HUNGWE J: The accused was charged with contravening s
4(1) as read with s 4(1)(a) of the Firearms Act [Cap 10:09]. He was
convicted on his own plea. Nothing turns on the conviction.
He was sentenced
to 36 months imprisonment of which 6 months was suspended for 3 years on
conditions of good behaviour.
The agreed facts
surrounding the commission of the offence charged are that a police team
proceeded to the accused residence in Gadzema, Chinhoyi, to conduct a search
for property allegedly stolen by the accused in the course of a robbery in and
around Chinhoyi. The search yielded a Pietro Beretta pistol serial number
818902 as well as eight rounds of ammunition. The fire arm had been stolen from
Mhangura during a robbery.
When I queried
why the minimum mandatory sentence was not imposed, the magistrate indicated
that he erred in failing to do so as to mandatory sentence was supposed to be
imposed. He also confirmed that no special circumstances were invited from the
accused.
As matters
stand, the accused has been discharged from prison having completed the
sentence previously imposed on 27 March 2003. This court on review may quash
the sentence imposed and remit the sentence for sentencing afresh by the trial
court. It will then direct that the sentence imposed takes into account that
already served by the accused till the date of his discharge. This court may
alternatively set aside the sentence imposed in error and pass the appropriate
sentence if the accused is unable to, at this late stage, offer any special
circumstances.
However either course
of action is, in my view, unfair to an accused person who has undergone the rigours
of imprisonment. It is sufficient if the delay resulting in the failure to take
an appropriate course of action timeously, is deprecated. Attention to act
promptly in remitting records on review cannot be over emphasised. Had the
record been sent on review within the statutory seven days and had this court
acted without seeking the magistrates views, in all probability the appropriate
remedial actions consistent with the letter and spirit of the law would have
been taken.
It will be
salutary at this stage to refuse to certify the proceedings as being in
accordance with real and substantial justice.
I therefore withhold my certificate.
HUNGWE J:
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