Review
Judgment
CHEDA J: The accused was charged with
contravening section 114 (2) (a) of the Criminal Law (Codification and Reform)
Act, 2004 [Chapter 9:23] herein referred to as “the Code” Stock theft; (two
counts). He pleaded guilty, was
convicted and sentenced to 5 years imprisonment, both counts having been
treated as one for the purposes of sentence.
The
sentence was couched as follows:-
“Both counts as one for sentence:
5 years imprisonment of which 2 years
imprisonment is suspended for 5 years on condition that the accused does not
within that period of time (sic) commit
any offence of which dishonesty is an element and for which he is (sic) upon conviction sentenced to
imprisonment without the option of a fine.”
The
salient facts of the matter are that both accused and complainant reside at Boomerang
Resettlement area in Matobo District. On
the 14th January 2009, accused drove two cattle from a grazing area
where he slaughtered them and disposed of the meat.
Upon
review, I was at a loss as to the basis of imposing such a seemingly lenient
sentence. I then asked the trial
magistrate to justify the imposition of such a sentence. His explanation is that he treated the two
counts as one for the purposes of sentence since the offence was committed on
the same day. The other reason was that
the mitigatory features of the accused amounted to special circumstances, thus justifying
the non-imposition of the mandatory sentence.
The mitigatory features which he took into account are namely that the accused
is:
1) a first offender,
2) a peasant farmer,
3) a married man with 5 minor children,
4) that the cattle which he stole had destroyed his crops.
5) that one of the beast fled after he had inflicted injury on it
and,
6) that he pleaded guilty
to the charge.
The
learned trial magistrate Mr. L. Phillimon,
has clearly misdirected himself by completely disregarding clearly laid down
legal principles. Accused was charged
with two counts of stock theft. Under
normal circumstances one count would, in the absence of special circumstances
attract a prison term of 9 years. The
fact that there are two counts, logically means that the sentence should have been
higher and not necessarily double, though, possible depending on the
circumstances.
Above all, the Code enjoins the court to impose a mandatory
prison term unless there is in existence of special circumstances. His view is that the above mitigatory
features amount to special circumstances.
With all due respect, not all personal circumstances pertaining to the
accused are special circumstances.
The word special circumstances or reasons as they are at
times referred to, are those that are out of the ordinary, either in their
extent or their nature. Therefore, not
all mitigatory features qualify for special circumstances. In the present case, I find no special
circumstances and therefore, the mandatory sentence should have been imposed. Judicial officers are urged to fully apply
their minds to what is before them and where necessary consult their seniors
where they have doubt as to what sentence they should impose. While sentencing is the most difficult work
of a judicial officer, judicial officers should pass sentences which will
satisfy the offender as well society, lest society loses its confidence in the
judiciary process.
In light of the above, the conviction is confirmed but the
sentence is set aside and the following order is made:
“Order:
The matter is referred back to the same
magistrate in order for him to impose the mandatory sentence.”
Cheda
J……………………………………………………
Kamocha J………………………………………I agree
