The
accused person, a 42 year old man residing at Number 2094 Old Pumula,
Bulawayo is a repeat offender, a pathological stock thief in the
habit of regularly making forays into Esigodini, a rural farming area
some 40 kilometres out of Bulawayo, to steal goats.
On
26 June 2015 the accused was arraigned before a magistrate at
Esigodini on a charge of stock theft. He was convicted and sentenced
to 90 days imprisonment. On 9 September 2015 he again appeared before
the same court on the same charge. He was sentenced to 18 months
imprisonment of which 6 months imprisonment was suspended for 5
years;
“on
condition that he does not, within that period commit any offence
that has dishonesty as an element of which upon conviction accused
will be sentenced to a custodial term without the option of a fine.”
Whatever
caused his early release from custody allowed him to again return to
Esigodini on 3 August 2016. At Esihlengeni grazing area he stole one
goat valued at $50= belonging to Jolo Mangena. The facts are that he
put up a snare, rounded up the goats and drove them in the direction
of his snare. When one white goat was caught the accused person
promptly slaughtered it. He was arrested by members of the public who
found him skinning the goat.
When
he appeared before a magistrate the following day, on 4 August 2016,
he was quick to plead guilty to the charge of stock theft in
contravention of section 114 of the Criminal Law Code [Chapter 9:23].
He was sentenced to 24 months imprisonment of which 8 months
imprisonment was suspended on condition he compensates the
complainant in the sum of $50= on or before 31 October 2016. The 6
months imprisonment suspended on 9 September 2015 was further
suspended on the same conditions. This left the accused to serve an
effective 16 months imprisonment.
What
caused me some disquiet was the further suspension of the 6 months
imprisonment which had been suspended on 9 September 2015 on
condition of future good behaviour. I then desired to know from the
trial magistrate why that was so. In his response, dated 6 September
2016, the learned trial magistrate stated;
“RE:
REVIEW MINUTE: THE STATE VERSUS CLEMENT SIBANDA CRB ESG 283/16
Please
place the attached minute before the reviewing judge with the
following comments.
The
current conviction does amount to a breach of the conditions of
suspension in the previous case. In this particular case I did not
bring into effect the 6 months that was suspended in the previous
case as I felt the effective sentence was sufficient to meet the
justice of the case. The accused, though a repeat offender, still
need(s) to be deterred from committing similar offences. The sentence
was further suspended to act as deterrence. Bringing the suspended
sentence into effect would, in this case, have made the sentence to
be severe. An effective sentence of 16 months for theft (of) a goat
valued at $50= was viewed to meet the justice of this case. I stand
guided.”
The
question which arises is whether the court had the power to further
suspend a sentence suspended previously on certain conditions where
the conditions for suspension had been breached.
I
think not.
It
is difficult to appreciate why the magistrate found himself having to
moralize
about the appropriateness of the sentence he preferred when he had a
sentencing discretion unfettered by what normally afflicts criminal
courts; a mandatory sentence which ties down the court to a minimum
sentence because a statute says so.
The
stock theft in question did not involve a bovine or equine animal
which would involve the imposition of a mandatory minimum sentence of
9 years if the court found no special circumstances in terms of
section 114(2)(e) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. The accused should have been sentenced in terms of
paragraph (f) of subsection (2) of section 114, that is, to a fine
not exceeding level 14 or twice the value of the stolen property
whichever is greater or to imprisonment for a period not exceeding 25
years or both.
Clearly,
therefore, the trial magistrate had a discretion and in the exercise
of that discretion he imposed a term of imprisonment without the
option of a fine. He cannot, therefore, at the same time, be heard to
complain that the accused person did not deserve what was coming to
him. He cannot possibly have his cake and then eat it at the same
time.
A
sentencing court can only suspend a suspended sentence as provided
for in section 358 of the Criminal Procedure and Evidence Act
[Chapter 9:07]. Subsection (2) of that section empowers the
sentencing court to suspend the operation of the sentence passed for
a period not exceeding 5 years on certain conditions most of which
are set out in subsection (3) and include good conduct.
Where
a person has violated a condition of suspension of a sentence like
the failure to pay a fine or any instalment thereof, the court may
order that the offender be brought before it in terms of subsection
(5) for purposes of subsection (7). The latter provides:
“When
the offender is brought before the court in accordance with an order
made in terms of subsection (5) the court may commit him to undergo
the sentence which may then be or has been lawfully passed, or, in
its discretion, the reasons whereof shall be recorded on good cause
shown by the offender -
(a)
Grant a further postponement or suspension, as the case may be, for a
further period not exceeding five years where the original
postponement or suspension was in terms of paragraph (c) of
subsection (2) subject to such conditions as might have been imposed
at the time of the original postponement or suspension; or
(b)
In the case of a postponement or suspension in terms of paragraph (a)
or (b) of subsection (2), refuse to pass sentence or bring the
suspended sentence into operation as the case may be.”
It
appears to me that the discretion of the court to grant a further
suspension of a suspended sentence is triggered only where it has
ordered the offender to be brought before it in terms of subsection
(5) of section 358 of the Criminal Procedure and Evidence Act
[Chapter 9:07]. An offender is only brought before the court that way
where his or her contravention of the condition of suspension has
been brought to the attention of the court which then orders the
offender to be brought before it.
In
my view, where the offender is tried and convicted of a different or
fresh charge and the sentence of the court for that different or
fresh charge brings about the violation of a suspended sentence, the
court has no such discretion. A court would have suspended the
operation of a sentence on condition, as in the present case, that
the beneficiary of such suspension is not, during the period in
question, convicted of an offence involving dishonesty for which he
is sentenced to imprisonment without the option of a fine.
A
conviction during the currency of that period, resulting in a
sentence of imprisonment without the option of a fine, amounts to a
breach of the condition of suspension. Having violated the condition
of suspension, the accused person lost the benefit of the suspension.
The suspended sentence had to be brought into effect. The court was
not at liberty to further suspend the suspended sentence whose
condition of suspension had been violated by bad behaviour.
Any
other construction would not make sense.
In
any event, allowing a different court to further suspend the sentence
whose condition of suspension would have been violated would, in my
view, amount to an undesirable interference with the sentencing
discretion of another court.
Therefore,
the moment the trial magistrate settled for imprisonment without the
option of a fine, he fettered his discretion. He could no longer
influence the implementation of the previously suspended sentence. It
had to be brought into effect. I conclude, therefore, that in doing
so, the trial magistrate misdirected himself. While there is no basis
for interfering with the conviction, there is need to interfere with
the sentence by bringing into effect the sentence suspended on 9
September 2015.
In
the result, it is ordered that:
1.
The conviction of the accused person is hereby confirmed.
2.
The sentence is also confirmed except for the further suspension of
the 6 months imprisonment in CRB ESG 324/15 which is hereby set aside
and substituted with the following:
“In
addition, the 6 months imprisonment suspended on 9 September 2015 in
CRB ESG 324/15 is hereby brought into effect.”
