NDOU J: The accused
person was convicted of eighteen (18) counts of unlawful entry into premises in
contravention of section 131(2)(e) of the Criminal Law Codification Reform) Act
[Chapter 9:23] by a Regional Magistrate sitting in Bulawayo. Nothing turns on the convictions. He was
sentenced to four(4) years imprisonment on each count resulting in a total of
seventy-two (72) years. Of that total,
10 years was suspended on the usual conditions of good future behaviour and
thirty-six (36) years on condition the accused pays restitution. From what the accused said in mitigation, he
will unlikely pay restitution. The
reality is that he has used up the stolen money and disposed of the stolen
property. He is unemployed and has no
meaningful assets. He is likely going to
serve 62 years imprisonment.
In most of the counts, the
individual sentences of 4 years imprisonment imposed are not in no way
excessive, but their cumulative effect is so excessive as to call for
interference - S v Hassim 1976(2) PH H58(N) and S v
Nyathi HB-60-03.
Whichever way one looks at it, a
sentence of 26 years (assuming the accused affords restitution) or 62 years if
he fails to pay restitution, is manifestly excessive and is in excess of the
out limit our courts would ordinarily impose for offences of dishonesty - S
v Sawyer HH-231-99; Sifuya v S HH-77-02; S v Chikanga
SC 123-99 and Chirwa v S HH-79-94. In S v Sherman SC 117-84, McNALLY JA remarked:
"How does one begin to measure the
outer limit of a sentence in a case of this magnitude? One may say that even murder with actual
intent often attracts a sentence of 16 - 18 years. One may ask - what sentence would be appropriate
where a quarter of a million dollars is stolen and nothing recovered? What sentence would be appropriate where two
or six million dollars is involved? This
considerations and suggestion suggest to me that a twenty year sentence for a
crime of dishonesty unaccompanied by violence must be approaching the outer
limit of what any court in this jurisdiction would impose for such crimes."
In light of the above, the learned
Regional Magistrate misdirected herself on the question of sentence and I am at
large as far as sentence is concerned.
The sentence is disturbingly inappropriate calling for interference - S
v Sidat 1997(1) ZLR 487 (S); S v Coetzee 1970(4) SA 83
(RA); S v Ramushu & Ors SC 25-93 and S v Mundowa
1998(2) ZLR 392 (H).
Accordingly, I confirm the
convictions in all 18 counts. I,
however, set aside the sentence by the trial court and the following is
substituted:
"Each
count - 18
months imprisonment. Of the total of 27
years imprisonment, 7 years is suspended for 4 years on condition the accused
in that period does not commit any offence involving theft or dishonesty and
for which he is convicted and sentenced to imprisonment without the option of a
fine. A further 10 years imprisonment is
suspended on conditions the accused pays restitution to the complainants as
outlined in the Regional magistrate's original sentence by not later than 27
February 2009."
Cheda
J .......... I agree
