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HB93-09 - ADMIRE KAMBA vs THE STATE

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Bail-viz bail pending appeal.
Sentencing-viz fraud.
Sentencing-viz sentencing approach re first offenders.
Bail-viz approach re first offenders.
Sentencing-viz sentencing approach re plea of guilty.

Bail re: Bail Pending Appeal, Review, Reinstatement of an Appeal and Interlocutory Proceedings iro Approach

This is an application for bail pending appeal, which was not opposed….,.

The 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.

Fraud and Criminal Promise

The allegations against the applicant, which are common cause, are briefly that the 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, the accused, together with two of his co-accused persons, committed fraud. 

He was arraigned before the court and he pleaded guilty…,. His companions pleaded not guilty and their trial is pending.

Sentencing re: Fraud and Criminal Promise

The applicant 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$2,000= on or before 31st July 2009.” 

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry

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 the 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;

(i) The gravity of the offence;

(ii) Prevalence; and

(iii) 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 $2,230=83 cannot 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.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements

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 the 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 the respondent.

In the circumstances, I am of the opinion that the applicant's chances on appeal are nil. I find that the applicant has failed to prove, on a balance of probabilities that he is likely to succeed on appeal.

This application is accordingly dismissed.

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
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