CHEDA
J: This is an application for bail pending
appeal which was not opposed.
The allegations against applicant which
are common cause are briefly that accused was employed by Volcano Investments,
at Beitbridge as a clearing agent.
During his employment he committed fraud. It is alleged that on the 3rd day
of July 2009 at Beitbridge border post accused together with two of his
co-accused persons committed
fraud. He was arraigned before the court
and he pleaded guilty and was sentenced as follows:-
“24 months imprisonment, six of which
were suspended for three years on condition that he does not commit any crime
involving misrepresentation or fraud and another six months on condition that
he reimburses the complainant Tichaona Samere US$2000-00 on or before 31st
July 2009.”
His companions pleaded not guilty and
their trial is pending. Applicant's
application for bail is on the basis that the sentence imposed is too harsh because
he is a first offender and he pleaded guilty which shows contrition. He also submitted that he did not gain from
the commission of the offence as he was caught red-handed. It is also his further submission that the
offence is a fiscal one. For that reason
it should have attracted a non-custodial sentence, namely community service. The respondent fully supports this stance.
The common position adopted by these
courts with regards to bail is that first offenders should be kept out of
custody where possible and that a plea of guilty should be considered in
accused's favour. This, is however, the
general rule. In order for a first
offender to benefit from a non-custodial sentence in my view, some of the
following factors should be taken into consideration, the gravity of the
offence, prevalence and any other factors depending on the circumstances of the
offence. In casu this type of
fraud, where the state was prejudiced in the sum of $2230-83 can not be by any stretch
of the imagination be regarded as a small amount. The question of being a first offender to
qualify for community service is in my view unlikely to sway the appeal court
to his favour. For that reason, I am not
persuaded that his appeal has any prospects of success.
I am live to the fact that the
respondent is not opposed to this application.
There seems to be a popular but wrong perception that the state's
concession to the granting of bail automatically guarantees applicant's success
in his application. The court has the
final say after satisfying itself that the concession made by the state is
properly made. The court cannot and
should not be used as a rubber stamp on concessions and/or agreements reached
by the applicant and respondent.
In the circumstances, I am of the
opinion that applicant's chances on appeal are nil.
I find that applicant has failed to
prove on a balance of probabilities that he is likely to succeed on appeal.
This application is accordingly
dismissed.
Dube-Banda, Nzarayapenga
and partners,
applicant's legal practitioners
Criminal Division,
Attorney General's Office, respondent's legal
practitioners
