Upon conviction, the accused was sentenced to 18 months
imprisonment of which 6 months imprisonment was suspended for 5 years on
condition of future good behavior. A further 6 months imprisonment was
suspended on condition that he restitutes the complainant the sum of $455= by
31 March 2016.
This left the accused person with an effective prison term
of 6 months for which he was carted away to Bulawayo prison and commenced
serving it on that date.
When the matter came before me for review I immediately
queried with the magistrate why, after he had initiated the inquiry into the
suitability of community service and the accused had been successfully vetted
for it, he had then abandoned that option in favour of imprisonment for a matter
falling squarely within the community service grid and the accused was found
suitable for community service.
The magistrate responded by letter of 15 March 2016 which
reads:
“RE: STATE V
NJABULO SIBANDA CRB ENT 87/16
Kindly place the record of proceedings before the learned
MATHONSI J with the following comments:
I acknowledge receipt of your review minute dated the 7th
of March 2016. I did not sentence accused to community service as I took it
that this would trivialize the offence. Accused has no regard for the law or
others and is so gullible as he masqueraded as a man of the cloth and stole
from the innocent complainant. I also considered that a substantial amount is
involved and complainant suffered prejudice.
Therefore, I had found a custodial sentence appropriate. May I be guided
should the learned reviewing judge find otherwise.”
In my view, these fanciful reasons not only fail to address
the simple concern raised, namely, that an effective 6 months imprisonment
falls within the community service grid, they are patently an afterthought by
someone who does not want to see the light. The reasons for sentence given by
the magistrate in the record are as follows:
“Accused is a first offender who is a family man. It is a
trite principle of sentencing to exercise leniency when dealing with first
offenders. Accused pleaded guilty and did not waste the court's time. It has
been held in a number of cases that weight must be attached to a plea of guilty
which shows remorse on the part of accused. However, I took as aggravatory the
nature of offence accused is facing. Also aggravating is the value involved. I
found a custodial sentence, coupled with an order for restitution,
appropriate.”
Until such time that magistrates' start taking the business
of sentencing seriously and apply their minds purposefully to the task at hand
we shall continue to have such problems where magistrates simply adopt an
instinctive approach to sentencing which arises out of either emotion or
inattention. How else can one explain the inquiry into the suitability of
community service and the abandonment of the whole exercise midstream as if the
magistrate just forgot that the inquiry had been conducted?
This was clearly a misdirection.
It has been stated, repeatedly, by this court that where
the sentencing court settles for an effective sentence of less than 24 months
imprisonment, it is obliged to consider community service as an option. See S v Mabhena 1996 (1) ZLR 134 (H)…,.; S v
Chireyi and Others 2011 (1) ZLR 254 (H)…,.
Where the magistrate has inquired into community service
and found it inappropriate in the circumstances, he or she must give cogent or
sound reasons for arriving at that conclusion; which reasons must appear in the
record: S v Mutenha and Another HB35-16.
In the end, if the sentencer considers that only an effective term of
imprisonment is the appropriate sentence he or she should give proper reasons
for that decision. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v
Chinzenze and Others 1998 (1) ZLR 470 (H); S v Silume HB12-16.
The magistrate did not give any reasons for disregarding
community service as an option.
This is a case where the pre-sentencing information he had
gathered was to the effect that indeed the accused person was a good candidate
for that option of sentence. There had to be a reason for discarding it and
such reason should have been recorded.
It was not.
Instead, the magistrate proceeded as if no inquiry into the
suitability of community service had been conducted, which is strange indeed.
Yet, this is a case in which he had settled for an effective 6 months
imprisonment and was therefore required, as a matter of principle, to consider
community service. That is what happens when sentencing is explained in
mystical terms; when the judicial officer is accorded svengali status imbued
with magical qualities beyond the ken of mortals. When the magic fades it does
so inexplicably and is seen as a terminal development hence the failure to
explain the sentence by the magistrate.
Magistrates should simply follow the sentencing guidelines
which have been given by the superior courts painstakingly over the years. They
should not, in the exercise of their sentencing discretion, pursue other agenda
divorced from the penal policies developed over time where such a departure is
uncalled for and has the effect of leading to an injustice….,.
In the result, it is ordered that:
1….,.
2. The sentence is set aside and in its place is
substituted by the following sentence:
“18 months imprisonment of which 12 months imprisonment is
suspended for 5 years on condition the accused does not, during that period,
commit an offence involving dishonesty for which, upon conviction, he is
sentenced to imprisonment without the option of a fine.
A further 5 months and 6 days is suspended on condition the
accused restitutes the complainant the sum of $455= by 31 March 2016 through
the Clerk of Court Western Commonage.”
3. As the accused person has already served 24
days imprisonment, he is entitled to his immediate release.
