It is unfortunate that this 19 year old boy who has had his
first brush with the law by committing 3 counts of unlawful entry into premises
in aggravating circumstances and stealing property in all Counts valued at a
paltry US$179= of which property valued at US$108= was recovered (his benefit
is just US$61=) has been incarcerated for 24 months.
The only reprieve he got is to have 6 months imprisonment
suspended on the usual conditions of good behaviour and a further 3 months on
condition he pays restitution (never mind that he has no bond note to his
name). This means this teenage boy would serve an effective prison term of 15
months (if not 18 months as he is unlikely to pay restitution).
The bare bones of the facts of this matter are that on 14
December 2016, in Village Musendo, in Count 2, and on 22 February 2017, in
Chikanda and Murivi Villages, in Counts 1 and 3, all in Chief Chiwara, Gutu,
the 19 year old accused approached the complainants' homesteads.
In Count 1, the accused unlawfully entered into the
complainant's kitchen hut and stole 2kg sugar, 750ml cooking oil, one silver
pot, 2kg rice and a pair of tackies all valued at US$33=. After his arrest,
property valued at US$15= was recovered.
In Count 2, the accused entered into the complainant's
house through a window and stole a loaf of bread, an MTN cell phone line, 2kg
sugar, 2kg rice and a satchel all valued at US$28= of which nothing was
recovered.
In Count 3, the accused gained access into the complainant's
house through an unlocked door and stole a Samsung cellphone, a pair of
tackies, 3 trousers and one pair of shorts all valued at US$118= of which
property valued at US$103= was recovered.
The total value of the property stolen in all the 3 counts
is US$179= of which property valued at US$108= was recovered hence the actual
prejudice is property valued at US$61=.
It is clear from the agreed facts that the accused went on
a spree of committing the offence of unlawful entry into premises in aggravating
circumstances as is defined in section 131(2) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23]. The accused's moral blameworthiness is elevated
by this persistent criminal conduct. To that extent, the accused deserves to be
punished lest he believes that there is some virtue in committing crime. The
proprietary interest of our rural folk should be protected - even where it is
not of any significant monetary value.
Be that as it may, the accused is a youthful first offender
with neither savings nor assets. The element of immaturity on his part probably
explains his criminal conduct. While the offence of unlawful entry into
premises in aggravating circumstances remains a serious offence, the trial
court should not lose sight of the value of the property stolen in each count
in assessing the appropriate sentence.
The sentence imposed by the trial magistrate in this case
does not only induce a sense of shock, if not revulsion, but completely ignores
basic sentencing principles. It offends against notions of justice. See S v Shariwa 2003 (1) ZLR 314 (H).
It is trite in our law that that where a trial court
imposes a sentence of 24 months or less, the suitability of community service
should be considered. Failure to do so constitutes a misdirection. See S v
Antonio 1998 (1) ZLR 64 (H); S v
Gumbo 1995 (1) ZLR 163 (H), S v Chinzenze & Ors 1998 (1) ZLR 470.
The learned trial magistrate in casu did not even bother to
carry out an inquiry into the suitability of community service. Further, no good
and sound reasons are advanced in this case as to why community service was not
imposed. See S v Mapweza HH125-95; S v Mabhena 1996 (1) ZLR 134.
A proper inquiry would have enabled the learned trial magistrate
to determine if community service is suitable punishment for the offence this
19 year old boy committed, his suitability to perform such community service,
and all other relevant factors.
The conviction of the accused in respect of all the 3 Counts
is in order and is therefore confirmed.
The learned trial magistrate, for reasons outlined above,
failed to exercise his discretion in deciding the appropriate sentence and
assessing that sentence. This court, however, is hamstrung from the facts
before it to carry out a meaningful inquiry into the suitability of community
service.
I am, however, satisfied that community service would have
been appropriate in this case….,.
In the result, the sentence imposed by the trial court is
set aside in its entirety and substituted with the following;
“All 3 counts are treated as one for sentence
and accused is sentence to 6 months imprisonment of which 5 and half months
imprisonment are suspended for 5 years on condition accused does not commit,
within that period, any offence involving unlawful entry into premises and/or
dishonesty for which he will be sentenced to a term of imprisonment without the
option of fine.”
