The
accused was..., sentenced to 12 months imprisonment with four months
of the sentence suspended on condition of future good behaviour. The
remainder of eight months imprisonment was suspended on condition of
performance of 280 hours of community service.
The
record was placed before a Regional Magistrate for scrutiny. The
Regional Magistrate, in turn, forwarded it to this court for review
with the comment that the sentence that was imposed by the trial
magistrate was incompetent because the penalty for this offence, as
it appears on section 180(1) of
the Criminal Law (Codification and Reform) Act [Chapter
9:23],
is a fine not exceeding level five or imprisonment for a period not
exceeding six months or both.
The
trial magistrate made a concession that the sentence was incompetent.
The
concession by the trial magistrate shows that he used what can be
called an instinctive approach to sentencing. It has always been
stressed by this court that the sentencing court must always strive
to find a punishment which fits both the offender and the crime. In
order to achieve this, the court must put in mind that for every
offence there is a penalty that is stipulated. The starting point,
therefore, is for the sentencing judicial officer to look at the
penalty provision for it is the main guiding factor. It is a serious
misdirection for a judicial officer to totally disregard the penalty
provision.
It
is indeed correct that in terms of section 180(1) of
the Criminal Law (Codification and Reform) Act [Chapter
9:23]
the
maximum period of imprisonment should not exceed six months. The
sentence that was imposed by the trial magistrate is therefore not
competent.
The
accused pleaded guilty to the charge. He was a first offender aged 24
years. He is still single. He is employed at a mine earning $80= per
month. He pleaded with the court for leniency stating that he needed
to go back to work. Despite this plea, the accused was ordered to
perform community service between Mondays and Fridays. Of concern is
the fact that there is nothing in the record to show that a
pre-sentence inquiry on the suitability of community service was ever
conducted yet such an inquiry is a requirement: S
v Chinzenze
1998
(1) ZLR 470 (H)…., and S
v Gumbo
1995 (1) ZLR 163 (H)…,.
It
is also important for the offender to indicate his willingness to
perform community service otherwise there is a risk that he or she
will not perform the community service if he or she is unwilling to
perform. See S
v Matara
HH31-95; S
v Mukono
HH161-96.
Not
only did the trial magistrate sentence the accused without making an
inquiry into the suitability or otherwise of community service, the
trial magistrate did not even ask the accused on which days of the
week he goes to work. I want to believe that in sentencing the
accused to perform community service the trial magistrate's
intention, among other things, was to ensure that the accused would
keep his job at the mine.
The
trial magistrate therefore ought to have asked the accused on which
days of the week he goes to work and then ordered him to perform
community service during the days he does not go to work. Employment
is difficult to find and if the accused loses it he may find it
difficult to find another job. In S
v Sithole and Another HH101-03
it was stated that there is need for the court to specify the hours
the accused is supposed to work and the times of starting and ending
work taking into account that the convicted person is a full time
student or is in full time employment. In S
v Gumbo1995
(1) ZLR 163 (HC)…, BARTLET J said:
“It
is important for magistrates to be innovative where a person is in
employment, to allow community service to be carried out over
weekends or after working hours…,.”…,.
In
my view, the false report was fairly serious in nature in that the
accused went to the police station to make the report and caused the
police to go to the alleged scene of robbery.
A
stiffer penalty is called for and since an incompetent sentence was
imposed there is need to substitute it with a competent one. This is
despite the fact that the accused, who was ordered to commence
community service performance on 10 December 2014, has, by now,
probably finished performing the 280 hours that he was ordered to
perform. There is need to get rid of the four months imprisonment
that was suspended for five years on condition of good behaviour in
order to avoid future prejudice to the accused in the event that he
is convicted of a similar offence in future.
The
accused is sentenced to:
“Six
months imprisonment wholly suspended on condition accused performs
210 hours of community service at ZRP Rusape Urban
commencing on 10 December 2014.
The
community service shall be performed every Monday to Friday excluding
public holidays between 8am-1pm and from 2pm–4pm to the
satisfaction of the person in charge of the said institution who may,
for good cause shown, grant him leave to be absent on certain days or
during certain hours but such leave of absence shall not be counted
as part of the community service to be performed.”
The
trial magistrate should recall the accused and advise him of the
altered sentence.
