Criminal
Review
MATHONSI
J:
This
matter was placed before me for automatic review in terms of section
57(1) of the Magistrates Court Act [Chapter 7:10].
In
undertaking that exercise, the reviewing judge and the trial
magistrate are a tag team serving the same purpose, that of ensuring
that justice is done and that the accused person receives fair
treatment. See S v Mhondiwa HB193/11; S v Shava HB200/11.
The
process of review benefits both the accused person and the trial
magistrate as the reviewing judge is expected, in the process of
correcting errors that may be committed by the trial magistrate in
the agony of the moment to give guidance to the magistrate. In that
regard both judicial officers should take the exercise seriously in
order to achieve a “win-win” situation as opposed to a “win-lose”
or “lose-lose” situation.
Automatic
review is not designed to render the business of adjudication by
magistrates a serious professional hazard or a ruinous undertaking.
Neither is it supposed to be hazardous to the reviewing judge because
one of the actors decides to be impervious to the discourse.
The
52 year old accused person was convicted of poaching in contravention
of section 59(2)(a) of the Parks and Wildlife Act [Chapter 20:14]. He
put up 35 snares at Dollar Block Range Farm in the Inyathi area of
Matabeleland North and caught an impala.
He
was arraigned before a magistrate on circuit at Inyathi and pleaded
guilty to the charge and upon conviction, he was sentenced to 24
months imprisonment of which 6 months imprisonment was suspended for
5 years on condition of future good behaviour. This left him with an
effective 18 months imprisonment which presented some disquiet to me
when the matter came for view.
I
queried the sentence in a letter to the trial magistrate dated 27
September 2016 which reads in relevant part thus:
“Subsection
(5) of section 59 is the penal provision and it reads:
'Any
person who contravenes subsection (2) or (3) shall be guilty of an
offence and liable to a fine not exceeding level six or to
imprisonment for a period not exceeding one year or to both such fine
and such imprisonment.'
Clearly
therefore the sentence of 24 months is incompetent.
I
would have simply interfered with the sentence but I would like the
trial magistrate to comment on the following issues:
1.
There is more than sufficient case law that where a statute provides
for a sentence of a fine and imprisonment, the court must first and
foremost give effect to the sentence of a fine and reserve
imprisonment for the most serious aberrations and/or repeat
offenders.
The
accused having been a very poor first offender who caught an impala,
why could he not be given the lighter sentence?
2.
There is again more than sufficient case law that where the effective
imprisonment sentence is less than 2 years, the court must consider
community service as an alternative to imprisonment.
Where
after considering community service the court is of the view that it
is inappropriate, it must record both the inquiry and the reasons for
rejecting it.
There
is nothing in the record to suggest that the exercise was
undertaken.”
Perhaps
I should not have bothered raising that query with the trial
magistrate.
Either
because he did not bother to read the query or if he did he did not
apply his mind to the issues raised, his response, which
unfortunately was penned almost a month later on 25 October 2016, is
exceedingly unhelpful. He stated:
“REVIEW
MINUTE: STATE V LAMECK TSHUMA: CRB INY 286-16
Kindly
place the record of proceedings before the learned Mathonsi J.
I
acknowledge receipt of your minute dated 27 September 2016. I found a
sentence of imprisonment appropriate due to the prevalence of
poaching cases which are a national concern. Also aggravatory was
that accused had set 35 other wire snares which could have led or had
a potential to the poaching of 35 other animals. Surely if our
heritage were poached at this rate they would face extinction.
I
did not consider community service as it would have trivialized the
offence accused is facing.
I
found that a custodial sentence would deter like minded elements of
the society which could be a measure in preserving our heritage.
However, I always stand guided by the learned judge.”
Apart
from the fact that the argument advanced by the trial magistrate that
a deterrant sentence or exemplary sentence is just as the court must
make an example of the accused person by punishing him more severely
than he deserves so as to persuade others to desist from acting in a
similar manner, is specious and fallacious in the extreme, that
argument did not address the issues raised in my query.
For
a start, the penal section provides for a maximum imprisonment
sentence of 12 months but the magistrate settled for 24 months and an
effective sentence of 18 months.
As
much as it is settled in our jurisdiction that the determination of
sentence is eminently a matter for the discretion of the trial court,
that principle does not repose a discretion in the trial court which
is outside the provisions of the enabling statute.
In
its wisdom the legislature which criminalized the act of poaching
under section 59 imposed an imprisonment term not exceeding 12
months. There is no way the trial court can exercise jurisdiction not
given to it by the enabling statute.
Secondly,
the trial magistrate completely ignores the issue that where a
statute provides for a sentence of a fine or imprisonment the court
must first give effect to a fine.
In
S v Zuva 2014 (1) ZLR 15 (H) 18 A – C I made reference to the
judgment of MALABA J (as he now is not) in S v Chawanda 1996 (2) ZLR
8 (H) 10 C- G where the court remarked:
“The
authority for the proposition that where a statute provided for a
penalty of a fine or imprisonment, it is a misdirection on the part
of the sentencing court to impose imprisonment without giving serious
consideration to the imposition of a fine, particularly on a first
offender, is found in the case of S v Muhenyere HB31-92 cited by the
accused's legal practitioner.
At
page 3 of the judgment in Muhenyere's case supra BLACKIE J, with
the concurrence of CHEDA J, quoted with approval from the decisions
in the cases of S v Rutsvara S-2-89 and S v Van Jaarsveld HC-110-90.
The learned judge said:
'It
is trite that where the statute lays down a monetary penalty as well
as a period of imprisonment the court must give consideration to the
imposition of a fine. It would normally reserve imprisonment for bad
cases----.
In
statutory offences permitting the imposition of a fine, the normal
sentence for a first offender is a fine unless the offence is
particularly serious or prevalent or there would be serious
consequences if the deterrent of imprisonment is not used.'”
In
a country afflicted by a devastating elnino induced drought and
widespread unemployment owing to a debilitating economic meltdown,
where people have been reduced to hunter-gatherers, poaching an
impala may be the ultimate activity for one to irk out a living or to
survive.
It
remains an offence which must be penalized but one cannot say that
society has a sense of revulsion for such an offence and courts of
law should not elevate it to a status not accorded to it by both
statute and society.
Thirdly
there is the issue of community service.
The
trial magistrate must attempt to grasp the guidelines on that type of
sentencing given in a line of cases coming out of the superior courts
instead of just groping in the dark when there is case law which
binds him which has settled the issue. See S v Mabhena 1996 (1) ZLR
134 (H) 140 E; S v Antonio and Others 1998 (2) ZLR 64 (H); S v
Chireyi & Others 2011 (1) ZLR 254 (H) 260D.
These
authorities make it mandatory for a trial magistrate who has settled
for an effective prison term of 24 months or less to inquire into the
suitability of community service as a sentencing option in respect of
a first offender. The magistrate simply has no choice and cannot be
heard to say he did not consider community service as it would have
trivialised the offence. The inquiry is mandatory and it must appear
on the record.
This
is not to say that the magistrate may not opt out of the imposition
of community service but that anyone reading the record must be able
to see that an inquiry was conducted.
If,
following such an inquiry, the magistrate comes to the conclusion
that it is inappropriate, and that imprisonment is the proper
sentence, he or she must give proper reasons for the decision which
must also appear, ex facie the record. See S v Ndlovu HB267/16.
There
was therefore a misdirection because by his own admission the
magistrate did not bother to consider community service even though
he settled for an effective imprisonment sentence of 18 months.
Having
said that, I must state that there is this readiness on the part of
magistrates to jump for imprisonment sentences which is shocking
indeed. It would appear that for some magistrates justice can only be
achieved by sending an offender to prison even for the smallest of
crimes. It is a kind of habit which is at variance with the needs of
society and does not even respond to the economic realities of this
country.
The
fact that prisons are hopelessly overcrowded, prisoners are afflicted
by disease, the State is struggling to maintain prisons and feed
inmates and simply has no money, are factors which have gained
notoriety.
Against
that background it is therefore surprising that we have a magistracy
which is impervious to decisions of superior courts calling for
alternative sentences, but remain rooted in one place.
This
is a matter in which the accused person should have been given
community service because the sentence should not have exceeded 12
months, he is a first offender who should be kept out of prison, he
pleaded guilty and should have been rewarded for the guilty plea.
More
importantly he was shown to be very poor and committed the offence
out of need as opposed to greed.
A
prison term served no useful purpose.
Considering
that he has been in prison since 12 August 2016 that should be enough
punishment. I will therefore alter the sentence to an effective 2
months imprisonment in recognition of the period he has served.
In
the result, it is ordered that:
1.
The conviction of the accused person is hereby confirmed.
2.
The sentence is set aside and substituted with the following
sentence:
“12
months imprisonment of which 10 months imprisonment is suspended for
3 years on condition the accused does not within that period commit
any offence involving illegal hunting for which, upon conviction, he
is sentenced to imprisonment without the option of a fine. In
addition the snares are forfeited to the State for destruction.”
Moyo
J agrees…………………………………………….