UCHENA
J: The convicted persons were tried and
convicted by three different magistrates sitting at three different magisterial
stations. Their cases landed on my desk for review, in the same bundle of
review records. A common mistake occurred in each case. Each magistrate
construed s 131 (1) (a) of the Criminal Law Codification and Reform Act [Cap 9:23],
which I will call the Code, as if it creates an offence of unlawful entry and
theft. It therefore became convenient to deal with the issues arising in each
case in one review judgment.
The convicted
persons in cases (1) and (2) were tried and convicted separately by the same
provincial magistrate sitting at Chivhu Magistrate's Court. They were both
charged for contravening s 131 (1) (a) of the Code.
The convicted person in case (1)
was charged as follows:
“Charged with the crime of unlawful
entry and theft as defined in s 131 of the Criminal Law (Codification and
Reform) Act [Cap 9:23].
In that on 23
May 2009 at Gwena village, Headman Chandiwana, Chief Neshangwe, Unyetu, Masasa
Standreck Chirinda unlawfully entered into the house of Noget Chirinda without
authority or any other authority from Noget Chirinda and took 2 x 2 litres
cooking oil, five green bars washing soap, seven counter books, eleven
Eversharp ball points, five kilograms salt, five kilograms baulgar, two cartons
matches, two kilograms flour, 2 kilograms sugar and five hundred grams vaseline
with the intention of permanently depriving Noget Chirinda of her property”.
He
was convicted on his own plea of guilty. The facts on which the charge is
premised are that the accused entered the house of Noget Chirinda by forcing
the key to open. He then stole property mentioned in the charge. The convicted
person confirmed that he agreed with the facts. The elements of unlawful entry
and theft of property were put to the accused person, who admitted that he entered
the house without the owner's authority and stole the complainant's property
intending to deprive the complainant permanently. The stolen property is valued
at US$140-00, and property valued at US$15-00 was recovered. He was sentenced
to four years imprisonment of which one year was suspended for five years on
conditions of good behaviour. The issue is on whether s 131 (1) (a) creates the
crime of unlawful entry and theft.
The
convicted person in case (2) is a seventeen year old who, was charged with two
counts of unlawful entry and theft. He was charged as follows:
Count One
“Charged with the crime of unlawful entry
and theft as defined in s 131 of the Criminal Law (Codification and Reform) Act
[Cap 9:23].
In that on 3 June 2009 at house number F4 Chivhu
location, Chivhu, Muketiwa Munemo unlawfully entered the house of Joseph
Tangwanda without authority or any other authority from Joseph Tangwanda and
took two jackets, fifteen plates, one pair white tekkies and cash US$ 8-00 with
the intention of permanently depriving Joseph Tangwanda of his property”.
Count
Two
“Charged with the crime of unlawful entry
and theft as defined in s 131 of the Criminal Law (Codification and Reform Act)
[Cap 9:23].
In that on 3 June 2009 at house number F4
Chivhu location Chivhu Muketiwa Munemo unlawfully entered the house of Farisai
Mvumba without authority or any other authority from Farisai Mvumba and took
three trousers, three shirts, one pair brown shoes, and one aluminum, pot with
the intention of permanently depriving Farisai Mvumba of her property.”
The
facts are that in count one he displaced a plank in order to gain entry. While
inside he stole the property mentioned in the charge valued at US$50-00 of
which property valued at US$15-00 was recovered. He tendered a limited plea
admitting that he stole fewer items than had been alleged by the State. The
State accepted his limited plea without ascertaining the value of the stolen
property.
In
count two he opened a closed window to gain entry into the complainant's house.
He stole the property mentioned in the charge valued at US$40-00 of which
property valued at US$15-00 was recovered. The issue is on whether s 131 (1) (a)
enacts the crime of unlawful entry and theft.
The
convicted person in case (3) was tried and convicted by a magistrate sitting at
Murambinda Magistrate's Court. He pleaded guilty to a charge of contravening s
131 (1) of the Code. The charge sheet was framed as follows:
“Charged with the offence of contravening s
131 of the Criminal Law Codification and Reform Act [Cap 9: 23];
unlawful entry and theft.
In that on 5 February 2009 and at Jefnos
Vengesai's homestead Chipwanyira village Headman Neshava, Chief Nyashanu,
Langton Murozvi unlawfully and intentionally entered the house of Jefnos
Vengesai without his or any other lawful authority and stole one by eight pane
window frame, one green blanket, one plough wheel, three dinner plates, six by
five m deformed iron bars the property of Jefnos Vengesai in his lawful
custody”.
The
convicted person removed a portion of the complainant's thatched roof in order
to gain entry. He admitted entering the premises without lawful authority and
stealing the items mentioned in the charge.
The convicted
person in case (4) appeared before a provincial magistrate sitting at Nyanga
and pleaded guilty to a charge of contravening s 131 (1) of the code.
He
was charged with the contravention of s 131 (1), and in the alternative, the
contravention of s 113 of the code. In the main charge which is the relevant
charge in this judgment he was charged as follows:
“Charged with
unlawful entry into premises as defined in s 131 of the Criminal Law
(Codification and Reform) Act [Cap 9:23].
In that on the
date to the prosecutor (sic) but during the month of September 2008 and at
Mapani Store, Mapani Bussiness Centre, Nyanga Peter Gunura intentionally and
without permission of the lawful occupier Naume Kupeta entered into the shop.”
The
alternative charge which I need not reproduce in this judgment alleged that the
convicted person stole from the complainant's store and gave particulars of the
stolen property. The magistrate correctly canvassed the elements of unlawful
entry. After dealing with the aspects of intention and unlawful entry he
canvassed the theft aspect as follows:
“Q: Do you admit that after
gaining entry you took complainant's property listed in the charge sheet?
A: Yes”
The
magistrate then asked the convicted person if he had any defence to offer, to
which he answered “No”. The convicted person was then convicted as pleaded. The
prosecutor withdrew the alternative charge after plea. The magistrate then
acquitted him on the alternative charge.
The issues which arise are:
1)
Should the theft have been treated as an alternative
charge?
2)
Should the magistrate have canvassed the elements of
the contravention of s 113 (1) of the Code, under the charge for the
contravention of s 131 (1) of the Code?
3)
Was the prosecutor correct in withdrawing the
alternative charge?
4)
Was the magistrate correct in acquitting the accused on
the alternative charge?
The first issue can be answered in the affirmative and the second in the
negative. In terms of s 131 (1) (a) of the code the fact that a convicted
person stole from the premises he will have entered unlawfully will be used as
an aggravating factor in assessing the appropriate punishment. Once the sentence
for unlawful entry takes into consideration the value of the stolen property
there will be little or no hope of the convicted person being sentenced to a
stiffer sentence for the unlawful entry and theft charges. It is therefore
competent to charge the accused with theft as an alternative to the charge of
unlawful entry but not because the crime of unlawful entry includes theft. It
is because that crime is aggravated by theft. The value of the stolen property
is essential in assessing the appropriate sentence. The convicted person did
not therefore suffer any prejudice because of the canvassing of the theft
elements at the time the magistrate was canvassing the elements of unlawful
entry. It must however be stressed that the fact that the accused stole from
the premises must be properly dealt with in aggravation to avoid the
misconception that the crime committed is that of unlawful entry and theft.
As the contravention of s 131 (1) (a) considers the stealing of property
from the premises and uses the value of the stolen property to determine the
appropriate sentence, the prosecutor was entitled to withdraw the alternative
charge of theft as the accused was not likely to receive a different sentence
on being convicted of both the unlawful entry and theft charges. Once the
prosecutor is entitled to withdraw the charge the magistrate is equally
entitled to acquit the accused person when the charge is withdrawn after plea.
The magistrate seems from the way he canvassed the elements of unlawful
entry to have construed s 131 (1) of the code to create a combined offence of
unlawful entry and theft. This however did not, cause, a miscarriage of justice
as the convicted person was from his admission of the facts for both counts
aware of what was being alleged he stole from the complaint's store.
The questions arising in case (4) slightly distinguish it from cases (1)
to (3) but the real issue is on the correct interpretation of s 131 (1) (a) of
the code by the three different magistrates. They all construed it as if it
combines the offences of unlawful entry and theft. The common issue is
therefore whether or not s 131 (1) (a) of the code creates an offence of
unlawful entry and theft.
The facts of each case are akin to those of the offence which prior to
the codification of our criminal law was known as housebreaking with intent to
steal and theft. The charges in cases (1) to (3) allege that the convicted
persons were being charged with the crime of unlawful entry and theft. The
framing of the unlawful entry charge in case (4) though close to how a charge
for unlawful entry should be framed leaves out other important averments. The
magistrate however canvassed the elements for the contravention of s 131 (1)
(a) of the code as if he was dealing with the crime of unlawful entry and
theft.
I sought the Attorney General's comments on the interpretation of s 131
(1) (a) of the code, and the framing of charges for the contravention of that
section. He in response commented as follows:
“Section 131 (1)
(a) of the Code creates the offence of unlawful entry into premises. The crime
is completed once the unlawful entry into premises is effected regardless of
the fact that no other crime has been committed in the premises. It follows
therefore that the charge should be framed within that context.
To be specific
the charge should read as follows:
Charged with
unlawful entry into premises as defined in s 131 of the Criminal Law
(Codification and Reform) Act [Cap 9:23].
In that on the
….. and at … A unlawfully, intentionally and without permission or authority
from B, the lawful occupier of the premises concerned, or without other lawful
authority, entered B's premises by climbing into those premises through an open
window.
If however the
Crime is committed clearly in contravention of s 131 (2) of the code then the
charge should be cited as follows:
Charged with
unlawful entry into premises as defined in s 131 (1) (a) of the Criminal Law
(Codification and Reform) Act [Cap 9:23]
and read with s 131(2) (a-e), (whichever is applicable) of the said Act.
I agree indeed
that unlawful entry into premises is aggravated in circumstances provided under
s 131 (2) of the code.
With reference
to the four review records above, it is apparent that:
i)
The charge sheets were wrongly framed as they combined
the crime of unlawful entry and that of theft yet they should only reflect
unlawful entry.
ii)
The theft perpetrated by the four accused persons after
the unlawful entry should have been reflected in the State outlines only. The
relevant trial magistrates should then have factored in those aspects of theft
as aggravating in considering relevant sentences.
Also note that
under s 131 of the code one cannot be charged for any other separate crime
apart from unlawful entry, as that would amount to a double jeopardy. Suffice
to say that the crime committed after the unlawful entry should only be
reflected in the State outline and not in the charge sheet”.
I
agree with the Attorney General's interpretation of s 131 (1) (a) of the Code
and his comments on the framing of charges for the contravention of that
section. I would however add that the crime of unlawful entry is also
aggravated if it is committed in circumstances described in s 131 (1) (a) of
the Code.
The
charge sheets in cases 1 to 3 apart from the personal details of the accused
persons, the complainants, and the presence or absence of the details of the
stolen property though not correctly framed followed the wording of s 131 (1)
and 113 (1) of the Code. Section 131 (1) (a), (b) and (2) provides as follows:
“(1) Any person who,
intentionally and without permission or authority from the lawful occupier of
the premises concerned, or without other lawful authority, enters the premises
shall be guilty of unlawful entry into premises and liable –
a)
to a fine not exceeding level thirteen or not exceeding
twice the value of any property stolen, destroyed or damaged by the person as a
result of the crime, whichever is the greater, or imprisonment for a period not
exceeding fifteen years, or both, if the crime was committed in any one or more
of the aggravating circumstances set out in subs (2); or
b)
in any other case, to a fine not exceeding level ten or
not exceeding twice the value of any property destroyed or damaged by the
person as a result of the crime, whichever is the greater, or imprisonment for
a period not exceeding ten years, or both.
(2)
For the purposes of para (a) of subs (1), the crime of
unlawful entry into premises is committed in aggravating circumstances if, on
the occasion on which the crime was committed, the convicted person –
(a)
entered a dwelling house; or
(b)
knew there were people present in the premises; or
(c)
carried a weapon; or
(d)
used violence against any person, or damaged or
destroyed any property, in effecting the entry; or
(e)
committed or intended to commit some other crime”.
Section
131 (1) (a), enacts the crime of unlawful entry which is aggravated by the fact
that the accused person stole property from the premises or caused damage or
destruction to property. It does not create the offence of unlawful entry and
theft as the magistrates seem to have construed it to. The elements of the
crime created by s 131 (1) are:
a)
an intentional entry into premises; and
b)
without the authority of the lawful occupier or other
lawful authority.
The
crime is simply that of unlawful entry without authority, and is punishable at
two levels depending on whether or not it is aggravated by theft, damage or
destruction of property, or the circumstances mentioned in subs (2). The State
in framing the charge must distinguish between unlawful entry during which the
accused person steals the complainant's property, or destroys or damages
property, or the entry is aggravated by circumstances mentioned in subs (2),
and a simple unlawful entry. The former is charged under s 131(1) (a) while the
later is charged under s 131 (1) (b). The distinction is relevant when the
court considers the appropriate sentence. If it is aggravated the punishment is
a fine not exceeding level thirteen or not exceeding twice the value of any
property stolen, destroyed or damaged, which ever is the greater, or
imprisonment for a period not exceeding fifteen years, or both. If the unlawful
entry is a simple entry not accompanied by a theft, destruction or damage, and
is not aggravated by the circumstances mentioned in subs (2) the fine should
not exceed level ten or twice the value of any property destroyed or damaged by
the person as a result of the crime which ever is the greater, or imprisonment
not exceeding ten years or both. The punishment at the lower level is
determined by the extent of damage or destruction which resulted from the
unlawful entry. This means an unlawful entry which is not aggravated, and
causes no damage or destruction receives the least punishment. The punishment
increases depending on whether or not the convicted person's crime is
aggravated by theft, destruction or damage to property or the aggravating
circumstances mentioned in subs (2) of s 131 of the Code.
The
crime of theft is enacted by s 113 (1) of the Code, which provides as follows:
“(1) Any person who takes property capable of
being stolen –
(a)
knowing that another person is entitled to own, possess
or control the property or realizing that there is a real risk or possibility
that another person may be so entitled; and
(b)
intending to deprive the other person permanently of
his or her ownership, possession or other person of his or her ownership,
possession or control, or realizing that there is a real risk or possibility
that he or she may so deprive the other person of his or her ownership,
possession or control;
shall be guilty of the theft and liable to either or both of the
following”.
A
person changed with the contravention of s 131 (1) (a) can only be convicted of
unlawful entry. He can not be convicted of unlawful entry and theft even if the
facts establish that he stole from the premises he unlawfully entered. An
accused person who steals from the premises he unlawfully enters must be
charged with the contravention of s 131 (1) (a) of the Code for unlawful entry.
He can also be charged for contravening s 113 (1) of the Code for stealing from
those premises if the State hopes the court may impose a stiffer sentence if
the accused is charged with both offences. I am however of the view that once
the details of the theft have been used as an aggravating factor for the
unlawful entry charge, they can not again be used to punish the convicted
person on a theft charge, as that would amount to punishing the convicted
person twice for the theft which will have been taken into account in
sentencing him for unlawful entry.
It
is incompetent to charge an accused person for unlawful entry and theft, as
defined by s 131 (1)(a) as that section does not create a combined offence of
unlawful entry and theft. It merely provides for a stiffer punishment if the
unlawful entry is accompanied by the stealing of property from the premises.
The elements of theft need not be canvassed as they would for purposes of
securing a conviction for theft. The stealing of property can merely be mentioned
in the agreed facts or the State outline, or in the prosecutor's address in
aggravation. If the convicted person admits them at any of these stages then he
can be sentenced in terms of s 131 (1) (a) of the Code. The canvassing of theft
elements will however not vitiate the conviction as it is a relevant fact in
passing sentence as long as it remains clear that s 131 (1)(a) does not create
an offence of unlawful entry and theft, but provides that it should be used as
an aggravating factor.
The
value of the stolen property becomes a standard for the sentence to be imposed,
and justifies a stiffer sentence of imprisonment if a fine is not an
appropriate sentence. A reading of s 131 (2)(a) confirms that the various forms
of unlawful entry are aggravated, by the various factors there mentioned while
the offence created and for which punishment is provided is unlawful entry and
nothing else.
I
am therefore satisfied that the convicted persons in cases (1) to (3) were
improperly convicted of theft on charges which did not charge them with the
contravention of s 113 of the Code. Even if, reference to theft, is made in the
charge and agreed facts the accused persons, can not be charged of a combined
crime of unlawful entry and theft as that crime does not exist. They should for
each entry and theft have been charged with unlawful entry as defined by s 131
(1)(a) of the Code.
The
convicted persons' convictions for contravening s 131 (1) can not be vitiated
by the inclusion of the particulars and elements of theft, as the elements of
unlawful entry were properly canvassed and admitted by the convicted persons.
The charges should however be amended so that they comply with the provisions
of s 131 (1) of the Code. The charges are amended as follows.
Case One
Charged
with the crime of unlawful entry into premises as defined in s 131 (1) (a) of
the Criminal Law Codification and Reform Act [Cap 9:23].
In
that on 23 May 2009 at Gwena Village, Headman Chandiwana, Chief Neshangwe,
Unyetu, Masasa Standreck Chirinda unlawfully, intentionally and without
permission or authority from Noget Chirinda the lawful occupier of the premises
concerned or without other lawful authority entered Noget Chirinda's house by
forcing the key to open.
Case Two
Count
One
Charged
with unlawful entry into premises as defined in s 131 (1) (a) of the Criminal
Law (Codification and Reform) Act [Cap
9:23].
In
that on 3 June 2009
at house number F4 Chivhu location, Chivhu, Muketiwa Munemo unlawfully,
intentionally and without permission or authority from Joseph Tangwanda, the
lawful occupier of the premises concerned, or without other lawful authority,
entered Joseph Tangwanda's premises by removing a plank to gain entry.
Count
Two
Charged
with unlawful entry into premises as defined in s 131 (1) (a) of the Criminal
Law Codification and Reform) Act [Cap 9:23].
In
that on 3 June 2009
at house number F4 Chivhu location Chivhu Muketiwa Munemo unlawfully,
intentionally and without permission or authority from Farisai Mvumba, the
lawful occupier of the premises concerned, or without other lawful authority,
entered Farisai Mvumba's premises by opening a closed window to gain entry.
Case Three
In
that on 5 February 2009 and at Jefinos Vengesai's homestead Chipwanyira village
Headman Neshava, Chief Nyashanu, Langton Murozvi unlawfully, intentionally and
without permission or authority from Jefnos Vengesai, the lawful occupier of
the premises concerned, or without other lawful authority, entered Jefnos
Vengesai's premises by removing a portion of the thatched roof to gain entry.
The charge sheet
in case four must also be amended to make it comply with the correct framing of
charges for the contravention of s 131 (1) (a) of the Code.
Case Four
Charged
with unlawful entry into premises as defined in s 131 (1) (a) of the Criminal
Law (Codification and Reform) Act [Cap
9:23].
In
that on the date to the prosecutor unknown but during the month of September
2008 and at Mapani Store Mapani Business Centre, Nyanga Peter Gunura,
intentionally and without permission or authority from Naume Kupeta, the lawful
occupier of the premises concerned, or without other lawful authority, entered
Naume Kupeta's shop, by breaking a window to gain entry.
I
must now proceed to assess the appropriateness of the sentences imposed in
cases (1) to (3) because those sentences where imposed under the mistaken
belief that the convicted persons had been convicted of unlawful entry and
theft. This means, the sentences, took in consideration, convictions for theft
for which the convicted persons had not been charged. In case four the
canvassing of theft elements under unlawful entry means the magistrate took
into consideration the conviction for unlawful entry and theft even though the
theft charge had been withdrawn. The sentence for an unlawful entry which is
accompanied by theft of property from the premises can in most cases be the
same as that which can be imposed if the convicted person is convicted of
unlawful entry as defined in s 131 (1) and theft as defined in s 113 (1) of the
Code.
The
fact that s 131 (1) (a), provides that the value of the stolen property
determines the fine, if double the value of the stolen property is greater than
the fine imposable under level thirteen means if the convicted person is
convicted of both unlawful entry and theft his punishment would be the same or
almost the same as that for unlawful entry as defined in s 131 (1) (a). It is
in my view clear that the legislature in enacting s 131 (1) (a) did not intend
to create the former offence of house breaking with intent to steal and theft,
but that of an aggravated unlawful entry. It is therefore important to note
that a convicted person can be sentenced using the value of the stolen property
without first being convicted of theft as defined in s 113 (1) of the Code. All
that is required in terms of s 131(1) (a) is for him to admit it as an
aggravating factor, the most important factor being his admission of the value
of the property. It is therefore in my view possible to consider the
appropriate sentences in these cases even though the convicted persons'
convictions under s 131 (1) (a) purported to be convictions for unlawful entry
and theft. The amendment of the charges to confine them to the crime of
unlawful entry does not affect the sentences imposed by the magistrates unless
the sentences were not appropriate for other reasons.
This
conclusion means the magistrate and prosecutor in case four were within their
rights when they treated the theft charge as an alternative and withdrew it
after securing a conviction for unlawful entry. This is so because the
punishment for theft is taken into consideration under s 131 (1) (a).
The
sentence imposed in each case must therefore be reviewed to assess its
appropriateness. If it is appropriate it will be confirmed, if not it will be
set aside and be substituted by an appropriate sentence.
The
convicted person in case one is a first offender who pleaded guilty to
contravening s 131 (1). He is twenty seven years old. The magistrate took into
consideration the fact that he is a first offender who pleaded guilty. The
value stolen during the unlawful entry is US$140-00 of which property valued at
US$15-00 was recovered. The accused therefore benefited to the amount of
US$125-00. He was sentenced to four years imprisonment of which one year was
suspended on conditions of good behaviour. The magistrate said a fine or
community service would trivialize this otherwise serious offence. The
legislature provided for a fine not exceeding level thirteen or a fine not
exceeding double the value of the property stolen during the unlawful entry or
imprisonment for a period not exceeding fifteen years. In this case the
convicted person merely forced a key open. His manner of breaking into the
premises was not out of the ordinary to deserve four years imprisonment. In my
view the sentence imposed on this first offender, who, should ordinarily, be
kept out of prison is so severe as to warrant the interference of this court.
The legislature provided for a fine not exceeding level thirteen as the
starting point and fifteen years imprisonment for the worst offence. It was
therefore aware of the seriousness of the crime of unlawful entry but gave the
courts a very wide discretion in considering the appropriate sentence. This
must be because unlawful entry can be for various purposes and can cause damage
and destruction of property. The facts of each case must therefore be carefully
considered in arriving at an appropriate sentence. The courts must sentence
accused persons in accordance with the statutes which created the offence. In
this case the only damage the accused person may have caused could be to the
key he forced open. The offence is further aggravated by his entering a
dwelling house during the night. See s 131 (2) (a). In my view while a fine may
have the effect of trivializing the offence there are other sentencing options
which would suit this offence and the offender without having to send him to
prison for a long time. The ill gotten gains can be disgorged against a
suspended term of imprisonment. His future conduct can be guided by a suspended
term of imprisonment. The sentence of four years imprisonment is too severe and
cannot be allowed to stand. A sentence in the region of two years would be
appropriate. The sentence imposed by the magistrate is set aside and is
substituted by the following:
“Two years
imprisonment of which one year is suspended for five years on condition the
convicted person does not during that period commit any offence involving
unlawful entry for which he will be imprisoned without the option of a fine. A
further eight months imprisonment is suspended on condition the convicted
person restitutes the complainant in the sum of US$125-00 by 30 October 2009
through the clerk of court Chivhu Magistrate's court.”
The
convicted person in case two was sentenced to thirty six months imprisonment of
which twelve months were suspended on conditions of good behaviour. Both counts
were treated as one for sentence. He is a seventeen year old first offender who
pleaded guilty. He on 3 June
2009 unlawfully entered two premises without the owner's consent.
The fact that he unlawfully entered two premises on the same day portrays him
as a persistent offender who has to be dealt with firmly even though he is a
juvenile first offender. He has clearly started from the deep end. He has to be
dissuaded from the life of crime by an effective sentence. He in count one
stole property whose value was not established when the State accepted his
limited plea that he had only stolen the property he stated. In the absence of
proof of the value stolen and the fact that property worth US$15-00 was
recovered out of the original total value of US$50-00 the value not recovered
can be deemed to be negligible. He therefore did not benefit from the crime he
committed in count one. In count two he stole property worthy US$40-00 of which
property worth US$15-00 was recovered. He gained US$25-00. Crime should not
benefit the offender, so the ill gotten gains should have been disgorged. The
convicted person is however a juvenile whose parents are deceased. He stays
with a friend. He should have been sentenced to corporal punishment in terms of
s 353 of the Criminal Procedure and Evidence Act [Cap 9:07] plus a suspended sentence instead of the long
term of imprisonment imposed by the magistrate. The magistrate therefore
misdirected himself by failing to consider corporal punishment. In view of his
having started at the deep end a suspended prison term is called for, but
should be suspended on conditions of good behaviour and restitution.
The
convicted person is in the business of buying and selling, raising an income of
400 rands per month. He has assets valued at 1500 rands. He is therefore able
to pay restitution to the complainant in count two. Courts should where ever possible
enhance justice by ordering restitution to the complainant. Restitution
disgorges the offender of the ill gotten gains and sends a message that crime
does not pay. It affords the complainant a cheaper way of recovering the value
of the stolen property. The convicted person will serve a shorter sentence and
society will sustain him in prison for a shorter period. The convicted person
was sentenced on 12 June
2009. He has therefore spent more than a month and half in prison.
It is in my view no longer necessary to subject him to corporal punishment when
he has already felt the sting of imprisonment. The period he has served should
be equated to the corporal punishment which should have been imposed. He is
therefore entitled to his immediate release from prison. The sentence imposed
by the magistrate will be set aside and be substituted by a prison term
suspended on condition of good behaviour and restitution. The sentence imposed
by the magistrate is set aside and is substituted by the following:
Both counts being treated as one for
sentence
Fourteen months
imprisonment of which ten months is suspended for five years on condition the
accused does not during that period commit any offence involving unlawful entry
for which he will be imprisoned without the option of a fine. A further two
months is suspended on condition the convicted person pays restitution to the
second complainant in the sum of US$25-00 by 30 October 2009 through the Clerk of Court
Chivhu Magistrates' Court.
As the convicted
person has already served for more than one and half months, he is entitled to
his immediate release from prison.
The convicted
person in case three was sentenced to fifteen months of which eight months were
suspended on conditions of good behaviour. The sentence is within the
magistrate's discretion. The proceedings in that case, will after the amendment
of the charge sheet be allowed to stand.
The
convicted person in case four stole property valued at US$225-00 of which
property valued at US$37-00 was recovered. He stole a considerable amount of
property, most of which was not recovered. The magistrate took all the factors
into consideration and sentenced him to thirty months imprisonment of which
eight months was suspended on conditions of good behaviour and a further ten
months on condition the convicted person paid restitution to the complainant.
The sentence took into consideration the accused's future conduct, restitution,
and his moral blameworthiness. The sentence is therefore within the
magistrate's discretion and appropriate.
UCHENA J: …………………………..
BHUNU J: agrees, ……………………
