Judgment No. HB 38/2003                                                                             Case No. HC 687/2003

                                                                                    CRB W/C 3484/02

 

THE STATE

 

Versus

 

ROSEMARY MANYEVERE

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 20 MARCH 2003

 

Criminal Review

 

            NDOU J:        The accused is a young woman aged 23 years.  She is a first

 

offender.  She was employed by the complainant as a domestic worker.  She had just

 

worked for the complainant for a month and five days when she succumbed to

 

temptation and embarked on amala quia prohibita commonly known as theft from an

 

employer.  The accused was charged and convicted at Western Commonage

 

Magistrates’ Court, Bulawayo.  Nothing turns on the conviction as the accused was

 

properly convicted.  The accused, after a brief enquiry on mitigation, was sentenced to

 

15 months imprisonment with 5 months thereof suspended on condition of good

 

behaviour and restitution.  This leaves an effective sentence of 10 months

 

imprisonment for theft of six dinner plates, four skirts, one blouse, a set of dreads

 

(whatever that is), three dresses, one petticoat, a pair of tennis shoes and two string

 

tops valued at $58 000,00.  Of that stolen property, $41 500,00 worth was recovered. 

 

By today’s standards $58 000,00 is not much.  The trial magistrate seems to have

 

misplaced faith and mistaken zeal in imprisonment as a solution to criminal

 

misdemeanors even for non-serious offences.  This is a wrong approach to sentencing. 

 

The most popular theory today is that the proper aim of criminal procedure is to

 

reform the offender so that he may become adjusted to the social order.  Is it not better

 

                                    HB 38/03

 

 

to save the offender for a life of usefulness rather than punish them by imprisonment,

 

which generally makes them worse after they leave than before they entered? 

 

Imprisonment as a form of punishment should always be viewed as a sad necessity of

 

criminal law.  The actual choice that life presents to a sentencing court is seldom a

 

clear issue between absolute good and absolute evil but generally a choice between

 

alternatives, all of which are imperfect embodiments of justice or of the highest good. 

 

Judicial wisdom consists in such a balancing of rival considerations that the total

 

amount of evil is minimised.  In the circumstances, it is essential for the trial

 

magistrates to equip themselves with sufficient information in any particular case to

 

enable them to assess sentence humanely and meaningfully based on fairness and

 

proportion.  The sentencing process is as distinct and vital a factual enquiry as the

 

determination of the guilt of an offender.  Punishment should as far as possible be

 

individualised by conducting meaningful pre-sentencing investigations.  Assessment

 

of punishment should not be left to a haphazard guess based on no or inadequate

 

information – see S v Taurayi 1963(3) SA 109 (SR); S v Jabavu 1969 (2) SA 466 AD;

 

Sv Maxaku and S v Williams 1973 (4) SA 248  (C);  Mbuyase and Ors v R 1939 (2)

 

P.H. H 159 (H); S v Joseph 1969 (4) SA 27 (N); S v Manwere 1972 (2) RLR 139; S v

 

Zinn1969 (2) SA 537, S v Zindonda AD 15-79; Maponga v State HH 276-84 and S v

 

TigereHH-225-93.

 

            The basic elements of sentencing are that the punishment must fit the criminal

 

as well as the crime, be fair to the state and to the accused and be blended with a

 

measure of mercy – see S v Sparks and Ano 1972 (3) SA 396 A; S vMoyo HH-63-84; 

 

Sentencingby D P Van der Merwe paragraph 1-14 and A Guide to Sentencing in

 

Zimbabweauthored by G Feltoe at page 1.  The needs of the individual and the

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interests of society should be balanced with care and understanding.  In order to

 

achieve these ideals the sentencing tribunal should be armed with appropriate pre-

 

sentencing information.  In casu, the information is scant and could not assist the trial

 

magistrate make an informed decision on the appropriate punishment.  Such situations

 

attracted brash criticism of the trial court in the above cases – see also S v Ngulube

 

HH-48-02 and S v Shariwa HB 37-03.

 

            From the facts and the brief mitigation recorded this is a case that cried out for

 

a serious consideration of the option of community service.  Effective imprisonment

 

is, in my view, inappropriate.  A sentence of imprisonment is a severe and rigorous

 

form of punishment which should only be imposed only as a last, and not first, resort

 

and where no other form of punishment will do – see S v Kashiri HH-174-94; S v

 

Gumbo1995(1) ZLR 163; S v Sithole HH-50-95; S v Sikunyane 1994 (1) SACR (TR);

 

Sv Chinyama HH-199-98; S v Mangena HH-28-99; S v Tarume HH-146-99; S v

 

MugauriHH-154-99 and S v Shariwa (supra).

 

            In casu, as is common in most criminal cases, the accused appeared

 

unrepresented by a legal practitioner.  One should err on the side of caution and

 

assume that she is not aware of the existence of the option of community service.  In

 

the circumstances, the trial magistrate should have canvassed this option of

 

community service.   The trial magistrate should have canvassed this option with her

 

in mitigation.  This enquiry was not carried out.  This is a misdirection on the part of

 

the trial magistrate.  In this regard BARTLETTJ, in the Gumbo case (supra) stated:

 

“It is particularly important that magistrates give active consideration to the new concept of community service.  The whole object of community service is to enable the community to benefit by non-serious offenders (those who would otherwise have been sentenced to 12 months as less) being given the opportunity to keep out of prison by doing useful work for the benefit of the

 

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community.  This is one of the most important reforms to Zimbabwe’s criminal sentencing system over the past several decades.”

 

(At present the period has been increased to 24 months or less) See also S v Tigere

 

(supra)and S v Chinzenze and Ors 1998 (1) ZLR 470.   Although the enquiry on the

 

suitability of community service was not carried out in her reasons for sentence did

 

make brief reference to this option in the following terms:  “If given community

 

service, you are unlikely to perform it.  Also it would be too lenient.”   As alluded

 

to above, this option was never canvassed with the accused.  In the circumstances, it is

 

difficult to understand the context in which this remark is being made.  The decision

 

on whether or not the option of community service is suitable should be made on a

 

rational and informed basis.  Without the appropriate enquiry on the suitability of the

 

option being discussed with accused on what basis did the trial magistrate make this

 

determination?  She seems to have done so intuitively.  To make the determination

 

(that the accused is not suitable for community service) in the dark, as it were, to my

 

mind constitute a gross irregularity within the meaning of section 27 of the High

 

Court Act [Chapter 7:06].  All in all, there were serious misdirections in the

 

sentencing process as outlined.  The sentence imposed by the trial magistrate is

 

disturbingly inappropriate.   The basic elements of sentencing were not followed to

 

the prejudice to accused.  It would not serve the interests of justice for the matter to be

 

remitted to the court a quo.   The accused has served the prison sentence from 18

 

December 2002.

 

            In the circumstances, the conviction is confirmed.  The sentence imposed by

 

the court a quo is set aside and substituted as follows:

 

“4 months imprisonment of which 2 months is suspended for 3 years on condition the accused in that period does not commit an offence of theft or

 

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dishonesty and for which she is convicted and sentenced to imprisonment without the option of a fine.”

 

            As the accused has served the effective custodial sentence, she is entitled to

 

immediate release.

 

 

 

 

 

 

                                    Cheda J ………………………. I agree