Criminal
Review
MATHONSI
J: The
three youthful accused persons were arraigned before a Provincial
Magistrate at Western Commonage on two counts of extortion in
contravention of section 134(1)(a) and (b) of the Criminal Law Code
[Chapter 9:23].
They
pleaded guilty to the charge and upon conviction they were each
sentenced to 5 years imprisonment of which 1 year imprisonment was
suspended for 5 years on condition of future good behaviour. Of the
remaining 4 years imprisonment, 1 year was suspended on condition
they jointly and severally, the one paying the others to be absolved,
restituted the complainants the sums of $50-00 and $20-00
respectively on or before 31 January 2017.
There
is nothing wrong with the conviction which will be confirmed. It is
the sentence which induces a sense of shock and should be interfered
with.
The
facts are that on 2 November 2016 the three had masqueraded as police
officers at the intersection of Masiyephambili Road and Nketa Drive
in Bulawayo and extorted $50-00 from the complainant in Count One and
$20-00 from the complainant in Count Two, while threatening to
impound their motor vehicles.
In
arriving at the sentence the court accepted that all three of them
were first offenders, they were drunk and had pleaded guilty.
In
my view the learned trial magistrate however misdirected himself in
reasoning that:
“This
is a clear act of dragging the Zimbabwe Republic Police through mud
as the nation will lose confidence in the force.”
These
were not police officers but criminally minded civilians.
The
nation cannot possibly lose confidence in the police force because of
their conduct. In reasoning that way the court unwittingly sentenced
the accused persons as police officers and not as ordinary civilians
which explains the unduly harsh sentence that it settled for.
In
terms of section 134(1);
“Any
person who —
(a)
intentionally exerts illegitimate pressure on another person with the
purpose of extracting an advantage, whether for himself or herself or
for some other person, and whether or not it is due to him or her,
from that other person, or causing that other person loss; and
(b)
by means of the illegitimate pressure, obtains the advantage, or
causes the loss;
shall
be guilty of extortion and liable to —
(i)
a fine not exceeding level thirteen or not exceeding twice the value
of any property obtained by him or her as a result of the crime,
whichever is the greater; or
(ii)
imprisonment for a period not exceeding fifteen years or both.”
It
is now settled in this jurisdiction that where the statute provides
for a sentence of a fine or alternatively imprisonment, the court
must give serious consideration to the option of a fine and reserve
imprisonment for the most serious of such an offence or repeat
offenders. See S
v Zuva
2014(1) ZLR 15 (H) 18A – C; S
v Tshuma
HB302/16.
That
point is succinctly stated by MALABA
J
(as he then was) in S
v
Chawanda
1996 (2) ZLR 8 (H) 10 C-G where the learned judge said:
“The
authority for the proposition that where a statute provided 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 to the imposition of a fine, particularly on a first
offender, is found in the case of S
v Muhenyere
HB3-92
cited by the accused's legal practitioner. At page 3 of the
judgment in Muhenyere's
case supra
BLACKIE
J,
with the concurrence of CHEDA
J, quoted
with approval from the decisions in the cases of S
v Rutsvara
S-2-89 and S
v Van
Jaarsveld
HC-110-90.
The
learned judge said:
'It
is trite that where the statute lays down a monetary penalty as well
as a period of imprisonment the court must give consideration to the
imposition of a fine. It would normally reserve imprisonment for bad
cases ---. In statutory offences permitting the imposition of a
fine, the normal sentence for a first offender is a fine unless the
offence is particularly serious or prevalent or there would be
serious consequences if the deterrent of imprisonment is not used.'”
I
completely associate myself with the foregoing pronouncements.
I
must also add that the economic realities of this country at the
moment demand that there should be strict adherence to those
sentencing guidelines especially where first offenders are concerned.
This is because it is a fact that prisons are overcrowded; prisoners
are afflicted by disease and the State is struggling not only to
maintain the prisoners but also feed inmates as it has no money. For
that reason it only makes sense in cases involving first offenders
convicted of minor offences to lean in favour of other sentencing
options.
Sentencing
courts should not approach sentencing with a closed mind.
This
is a case in which the penal provision being applied allowed the
sentencer to impose a fine. The offenders were youthful first
offenders who committed the offence under the influence of
intoxicating liquor. They only extorted a total of $70-00 which is no
doubt a very small amount. Of that amount $50-00 had already been
repaid to the complainant at the time of their conviction.
Taking
into account the totality of those factors the accused persons should
have been sentenced to a fine or community service.
The
sentence imposed by the trial court does not fit the offence neither
does it fit the offenders. It is unduly harsh and uncalled for and
in arriving at it, the trial court misdirected itself as already
stated.
Considering
that the accused persons have already served almost 3 months which
they should not have been subjected to, and with the gracious
concurrence of my brother TAKUVA
J,
the sentence will be altered in order for them to be released
immediately.
In
the result, it is ordered that;
1.
The conviction of the three accused persons is hereby confirmed.
2.
The sentence is hereby set aside and in its place is substituted the
following sentence:
“Each
of the 3 accused persons is sentenced to 12 months imprisonment of
which 6 months imprisonment is suspended for 5 years on condition
they do not, during that period, commit any offence involving
dishonesty for which upon conviction they are sentenced to
imprisonment without the option of a fine. Of the remaining 6 months
imprisonment, 3 and a half months is suspended on condition they
jointly and severally restitute the two complainants of the total sum
of $70-00 on or before 28 February 2017.”
2.
As the three accused persons have already served 2 and a half months,
they are entitled to their immediate release.
Takuva
J agrees……………………………………………
