I am aware that a number of authorities have criticized the practice of imposing a lengthy custodial sentence and then suspending a portion on condition of future good behavior.

The rationale behind that criticism is that a suspended sentence serves two purposes. It acts as a deterrent as well as helps rehabilitate an offender. However, a lengthy prison sentence serves the same purpose. Therefore, if a long prison term fails to reign in an offender, it is unlikely that a suspended sentence would achieve that purpose.

Another disconcerting aspect is that in all the above cases, none of the accused had any portion of their sentences suspended on any condition.

The trial magistrate did not consider suspending any portion of the sentences. No reason, or explanation, was given for such failure. Though it is not a rule that first offenders who are being imprisoned are entitled to have a portion of their sentence suspended, as was stated in S v Gorogodo 1988 (2) ZLR 378, I am of the view that failure to consider, or to give reasons, for not suspending portions of the sentences on suitable conditions, where the sentences are not long, is a misdirection.

The courts have, time and again, emphasized the need to give first offenders the chance to reform by not sending them to effective imprisonment. Where, for good reasons, imprisonment cannot be avoided, then, at least a portion of the sentence must be suspended so that they serve what is absolutely necessary.

In S v Dube & Anor 1995 (2) ZLR 321..., KORSAH JA said that:

“It is a salutary rule of practice of our courts to suspend, in appropriate cases, a portion of the custodial sentence imposed on young first offenders, on condition of good behaviour, so as to operate as a deterrent of a personal nature.”

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.

Re: State v Stanely Shonhiwa

The scrutinising Regional Magistrate took issue with the wording of the sentence. That sentence reads -

“6 months imprisonment wholly suspended for 5 years on condition accused restitutes complainant Gerald Kanoyanga in the sum of US$448=58 on or before 31/05/09 through clerk of court Mbare.”

The phrase “...,for 5 years...,” also appears in the sentence in the case of State v Francis Muchamba ..., where I did point out that it does not make sense. Such period of suspension is usually imposed where a portion of sentence is suspended on condition of good behaviour and not wherein restitution should be paid.

Trial magistrates are reminded and urged to diligently apply their mind to their work as expected of judicial officers. As no prejudice will result to anyone, the sentence is corrected by the deletion of the words “for 5 years” to read-

“6 months imprisonment wholly suspended on condition accused restitutes complainant Gerald Kanoyanga in the sum of US$448=58 on or before 31/05/09 through clerk of court Mbare.”

Section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides:

“Any person who makes a misrepresentation:-

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;

Shall be guilty of fraud if the misrepresentation causes prejudice to another person or creates a real risk or possibility that another person might be prejudiced, and be liable to:-

(i) A fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greatest; or

(ii) Imprisonment for a period not exceeding 35 years; or both.”

It is trite law that where a statute imposes a penalty of a fine and an alternative penalty of imprisonment, the court must first give effect to the fine. Imprisonment should only be reserved for those serious cases or where the offence is committed in aggravating circumstances.

In this particular case, the magistrate did not even consider imposing a fine, and, without any justification whatsoever, settled for imprisonment.

This is not a serious case of fraud, neither was it committed in aggravating circumstances as would attract such term of incarceration. This is particularly so when regard is had to the fact that there was no prejudice suffered by the complainants and the accused is a first offender.

In terms of the relevant section of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the appropriate sentence in this matter should have been a fine. I therefore quash the sentence imposed by the magistrate. Considering that the accused person has already served not less than twenty (20) days in prison, he is therefore entitled to his immediate release. Accordingly it is ordered that:-

(1) The conviction of the accused stands.

(2) The sentence imposed against the accused is hereby quashed and in its place is substituted a sentence of twenty (20) days imprisonment.

The appellant had a relevant previous conviction, having been convicted of a similar offence on 28 February 2007 i.e. two and half months before the conviction the subject matter of this appeal.

The decision to impose a prison term, according to the trial magistrate 's reasons, is the prevalence of the offence in Plumtree, the fact that the appellant was a repeat offender and the impact this kind of offence had on the fiscus during the period when foreign currency was hard to come by. In his reasons, the trial magistrate did not refer to section 5(b) of the Exchange Control Act [Chapter 22:05] which, counsel for the respondent, relies upon in his heads of argument. He, however, referred to it in his response to the application for bail pending appeal. Section 5(b) of the Exchange Control Act [Chapter 22:05] provides –

“Where an individual is convicted of an offence…, and s(he) has previously been convicted of an offence, whether similar in nature or not…, the court shall, in addition to any fine which it might be required by subsection (4) impose, or which it otherwise deems fit, impose a sentence of imprisonment for such a period as it deems fit.”

The State's case is that this provision demands that the repeat offender has to be sentenced to an effective term of imprisonment. To use the words of counsel for the respondent –

“The Exchange Control Act demands that repeat offenders be sent to gaol. That is the long and short of it.” 

Also, the trial magistrate put it bluntly as follows - 

“In terms of the Exchange Control Act…., a prison term for a second offence is mandatory. The Act is very clear….,. Appellant is a second offender, and, as such, had to be incarcerated.”

It is clear that the learned trial magistrate laboured under the impression that he could not suspend the whole of the sentence imposed. This is a misdirection. The trial court could have imposed a fine plus a wholly suspended prison term. This is the import of the provisions of section 5(b) of the Exchange Control Act [Chapter 22:05].

The accused's criminal career started in 2004 when he was just 17 years. He was convicted of theft of stock on 9 February 2004. The accused was sentenced to undergo thirty-six (36) months imprisonment of which twelve (12) months imprisonment was suspended for a period of five (5) years on the customary conditions of future good behaviour.

On 17 January 2007 he was convicted of unlawful entry into premises and theft. On 15 November 2009, he unlawfully entered into premises and stole property valued at $100= therefrom. Two days later, on 17 November 2009, he proceeded to another village and unlawfully entered premises and stole property valued at $303= therefrom. The accused was sentenced to undergo fourteen (14) months imprisonment of which four (4) months imprisonment was suspended for five (5) years on the usual conditions of future good behavior. The twelve (12) months imprisonment suspended on 19 February 2004, which had failed to achieve the desired effect, was further suspended on the same conditions.

He was arrested and appeared in court at Binga facing two counts of unlawful entry into premises and theft. He tendered pleas of guilty and was found guilty as charged…..,.

The court, correctly, in my view, held that the accused was an unrepentant criminal who no longer deserved to be treated leniently. There was, therefore, no need to suspended part of the sentence imposed. The purpose of a suspended sentence is to deter an offender from behaving in a similar manner in future while the suspended sentence is in force. To some extent, the purpose of a suspended sentence reforms an offender. However, where an offender repeatedly breaches the conditions of suspended sentences then no useful purpose would be served by repeatedly availing him or her the benefit of a suspended sentence.

In casu, the accused first got the benefit of the suspended sentence on 9 February 2004. It did not deter him as he committed another offence of which dishonesty was an element during the period of suspension. The suspension period was five (5) years but he committed the offence within two (2) years.

On conviction on 17 February 2007, he was sentenced to fourteen (14) months imprisonment of which four (4) months imprisonment was suspended and the suspended twelve (12) months was further suspended for a further period of five (5) years. There was no need to suspend part of the sentence imposed in the light of the fact that the court had decided to further suspend the twelve (12) months imprisonment previously suspended.

For the second time, the accused breached the condition of suspension when he committed two similar offences within two years. He was expected to keep a clean slate for at least five (5) years. The suspended sentence has clearly failed to achieve the desired effect in this particular matter. Suspending part of the accused's sentence will serve no useful purpose and is therefore meaningless.

Despite the above shortcomings in the proceedings, I would issue my certificate since out of a total property value of $403=, property valued at only $30= was not recovered.

Section 51(1) of the Road Traffic Act [Chapter 13:11] provides -

“A person who drives a vehicle on a road without due care and attention or reasonable consideration for other persons using the road shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.”

In this particular case, the court a quo opted for the alternative sentence of imprisonment without consideration to a fine. No reason whatsoever was proffered for rejecting the sentence of a fine. It is trite law that where a statute provides for a sentence of a fine and imprisonment the court must give consideration to the sentence of a fine in the first instance. Imprisonment must be reserved for the extreme situations, for instance where the accused is a habitual offender…..,.

In sentencing the accused, the trial magistrate took into account his admitted theft of property and found that this, coupled with the previous conviction for armed robbery, aggravated the offence in this case.

He then sentenced the accused to a term of 6 years imprisonment and suspended 1 year on condition of restitution, leaving an effective custodial sentence of 5 years. The 8 years previously suspended in CRB No. MW153/11 was further suspended for the next 5 years.

It is also trite that where a penalty provision provides for either a fine or imprisonment or both, as in this case, the court ought to be satisfied that a fine will not meet the justice of the case before it considers the custodial option as well as the length thereof.

In arriving at the sentences, the trial magistrate took into account that the first accused had two (2) previous convictions, the first one of which relates to contravening section 113(1) of the Criminal Law Code [Chapter 9:23], that is theft, while the second one relates to contravening section 4 as read with section 3(1) of the Domestic Violence Act [Chapter 5:16].

Both convictions arose in 2009.

In respect of Accused 2, the trial magistrate took into account two (2) previous convictions. In the first one, he was convicted of theft on 18 June 2010 and sentenced to 3 months imprisonment while in the second one he was convicted on 19 October 2010 of contravening section 40 of the Road Motor Transportation Act [Chapter 13:15] - touting.

The trial magistrate strongly rebuked them for coming back to court for the third time suggesting that they “have chosen the path of crime” and have “refused to reform.” After discounting all other forms of punishment he settled for imprisonment “with no part suspended to show the court's disdain to the path of life” they had chosen.

I am of the view that the magistrate misdirected himself in considering the previous convictions of the accused persons (except for the one where the second accused was convicted of contravening section 40 of the Road Motor Transportation Act [Chapter 13:15]), as these convictions were irrelevant and had no bearing whatsoever on the charge they were now facing. It is this misdirection which clouded the trial magistrate's reasoning as exhibited by the rebuke he directed at the accused persons.

In the process, the trial court completely ignored the penalty provided for in the Road Motor Transportation Act [Chapter 13:15]. Section 40 of the Road Motor Transportation Act [Chapter 13:15] provides:-

“If the operator, driver or conductor of an omnibus or any person acting on behalf of such operator, driver, or conductor, by troublesome and frequent demands or by persistent following holds out the omnibus for hire to the public or acts in any way so as to cause annoyance or inconvenience to any other person, he shall be guilty of an offence and liable to a fine not exceeding level 4 or to imprisonment for a period not exceeding 3 months or to both such fine and such imprisonment.”

The appellant, in support of his appeal, has argued that he should have been sentenced to a non-custodial sentence. His reasoning is based on the case of Rutsvava v State SC02-90 where it was held that where an offence provides for an option of a fine a judicial officer must first consider a fine.

This, in fact, is the correct legal position, and, infact, the learned trial magistrate considered this option as he stated the following in his reasons for sentence:

''First offenders should be kept out of prison if there are no compelling circumstances. In casu, it is this court's considered view that the degree of moral blame worthiness is high.''

Sentence

Because the appellant stands convicted only of one count of unlawful entry, the sentence has to be interfered with. The trial court treated the accused as a first offender. This issue was equally not pursued as to his credit. The appellant informed us that he was candid enough to inform us that he has a previous conviction for housebreaking. On appeal, this is no longer relevant and we cannot use this factor against him. What it shows, however, is that prosecutors, out of convenience, are failing to prove the accused person's previous records. This is not acceptable. Every endeavour should be made to establish whether or not the accused is a first offender - especially in serious cases.

Regarding query 2(b) and (c)…, in terms of section 327(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] the trial magistrate was enjoined to ask the accused whether he admitted the previous conviction or not; and, as per practice, to also ask Accused 1 if he had any cause to show why the suspended sentence should not be brought into effect.

This was not done.

The penalty section gives the trial court the option to impose a level 14 fine or imprisonment of up to 10 years. 

In any event, it is part of our sentencing principles that where a court considers suspending part of a sentence subject to conditions, it must make it possible for the affected person to fulfil the condition.  S v Mukura and Others 2003 (2) ZLR 596…,.

The accused is not a first offender. 

As per the record, he was, on 3 November 2014, convicted of two Counts of theft, as defined in section 113 of the Criminal Code [Chapter 9:23] and sentenced to 12 months imprisonment of which 6 months imprisonment were suspended on condition of restitution. As per the record, the accused failed to pay restitution, and, on 2 December 2014, was ordered to serve the 6 months imprisonment which had been suspended on condition of restitution.

The accused is 28 years old, married, with one child. He is employed as a vendor earning about $75= per month and looks after four (4) orphans. The accused has neither savings nor assets.

On the other hand, the accused's moral blameworthiness remains high. He went out of his way to divert the electric current by by-passing the metre box in order to ensure that he did not pay for the electricity used. There is, therefore, actual prejudice to the Zimbabwe Electricity Transmission and Distribution Company. Unfortunately, the extent of the actual prejudice was not quantified. There is therefore need for a deterrent sentence, and, to ensure that the accused desists from the pursuing the criminal path he seems determined to embark on. In view of the fact that the accused has a criminal record and is currently in prison, a fine is not appropriate.

In the result, the sentence of 10 years imprisonment imposed by the court a quo is set aside and substituted with the following;

In S v Mukura and Others 2003 (1) ZLR 596 (H)…, HUNGWE J said:

“Where a court considers suspending part of the sentence, subject to the stated conditions, it must not ask the impossible of the person in whose favour the suspension is granted, just as one must not, when imposing a fine, impose a fine of such severity that it cannot be paid. In such circumstances, the condition is unrealistic and bears no relation to any desire by the offender to comply with it. The condition must be reasonably capable of fulfillment. If it is not, then it is not the kind which should be made a condition of suspension: See R v Lamb 1969 (2) RLR 193 (A).”

The accused was sentenced to pay a fine of US$300=, or, in default of payment, to undergo 8 months imprisonment. In addition, 8 months the whole of which was suspended on conditions was imposed….,.

I am worried with the first part of the accused's sentence.

The accused was, inter alia, sentenced to pay a fine of US$300=, or, in default of payment, to undergo 8 months imprisonment. Therein lies the problem.

I am worried by the apparent disproportion between the fine imposed and the alternative period of imprisonment which the accused must be subjected to undergo in the event of him failing to raise the imposed fine.

There is no relationship between the fine imposed and the alternative 8 months imprisonment. The 8 months appear to be clear guess work and that is not how the alternative period of incarceration should be computed.

The best approach to deal with the computation of the alternative period of incarceration is to seek guidance from the convicted person as to how long it is likely to take him to raise the fine imposed. This involves, among other issues, canvassing such issues like the source of income, if not formally employed, or the monthly earnings if the convicted person is employed. It is only when such information has been sufficiently gathered that the court is then able to use its wide discretion in imposing the alternative period of imprisonment. It cannot be any number of months granted in the air as is apparent in this case.

For these reasons, I withhold my certificate in this matter as I am convinced the approach adopted does not accord with real and substantial justice.

The first part of the sentence is set aside and substituted by the following one;

“US$300=, or, in default of payment, 2 months imprisonment.”

In my view, nothing would be achieved by suspending a small portion of an otherwise very stiff sentence on conditions.

If a court considers suspending part of the sentence on conditions, it must make it possible for the affected person to fulfil the condition: S v Mukura & Ors 2003 (2) ZLR 596…,. If a person is already serving a minimum of 9 years imprisonment, he would have no motivation to restitute and avoid 6 months imprisonment.

It's a futile exercise.

The accused person, a 42 year old man residing at Number 2094 Old Pumula, Bulawayo is a repeat offender, a pathological stock thief in the habit of regularly making forays into Esigodini, a rural farming area some 40 kilometres out of Bulawayo, to steal goats.

On 26 June 2015 the accused was arraigned before a magistrate at Esigodini on a charge of stock theft. He was convicted and sentenced to 90 days imprisonment. On 9 September 2015 he again appeared before the same court on the same charge. He was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended for 5 years;

“on condition that he does not, within that period commit any offence that has dishonesty as an element of which upon conviction accused will be sentenced to a custodial term without the option of a fine.”

Whatever caused his early release from custody allowed him to again return to Esigodini on 3 August 2016. At Esihlengeni grazing area he stole one goat valued at $50= belonging to Jolo Mangena. The facts are that he put up a snare, rounded up the goats and drove them in the direction of his snare. When one white goat was caught the accused person promptly slaughtered it. He was arrested by members of the public who found him skinning the goat.

When he appeared before a magistrate the following day, on 4 August 2016, he was quick to plead guilty to the charge of stock theft in contravention of section 114 of the Criminal Law Code [Chapter 9:23]. He was sentenced to 24 months imprisonment of which 8 months imprisonment was suspended on condition he compensates the complainant in the sum of $50= on or before 31 October 2016. The 6 months imprisonment suspended on 9 September 2015 was further suspended on the same conditions. This left the accused to serve an effective 16 months imprisonment.

What caused me some disquiet was the further suspension of the 6 months imprisonment which had been suspended on 9 September 2015 on condition of future good behaviour. I then desired to know from the trial magistrate why that was so. In his response, dated 6 September 2016, the learned trial magistrate stated;

“RE: REVIEW MINUTE: THE STATE VERSUS CLEMENT SIBANDA CRB ESG 283/16

Please place the attached minute before the reviewing judge with the following comments.

The current conviction does amount to a breach of the conditions of suspension in the previous case. In this particular case I did not bring into effect the 6 months that was suspended in the previous case as I felt the effective sentence was sufficient to meet the justice of the case. The accused, though a repeat offender, still need(s) to be deterred from committing similar offences. The sentence was further suspended to act as deterrence. Bringing the suspended sentence into effect would, in this case, have made the sentence to be severe. An effective sentence of 16 months for theft (of) a goat valued at $50= was viewed to meet the justice of this case. I stand guided.”

The question which arises is whether the court had the power to further suspend a sentence suspended previously on certain conditions where the conditions for suspension had been breached.

I think not.

It is difficult to appreciate why the magistrate found himself having to moralize about the appropriateness of the sentence he preferred when he had a sentencing discretion unfettered by what normally afflicts criminal courts; a mandatory sentence which ties down the court to a minimum sentence because a statute says so.

The stock theft in question did not involve a bovine or equine animal which would involve the imposition of a mandatory minimum sentence of 9 years if the court found no special circumstances in terms of section 114(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused should have been sentenced in terms of paragraph (f) of subsection (2) of section 114, that is, to a fine not exceeding level 14 or twice the value of the stolen property whichever is greater or to imprisonment for a period not exceeding 25 years or both.

Clearly, therefore, the trial magistrate had a discretion and in the exercise of that discretion he imposed a term of imprisonment without the option of a fine. He cannot, therefore, at the same time, be heard to complain that the accused person did not deserve what was coming to him. He cannot possibly have his cake and then eat it at the same time.

A sentencing court can only suspend a suspended sentence as provided for in section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Subsection (2) of that section empowers the sentencing court to suspend the operation of the sentence passed for a period not exceeding 5 years on certain conditions most of which are set out in subsection (3) and include good conduct.

Where a person has violated a condition of suspension of a sentence like the failure to pay a fine or any instalment thereof, the court may order that the offender be brought before it in terms of subsection (5) for purposes of subsection (7). The latter provides:

“When the offender is brought before the court in accordance with an order made in terms of subsection (5) the court may commit him to undergo the sentence which may then be or has been lawfully passed, or, in its discretion, the reasons whereof shall be recorded on good cause shown by the offender -

(a) Grant a further postponement or suspension, as the case may be, for a further period not exceeding five years where the original postponement or suspension was in terms of paragraph (c) of subsection (2) subject to such conditions as might have been imposed at the time of the original postponement or suspension; or

(b) In the case of a postponement or suspension in terms of paragraph (a) or (b) of subsection (2), refuse to pass sentence or bring the suspended sentence into operation as the case may be.”

It appears to me that the discretion of the court to grant a further suspension of a suspended sentence is triggered only where it has ordered the offender to be brought before it in terms of subsection (5) of section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. An offender is only brought before the court that way where his or her contravention of the condition of suspension has been brought to the attention of the court which then orders the offender to be brought before it.

In my view, where the offender is tried and convicted of a different or fresh charge and the sentence of the court for that different or fresh charge brings about the violation of a suspended sentence, the court has no such discretion. A court would have suspended the operation of a sentence on condition, as in the present case, that the beneficiary of such suspension is not, during the period in question, convicted of an offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine.

A conviction during the currency of that period, resulting in a sentence of imprisonment without the option of a fine, amounts to a breach of the condition of suspension. Having violated the condition of suspension, the accused person lost the benefit of the suspension. The suspended sentence had to be brought into effect. The court was not at liberty to further suspend the suspended sentence whose condition of suspension had been violated by bad behaviour.

Any other construction would not make sense.

In any event, allowing a different court to further suspend the sentence whose condition of suspension would have been violated would, in my view, amount to an undesirable interference with the sentencing discretion of another court.

Therefore, the moment the trial magistrate settled for imprisonment without the option of a fine, he fettered his discretion. He could no longer influence the implementation of the previously suspended sentence. It had to be brought into effect. I conclude, therefore, that in doing so, the trial magistrate misdirected himself. While there is no basis for interfering with the conviction, there is need to interfere with the sentence by bringing into effect the sentence suspended on 9 September 2015.

In the result, it is ordered that:

1. The conviction of the accused person is hereby confirmed.

2. The sentence is also confirmed except for the further suspension of the 6 months imprisonment in CRB ESG 324/15 which is hereby set aside and substituted with the following:

“In addition, the 6 months imprisonment suspended on 9 September 2015 in CRB ESG 324/15 is hereby brought into effect.”

The accused was..., sentenced to 10 months imprisonment of which four months imprisonment was suspended for five years on condition of future good behaviour. The remainder of six months was suspended on condition of performance of community service. In addition to the sentence the trial magistrate said:-

“The one month imprisonment on G12/12 is not brought into effect.”…,.

(ii) The second query raised by the Regional Magistrate related to the previous conviction that the accused had.

After the accused had been convicted, the previous conviction record was produced as an exhibit. The Regional Magistrate queried if the accused had been given three days' notice of the intention by the State to produce this previous conviction record. However, the Regional Magistrate did not state the provision which makes it a requirement that the accused be given three days' notice.

In response to the query, the trial magistrate said that he had advised the accused of his right to three days' notice but had over-looked recording the question when the accused responded that he had no objections to the previous conviction record being produced.

In terms of the Criminal Procedure and Evidence Act [Chapter 9:07] previous convictions are produced in terms of section 327. According to that section's subsection (3) the procedure for producing previous convictions is fairly straight forward.

After conviction, the prosecutor will state whether the accused has any previous convictions. If he or she has, the prosecutor should tender the record thereof and read out the previous convictions to the accused. The court will then ask the accused if he admits these previous convictions. In terms of section 327(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], if the accused admits to the previous conviction the court shall proceed to sentence him or her taking those previous convictions into consideration. There is nowhere in that section where it is indicated that the accused should be given three days' notice of the intended production of previous convictions.

In casu, the prosecutor stated that the accused had a previous conviction and went on to produce the record. The prosecutor further said that in the previous conviction the accused had used a different name from the one he was using now. In response, the accused admitted that indeed that was his previous conviction and confirmed the names on it. He said that he had no objection to the production of the previous conviction.

I find no irregularity in the manner the previous conviction record was produced as it is in conformity with the requirements of section 327 of the Criminal Procedure and Evidence Act [Chapter 9:07].

(iii) The third query relates to the last part of the sentence which reads:-

“The one month imprisonment on G12/12 is not brought into effect.”

As correctly stated by the Regional Magistrate, this part of the sentence does not make any sense. On this query, the trial magistrate said that his intention was not to bring into effect the one month imprisonment which was suspended in the accused's previous conviction in G12/12. He said that his intention had been to further suspend the previous conviction so as to spare the accused an effective prison term. The previous conviction relates to an assault charge, but, despite that, the trial magistrate was inclined to keep the accused with his family.

I have reservations with the trial magistrate's reasons for sparing the accused an effective custodial sentence. The trial magistrate ought to have shown the accused that he cannot continue to assault other people and think that he can get away with community service all the time.

In the previous conviction he committed assault and had four months imprisonment imposed on him. One month thereof was suspended on condition of future good behaviour. The remainder of three months' imprisonment was suspended on condition of performance of 145 hours of community service. He was sentenced on 9 January 2012. Hardly three years later he committed the current two offences of assaulting his wife on two consecutive days…,.

The fact that the accused has now been convicted of a total of three counts of assault shows that the accused is a person of a violent disposition. If he continues like this there is a great risk that he may end up committing a more serious offence like murder. His explanation, in the present cases, that he acted in that manner because he was very drunk, is, in my view, a lame excuse….,.

The accused is a person who committed the current offences knowing fully well that he had a one month suspended sentence hanging over his head. His actions show a total disregard and disrespect for the law. If he continues to benefit from community service he might end up thinking that he can always assault other people and get away with community service.

I do not believe that under the circumstances the accused ought to have benefited from community service once more. A sentence in the region of six months imprisonment with half suspended on condition of good behaviour would have met the justice of the case. The suspended sentence should also have been brought into effect.

I therefore withhold my certificate.

The accused was sentenced to two months imprisonment. A further two months imprisonment which had been suspended on CRB N332/14 was brought into operation and the effective custodial sentence of four months imprisonment was imposed.

Commenting on jail sentences in general, EBRAHIM JA, in S v Mugwenhe & Anor 1991 [2] ZLR 66 [SC], had this to say:

“Apart from the fact that…, prisons are overcrowded and that the upkeep of prisons and the maintenance of prisoners place a tremendous economic burden on the State, there are also other considerations attaching to imprisonment. The convicted person is removed from society, he is deprived of all responsibility and opportunities of acting independently as a free member of the community, his life is disrupted, manpower is lost and the prisoner comes into contact with elements which are…, out of all proportion to that which he possibly deserves. If the same purpose, in regard to the nature of the offence and the interests of the public, can be attained by means of an alternative punishment to imprisonment, preference should, in the interests of the convicted offender, be given to the alternative punishments…,.”

This is an application for bail pending appeal.

The applicant was convicted at Harare Magistrate Court on a charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

On 7 February 2014 he was sentenced to 42 months imprisonment of which six months imprisonment were suspended for 5 years on the usual conditions of future good behaviour. The remaining 36 months imprisonment were wholly suspended on condition that the applicant pays restitution to Guest and Tanner in an amount of $18,000= through the Clerk of Court, Harare on or before 30 April 2014.

The applicant failed to pay the full restitution by the given date. He managed to raise an amount of $4,800= only. He appeared before a magistrate on two occasions requesting for further extensions of time to pay the restitution. His requests were granted. On 31 December 2014 he again appeared before a magistrate requesting for a further extension of time to pay. Unfortunately, this time his request was turned down. The magistrate ordered him to serve the alternative sentence.

The appellant appealed against the magistrate's decision to refuse him further extension. He applied for bail pending appeal against the magistrate's refusal to extend his time to pay. His application for bail was dismissed by the magistrate. In dismissing the application for bail the magistrate said -

“…,. It is almost a year and accused still owes $13,200= which is clear that he is labouring to pay. He benefitted from the commission of the crime and should also have paid his dues in time.

This is not a Bank loan but money which the complainant suffered prejudice and is not getting any interest. Applicant has been given several chances to pay up but has failed. That does not need any extrinsic enquiry. His failure is quite apparent and he will never extinguish his dues at the rate he is paying. There should be finality to any litigation and applicant cannot enjoy an indefinite period to pay. Serving the alternative is justified in the circumstances.

The application for bail pending appeal against the court a quo's refusal to grant further time to pay has no merit in fact and at law. It is stillborn and hereby dismissed.”

The applicant has now appealed to this court against the court a quo's refusal to grant him bail pending appeal against the court a quo's refusal to grant him further extension of time to pay restitution.

The application is opposed by the respondent.

In an application of this nature, the approach to be adopted is whether the magistrate misdirected himself when refusing bail. The appeal should be directed at the magistrate's findings. See S v Malunjwa HB34-03.

In my view, among the factors which the court has to take into account when considering whether to admit an applicant to bail pending appeal or not in an application of this nature are the following -

(a) The prospects of success on appeal;

(b) The likelihood of defeating the due administration of justice.

In casu, the applicant is not appealing against conviction and sentence. The conviction and sentence are proper. What the applicant is appealing against is the refusal to be granted bail pending appeal against refusal to extend time to pay restitution.

PROSPECTS OF SUCCESS ON APPEAL

The powers of courts as to postponement or suspension of sentences are derived from section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. I will quote the relevant subsections. Section 358(2)(b) says –

“When a person is convicted by any court of any offence, other than an offence specified in the Eighth Schedule, it may pass sentence, but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding five years on such conditions as the court may specify in the order;…,.”

The sentence in this case was suspended on condition the applicant pays restitution by 30 April 2014.

Sub-section 5 gives directions to the magistrate on what to do in the event of a breach or failure to fulfil the condition of suspension of a sentence. It says -

“(5)…,. If a magistrate has reason to believe, whether from information on oath or otherwise, that a condition of any postponement or suspension made in terms of paragraph (a), (b) or (c) of subsection (2) has been contravened or that the offender has failed to pay a fine or any instalment thereof on a date fixed in terms of paragraph (c) of subsection (2), he may, whether before or after the expiration of the period of postponement or suspension, order the offender to be brought…, for the purposes of subsection (7).”

Sub section (7) directs the magistrate on what to do once the defaulting party has appeared before him. It says -

“(7) When the offender is brought before the court in accordance with an order made in terms of subsection (5), the court may commit him to undergo the sentence which may then be or has been lawfully passed or…,”

The court therefore has discretion to further suspend or to commit the offender to prison. However, subsection (8) deals specifically with compensations. It says -

“(8) Where -

(a) The condition or one of the conditions on which any period of imprisonment has been ordered to be suspended in terms of paragraph (b) of subsection (2) is that the offender pay by a specified date an amount of money to any person as compensation; and

(b) Before the date part of such amount has been paid in terms of order of suspension; and

(c) Solely because of the contravention of the condition specified in paragraph (a) the court, in terms of subsection (7), commits the offender to undergo the suspended period of imprisonment;…,.”

It is clear, therefore, that where only a part has been paid, like in the present case, the court can still commit an offender to prison. This applies even where the offender had personally surrendered himself or had previously benefited from an earlier extension as long as the full amount has not been paid. See sub-section(s) (11) and (12).

In the present case, the magistrate exercised his discretion judiciously after noticing that previous extensions yielded nothing. There was no misdirection committed by the court a quo in refusing further extension and refusing bail since there are no prospects of success in this case.

LIKELIHOOD OF DEFEATING DUE ADMINISTRATION OF JUSTICE

As noted by the court a quo it is almost over a year and a substantial amount is still unpaid. There is need to have finality to cases.

In his bail statement the applicant indicated that he is a tobacco farmer who realises only $5,000= per season. He has no assets of value. It shows that it will take him several years to pay back. This is not in the interest of justice. If he cannot pay then he must serve the alternative sentence. The fact that he already restituted part of the money is an administrative issue that can be resolved by the Prison Authorities. It is not the duty of the magistrate to compute what the offender has to serve. That alone cannot be a basis for granting the applicant bail pending appeal.

In the result, the application for bail pending appeal is dismissed.

In this matter, the absence of an explanation for the harsher sentence above the prescribed mandatory minimum which the trial court imposed, coupled with the manifest mistreatment of the sentencing principle of suspension of sentence, has led this court to interfere.

The case was tried in the Provincial Magistrate's Court for the province of Mashonaland West sitting at Chinhoyi. The accused was convicted on his own plea of guilty to stock theft as defined by section 114 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] [“the Code”]. He stole an ox valued at $350. Half the carcass was discovered. But nothing was recovered.

The conviction was proper and is thus confirmed.

There were no special circumstances. The accused was 62 years old. He was employed and earning $400 per annum. He was a first offender and a widower with three children. Their ages were not given. The accused offered to compensate the complainant. The reason the accused gave for slaughtering the ox was rather strange. He said he did not slaughter it for the meat - but just to look at it!

In its assessment of sentence, the trial court said stock theft was on the increase in the district of Chinhoyi; that there was a need to impose a deterrent sentence; that the crime was premeditated; that the reason why the accused slaughtered the ox was to destroy the evidence and that he did not steal out of need or economic hardship.

The accused was sentenced to 12 years imprisonment of which 2 years imprisonment was suspended on condition he paid restitution in the sum of $350.

None of the factors the trial court took into account in assessing sentence was borne out by the record.

For stock theft, the Criminal Law (Codification and Reform) Act (the Code) prescribes a mandatory prison term of not less than nine (9) years. Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum. Undoubtedly, the court may go above the prescribed minimum. But, by all accounts, nine (9) years is already a very long stretch. The court's discretion to impose a sentence other than the prescribed minimum has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.

In casu, even accepting that there was evidence of the factors the magistrate took into account in assessing sentence, they still did not explain the reason for the departure from 9 years. The factors merely explained aggravating circumstances. So, without an explanation why it went above 9 years, which it could do, I am not satisfied that the exercise of discretion by the trial court was proper.

The trial court suspended 2 years imprisonment on condition the accused paid restitution.

As a sentencing principle, a court can suspend the operation of a sentence, or a portion of it, on conditions that it must specify: see section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. But, where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum.

In terms of section 114[4] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), where a person has been convicted of stock theft, and there are no special circumstances, the court is prohibited from suspending the sentence, whether as a whole or in part, where it has imposed the minimum sentence of 9 years.

Where there is a prescribed minimum sentence for an offence, it is improper for the court to impose a harsher penalty above the prescribed minimum in circumstances where such a sentence is not warranted, simply to create some room to suspend a portion, for whatever purpose; for example, restitution.

If, in its discretion, the appropriate sentence is the prescribed minimum, the court should stick to it.

That it cannot suspend the operation of a portion on condition of restitution does not necessarily leave the complainant without a remedy. Through the prosecutor, the injured person can always apply for restitution or compensation in terms of Part XIX of the Criminal Procedure and Evidence Act. Unlike the award of restitution or compensation under section 358[2] of the Criminal Procedure and Evidence Act, the award of compensation or restitution under Part XIX is not part of the sentencing formula: see S v Mutetwa HH374-15.

In casu, and as said already, there was no justification for the trial court to impose a sentence above the prescribed minimum. In the circumstances, the sentence was not in accordance with real and substantial justice. It is hereby set aside and substituted with the following:

“The accused is sentenced to 9 years imprisonment.”