Criminal Law-viz charge re receiving stolen property knowing it to be stolen.
Criminal Law-viz sentencing re receiving stolen property knowing it to be stolen.
Criminal Law-viz verdict re mitigation.
The
appellant was convicted on his own plea of "guilty"., for receiving stolen property
knowing it to be stolen.,. He was sentenced to an effective twenty-four months
imprisonment. He is appealing against sentence only.
As
the sentence imposed was twenty-four months, the learned magistrate should have
considered the option of community service. In his response to the notice of
appeal, the magistrate states that he did consider the option of community
service. We are, however, not convinced that he did so, because under
mitigation he did not explain this option to the appellant. In his own reasons
for sentence, there is also no mention of community service. The respondent has
conceded that the trial magistrate misdirected himself by not considering the
question of community service. The concession is properly made in view of our
case law.,. The appellant was unrepresented during the trial, so there was a
need for the trial magistrate to canvass the possibility of performing
community service. It is not sufficient for the trial magistrate to think about
it when assessing sentence. Before he starts thinking about its
appropriateness, he must invite (after explanation to the accused)
representations, and thereafter consider. All this must be apparent from the
record of proceedings and not from the assurance of the trial magistrate at a
later stage.
In
view of the above misdirection, we are at large, as far as sentence is
concerned. Both counsel have submitted that community service is appropriate.
We are in agreement. We also take into account that the appellant served four
months before being granted bail pending appeal. Accordingly the conviction is
confirmed. The sentence imposed by the trial court is set aside and substituted
as follows:
"Twenty
months imprisonment of which -
(a)
Twelve months imprisonment is suspended for five years on condition the accused
is not convicted of any offence, of which dishonesty is an element, committed
within that period for which he is sentenced to imprisonment without the option
of a fine.
(b) The remaining eight months imprisonment is
suspended on condition the accused completes three hundred and ten hours of
community service.,.
NDOU J: The
appellant was convicted on his own plea by a Gwanda Magistrate on 26 October
2006 for receiving stolen property knowing it to be stolen as defined in
section 124(1)(a) of the Criminal law (Codification and Reform) Act, [Chapter
9:23]. He was sentenced to an effective
24 months imprisonment. He is appealing
against the sentence only. The
background facts are that appellant, who was at the time employed as an Arex
Officer, received stolen medicines, X Ray films, surgical blades. The property was stolen from Maphisa District
Hospital. Three employees of the
Hospital stole the property and passed it on to the appellant. He knew the nefarious source of the
property. In particular, he was aware
that the property was being stolen from a rural public hospital. As a local resident, he obviously appreciated
the impact of theft of drugs and equipment from such a rural hospital. The stolen items were valued at $2 725
700,00. This was a substantial amount at
the time of the conviction of the appellant.
So what appellant did was very serious.
In his favour the appellant is a first offender. He pleaded guilty and has shown some measure
of contrition, all the stolen property was recovered. He was suffering from Tuberculosis at the
time of his trial and did not enjoy good health. He stated that his wife was bed ridden and
she was also suffering from Tuberculosis.
He is the sole bread winner. As
the sentence imposed was 24 months, the learned magistrate should have considered
the option of community service. In his
response to the notice of appeal the magistrate states he did consider the
option of community service.
We are, however, not convinced that
he did so because under mitigation he did not explain this option to the
appellant. In his own reasons for
sentence there is also no mention of community service. The respondent has conceded that the trial
magistrate misdirected himself by not considering the question of community
service. The concession is properly made
in view of our case law - S v Majaya HB-15-03; S v Shariwa
HB-37-03; S v Mpofu HB-73-03; S v Khumalo HB-39-03
and S v Manyevere HB-38-03.
The appellant was unrepresented during the trial so there was a need for
the trial magistrate to canvass the possibility of performing community
service. It is not sufficient for the
trial magistrate to think about it when assessing sentence. Before he starts
thinking about its appropriateness he must invite (after explanation to the
accused) representations and thereafter consider. All this must be apparent from the record of
proceedings and not from assurance by the trial magistrate at a later
stage. In view of the above
misdirection, we are at large as far as sentence is concerned. Both counsel have submitted that community
service is appropriate. We are in
agreement. We also take into account
that the appellant served four (4) months before being granted bail pending
appeal.
Accordingly, the conviction is
confirmed. The sentence imposed by trial
court is set aside and substituted as follows:
"20 months imprisonment of which -
(a)
12 months imprisonment is
suspended for 5 years on condition the accused is not convicted of any offence
of which dishonesty is an element committed within that period for which he is
sentenced to imprisonment without the option of a fine.
(b)
The remaining 8 months imprisonment
is suspended on condition the accused completes 310 hours of community service
at Kezi Police Station at Kezi on the following terms -
(i)
the community service starts
within ten(10) days of the handing of this judgment and must be completed within
12 weeks of that date;
(ii)
the community service must be
performed between the hours of 8am to 1pm and 2pm to 4pm each Monday to Friday
which is not a public holiday to the satisfaction of the person in charge at
the said institution who may, for good cause grant the accused leave to be
absent on a particular day or days or during certain hours. Any such leave of absence shall not count as
part of the community service to be completed."
Cheda
J ........... I agree
T Hara & Partners, appellant's legal practitioners
Criminal Division, Attorney General's Officer,
respondent's legal practitioners
