The
facts are that the accused resides at Stand number 69, Village 1,
Pauldale, Kwekwe and is employed at Mahamara Mine as a Chrome Miner.
The complainant, on the other hand, resides and works at Mapiravana
Farm in Lalapanzi. The accused and the complainant are not related.
On the 19th
day of December 2015, at approximately 18:30 hours, and at Mapiravana
Farm, Lalapanzi the accused unlawfully entered the complainant's
house through an unlocked door without authority.
In
respect of Count Two, the accused unlawfully took the property
mentioned in the charge sheet. It is valued at US$626= while property
valued at US$560,= was recovered.
The
accused appeared before a magistrate and pleaded guilty to both
counts. He was duly convicted. The conviction is proper and I hereby
confirm it - however, the same cannot be said about the sentence.
After
considering mitigating and aggravating factors, the court a
quo
sentenced the accused as follows:
“Count
1: 18 months imprisonment.
Count
2: 24 months imprisonment of which 4 months are suspended on
condition accused restitutes Nzane Muchengeti $66= through the Clerk
of Court by 30 January 2016 at 4pm.
Effective
38 months.”
On
2nd
March 2016, I addressed a query to the magistrate in the following
terms;
“Why
were the two counts not treated as one for purposes of sentence?”
The
magistrate responded as follows:
“I
refer to the above matter and wish to apologize for an oversight on
my part. After also going through S
v Chidziva
2009 (2) ZLR 82 I appreciate my error.
May
I be guided accordingly.”
It
is my fervent hope that the magistrate has not only read but has
understood the principles set out in that case. However, I am
perturbed by the fact that the court a
quo
cited the accused's name as Chidziva
instead of Chirindo
& Ors.
Be that as it may, the trial court concedes her error. Unfortunately
this is not the only error she made.
Firstly,
she misdirected herself when she found as an aggravating factor that
the accused “was in a position of trust,” because he “knew what
happened at the premises and therefore his moral blameworthiness is
high.”
I
am not sure I understand what this means.
I
suspect, however, that this finding is anchored on the erroneous fact
that the accused and the complainant reside at the same place, or, at
the very least, that the accused knew the set up at the complainant's
home. Assuming this to be the case, it does not put the accused in a
position of trust, legally speaking, as he does not owe the
complainant a duty of care. The facts reveal that the two are not
related and one wonders on what legal basis the accused would be said
to be in a position of trust vis-à-vis
the complainant's proprietory interests? This finding is a clear
misdirection in my view.
Secondly,
the court a
quo
found, again, as an aggravating factor that the accused “broke the
locks” to gain entry. This is incorrect in that the facts, as
outlined in the Statement of Agreed Facts, indicate that the “accused
unlawfully entered the complainant's house through
unlocked door without authority.”…,..
This is the other misdirection.
The
effect of these misdirections is that the court a
quo
sentenced the accused on wrong facts and wrong legal principles.
While it is appreciated that magistrates in most cases deal with many
“plea” cases hurriedly, sight should not be lost of the care and
attention they should devote to the question of assessing an
appropriate penalty in each case.
In
casu, I am at large as regards sentence in view of the misdirections
alluded to supra.
In assessing an appropriate sentence, I will consider the following
mitigating factors;
(a)
The accused is a 26 year old family man with two children aged 7 and
2 years respectively;
(b)
He is employed as a miner earning $20= per tonne of chrome;
(c)
He has no savings nor valuable assets;
(d)
He pleaded guilty to both counts;
(e)
Of the total value of stolen property, only property valued at $66=
was not recovered;
(f)
The accused is a first offender.
As
against these mitigating factors, I find the following aggravating
circumstances;
(a)
Unlawful entry is inherently a serious crime as it violates citizens'
privacy and proprietary rights.
(b)
The offence is aggravated where theft is then committed in the
process like in
casu.
At
the end of this weighing process, I come to the conclusion that
imprisonment is warranted.
In
line with the legal principle in S
v Chirindo
& Ors 2009
(2) ZLR 82, I will sentence the accused as follows:
The
sentence imposed by the court a
quo
be and is hereby set aside and substituted with the following
sentence;
Both
counts as one for sentence
- 15 months imprisonment of which 6 months imprisonment is suspended
for 5 years on condition accused is not convicted of unlawful entry
or dishonesty and for which accused will be sentenced to a term of
imprisonment without the option of a fine. A further 4 months
imprisonment is suspended on condition accused restitutes Nzane
Muchengeti the sum of $66= through the Clerk of Court by 31st
May 2016.
Effective
5 months imprisonment.
The
court a
quo
is directed to recall the accused and explain this sentence to him.
