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HB94-10 - ALICE ZIMBA vs THE STATE

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Procedural Law-viz criminal appeal re sentence.

Sentencing-viz Banking Violations.
Banking Violations-viz exchange control re foreign currency dealing iro section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05].
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, S.I.109 of 1996.
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, SI 109 of 1996.
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, S.I.109/1996.
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, SI 109/1996.
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, S.I.109/96.
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, SI 109/96.
Banking Violations-viz exchange control re foreign currency dealing iro section 4(1)(a)(ii) of the Exchange Control Regulations, Statutory Instrument 109 of 1996.
Sentencing-viz sentencing approach.
Sentencing-viz Banking Violations re repeat offenders iro section 5(b) of the Exchange Control Act [Chapter 22:05].
Sentencing-viz sentencing approach re statutory mandatory sentence.
Sentencing-viz mandatory sentence re mitigating circumstances.
Sentencing-viz sentencing approach re plea of guilty.
Sentencing-viz sentencing approach re community service.
Sentencing-viz sentencing approach re suspended sentences.
Sentencing-viz sentencing approach re suspended sentences iro mandatory sentences.
Sentencing-viz sentencing approach re plea of guilty iro remorsefulness.

Sentencing re: Banking Violations

The appellant was convicted on her own plea of guilty by a Plumtree magistrate and sentenced to twelve (12) months imprisonment of which four (4) months were suspended on the usual conditions of future good behaviour.

The appellant is appealing against sentence only.

Sentencing re: Approach iro Alternative Sentence, Suspended Sentences, Repeat Offenders and Previous Convictions

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].

On account of the misdirection, we are at liberty to interfere with the sentence.

Banking Violations

The brief facts are the following.

On 10 May 2007, in the town of Plumtree, the appellant exchanged 100 Botswana Pula for Z$400,000=.  She was not authorized to buy and sell foreign currency hence the charge against her for contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 4(1)(a)(ii) of the Exchange Control Regulations as published under Statutory Instrument 109/1996.

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences

It is trite that where the legislature has decreed a mandatory prison sentence, a court will not lightly order the whole of that sentence to be suspended, and will do so only when the mitigating circumstances clearly make such a course desirable – S v Mtembu 1970 (1) SA 435 (N); S v Horowitz 1976 (1) RLR 238 (AD); S v Patel SC63-87 and S v Muzambe HH121-90.

In casu, bearing in mind the personal circumstances of the appellant and lack of actual prejudice to the State, and the fact that the appellant could be adequately punished by a fine coupled with an additional wholly suspended sentence, the sentence imposed was manifestly excessive and should be altered. In this case, the appellant is aged 32; she is a female offender who is married to a husband who is unemployed; she has three children; as is the norm these days, she is the bread-winner in her family who earns her income by selling vegetables (and of course activities for which she stands convicted); S v Gorogo SC192-88 and S v Ndlovu SC84-84. She pleaded guilty to the charge and was remorseful – S v Dhliwayo 1999 (1) ZLR 229. The offending amount of foreign currency is not that much i.e BP100. Certainly, she was not the major author of the scarcity of foreign currency. She played a trivial role in that regard.

Accordingly, the sentence imposed by the court a quo is set aside and substituted by the following:

6 months imprisonment of which -

(1) 3 months is suspended for five years on condition that the appellant is not convicted of any contravention of the Exchange Control Act or the Exchange Control Regulations committed during that period.

(2) The remaining 3 months imprisonment is suspended on condition the appellant completes 210 hours of community service at Plumtree Police Station on the following terms:

(i) The community starts within ten (10) days of the handing down of this judgment and must be completed within twelve (12) weeks of that date;

(ii) The community service must be performed between the hours of 8a.m to 1p.m and 2p.m to 4p.m each Monday to Friday which is not a public holiday to the satisfaction of the person in charge at the said institution who may, for good cause, grant the accused leave to be absent on a particular day or days or during certain hours. Any such leave of absence shall not count as part of the community service to be completed.

NDOU J: The appellant was convicted on her own plea of guilty by a Plumtree magistrate and sentenced to 12 months imprisonment of which 4 months were suspended on the usual conditions of future good behaviour.  The appellant is appealing against sentence only.  The brief facts are the following.  On 10 May 2007, in the town of Plumtree, the appellant exchanged 100 Botswana Pula for Z$400 000.  She was not authorized to buy and sell foreign currency hence the charge against her for contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] (“the Act”) as read with section 4(1)(a)(ii) of the Exchange Control Regulations as published under Statutory Instrument 109/1996.  She 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 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 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 Act which, Mr Moyo 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) 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 Mr Moyo: 

“The Exchange Control Act demands that repeat offenders be sent to goal.  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 mis-direction.  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), supra.  On account of the misdirection we are at liberty to interfere with the sentence.  It is trite that where the legislature has decreed a mandatory prison sentence, a court will not lightly order the whole of that sentence to be suspended, and will do so only when the mitigating circumstances clearly make such a course desirable – S v Mtembu 1970(1) SA 435 (N); S v Horowitz 1976 (1) RLR 238 (AD); S v Patel SC-63-87 and S v Muzambe HH-121-90.

In casu, bearing in mind the personal circumstances of the appellant and lack of actual prejudice to the state and the fact that the appellant could be adequately punished by a fine coupled with an additional wholly suspended sentence, the sentence imposed was manifestly excessive and should be altered.  In this case the appellant is aged 32.  She is a female offender who is married to a husband who is unemployed.  She has three children.  As is the norm these days, she is the bread-winner in her family who earns her income by selling vegetables (and of course activities for which she stands convicted), S v Gorogo S-192-88 and S v Ndlovu S-84-84.  She pleaded guilty to the charge and was remorseful – S v Dhliwayo 1999(1) ZLR 229.  The offending amount of foreign currency is not that much i.e BP100.  Certainly she was not the major author of the scarcity of foreign currency.  She played a trivial role in that regard.

Accordingly, the sentence imposed by court a quo is set aside and substituted by the following:

6 months imprisonment of which -

(1)   3 months is suspended for five years on condition that the appellant is not convicted of any contravention of the Exchange Control Act or the Exchange Control Regulations committed during that period.

(2) The remaining 3 months imprisonment is suspended on condition the appellant completes 210 hours of community service at Plumtree Police Station on the following terms:

(i) The community starts within ten (10) days of the handing down of this judgment and must be completed within twelve (12) weeks of that date;

(ii) The community service must be performed between the hours of 8a.m to 1p.m and 2p.m to 4p.m each Monday to Friday which is not a public holiday to the satisfaction of the person in charge at the said institution who may, for good cause grant the accused leave to be absent on a particular day or days or during certain hours.  Any such leave of absence shall not count as part of the community service to be completed.

CHEDA J: I agree

 




 

Dube-Banda, Nzarayapenga & Partners, appellant's legal practitioners

Criminal Division, Attorney General's Office, respondent's legal practitioners
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