The
two accused were charged with theft as defined in section 113 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were
convicted on their own pleas. Nothing turns on the convictions. I
thus confirm them.
What
causes disquiet are the different sentences that were imposed on the
accused.
Accused
One was sentenced to 10 months imprisonment which was wholly
suspended on condition of performance of 350 hours of community
service. Accused Two was sentenced to three months imprisonment of
which one month imprisonment was suspended on condition of good
behaviour.
The
accused are aged 21 and 23 years respectively. Both are not married
and not employed. While Accused One has no children, Accused Two has
two children. None of the two had money or savings.
On
28 December 2014, at 9am, the two went to Checheche Growth Point in
Chipinge. They entered a shop which was unattended and stole two
Nokia cellphones worth $120= which were on top of the table. They
left the shop. These two cellphones were later recovered from the
accused.
What
is apparent is that the two accused committed the offence together.
They only have an age difference of 2 years and their personal
circumstances are more or less the same.
The
magistrate imposed different sentences for the reason that while the
first accused was a first offender the second accused was not. The
second accused had a previous conviction of assault which he
committed in 2012 and for which he paid a fine of $10=.
While
this differentiation by the trial magistrate might be appreciated
what is of concern is the huge difference in the sentences. A
difference of 10 months and three months does induce a sense of shock
even though the 10 months was then suspended on condition of
performance of community service.
The
other issue is that considering the youthfulness of the second
accused, the value of the cell phones that were stolen, that these
cell phones were later recovered, and that the previous conviction is
not of a similar nature to the current offence the trial magistrate
ought to have spared the second accused an effective custodial
sentence. For the previous conviction of assault, the second accused
was sentenced to pay a fine of $10=. This shows that it was a minor
assault. Moreover, it was committed two years ago.
It
has been said times without number that imprisonment is a rigorous
form of punishment which should only be resorted to as a last resort.
See S v Gumbo 1995 (1) ZLR 163 (HC).
JOHN
REID ROWLAND, Criminal Procedure in Zimbabwe, 1997…, stated that:-
“Imprisonment
should not be lightly imposed, particularly where the offence is
relatively petty. The harm to the accused by a term of imprisonment
may far outweigh the possible advantages.”
Surely,
under the circumstances, it cannot be said that there were no other
options available to the trial magistrate. Ordinarily, the offence
that was committed by the accused persons calls for a fine. However,
the accused had no savings at all making it difficult for the court
to impose a fine. Accused One was sentenced to community service,
which was quite appropriate, but, 10 months imprisonment for such a
petty offence is too harsh and it induces a sense of shock.
I
do not see why Accused Two was not also considered for community
service even though he was a repeat offender. It is not a
hard and fast rule that community service should be reserved for
first offenders. It is just a general rule. A repeat offender can be
considered for community service where there are special mitigatory
features. Even where an accused has been previously sentenced to
community service, it may still be appropriate, in some cases, for
him to be given another chance to stay out of prison by performing
further community service.
It
is also not a hard and fast rule that repeat offenders have to be
sentenced to imprisonment. The objective of community service is to
keep non-serious offenders out of prison where they would be exposed
to hardened criminals.
Each
case should be treated according to its own merits. In deserving
cases, a repeat offender can benefit from community service and the
case of the second accused is one good example. It is a settled
position that youthful offenders should not be sent to prison unless
that is the only suitable form of punishment in the circumstances.
In
casu, the previous conviction is irrelevant because it is totally
unrelated to the current offence, it is trivial and it was committed
a long time ago. The personal circumstances of the accused persons,
being more or less the same, it was desirable for the trial
magistrate to impose a uniform sentence for the two accused.
I
cannot confirm the sentences as being in accordance with real and
substantial justice.
Both
sentences are set aside and substituted with the following:-
Each
accused:
“Three
months imprisonment of which one month imprisonment is suspended for
five years on condition the accused does not within that period
commit an offence involving dishonesty and for which upon conviction
he is sentenced to imprisonment without the option of a fine. The
remaining two months imprisonment is suspended on condition of
performance of 70 hours of community service.”
It
takes two weeks to complete 70 hours of community service.
The
second accused has been in custody since 31 December 2014 which means
that he has served for more than a month. If he had been sentenced to
community service by now he would have completed performing the
community service. So he should be entitled to his immediate release.
A warrant of his liberation is hereby issued.
The
first accused commenced his community service on 6 January 2015. I
would like to believe that he has completed more than two weeks of
community service by now. He should be called and advised of his
altered sentence.
