REVIEW JUDGMENT
MWAYERA J: The record of
proceeding was placed before me for review by the Provincial Head
Mashonaland East Province. The Provincial Head uplifted the record
during routine CRB checks.
The accused was convicted on 7
October 2014 of one count of unlawful entry as defined in section
131(1)(a) of the Criminal Law Codification and Reform Act [Chapter
9:23]. The State
adduced evidence to show that the accused was not a first offender.
The trial magistrate did not make
an inquiry on whether or not the suspended prison term should be
brought into effect. Further the State did not apply to have the
suspended prison term brought into effect. The trial court in
sentencing the accused brought into effect the suspended prison term.
The accused was not given any chance to give input on the suspended
prison term. It is also not clear from the record if the bringing
into effect of the suspended prison term was taken as the sentence
for the current offence.
The Provincial Head was right in
detecting the anomaly and bringing the record for review.
A perusal of the record shows that the accused was not sentenced for
the current offence and that the suspended prison term was
unprocedurally brought into effect. The prosecutor did not apply for
it to be brought into effect and the accused did not give any input
on the suspended prison term.
The sentence by the trial court in the premises cannot stand as it is
irregular. It is set aside. However, given the delays in bringing the
matter for review the court will take judicial notice of the fact
that the accused has already finished serving the suspended prison
term which was brought into effect to then seek to further suspend
that prison term would not only be prejudicial to the accused but
unduly harsh. The suspended sentence has already been served.
The accused was not sentenced for the current offence.
It is our considered view that given the mitigatory factors on record
and circumstances of the case a wholly suspended prison term will
meet the justice of the case. The accused is sentenced as follows:
One month imprisonment wholly suspended for three years on condition
the accused does not within that period commit any offence involving
dishonesty for which he is sentenced to imprisonment without the
option of a fine.
The accused to be recalled and advised of the suspended sentence.
TAGU J: Agrees……………………………………………………………
