CHEDA J: This is a review judgment.
The
facts of this matter are that the accused who is 26 years of age was charged
with theft of 10 litres cooking oil and 4kgs white sugar, the property of
Thornhill Airbase, Gweru, who are his employers. The property was valued at $1.8 million and
was all recovered.
He
pleaded guilty and was duly convicted and sentenced as follows:-
“$500
000 in default of payment 12 months imprisonment.”
On
scrutiny the Regional Magistrate raised concern about the proportionate of the
alternative term of imprisonment to the fine imposed.
The
learned scrutiny Regional Magistrate is indeed correct in his observation. Sentencing requires a serious consideration
on the part of the court. Imposition of
a sentence can not be sucked from a thumb, so to speak. It should be borne in mind that while an
offender is punished the punishment should be at all costs be proportionate
with the offence, see S v Nyirenda
1988 (1) ZLR 160(H) and S v Chirai 1992(1) ZLR 24.
Where
the trial court has decided to impose an alternative it should, seriously
consider the practicality of paying a fine.
The object of imposing an alternative to imprisonment should be a
genuine desire to give an accused an option from imprisonment as opposed to
imposing it as a procedural requirement.
This object can easily be defeated by the court's imposition of an
alternative fine which for all intents and purposes the offender will not be
able to meet.
Above
all an alternative sentence should be a genuine desire to keep the accused out
of custody where he can avoid it, not to merely to do so as a matter of course.
In view of the
misdirection by the learned trial magistrate, these proceedings require urgent
interference.
The
conviction is confirmed but the sentence is set aside and substituted by the
following:-
“$500 000-00 or in default of
payment 3 months imprisonment”.
Cheda J………………………………………………
Kamocha J agrees………………………………….
