The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment ...
The appellant was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.
The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:
“1. Ad Conviction
1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.
1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.
1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.
1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.
1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.
2. Ad Sentence
2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.
2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.
2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.
2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”...,.
As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.
We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.
The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.
That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.
The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.
The appeal against sentence succeeds:
Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:
“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”
The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.
