MATHONSI J: This matter came before me for review in terms of section
57 of the Magistrates Court Act following the conviction and sentence of the
accused person by the Magistrates Court sitting at Western Commonage, Bulawayo
on the 16th June 2010.
The accused was convicted of fraud (5 counts) in contravention of
section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
and sentenced to 3 years imprisonment of which 18 months was suspended for 3
years on condition of good behaviour
leaving the accused with an effective jail term of 18 months. The accused had pleaded guilty to all 5
counts.
After examining the record of proceedings I ordered the immediate
release of the accused person from prison as I was of the view that the
sentence of imprisonment was uncalled for in the circumstances of this
matter. These are my reasons for doing
so.
The allegations against the accused are that on the 16th May
2010 at Full Gospel Church of God in Mpopoma, Bulawayo he had misrepresented to
the 5 complainants that he would secure jobs for them at the Zimbabwe Electricity
Supply Authority and that they were required to pay US$20-00 each for
stationery to be used during inhouse training.
Each of the complainants paid him US$20-00 bringing the total to
US$100-00. Needless to say that he did
not secure the jobs for the complainants but converted the money to his own
use.
The accused was arrested and taken to court where he readily pleaded
guilty to all 5 counts of fraud. Prior
to that the accused had made full restitution to all the 5 complainants who
each submitted affidavits to the court confirming that they had been paid and
petitioning the court to be lenient in sentencing the accused. The pleas by the complainants for a lighter
sentence to be passed fell on deaf ears as the Magistrate went on to sentence
the accused to 3 years imprisonment as already alluded to above.
The accused is a 35 year old first offender who pleaded guilty to the
charge and made full restitution.
Although he is not married he has a 2 year old child and committed the
offence because he needed money to buy food.
These are very compelling mitigating factors which the Magistrate does
not appear to have taken into account in assessing sentence.
The only aggravating factor is that he stole from 5 people but even then
this is extinguished by the fact that he repaid them within a month of the
offence and as such prejudice is not there at all. The amount of money involved is also small.
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
he 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 Code, 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 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 20 days imprisonment.
(3) As
the accused has already served that period he should be released immediately.
Mathonsi J..........................................................................
Cheda
J
agress.........................................................................
