The
appellant,
upon conviction, was sentenced to 12 months imprisonment of which 6
months imprisonment was suspended for 3 years on condition he does
not, within that period, commit an offence for which assisting a
person enter or depart from the country without a valid travel
document for which he is sentenced to imprisonment without ...
The
appellant,
upon conviction, was sentenced to 12 months imprisonment of which 6
months imprisonment was suspended for 3 years on condition he does
not, within that period, commit an offence for which assisting a
person enter or depart from the country without a valid travel
document for which he is sentenced to imprisonment without the option
of a fine is an element.
In
mitigation, the court a
quo
recorded that the appellant was a 40 year old married man with three
children. He is self-employed and had savings of R2,000= and a sum of
R400= on his person. In addition, he had four herd of cattle, a
house, and other valuable assets….,.
In
arriving at the sentence that it imposed, the court a
quo
reasoned as follows:
“The
accused was treated as a first offender and pleaded guilty to the
offence he was charged with. In mitigation he told the court that he
wanted to travel back to South Africa with his sister's children.
However, as a responsible adult, the accused should have made sure
that all travelling documents for the children were in perfect order
before proceeding with them out of the country. These are children we
are talking about and because of the prevalence of child trafficking
cases the courts have to take sterner measures to ensure that people
do not just bring or take out of the country children without proper
procedures being done. A custodial sentence was seen as the most
deterrent form of punishment in this case.”
The
trial court must have been seeing things none of us can see.
For
a start, the appellant was not assisting the children to depart for a
fee. These were his own relatives that he was traveling with.
Granted, what he did was an offence hence the reason why he was
brought to court for him to be punished in accordance with the law -
not in accordance with some other considerations whether real or
imagined.
In
terms of section 36(1) of
the Immigration Act [Chapter 4:02]:
“A
person who assists any person, whether or not such person is doli
capax,
to enter, remain in or depart from Zimbabwe in contravention of this
Act shall be guilty of an offence and liable to a fine not exceeding
level twelve or to imprisonment for a period not exceeding ten years
or to both such fine and such imprisonment.”
Where
a statute provides 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 first and foremost
to a fine. See S
v Chawanda
1996 (2) ZLR 8 (H)…,.; S
v Zuwa
2014
(1) ZLR 15 (H)…,. This is particularly so when the accused person
is a first offender who has pleaded guilty to the charge.
Imprisonment should be reserved for repeat offenders and the most
serious of such cases.
The
court a
quo
only said that imprisonment was more attractive to it. It did not
explain why it saw it necessary to depart from that celebrated
sentencing policy of the courts in this jurisdiction.
The
appellant has appealed against the sentence imposed by the court a
quo
on the grounds, inter
alia,
that the court a
quo
misdirected itself by not considering other sentencing options and in
not considering the mitigating circumstances of the accused person.
I
have already alluded to the misdirection in the sentence and with
that glaringly obvious mis-direction, counsel for the respondent
conceded that the sentence imposed was inappropriate.
In
fact, the sentence preferred by the court a
quo
cannot be sustained at all and for one other reason. It is that the
moment the court settled for a sentence of 12 months imprisonment and
an effective imprisonment term of 6 months it was obliged to inquire
into the suitability of community service. See S
v Mabhena
1996
(1) ZLR 134 (H)…,.; S
v Chireyi and Others
2011 (1) ZLR 254 (H)…,.
If
the court came to the conclusion, following the inquiry, that
community service was inappropriate, it was required to give proper
reasons for doing so which should appear on the record. They cannot
be stored in the mind of the court. See S
v Antonio and Others
1998 (2) ZLR 64 (H); S
v Chinzenze and Others
1998 (1) ZLR 470 (H); S
v Silume
HB12-16.
The
fact that the court a
quo
did not inquire into the suitability of community service was yet
another misdirection. Clearly, therefore, the sentence cannot
stand….,.
In
the result, it is ordered that:
1.
The appeal against sentence is hereby upheld.
