The two accused persons were charged, and convicted, by the same magistrate, in separate trials, and on different charges.

In State v W. Hakurerwi, the accused was an eighteen year old female first offender. In August 2008, she stole $900 (re-valued) from her employer's bedroom. The money was all recovered.

She was convicted on her own plea of guilty, and was sentenced to six months imprisonment which was wholly suspended on condition that she performed two hundred and ten hours of community service at a rate of eight hours per day.

In State v P. Sharara, the accused was a thirty-two year old male adult employed as a security guard by the complainant. On a date in September 2008, he stole a pocket of potatoes which had fallen off a moving tractor. The potatoes were valued at $3000. He readily pleaded guilty, and was convicted. He was a first offender.

He was sentenced to twelve months imprisonment, of which six months were suspended for five years on conditions of good behaviour, and the remaining six months were suspended on condition that he completed two hundred and ten hours of community service at a rate of eight hours per day.

As is the norm in each case, the magistrate indicated that the supervisor may, on good cause, grant leave of absence which shall not count as part of the service to be performed. The community service, in each case had to be completed within six weeks.

The Regional Magistrate, before whom the proceedings were placed for scrutiny, queried the short period within which the community service had to be completed, as it tallied with a mathematical calculation of the time it would take the accused to complete two hundred and ten hours at eight hours per day, without any leave of absence.

He, thus, asked the trial magistrate whether he should not have given more time than the actual period mathematically required in order to accommodate the unforeseen eventualities where the probationer may need to get leave of absence from the supervisor.

The trial magistrate responded by defending his manner of calculating the period. He contended that to grant more time within which the probationer must complete community service would tend to encourage requests for time off.

In terms of the guidelines on community service, supervisors are empowered to use their discretion and grant time off to probationers on good cause shown. The guidelines go on to state that where a probationer is given time off “he must be made to understand that the time lost will have to be made up. Remember, too, that the privilege of time off cannot be abused because the total number of community service hours must always be completed within the period stipulated by the court.”

This entails that the supervisor can only grant time off where the probationer will be able to still complete the hours of community service within the period given by the court. If, therefore, the time stipulated by the court is so mathematically calculated as to end at the time the two hundred and ten hours at eight hours per day, without any break, end, it means the supervisor has been denied the discretion, and the probationer can, in fact, not be granted time off. Any time off granted in these circumstances would require the probationer to apply to court for an extension of the stipulated period within which to complete the community service. The granting of the discretion to grant time off to supervisors was meant to, among other things, deal with the need to approach the court whenever a probationer needed time off.

It is, therefore, imperative that the period within which a probationer must complete community service must not be mathematically calculated to tally with the period the hours come to an end if the probationer worked non-stop at eight hours per day. Courts must, as of principle, always stipulate a period that takes into account public holidays, weekends, and leave of absence that the supervisor may grant on good cause shown.

The trial magistrate was wrong in his approach on the calculation of the period within which community service had to be completed in each of the above cases.

Accordingly, the latter part of the community service order, in each case, is hereby amended to read:

In S v Khumalo HB39/03, I held, that, where a court is of the view that it should impose a sentence of twenty four months or below, it must first consider community service, and failure to do so is a misdirection.

This approach was again adopted by NDOU J in S v C.M. and S v Z.D. HB67/03. This, therefore, is the law.

Even if one was to assume that imprisonment was appropriate in this case, the trial magistrate did not consider the suitability of community service, moreso as the sentence of three months imprisonment is within the general limit of effective sentence of twenty four months imprisonment. This approach does not only fly in the face of guidelines by the National Committee on Community Service but also of a plethora of case law. See S v Antonio and Ors 1998 (2) ZLR 64 (H); S v Chinzenze and Ors 1998 (1) ZLR 470 (H); S v Santana HH110-94; and S v Shariwa 2003 (1) ZLR 314 (H)...,..

The Regional Magistrate sentenced the accused to five years imprisonment of which three years were suspended on conditions of good behaviour and the remaining two years were suspended on condition he performed 840 hours of community service.

The guidelines issued by the National Committee on Community Service, in November 2002, limits the maximum number of hours which can be imposed to 630 hours.

The Regional Magistrate therefore imposed more hours than was permissible. He ordered that the 840 hours be performed within six months of the imposition of the sentence. The accused was sentenced on 9 July 2010. He is still serving his sentence and can therefore benefit from the reduction of the hours to be performed from 840 to 630 hours.

Counsel for the applicant has urged the court to find that there was a misdirection on the part of the trial court as it failed to consider community services.

Counsel for the applicant has urged me to find that the trial court erred in finding no special circumstances on the basis of that they were not gold panning. The authorities referred to relate any other cases other than those that carry mandatory sentences. Evidence led and accepted by the court is that they had all the equipment necessary for gold panning. In fact, to say they were not, is so untenable so as to deny that Draccula was not trying to break into a blood bank when he was found test-opening the blood bank door.   

This is a case which deserved serious consideration of community service by the trial magistrate. The appellant pleaded guilty and showed some form of contrition. He did not benefit from the crime. He lost his employment as a result of the conviction.

In light of the above, the appeal against sentence should succeed. Accordingly, the conviction is confirmed. The sentence imposed by the trial court is set aside and substituted as follows:

24 months imprisonment of which:

1. 12 months imprisonment is suspended for 3 years on condition that accused is not convicted of any offence of unlawful entry or an offence of which dishonesty is an element committed within that period for which he is sentenced to imprisonment without the option of a fine.

2. The remaining 12 months is suspended on condition that accused completes 420 hours of community service at the Provincial Magistrates Court at Bulawayo on the following terms:

(i) The community service starts within ten (10) days of the handing down of this judgment and must be completed within twelve (12) weeks of that dated;

The trial magistrate settled for an effective twelve (12) months imprisonment.  

He was therefore obliged to consider community service. If he was of the view that such would not be appropriate he should have stated his reasons for not doing so. This was clearly pronounced in S v Mabhena 1996 (1) ZLR 134 (H)….,.  Failure to do that can only lead to the conclusion that the magistrate did not properly exercise his discretion.

I therefore come to the conclusion that the appropriate sentence in this matter should have been either a fine or community service. The accused has already serviced more than 1 ½ months imprisonment.

Accordingly, it is ordered that:

1. The conviction of the accused stands.

2. The sentence imposed against the accused is hereby quashed and in its place is substituted a sentence of forty-five (45) days imprisonment.

Even if one was to take the robust view that imprisonment was appropriate in all the three matters, the trial magistrate still fell short of the need to consider  the suitability of community service as all the sentences imposed are within the general limit of effective 24 months imprisonment.

In all the three cases, no inquiry is made into the suitability of community service and no cogent and sound reasons are given as to why community service is inappropriate in each case. This constitutes a serious misdirection. See S v Anonio & Ors 1998 (2) ZLR 64 (H); S v Chinzenze & Ors 1998 (1) ZLR 470 (H); S v Santana HH110-94; and S v Shariwa 2003 (1) ZLR 314 (d).

We were further referred to the cases of State v Mujaya HB15-03; State v Shariwa HB37-03 and State v Mpofu HB73-03 where this court held that failure to consider community service for sentences within the region of 24 months imprisonment is a misdirection.

This approach still obtains in our courts.

However, this approach applies to non-serious cases only, as it will be absurd to lump all such cases in this category. Judicial officers are at large to distinguish such cases and approach this principle with caution. The decisions in the above cases do not take away the reasonable approach expected of judicial officers to seriously consider appropriate sentences in particular circumstances. In fact, going by the number of cases coming before this court of late, it appears that this otherwise noble principle is now being abused. Time has now come for magistrates and all those charged with the delivery of justice not to swallow the said principle hook, line and sinker.

Corruption is a very serious offence.

In casu, Yonnah Transport, a business concern, was legitimately allocated funds, presumably after satisfying all the necessary requirements some of which were paid for, for example project proposals, which are a necessity in the determination of a loan application. It is clear that Yonnah Transport had a commercial fulfilment to meet which was in the interest of both the national economy and itself. After all these preparations, the appellant, who was placed in a position of trust, had a high responsibility, was therefore expected to discharge his duties in a fair and just manner, but decided to twist the procedure and allocate public funds to a not-yet-due borrower for his personal reasons. Although, it is not clear what his motive was, the only irresistible conclusion is that he must have been actuated by illegal and/or immoral considerations. Whatever it was, this conduct is reprehensible and deserves censure which should serve as a general deterrence to all those who are in the forefront of promoting and propagating this scourge in our society.

For the above reason, I find that the sentence imposed by the court a quo was, for all intents and purposes, fitting for the said offence in the circumstances.

I am aware that there is now a string of judgments which have emphasised that the courts must consider other alternative forms of punishment such as community service, especially where the sentence falls within the 24 months bracket of community service.

I do not believe that the courts are strictly bound by the general principles and guidelines on community service to such an extent that they may not exercise their discretion depending on the peculiar circumstances of each case. The sentence must still fit the offender. In exercising his discretion, the trial magistrate may decide that community service is not the appropriate sentence taking into consideration the circumstances of the case. In this case, the circumstances are unique in that the appellant, the Headmaster of a school, decided to misrepresent to the Ministry of Education, and hired unqualified teachers to fill vacant posts. He did not follow the laid down procedure for employing teachers. He became the recruiter and employer. He collected the salaries of the teachers who had left the service and “shared” such salaries with the unqualified teachers, who were not even in the records of the Ministry. His moral blameworthiness was of a high degree.

It is my considered view that this is a serious offence and a sentence of a fine or community service would trivialise the offence. In any event, the appellant has not been able to establish any misdirection on the part of the trial magistrate which calls for interference of the sentence on appeal. If a magistrate considers that community service is not appropriate and decides to impose a custodial sentence, and gives his reasons for imposing an effective prison term, the appeal court will only interfere with such sentence if the sentence imposed is a result of a misdirection or is so excessive as to induce a sense of shock. It is my view that in this case the sentence of 10 months imprisonment is well within the penal jurisdiction of the court a quo.

In the absence of any misdirection, the appeal court is slow to interfere with the sentencing which is the discretion of the trial court. See S v Ramushu and Other SC25-93 and S v Sithole 1992 (2) ZLR 110….,

As already stated, this is a case where community service should have been considered. 

I am alive to the fact that there is a series of judgments which have emphasised that the courts should consider other forms of punishment such as community service especially where the sentence is 24 months or less.

I am not persuaded that the courts are strictly bound by such to an extent that the trial court is stripped of its discretionary powers in assessing the appropriate sentence.

I am aware that the court, in the case of S v Shariwa HB37-03, held that a failure to consider community service in cases where the court has imposed a sentence of 24 months or less amounts to a misdirection. 

I hold the view that where a trial court considers a matter to be serious and warranting a custodial sentence and pronounces his reasons for sentence justifying the imposition of a custodial sentence, the approach, on appeal, should be to raise the following factors:

1. Is the offence serious?

2. Is the sentence imposed manifestly excessive so as to induce a sense of shock?

3. Did the trial court misdirect itself in its approach to sentence?

4. Is the sentence in line with cases of a similar nature?

In my view, in this case, there was no misdirection on the part of the trial court in its approach to sentence. See Sibanda v The State HC54/15 and Zulu v The State HC52/03.

The court in Zulu v The State HC52-03 stated, obiter, that had the matter been properly prosecuted and it was proved that in addition to fondling the breasts, the appellant had lifted the complainant's skirt and touched her legs, it would not have hesitated in imposing a custodial sentence. Although these sentiments were made obiter by the court, in the present case, the appellant fondled the complainant's breasts several times before fondling her private parts. This is a serious violation of the complainant and amounts to child sexual abuse. The appellant was a married man and 15 years older than the complainant. This court, as the upper guardian of minors, must be seen as affording real protection to the vulnerable group of the young girl child by imposing custodial sentences on those who choose to violate the rights of young persons.

This is an appeal against sentence only following the conviction and sentence of the appellant by the Magistrates Court sitting at Lupane on three counts of theft in contravention of section 113 of the Criminal Law Code [Chapter 9:23]. 

The appellant had initially pleaded not guilty to all the charges but midway through the trial, after the State had led evidence from all its witnesses, closed its case and the appellant had testified in defence and closed his case, the appellant underwent some damascene experience. Seeing the light for the first time, he changed his plea to that of guilty. 

Down on his knees he then pleaded for mercy.

The magistrate was not impressed as to him the appellant's plea for mercy was nothing more than the fuminations of a well and soundly beaten man, who, seeing no escape route ahead decides to capitulate after wasting the court's energy, time and resources on a trial whose outcome was as predictable as ABC. He came down hard on the appellant, sentencing him to 24 months imprisonment of which 8 months imprisonment was suspended for 5 years on the usual condition of future good behavior. A further 2 months was suspended on condition of restitution.

Left with an effective sentence of 14 months imprisonment, the appellant was dissatisfied.

He then lodged this appeal against sentence only on the basis that the sentence is so harsh as to induce a sense of shock. To him, the magistrate did not consider the effect of compensation which he had offered, did not consider imposing a fine or community service, paid lip-service to the mitigating factors set out, and, in the end, came up with a sentence that was disproportionate to the crime.

At the hearing of the appeal, counsel who appeared for the appellant, ill-prepared, as the matter was being handled by a colleague at his firm who had been taken ill, abandoned the request for community service, and, instead, urged of us a sentence of a fine. In my view, that was not a smart move at all especially as the sentencing court is not only at liberty to consider community service but is enjoined to do so where it comes up with an effective imprisonment sentence of less than 24 months.

Counsel for the respondent conceded that in sentencing the appellant to a term of incarceration the court a quo misdirected itself especially as the offences occurred contemporaneously as to amount to one criminal transaction.

In arriving at the sentence that it imposed, the court a quo reasoned as follows:

“It is accused's first appearance in court facing a criminal charge. He is married and has some dependents to take care of. Due to this case, he is now on suspension from his workplace (in fact, he was later dismissed). He has been given credit for having a change of heart. He pleaded guilty. His plea has hence save(d) much of the court's time. However, what is aggravating is that he committed three counts of theft. Theft from a motor vehicle, per se, is a serious offence. Accused did not only cause unnecessary prejudice to the complainants in question but he greatly inconvenienced them. The motor vehicles in question were meant to take them to and from work but on that day in question they failed to do so as fuel had been drained. I did not lose sight of the value involved in this case. It, however, cannot be taken into (sic) isolation. Analysing the circumstances of this case, it is my view that a fine or community service would rather trivialize the case. I believe a custodial sentence would be in the interest of justice. The sentence which is not only meant to punish the accused but also to send a message to would be offenders as well.”…,.

The sentencing court has a discretion in assessing an appropriate sentence. The appeal court will not just interfere with that sentencing discretion and will only do so where there is a misdirection or the sentence imposed is manifestly excessive;

S v Chiweshe 1996 (1) ZLR 425 (H) 429 D; R v Ramushu SC25-93; S v Nhumwa SC40-88. 

Where it can be shown that the sentence imposed is vitiated by a misdirection, the appeal court will step in to correct the misdirection. Where the sentence imposed falls within the sentencing discretion of the trial court and it has not been shown that there exists a misdirection, the appeal court will not interfere merely to substitute its own opinion regarding sentence;

S v Mundowa 1998 (2) ZLR 392 (H)…,.; S v De Jager and Another 1965 (2) SA 616 (A)…,.

However, this is a matter in which the trial magistrate settled for an effective sentence of 14 months imprisonment. He was therefore obliged to consider community service.  In S v Mabhena 1996 (1) ZLR 134 (H)…, ADAM J made the following pronouncement;

“There is little doubt that the magistrate erred about community service. The sentence he imposed was 18 months' imprisonment with labour of which 8 months was suspended on condition of good behavior, leaving an effective sentence of 10 months imprisonment. This court has, on a number of occasions, indicated in the past that for first offenders in appropriate cases where a sentence a court imposes (is) 12 months effective imprisonment or less then community service should be considered and sound reasons given for not imposing it.”

MAWADZE J took that point further in S v Chireyi and Others 2011 (1) ZLR 254 (H)…,.

The learned judge took the view that it was a misdirection for a trial magistrate not to inquire into the suitability of community service where he or she settles for effective imprisonment of 24 months or less. I must add that it is not enough to simply pay lip-service to the factor of community service by merely mumbling something to the effect that it is inappropriate, without more, or that it will trivialize the offence.

Where the trial magistrate is of the view, after making a real inquiry into it, that community service is inappropriate, cogent or sound reasons for arriving at that conclusion must be given. This is the point underscored by CHINHENGO J in S v Antonio and Others 1998 (2) ZLR 64 (H); that, if a fine is a permissible sentence for the crime in question, the sentencer should consider first whether a fine with or without an alternative of community service should be imposed. If he considers that a fine is not appropriate, he should then consider whether a direct sentence of community service is appropriate. If it is not, he should consider whether a term of imprisonment suspended on condition of performance of community service is appropriate. In the end if the sentencer decides that none of these options are appropriate but that an effective term of imprisonment should be imposed, he should give proper reasons for his decision. 

See also S v Chinzenze and Others 1998 (1) ZLR 470 (H).

To my mind, it is an injudicious exercise of the sentencing discretion for the sentencer to merely state that a fine or community service would trivialize the offence and end there. This is especially so where what is regarded as aggravation is nothing out of the ordinary but the usual incidence of theft like the convenience to the complainant.

The moment the trial magistrate settled for an effective 14 months imprisonment, he was obliged to inquire into the suitability of community service. To just divine that community service would be inappropriate without the requisite inquiry was a misdirection calling for interference with the sentence….,. 

This is a matter in which the appellant should have been given a sentence of community service….,.

In the result, it is ordered that;

1. The sentence imposed by the court a quo is hereby set aside and in its place is substituted the following sentence:

“24 months imprisonment of which 12 months imprisonment is suspended for 5 years on condition the accused does not, during that time, commit any offence involving dishonesty for which, upon conviction, he is sentenced to imprisonment without the option of a fine. A further 10 months imprisonment is suspended on condition he restitutes Sibongile Dube in the sum of US$50=, Thomas Suga in the sum of US$94= and Gildert Dube in the sum of $44=.”

The gospel of community service cannot have possibly escaped this learned and experienced Provincial Magistrate based at Gutu Magistrates Court. Probably his situation can be likened to the biblical parable where the farmer, in planting the seeds, some of the seeds fell on barren rocky soil and completely failed to properly mature.

It is saddening to note that when the concept of community service is now like what a Bible is to Christians this learned Provincial Magistrate has simply decided to sing his own disharmonious tune much to the detriment of the noble concept of justice. There are now a plethora of cases from this court which give guidance to trial magistrates on the aspect of sentence in relation to the option of community service. For this court to continue to harp on these general principles is akin to preaching to the converted…..,.

The learned trial magistrate in casu did not even bother to carry out an inquiry into the suitability of community service. Further, no good and sound reasons are advanced in this case as to why community service was not imposed. See S v Mapweza HH125-95; S v Mabhena 1996 (1) ZLR 134….,.

It is trite in our law that that where a trial court imposes a sentence of 24 months or less, the suitability of community service should be considered. Failure to do so constitutes a misdirection. See S v Antonio 1998 (1) ZLR 64 (H); S v Gumbo 1995 (1) ZLR 163 (H), S v Chinzenze & Ors 1998 (1) ZLR 470….,.

The higher courts have stressed that wherever a magistrate is considering imprisoning a person for less than 24 months, he or she should always consider whether to impose a sentence of community service instead of sending the person to prison.

It has been stated, repeatedly, by this court that where the sentencing court settles for an effective sentence of less than 24 months imprisonment, it is obliged to consider community service as an option. 

See S v Mabhena 1996 (1) ZLR 134 (H)…,.; S v Chireyi and Others 2011 (1) ZLR 254 (H)…,.

Where the magistrate has inquired into community service and found it inappropriate in the circumstances, he or she must give cogent or sound reasons for arriving at that conclusion; which reasons must appear in the record: S v Mutenha and Another HB35-16. In the end, if the sentencer considers that only an effective term of imprisonment is the appropriate sentence he or she should give proper reasons for that decision.

Both Counts were treated as one for purposes of sentence and the accused was sentenced as follows:

“24 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition accused person does not commit any offence which has unlawful entry as an element within that period for which he will be sentenced to imprisonment without the option to pay a fine.”

Without attempting to understate the seriousness of the two offences involved in this case, I am extremely concerned with the casual approach to sentence adopted by the magistrate who handled the plea. There is nothing in his approach which shows that he is oblivious of the current trends in sentencing.

This court has chained out several decisions which make it abundantly clear that where the trial court determines that an appropriate sentence falls within the range of 24 months imprisonment or below, then serious considerations must be given to the imposition of community service as an alternative to a straight prison term. See ZIMBABWE NATIONAL COMMITTEE ON COMMUNITY SERVICE – REVISED GUIDE FILLINGS FOR MAGISTRATES, PROSECUTORS AND OTHER COURT OFFICIALS; State v Tapiwa Shariwa HB37-03; A Guide to Sentencing in Zimbabwe 2^nd ed…, by G. FELTOE.

The recommended sentencing approach comments itself in basically two ways; viz,

(i) It addresses the practical ways of decongesting our prisons; and

(ii) Secondly, it gives the accused a second chance to undergo some kind of self-rehabilitation without having to subject him/her to the rigors of incarceration and its effect.

Various studies have been carried out and concluded that imprisonment, per se, is not the best form of sentence - particularly for first offenders. This explains why there is a paradigm shift in our sentencing approach.

Every judicial officer must be conscious of such trends in sentencing.

In fact, that he is a repeat offender also disqualifies him for community service.

See S v Mutenha and Another HB35-16; S v Mabhena 1996 (1) ZLR (H)..,.

An offender in respect of whom a community service order is in force is obliged to render the service specified in the order for the number of hours specified therein.

Unless revoked, a community service order remains in force until the offender has rendered the number of hours of service specified. Where there has been failure to comply with any requirement of a community service order, the court may amend or extend the order in such a manner as the court thinks will best ensure that the offender renders the service specified in the order….,.

The advantages of a community service order have been neatly encapsulated in an article by FRANCIS HOWES in 1984 SACC 131, titled “Community Service as Community Orientated Punishment,” cited with approval in the case of S v Sikunyana 1994 (1) SACR 206 (Tk)…,. In the article, HOWES states as follows:

“A system of community service has, inter alia, the following advantages:

(i) Community service is a viable alternative, especially to short-term imprisonment. It can alleviate not only the overcrowding in prisons in this category but can eliminate the detrimental effects that imprisonment can have on certain offenders.

(ii) It is generally accepted that offenders can best be treated in the community and that isolation of the offender in an artificial social environment seldom contributes to his rehabilitation. Community service keeps the offender in the community and combines the punitive and rehabilitative aspects of a sentence.

(iii) Instead of becoming a financial burden on the State, the offender remains a productive member of society. Family disintegration and dependency, which are often a by-product of imprisonment, are eliminated.

(iv) By involving the community in the treatment of the offender, it becomes more aware of the crime problem which might create a more positive attitude towards treatment of offenders. Furthermore, community service enables the offender to become better integrated into society and affords him a positive learning.”

The moment the court settled for a sentence of 12 months imprisonment and an effective imprisonment term of 6 months it was obliged to inquire into the suitability of community service. See S v Mabhena 1996 (1) ZLR 134 (H)…,.; S v Chireyi and Others 2011 (1) ZLR 254 (H)…,.

If the court came to the conclusion, following the inquiry, that community service was inappropriate, it was required to give proper reasons for doing so which should appear on the record. They cannot be stored in the mind of the court. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Chinzenze and Others 1998 (1) ZLR 470 (H); S v Silume HB12-16.

The fact that the court a quo did not inquire into the suitability of community service was yet another misdirection.

The accused was ordered to perform community service between Mondays and Fridays.

Of concern is the fact that there is nothing in the record to show that a pre-sentence inquiry on the suitability of community service was ever conducted - yet such an inquiry is a requirement: S v Chinzenze 1998 (1) ZLR 470 (H)…., and S v Gumbo 1995 (1) ZLR 163 (H)…,.

It is also important for the offender to indicate his willingness to perform community service otherwise there is a risk that he or she will not perform the community service if he or she is unwilling to perform. See S v Matara HH31-95; S v Mukono HH161-96.

Not only did the trial magistrate sentence the accused without making an inquiry into the suitability or otherwise of community service, the trial magistrate did not even ask the accused on which days of the week he goes to work….,.

The trial magistrate, therefore, ought to have asked the accused on which days of the week he goes to work and then ordered him to perform community service during the days he does not go to work. Employment is difficult to find and if the accused loses it he may find it difficult to find another job. In S v Sithole and Another HH101-03 it was stated that there is need for the court to specify the hours the accused is supposed to work and the times of starting and ending work taking into account that the convicted person is a full time student or is in full time employment. In S v Gumbo1995 (1) ZLR 163 (HC)…, BARTLET J said:

“It is important for magistrates to be innovative where a person is in employment, to allow community service to be carried out over weekends or after working hours…,.”

It is not a hard and fast rule that community service should be reserved for first offenders. It is just a general rule.

A repeat offender can be considered for community service where there are special mitigatory features. Even where an accused has been previously sentenced to community service, it may still be appropriate, in some cases, for him to be given another chance to stay out of prison by performing further community service.

It is also not a hard and fast rule that repeat offenders have to be sentenced to imprisonment. The objective of community service is to keep non-serious offenders out of prison where they would be exposed to hardened criminals.

Each case should be treated according to its own merits. In deserving cases, a repeat offender can benefit from community service…,.

In casu, the previous conviction is irrelevant because it is totally unrelated to the current offence, it is trivial, and it was committed a long time ago.

The trial magistrate said that his intention was not to bring into effect the one month imprisonment which was suspended in the accused's previous conviction in G12/12. He said that his intention had been to further suspend the previous conviction so as to spare the accused an effective prison term.

The previous conviction relates to an assault charge, but, despite that, the trial magistrate was inclined to keep the accused with his family.

I have reservations with the trial magistrate's reasons for sparing the accused an effective custodial sentence. The trial magistrate ought to have shown the accused that he cannot continue to assault other people and think that he can get away with community service all the time.

In the previous conviction, he committed assault and had four months imprisonment imposed on him. One month thereof was suspended on condition of future good behaviour. The remainder of three months' imprisonment was suspended on condition of performance of 145 hours of community service. He was sentenced on 9 January 2012. Hardly three years later he committed the current two offences of assaulting his wife on two consecutive days.

On the first day, he came home from a beer drink at night. He found his wife and their five month old son already asleep. In his drunken stupor he tried to wake up the five month old baby and the wife stopped him. He responded by slapping her three times on the face with an open hand before she escaped to her grandmother's place. On the next day, in the morning, he approached his wife as she was doing her chores and struck her several times on the face and head using open hands. The wife's grandmother came to her rescue.

What is mitigatory about the accused's case is that he is 29 years old, he has a family made up of himself, the complainant and the five month old son. He pleaded guilty to the charges. The accused is not formally employed and survives on part-time jobs realising $60= to $80= per month.

The fact that the accused has now been convicted of a total of three counts of assault shows that the accused is a person of a violent disposition. If he continues like this there is a great risk that he may end up committing a more serious offence like murder. His explanation, in the present cases, that he acted in that manner because he was very drunk, is, in my view, a lame excuse.

On the second day, in the morning, he was no longer drunk but he went on to further assault his wife, more severely this time, until she was rescued by her grandmother.

The court did not ask him to explain why he committed the second assault. The accused is a person who committed the current offences knowing fully well that he had a one month suspended sentence hanging over his head. His actions show a total disregard and disrespect for the law. If he continues to benefit from community service he might end up thinking that he can always assault other people and get away with community service. It is unfortunate that the court never asked the accused the person whom he assaulted in the previous conviction. In order to arrive at an appropriate sentence the court ought to have made a thorough pre-sentence inquiry, especially considering that the accused had a previous conviction of the same nature.

I do not believe that under the circumstances the accused ought to have benefited from community service once more. A sentence in the region of six months imprisonment with half suspended on condition of good behaviour would have met the justice of the case.

The suspended sentence should also have been brought into effect.

The accused was charged with physical abuse, as defined in section 4(1)(a), as read with section 3(1)(9a) of the Domestic Violence Act [Chapter 5:16] (DVA), it being alleged that, on 15 October 2014 at Gudyanga homestead, he unlawfully slapped Delly Gororo several times on her face with open hands intending to cause bodily harm or realizing that there was a real risk or possibility that bodily harm would result….,.

The accused was sentenced to two months imprisonment. A further two months imprisonment which had been suspended on CRB N332/14 was brought into operation and the effective custodial sentence of four months imprisonment was imposed….,.

The opinion of the Regional Magistrate was that the sentence imposed was too harsh in the circumstances and would alienate the parties and destroy their marriage. In his view, a community service sentence would have met the justice of the case….,.

In assessing sentence…,, the court considered…, in aggravation…, the fact that the accused person was a repeat offender who had previously been convicted of a similar offence….,.

It has been suggested by the Regional Magistrate that the trial magistrate ought to have considered imposing a community service sentence, as opposed to sending the accused person to prison. For that reason, it is postulated that the sentence imposed was too harsh in the circumstances, more particularly because the imposition of a custodial sentence was likely to break up the family, which runs contrary to the purpose of the Domestic Violence Act.

What this court needs to consider is whether the trial magistrate, by imposing a custodial sentence, made an error in the exercise of his discretion. Did the trial magistrate act on a wrong principle, or allow extraneous or irrelevant considerations to affect the sentencing process? Did the trial magistrate make any mistakes of fact or fail to take into account relevant considerations in sentencing the accused person?

We know, from the reasons for sentence, that the accused was not a first offender.

Section 10(8) of the Domestic Violence Act [Chapter 5:16] prescribes the penalty for repeat offenders:

“Any respondent who repeatedly breaches a protection order, whether or not that respondent has been previously prosecuted for such breach, shall be guilty of an offence and liable to imprisonment for a period not exceeding five years.”

My reading of section 10(8) of the Domestic Violence Act is that, once a court makes a finding that the respondent is a repeat offender in terms of the Domestic Violence Act, or that he has breached a protection order repeatedly, there is a custodial sentence of up to five years imprisonment.

In this case, the accused was a repeat offender who had one previously imposed custodial sentence that had been suspended on condition of good behaviour brought into effect….,.

Clearly, the sentence imposed fell within the purview of section 10(8) of the Domestic Violence Act [Chapter 5:16].

Where is the misdirection on the part of the trial magistrate?

In terms of the 2000 Revised Guidelines on Community Service by the Zimbabwe National Committee on Community Service [“the Guidelines”], any person sentenced to an effective of 24 months imprisonment or less is prima facie eligible for community service: see S v Chinzenze & Ors 1998 [2] ZLR 64 [H] and S v Chireyi & Ors 2011 [1] ZLR 254 [H].

However, the 24 months rule is just but one of a coterie of factors to be considered. It is not a rule of thumb. It is the starting point. In all situations, there is need for a proper inquiry to be made whether or not community service is suitable. A trial court enjoys discretion in determining the appropriate sentence. Schedule 8 of the Criminal Procedure and Evidence Act [Chapter 9:07] lists murder [other than infanticide], conspiracy or incitement to murder; or any offence with a prescribed minimum sentence as being outside the range of offences that may be considered for, inter alia, community service. However, in spite of that list, the Guidelines say that there are a number of other offences which, depending on the circumstances, might warrant a non-custodial sentence, such as community service, but which should be treated with caution even if the effective sentence is less than 24 months imprisonment. Wrong signals should not be given to the society at large. Although the list of offences the 2000 Revised Guidelines on Community Service by the Zimbabwe National Committee on Community Service give as examples excludes sexual intercourse with a young person, this does not mean that, in appropriate circumstances, community service should not be discounted even if the effective sentence imposed is 24 months imprisonment or less….,.

Admittedly, I have not carried out a proper survey. I do not have the empirical evidence. But from the records pouring into the Judges' Chambers on a daily basis for automatic review, cases of sexual intercourse by adult males with young girls by far constitute a significant portion. The time may well have arrived when consideration should be given to whether or not community service is still an appropriate consideration for this type of offence, particularly given its prevalence.

This matter was referred to the Senior Regional Magistrate at Masvingo for scrutiny. The Senior Regional Magistrate, in turn, addressed a minute to the Registrar with the following comments:

“The accused is a first offender who pleaded guilty to the offence. He is someone who was willing to compensate the complainant. His sentence falls within the range of community service.

The reason for sentence did not show why community service was not taken as an option.

The Magistrate's response to my query appears misplaced. He is referring to accused as someone who has a propensity to commit further crimes and I do not know where the court got that from.

This was not a case of bail pending trial were (sic) such factors are usually considered. The most important thing in this case is he is a first offender.

I do not believe that being married is the pre-requisite requirement (sic) for someone to qualify for community service. He was disqualified from performing community service because he was not married. This was discrimination done by the court which should not be allowed. In any event, such reasoning did not find its way in the reasons for sentence.

Your views and directions.”

The accused pleaded guilty to theft and was sentenced to nine months imprisonment of which three months imprisonment was suspended on condition of good behaviour. A further three months imprisonment was suspended on condition the accused restitutes the complainant in the sum of US$560= through the Clerk of Court, Masvingo.

When the Senior Regional Magistrate queried the propriety of the sentence, especially the trial court's failure to consider community service, the trial magistrate replied thus:

“Community service was not considered by the court on (sic) the following reasons:-

(1) The moral blameworthy (sic) of the accused person was very high, the accused converted the complainant's money for his own personal use which includes using the money for pleasure according to his statement during plea recording.

(2) The court considered that the accused was not a person to be acceptable back to society without a proper rehabilitative process. The potential for the accused to further commit dishonesty offences was likely to be high.

This is further aggravated by the fact that the accused is not employed and he had no means to start afresh and thus the likelihood of further committing the offences was high.

Accused is not married and thus he had no any (sic) commitments that could not make him to defeat the course of justice if given the option of community service.

Therefore even though I concede that the accused was a first offender, but proper rehabilitation could only be done if accused was afforded a custodial sentence.

The total amount of money that the complainant was prejudiced is also alarming in the circumstance (sic).”

Where a court imposes a sentence of imprisonment not exceeding 24 months it must consider other sentencing options like a fine, community service or a wholly suspended prison term. The trial court opted for imprisonment without considering any other sentencing options. That amounts to a misdirection. I am mindful that the mere omission to specifically mention other sentencing options does not necessarily amount to misdirection. Commenting on this aspect in S v Gono 2000 (2) ZLR 63 (HC) BLACKIE J…, had this to say:

“I respectfully agree with and endorse the statements made by both YOUNG J and CHINHENGO J in their judgments concerning the importance of and difficulty in exercising the judicial discretion in sentencing, and the need for a judicial officer, in the exercise of that discretion, to apply his mind to and exercise his discretion in respect of all the relevant facts and to explain, in his reasons for sentence, to both the accused and to society at large why he has determined on the sentence he has imposed. It is most important that the accused, the general public, and, if necessary, the Appeal Court, clearly understand the reasons for which a particular punishment has been selected.”

However, with respect to CHINHENGO J, there is a portion of his judgment that requires qualification. It is that portion which suggests that if the judicial officer does not express the reasons why he has determined on one form of punishment rather than another, he will not have applied his mind to the most appropriate sentence and will, therefore, have misdirected himself.

It does not seem to me that it necessarily follows that because the judicial officer does not expressly mention that he has considered alternative punishments and given reasons why he has rejected those punishments, the judicial officer has not applied his mind to them. An express statement that all the alternative punishments have been considered and that the one imposed has been chosen for the particular reasons set out in the judgment is certainly the best evidence that all the appropriate factors have been taken into account and that they have been correctly applied. However, "…., (m)erely because a relevant factor has not been mentioned in the judgment on sentence, it does not mean that it has been overlooked for 'no judgment can ever be perfect and all embracing.' See R v Dhlumayo & Ors 1948 (2) SA 677 (A) at 702, quoted by TROLLIP JA in S v Pillay 1977 (4) SA 531 (A) at 535 I. In any event, the reasons for accepting one form of punishment as appropriate and another as inappropriate may be implicit in or deducible from the context or reasoning of the judgment.”

A reading of the trial court's reasons does not reveal anything implicit regarding alternative sentencing options. All it did was to say:

“Be it as it may, the court has considered that a custodial sentence will meet the justice of this case. The accused person demonstrated a high level of blameworthy (sic) and thus the court must take appropriate measure (sic). The court will also order restitution.”

Courts should endeavour to keep first offenders who plead guilty to less serious crimes out of custody. A rehabilitative sentence is not one of incarceration as the trial magistrate tried to justify in response to the query by the scrutinizing magistrate. As was stated by ADAM J in S v Mabhena 1996 (1) 134 (HC)…,.:

“Further, it has been emphasized on countless occasions by this court and the Supreme Court that an effective custodial sentence of imprisonment is a severe and harsh form of punishment which should be imposed on first offenders only if no other punishment would be appropriate. Needless to say there are certain crimes to which the foregoing does not apply because of their nature and magnitude which necessitates the imposition of an effective term of imprisonment. Accordingly, such serious crimes as attempted murder, rape, attempted rape, armed robbery, car thefts and aggravated type of assault with intent to cause grievous bodily harm are some examples of serious offences which generally require a magistrate to impose an effective custodial term. Clearly, fines, compensatory orders and suspended sentences, including those on condition of community service, would normally be out of question for them.”

Ultimately, the trial magistrate's response clearly shows that he or she never considered other sentencing options. There is misdirection in the reasons advanced for discounting community service. As correctly pointed out by the scrutinizing magistrate, community service is not reserved for married persons. I would also add that it is also not reserved for employed people. It is not even clear how the trial magistrate concluded that the accused person would commit another offence if ordered to perform community service. The trial magistrate could only have properly assessed the accused' suitability for community service after referring him to a Community Service Officer….,.

The accused person should benefit from a suspended sentence.

In view of the sentence that he has already served it would be dilatory to remit the matter to the trial court in order for sentence to be assessed afresh. It is therefore ordered that the sentence imposed by the trial court be set aside and in its place is substituted the following:

“9 months imprisonment of which 4 months imprisonment is suspended for 4 years on condition within that period the accused does not commit any offence involving dishonesty for which he will be sentenced to imprisonment without the option of a fine. The remaining 5 months imprisonment is suspended on condition the accused restitutes the complainant in the sum of US$560= through the Clerk of Court on or before 30 May 2015.”

The accused was convicted by the Magistrate sitting at Chiredzi of contravening section 113(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to theft of trust property.

The facts proved during the trial are that the 34-year-old accused was left in custody of two 32-inch plasma television sets by his employer of seven to eight years valued at $1,500. The accused disposed of the two television sets.

Despite the accused's spirited denial of the offence, the evidence adduced clearly proves that he committed the offence. The conviction is in order and is therefore confirmed.

It is the sentence imposed which has exercised my mind.

The accused who has two minor children, a pregnant wife, and has lost his job in these difficult economic times was sentenced to 15 months imprisonment of which 3 months were suspended on the usual condition of good behaviour and a further 6 months on condition of restitution in the sum of $1,500 through the Clerk of Court, Chiredzi by 1 April 2019. This means that the accused would serve an effective prison term of 6 months.

Theft from an employer is indeed a serious offence which entails breach of trust. Be that as it may my view is that not every case of theft from an employer warrants a prison term. In casu, the accused is a first offender and has already lost his job.

It is important for magistrates to appreciate the current harsh and difficult conditions in our prisons. In the premises, only deserving persons should be sent to prison.

In the case of State vs Mundondo Zava HMA15-17 I bemoaned the failure by magistrates to properly consider the noble concept of Community Service. I also referred to a number of cases which clearly outline that failure to consider community service constitutes a reviewable irregularity and a misdirection.

I am not satisfied that after weighing both the mitigatory and aggravating features of this case the accused deserved to serve a prison term of 6 months. Instead, the effective 6 months imprisonment should have been suspended on condition the accused performs the appropriate hours of community service.

In the result, the sentence imposed by the magistrate should be set aside as the overall sentence of 15 months is unduly harsh.

Consequently, the effective 6 months imprisonment is set aside. The matter is remitted to the trial magistrate to carry out a proper inquiry into the suitability of community service in relation to the effective prison term of 6 months. Thereafter, the record should be re-submitted for review.

In the result I make the following order;

IT IS ORDERED THAT;

1. The conviction be and is hereby confirmed.

2. The sentence of the court a quo is set aside and substituted with the following;

(a) The accused is sentenced to 12 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving dishonesty for which the accused is sentenced to imprisonment without the option of a fine.

(b) Of the remaining 9 months imprisonment, 3 months imprisonment is suspended on condition the accused restitutes the complainant in the sum of $1,500 on or before 1 March 2019 through the Clerk of Court, Chiredzi.

(c) The remainder of 6 months is suspended on condition the accused performs an equivalent hours of community service at a suitable institution on the usual conditions.

(d) The matter is remitted to the trial magistrate to carry out a proper inquiry into community service and to impose the sentence of community service unless a finding is made that it is impossible to impose community service. Such reasons should be clearly articulated.

(e) The record of proceedings should be re-submitted for review.

(f) The accused should be urgently called from prison for purposes of advising him of the altered sentence and for carrying out the said inquiry.

The appellant was convicted, on his own plea, of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged that, on 21 March 2010, and at Paradise Motel Bus Stop, Murambinda, the appellant assaulted one Dunmore Muripo several times upon the face with clenched fists. He also struck the complainant in the face with a bottle and several times on the leg with booted feet.

The court a quo sentenced the appellant to 24 months imprisonment, 4 months of which were suspended for 5 years on condition of future good behaviour.

The appellant appealed against the sentence which he said induced a sense of shock. His grounds of appeal were that:

1. The trial court erred in sentencing him to an effective imprisonment term when:

(a) He was a first offender who -

(i) Pleaded guilty, and, therefore, did not waste the court's valuable time;

2. The court a quo erred in sentencing him to imprisonment in circumstances where the court's policy was aimed at keeping young first offenders away from custodial sentences;

3. The learned magistrate erred when he failed to realise that the complainant had provoked the appellant; and

4. The trial court should have preferred such a punishment as community service.

The relief which the appellant sought was meaningless. It read;

“WHEREFORE, Appellant prays that the sentence passed by the Learned Judgment be set aside.”

Counsel for the appellant successfully applied that the prayer be amended to read:

“WHEREFORE, Appellant prays that the sentence passed by the learned magistrate be set aside and substituted with a non-custodial sentence.”

The respondent put up a stiff opposition to the appeal.

It submitted that the sentence which the trial court imposed was appropriate for the crime which the appellant committed. It stated that the sentence was arrived at after a careful analysis of all matters which favoured and militated against the appellant. It insisted that the sentence should not be disturbed as it did not induce a sense of shock.

Counsel for the appellant made two pertinent concessions. These were that:

(i) The appellant was not a young offender as had, earlier on, been submitted; and

(ii) The appellant's assault of the complainant was an unprovoked attack, and was, therefore, not warranted.

The court commends Mr Tawona for his candidness. He acted honestly and responsibly. What he did is indeed encouraged to all legal practitioners who argue matters on behalf of those whom they represent in court.

It is trite that a legal practitioner's duty is first and foremost to the court as well as to his or her learned colleague who will be appearing on the other side of the divide in our adversarial system of justice delivery. The legal practitioner's attention to his or her client's case is equally important and must be accorded the weight which it deserves. It should not, however, be allowed to cloud his or her sense of judgment to a point where he or she refuses to see obvious matters which are not favourable to his or her client's case. He should, as in casu, make concessions where such are due, and, at the same time, advance the cause of those whom he or she represents in a lawsuit or a criminal trial in an effective manner. See in this regard Kawondera v Mandebvu 2006 (1) ZLR 110 (S).

There is no doubt that the appellant is a first offender who pleaded guilty to the offence. The question which begs the answer is whether or not he should have been sentenced to community service on the basis of the mentioned mitigatory factors.

It has already been accepted that the assault which the appellant perpetrated on the complainant was without any provocation on the latter's part. The appellant used clenched fists and a bottle to assault his victim. The medical report which the State produced stated that severe force was applied and the injuries which the complainant suffered were serious. The doctor who examined the complainant remained of the view that the possibility of permanent injuries was likely. He also noted that the complainant suffered internal injuries in addition to those which were visible to the naked eye.

The trial court remained alive to the severity of the injuries which the complainant sustained and the need, on its part, to pass a deterrent sentence on the appellant. The appellant did not tender any apology, directly or indirectly, to the complainant for his wayward behaviour. He did not meet the complainant's medical bills as he should have done. His moral turpitude was very high. The conduct which he exhibited when he committed the offence cannot be condoned let alone accepted.

The arguments which the appellant raised were not relevant to the appeal. Case authorities which he cited had no bearing on the appeal which he had placed before the court.

The respondent's submissions, on the other hand, were well made and were supported with relevant case authorities. Its aim, which it successfully established, was to persuade the court not to interfere with the sentence.

The court was satisfied that the appellant's aggravatory features far outweighed his mitigatory features. He perpetrated a brutal assault on the complainant. He was properly sentenced therefor. That is so as the appellant's conduct was not only vicious but also not warranted. The trial court did not, in our view, misdirect itself at all. The sentence which it imposed does not induce a sense of shock in us. It was properly considered as well as passed. The court is satisfied that the appellant did not discharge the onus which rested upon him. He did not show, on a balance of probabilities, that the sentence which the court a quo imposed should be disturbed.

The appeal is, in the result, dismissed.