Chapter 7:10], s 57 (1){mprestriction ids=″1,2,3,4,5″}
MATHONSI J:
Just what is it about magistrates and imprisonment It would seem that magistrates are now being increasingly impervious to considerations of any other forms of sentence than imprisonment. For the slightest of infractions and where the justice of the case would seem to point to either a fine or community service, magistrates are now finding it necessary to sentence accused persons to terms of incarceration without regard to the sentencing jurisprudence of this country.
It is a trend that is vexing indeed and causes a strain to the mind especially having regard to the fact that this Court has, over a long period of time, given guidelines to magistrates in considering an appropriate sentence in minor offences or at least in those offences where the magistrate arrives at an effective sentence of less than 24 months imprisonment. The strain to the mind reaches dangerous proportions when one has regards to the current state of our prisons which are not only over flowing with inmates but the department of prisons is having an extremely difficult time looking after inmates in this punishing economic environment.
These two matters were placed before me for automatic review in terms of s 57 (1) of the Magistrates Court Act [Chapter 7:10]. The two accused persons had appeared separately before a magistrate at Gweru on charges of theft in contravention of s 113 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (″the Code″). They both pleaded guilty and upon conviction Lewis Mutenha, aged 29, was sentenced to 24 months imprisonment of which six months imprisonment was suspended for five years on condition of future good behavior. Samson Mudzingwa, aged 28, was sentenced to 12 months imprisonment. In addition, a previously suspended imprisonment sentence of four months was brought into effect.
The facts are that on 20 January 2016 at about 1100 hours Lewis Mutenha was in the company of two other men when they arrived at the complainant's work place called Patel's Ecocash shop in Gweru. They were looking for a certain type of weave which the complainant did not have in stock. As she stood up to go to the area where weaves are stored, she left behind her black wallet containing US$ 37 and R100 on the table behind the counter.
The accused person took advantage of the complainant's pre-occupation to steal the wallet, put it in his pocket and quickly leave the shop, but not before the complainant had noticed the theft. She shouted for help resulting in the accused person being arrested. He had dropped the wallet as he took to his heels and it was recovered with all its contents.
In mitigation the trial court noted that he was a first offender who pleaded guilty thereby saving court time, that the wallet was immediately recovered and therefore that the accused person did not benefit from the offence. The court then indulged in a lot of speculation that the accused ″was operating a syndicate″ and that his colleagues were not arrested which does not appear anywhere in the record. While concluding that a custodial sentence was appropriate, the magistrate was completely silent on community service and why it was inappropriate. This was a misdirection.
On the evening of 23 January 2016, in fact it was at about 6 pm, Samson Mudzingwa had custody of a sack containing four railway sole plates valued at US$ 50 when he was intercepted by a National Railways of Zimbabwe security officer. He had stolen the items from National Railways of Zimbabwe. He was promptly arrested and the stolen items recovered leaving him empty-handed and as poor as he had begun.
In mitigation the magistrate observed that he was a 28 year old married man with two children aged three and six. He is not employed but survives on making fences. The aggravation was that he was not a first offender he having been convicted of theft on 20 September 2012 and sentenced to 12 months imprisonment four of which was suspended for five years on condition of future good behavior. It would only be brought into effect if he was sentenced to a term of imprisonment without the option of a fine.
In light of the fact that in both instances the accused persons stole property of very little value all of which was recovered immediately after being stolen and therefore that they did not benefit from the offences and that they both pleaded guilty without wasting the court's time, the sentences imposed induce a sense of shock and are clearly disproportionate to the offences.
In both instances the State had nothing to say in aggravation and the aggravating factors alluded to by the trial court were imagined. As stated in S v Musariri & Anor HH 394-15 (unreported) it is a celebrated principle of our sentencing jurisprudence that judicial officers should not let their emotions cloud their judgment on what is an appropriate sentence or allow themselves to be carried away by imagination as this may lead to undue exaggeration of the seriousness of the offence and the imposition of a disproportionate sentence. See also S v Harington 1988 (2) ZLR 344 (S); S v Takawira & Anor HH 75-15 (unreported).
In both matters the trial magistrate settled for an effective sentence of less than 24 months, 18 months in Lewis Mutenha's case and 12 months in the case of Samson Mudzingwa. Having arrived at such a sentence, she was obliged to consider community service as an option. This Court has, in a line of cases, made it clear that where the effective sentence is less than 24 months the sentencing court is required to consider community service. See S v Mabhena 1996 (1) ZLR 134 (H) at 140E; S v Chireyi & Ors 2011 (1) ZLR 254 (H) at 260D.
Where the magistrate has inquired into community service and has come to the conclusion that it is not appropriate in the circumstances, he or she must give cogent or sound reasons for arriving at that conclusion which reasons must appear in the record. If a fine is a permissible sentence for the crime in question, the sentencer should in fact first consider the option of a fine. In the end if the sentencer considers that none of these options, that is a fine or community service, are appropriate but that an effective term of imprisonment is the only option, he or she should give proper reasons for that decision. See S v Antonio & Ors 1998 (2) ZLR 64 (H); S v Chinzenze & Ors 1998 (1) ZLR 470 (H); Silume v The State 2016 (1) ZLR 249 (H).
It is not enough for the sentencing court to merely state in passing that a fine or community service would trivialise the offence or that it is inappropriate and end there. Good reasons must be given for opting out of them especially in a case where the sentence falls squarely within the community service range. As stated in Silume v The State (supra), the moment the trial magistrate settled for an effective 18 and 12 months imprisonment, she had no choice but to inquire into the suitability of community service. Failure to do that was a misdirection calling for interference with the sentence.
I appreciate that such an inquiry in Mudzingwa's case would have resulted in a finding that community service was inappropriate given that he had a relevant previous conviction. However that is not the end of the matter. The penal provision of s 113 of the Code provides for a fine not exceeding level 14 or twice the value of the stolen property, whichever is the greater or imprisonment not exceeding 25 years or both.
So the trial court had a wide range of options when it came to the appropriate sentence. In my view, the value of the stolen property should have been the determining factor in considering the appropriate sentence. Mudzingwa had stolen property worth only US$ 50 from a parastatal not a poor individual. This could not, by any stretch of the imagination, be regarded as so serious an offence, as to attract a sentence of imprisonment where an option of a fine is provided for.
Again this is an area which has been traversed before, and magistrates are expected to appreciate the policy of our law. Where a statute provides for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to a fine. See S v Chawanda 1996 (2) ZLR 8 (H) at 10C-G; S v Zuwa 2014 (1) ZLR 15 (H). In both cases the trial magistrate should have imposed a fine. In Mutenha's case if the accused person could not raise a fine, she should have then considered community service. Failure to do so was a misdirection.
At the time these two matters were placed before me for review Mutenha had been in custody for 14 days. Mudzingwa had been in custody for nine days. With the thankful concurrence of my brother Takuva J, I immediately issued warrants for their immediate liberation. It is therefore no longer useful to alter the sentences to a fine or community service. Whatever sentences they have served are sufficient.
In the result, it is ordered that:
1. The conviction of the accused person Lewis Mutenha is hereby confirmed.
2. The conviction of the accused person Samson Mudzingwa is hereby confirmed.
3. The sentence of each accused person is hereby set aside and in its place is substituted the following sentence:
″Each accused person is sentenced to a fine of US$ 100 or in default of payment 10 days imprisonment.″
4. As each accused person had served more than 10 days when they were released, they are not required to pay the fine.
TAKUVA J concurred.
{/mprestriction}
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