the money and then serve the 10 months imprisonment.
Furthermore,
there was no basis for the trial magistrate to reject the probation
officer's report on the need for the sentence to be rehabilitative.
The case of S
v
Tendai 1998
(2) ZLR 423 is instructive.
Restitution
cannot be described as rehabilitative in the circumstances. It in
fact would cause the kind of angst in a 16 year old which the
probation officer was keen to guard against hence the suggestion of a
reprimand.
In
the circumstances of this case the sentence imposed by the trial
magistrate is unduly harsh and it ought to be set aside and
substituted as follows:
The
accused is cautioned and discharged. The trial magistrate is directed
to recall the accused and explain the new sentence.
If
the complainant has paid part or all of the money to the Clerk of
Court it should be refunded. In the event that the accused is already
in prison serving the alternative sentence a warrant of her
liberation is issued.
TSANGA
J agrees _____________________
