CRIMINAL
REVIEW
MAWADZE
J:
The
19-year-old accused who was a first offender was convicted of
contravening section 113(1) of the Criminal Law (Codification and
Reform) Act, [Cap
9:23]
which
relates to theft.
The
agreed facts are that on 21 August 2019 at around 0300 hours the
41-year-old complainant was involved in a road traffic accident at
the 37km peg along the Chivu–Gutu road and got seriously injured.
The accused and one Jonathan Chikoromondo witnessed the accident and
rushed to the scene. The accused did not help any of the injured
persons. Instead the accused and his colleague Jonathan Chikoromondo
opened the driver's door and stole US4,200.00 which they later
shared.
Nothing
was recovered.
The
accused was sentenced to 24 months imprisonment of which 6 months
imprisonment was suspended for 5 years on the usual conditions of
good behaviour leaving an effective prison term of 18 months.
What
pricked my judicial conscience is the fact that the 19-year-old
accused is not only a youthful first offender but is currently in
Form Four at Chiriga Secondary School.
The
implication of an effective prison term is that the accused is no
longer attending school thus ruining his future. Currently other
pupils are busy writing their examinations.
There
is no doubt that the accused's moral blameworthiness is very high.
The accused exhibited a very high degree of cruelty. He decided not
to help the injured complainant but to steal the money. Such conduct
is immoral and deserve censure.
Be
that as it may some degree of leniency was required.
The
accused is a youthful first offender. He is no longer attending
school as he was incarcerated. There was an element of sudden
temptation when he saw the cash.
It
was not probed as to where exactly the cash was in the motor vehicle.
It is not clear how much the accused got as his share of the loot.
The trial court did not inquire as to how accused used the money. It
is not clear as to who is older between the accused and Jonathan
Chikoromondo in order to exclude the possibility of peer pressure.
The
trial Magistrate concedes that he did not carry out a proper inquiry
into all these factors to enable him to properly assess the sentence.
This
constitutes a misdirection.
Further,
the sentence of 24 months imprisonment is rather severe in view of
the accused's age, the amount involved and other mitigatory
factors.
This
matter calls for my immediate intervention to enable the accused to
continue with his education.
I
shall direct the trial Magistrate to immediately call the accused
from prison and to carry out proper inquiry into community service
and sentence the accused to a sentence of community service.
The
trial Magistrate should take into account the period the accused has
already served in prison from 9 September 2019 and also that he is
attending school and possibly writing examinations in couching the
community service order especially the period he would be expected to
perform community service. As he is still a school pupil it is unwise
to order restitution.
In
the result I make the following order;
1.
The sentence of 24 months imposed by the trial court is set aside in
its entirety and is substituted with the following;
“6
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 he is sentenced to a term of
imprisonment without the option of a fine.
The
remainder of 3 months is suspended on condition the accused performs
the equivalent hours of community service work at an appropriate
institution on the usual conditions.”
2.
The matter is remitted to the trial Magistrate or in his absence to
any other Magistrate to carry out an inquiry in compliance with
paragraph (1) above. The period accused has already served should be
taken into account in computing the hours of community service work
to be performed for the 3 months.
The
above order should be complied without delay to ensure the accused is
not further prejudiced.
WAMAMBO
J agrees …………………………………………………
