Review
Judgment
DUBE
J:
The
accused person appeared before a Harare magistrate facing charges of
theft as defined in section 113 of the Criminal Law Codification and
Reform Act [Chapter
9:23].
The allegations are that money went missing at the complainant and
accused's workplace. It was later discovered from CCTV clips that
the accused had stolen the money as he was observed putting the money
where it was later recovered. He was sentenced to 6 months
imprisonment of which 4 months imprisonment was suspended on
conditions. He would serve an effective 2 months. The regional
magistrate has raised the following concerns:-
(1)
that since the money the accused is alleged to have stolen was still
within the shop, accused should have been convicted of attempted
theft.
(2)
that the amount stolen is not stated in the charge sheet.
(3)
that an effective imprisonment term was too excessive regard being
had to the accused's personal circumstances.
I
hold the view that the offence of theft was complete at the time that
offence was discovered and the money recovered. The accused had
stolen the money and hid it. This fact is supportive of an intention
to deprive the owner permanently all his property. The stages of
preparation of the offence had passed and therefore a full offence
was committed. This offence is different from that of shoplifting
which takes place in a shop, were a shoplifter only commits the
offence after emerging from the shop and is only supposed to be
arrested when he leaves the shop.
The
trial magistrate concedes that the amount stolen is not stated in the
charge sheet. A charge sheet in a theft of property case should
always states and clearly the amount of prejudice that an offender
causes to a complainant. That is, the value of the property stolen.
It does not suffice to merely state or allege that an offender stole
cash. A charge sheet couched in this manner does not sufficiently
advise the accused of the offence he is required to answer to.
In
assessing the appropriate sentence the trial court balanced the
mitigating circumstances of the accused against the aggravating
circumstances of the case. He considered that the accused pleaded
guilty and hence did not waste the court's time. The accused is a
family man with a wife and child to support. All the stolen money
which amounted to $525-00 was recovered. The court considered that
what aggravated the case was that the accused stole from his employer
and that he breached the trust entrusted upon him by his employer.
The trial magistrate was at the view that imposing community service
would trivialise the offence. He was correct in this approach. He
decided to impose a different sentence in order to send a message
that crime does not pay and discourage theft from employers. The fact
that all the money was recovered does not reduce the seriousness of
the offence.
Theft
from the employer is a serious offence which ordinarily calls for a
custodial sentence unless there are strong mitigatory factors. The
accused breached the trust entrusted onto him by his employers
through his conduct. Although he is a youthful first offender who
pleaded guilty, one should not lose sight of the seriousness and
prevalence of the offence. Even first offenders are sent to jail for
this type of offence.
The
trial magistrate properly balanced the mitigating and aggravating
circumstances of this case. A short stiff custodial sentence was
called for. An effective sentence of 2 months imprisonment meets the
justice of the case.
I
have considered that the accused person acknowledged that he stole
the amount in issue when essential elements were being put to him and
hence he became aware of the amount allegedly stolen.
I
am satisfied that the proceedings are substantially in accordance
with real and substantial justice.
I
hereby confirm the proceedings.
