CHITAKUNYE
J: The above cases were all presided
over by the same trial magistrate at Mt Darwin. In cases 1 to 11 the accused
persons were convicted of the crime of unlawful entry into premises and theft.
In case 12 the accused was convicted of the crime of theft.
The
accused were all convicted on their own pleas of guilty. The convictions were
proper and are thus confirmed. I however have misgivings on the sentences
imposed in each case. In all the cases of unlawful entry into premises and
theft each accused was sentenced to two years imprisonment. Where there were
two or more counts the accused was sentenced to two years imprisonment for each
count. For the theft case the accused was also sentenced to two years
imprisonment.
The
uniform sentence of two years was regardless of the circumstances of each case.
No portion of the sentence was suspended on any condition despite the fact that
all the accused were first offenders who readily pleaded guilty. In many of the
cases the accused were youthful first offenders aged between 19 and 22 years
who deserved a chance to reform.
In
some cases all the stolen property was recovered whilst in other cases part of
the property was recovered. There were also cases were no property was
recovered.
In
his reasons for sentence the trial magistrate referred to the case of S v Mururo
& Anor HH 198-2000 as his
authority for imposing the sentences of two years imprisonment. The magistrate
clearly misunderstood what the judge said in that case. Upon perusal of that
case I did not understand the judge to be laying a single sentence for offences
of unlawful entry and theft. I also did not understand the judge to be laying a
foundation for not suspending a portion of the sentence or for that matter
treating young first offenders the same as mature first offenders. At p 1 of
the cyclostyled judgment the judge said:
“House breaking
normally attracts sentences of two or three years effective imprisonment even
where no unusual aggravation is present.”
That
in my view did not mean that invariably any one convicted of house breaking
offences had to be imprisoned for two years with no other conditions
irrespective of the individual circumstances of each case. In any case these
courts have on a number of occasions emphasized the need to avoid a tariff
approach to sentencing. In S v Dube and Anor 1995 (2) ZLR 321 at p 326
B-C KORSAH JA had this to say:
“It has been
said time and again in our courts that the punishment should not only fit the
crime, it should fit the person as well. If that is to be, there can be no
place for a tariff sentence in respect of any crime with regard to which the
courts' discretion is not fettered by statute law; for the circumstances of the
offender and other factors of mitigation or aggravation may vary infinitely. Be
it as serious as murder, the sentencing authority is enjoined to consider all
factors, both in aggravation and mitigation of sentence and, in the exercise of
its discretion, to impose a just punishment. A sentence based on a tariff is
indicative of an abortion of judicial discretion, which is tantamount to a
misdirection.”
See also S v Mayberry 1985(1) ZLR
192 at 194-5
In
S v Mugwenhe & Anor
1991(1) ZLR 66 EBRAHIM J cited with approval the words of BOTHER JA in S v Reddy
1975 (3) SA 757 (A) at 759H wherein he said that:
“Though uniformity of sentences, that is of
sentences imposed upon accused persons
in
respect of the same offence, or in respect of similar offences of a
kindred nature,
may be desirable, the desire to achieve
such uniformity cannot be allowed to
interfere with the free exercise of his
discretion by a judicial officer in determining
the appropriate sentence in a particular
case in the light of the relevant facts in that
case and the circumstances of the person
charged.”
In
short, it is the responsibility of each judicial officer to consider all the
factors and circumstances placed before him in arriving at a just sentence. The
sentence must be individualized to the particular offender. Failure to
individualize the sentence is a misdirection. It makes a mockery of the reasons
for sentence that the judicial officer purports to have taken into account in
assessing the sentence, yet time and again these courts have strongly warned
judicial officers against paying lip service to mitigatory features. It is an
act of dishonesty to tell an accused person that the court has considered their
personal mitigatory features when in fact and in truth no such features have
been considered.
In
casu, the trial magistrate abdicated
his responsibility to exercise judicial discretion in assessing sentence. Had
he exercised judicial discretion and applied appropriate sentencing principles
as enunciated by these courts in various cases, he would certainly have arrived
at varying sentences.
It
is trite that in considering sentence such factors as the value of the property
stolen and recovered be considered. The circumstances of the recovery are also
important in assessing what weight to attach to the aspect of the recovery.
In
the present cases there are cases where all the stolen property was recovered
intact yet the accused were given same sentences as in cases were none of the
property was recovered.
The
sentences imposed did not take into account the value of the property stolen or
the manner of the break-ins and theft yet these are key factors in the
assessment of sentence. It is my view that had the trial magistrate exercised
judicial discretion in a judicious manner he would no doubt have come up with
different sentences on a case to case basis.
It
is pertinent to point out that the trend in our jurisdiction has been to spare
first offenders from effective imprisonment unless the circumstances are such
that imprisonment is the only suitable option. See S v Munukwa 2002 (1) ZLR
169.
Another disconcerting aspect is that in all
the above cases none of the accused had any portion of their sentences
suspended on any condition. The trial magistrate did not consider suspending
any portion of the sentences. No reason or explanation was given for such
failure. Though it is not a rule that first offenders who are being imprisoned
are entitled to have a portion of their sentence suspended, as was stated in S v Gorogodo
1988(2) ZLR 378, I am of the firm view that failure to consider or to give reasons
for not suspending portions of the sentences on suitable conditions, where the
sentences are not long, is a misdirection. These courts have time and again
emphasized the need to give first offenders the chance to reform by not sending
them to effective imprisonment. Where for good reasons imprisonment cannot be
avoided, then at least a portion of the sentence must be suspended so that they
serve what is absolutely necessary.
In S v Dube & Anor supra at p 327 E KORSAH J
said that:
“it is a
salutary practice of our courts to suspend, in appropriate cases, a
portion of the custodial sentence
imposed on young first offenders, on condition of good behavior, so as to
operate as a deterrent of a personal nature.”
See also S v Chirara & Ors
1990 (2) ZLR 156 (H).
A
term of imprisonment may also be suspended on condition of restitution. In the
above cases no investigation was made on the desirability of restitution and
the ability of the accused to make good the loss to complainants. This was a
misdirection on the part of the trial magistrate.
Whilst
confirming the convictions in all the above cases I am unable to do the same
with the sentences. Due to the areas of misdirection pointed to above the
sentences will be set aside.
Accordingly the sentences are hereby set aside and are substituted by the
following sentences:
- S v Morisha
Mahove & Anor CRB D119-20/09
The
two counts as one for sentence twenty four months imprisonment of which four
months imprisonment is suspended for five years on condition that the accused
does
not
within that period commit any offence involving dishonesty and for which he is
sentenced to a term of imprisonment without the option of a fine.
- S v Evans
Chikonya CRB 135/09
For
three counts of unlawful entry and theft, each count: two years imprisonment.
Total six years imprisonment of which 11/2 years is suspended for five years on
condition that the accused does not within that period commit any offence of
which dishonesty is an element and for which he is sentenced to a term of
imprisonment without the option of a fine.
- S v Elizabeth Chaora
& Anor CRB152-3/09
Each
accused: Twenty four months imprisonment of which 6 months is suspended for five
years on condition that the accused does not within that period commit any
offence of which dishonesty is an element and for which he/she is sentenced to
a term of imprisonment without the option of a fine.
- S v Moses
Sande CRB 116/09
Eighteen months
imprisonment of which 6 months imprisonment is suspended for five years on
condition the accused does not within that period commit any offence of which
dishonesty is an element and for which he is sentenced to a term of
imprisonment without the option of a fine.
5. S v Finish Dzinzi CRB D1581/08
Eighteen months imprisonment of which four
months imprisonment is suspended for five years on condition that the accused
does not within that period commit any offence of which dishonesty is an
element and for which he is sentenced to a term of imprisonment without the
option of a fine.
6. S
v Rodrick Sumburero CRB D1621/08
Twenty four months imprisonment of which 6
months is suspended for five years on condition that the accused does not
within that period commit any offence of which dishonesty is an element and for
which he is sentenced to a term of imprisonment without the option of a fine.
7. S v Prosper Mangororo CRB D1515/08
Eighteen
months imprisonment of which six months imprisonment is suspended for five
years on condition that the accused does not within that period commit any
offence of which dishonesty is an element and for which he is sentenced to
imprisonment without the option of a fine.
8.
S v Patrick
Baranda & Anor CRB D1571-2/08
Each
accused: - Twenty four months imprisonment of which four months imprisonment is
suspended for five years on condition that the accused does not within that
period commit any offence of which dishonesty is an element and for which he is
sentenced to a term of imprisonment without the option of a fine.
9. S v John Mangare & 3 Ors CRB D1550-3/08
Each
accused: Twenty months imprisonment of which four months imprisonment is
suspended for five years on condition that the accused does not within that
period commit any offence of which dishonesty is an element and for which he is
sentenced to e term of imprisonment without the option of a fine.
10. S v Brian Chinengundu & Anor CRB
D1569-70/08
Each
accused: Twenty four months imprisonment of which six months imprisonment is
suspended for five years on condition that the accused does not within that
period commit any offence of which dishonesty is an element and for which he is
sentenced to a term of imprisonment without the option of a fine.
- S v Luckson Kapesa CRB D111/09
Count 1:- Eighteen months
imprisonment
Count 2:- Four months imprisonment.
Total; twenty
two months imprisonment of which six months imprisonment is suspended for five
years on condition that the accused does not within that period commit any
offence of which dishonesty is an element and for which he is sentenced to a
term of imprisonment without the option of a fine.
12. S v
Owen Santrau CRB D17/09
Twenty
months imprisonment of which six months imprisonment is suspended for five
years on condition that the accused does not within that period commit any
offence of which dishonesty is an element and for which he is sentenced to a
term of imprisonment without the option of a fine.
CHITAKUNYE
J:…………………………………..
KUDYA J: agrees……………………………………
