1
B-73-15
HCAR 217-15
CRB TSH 44/15
THE STATE
versus
ZAKHELE KHUMALO
IN THE HIGH COURT OF ZIMBABWE
MUTEMA J
BULAWAYO 2 APRIL 2015
Review Judgment
MUTEMA J: The accused is 18 years old. He pleaded guilty to two counts of unlawful entry in contravening section 131 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] and to two corresponding counts of theft in contravening section 113 (1) of the same statute, committed on the same date one hour apart.
The theft in counts 2 (which was perpetrated following the unlawful entry in count 1) involved property valued at $65,00 of which property worth $30,00 was recovered. The theft in count 4 involved property valued at $110,00 of which all was recovered.
The accused is a repeat offender, having been convicted of one count each of unlawful entry and theft for which he was sentenced on 8 July 2014 to 10 months imprisonment of which 4 months imprisonment was suspended for three years on condition of good behaviour while the balance was suspended on condition accused performed 210 hours of community service at a local primary school.
Apparently by committing the current offences accused breached the condition on which the 4 months alluded to supra was suspended. He admitted the previous conviction and advanced no show cause why that suspended sentence should not be brought into operation. Also of the 210 hours of community service he was ordered to perform, accused only did 76 ½ hours and this issue is still a subject of inquiry.
The learned trial magistrate sentenced the accused as follows:
“Count 1 and 2 as one for sentence - 2 years imprisonment
Count 3 and 4 as one for sentence - 2 years imprisonment
In addition 4 months imprisonment suspended from CRB TSH 208/14 is brought into effect.”
When the record of proceedings landed on my desk on automatic review I raised the following query with the learned trial magistrate:
“For an 18 year old, though a repeat offender, for 2 counts of unlawful entry and 2 counts of theft of property valued at a total of $175,00 of which $35,00 worth was not recovered is a total sentence of 4 years imprisonment not so harsh as to induce a sense of shock?”
To my query the following response was furnished:
I still stand by the sentence imposed for the lengthy reasons I gave in the reasons for sentence. The sentence in my view is not at all shocking.
It is trite that it is not the value of what the accused steals that makes the offence serious but the very act of unlawful entry into premises. The principle is the same as in pick-pocketing.
It is my humble view that if an 18 year old like in this case, who embarks on the path of criminality the court should hit him hard. He has a relevant previous conviction. He showed his disdain for the law by not completing his sentence. He then goes on to commit further similar offences. What sentence should he be given? The Criminal Law Code in section 131 (2) says that the offence of unlawful entry into premises is committed in aggravating circumstances if
(a)………………………………………...
(b)…………………………………………
(c)…………………………………………
(d)…………………………………………
(e)Committed or intended to commit some other crime.
I do believe that by taking counts 1 & 2 and counts 2 & 4 as one for sentence I avoided a
harsh sentence.
I stand guided.”
While acknowledging that sentencing remains the domain of the sentencer, it is pertinent to make the following observations. Sentencing has always been a difficult process and judicial officers often find themselves in an invidious position in attempting to come up with a condign sentence. The assessment of a commensurate sentence in any given case should always be a process of judicious reasoning, detached from emotion or any form of idiosyncrasy that may be engendered by the type of the offence involved. The learned trial magistrate in casu seems to have been greatly influenced by his hatred to the offence of unlawful entry which he said can be likened “to pick-pocketing” – a lucky dip scenario in which the “artiful dodger” knows not what he/she is going to fish out of the victim’s pocket. The two offences are, however, not entirely the same for it cannot mean that the two cellphones, the amplifier, the 12 volt battery and the invertor were the only items in the two premises accused broke into.
The learned trial magistrate seemed also to have been influenced greatly by the fact that the accused has a relevant previous conviction, his failure to see through the 4 months suspension period as well as the accused’s failure to complete his community service. By unduly emphasizing the foregoing sight was lost of the fact that at 18 years the accused still remained a youthful offender. His errant behaviour may very well have been strongly influenced by his youthfulness. It did not automatically mean that he must be treated like an adult.
The little or scanty mitigation that was elicited from the accused by the court a quo could not and did not help in arriving at an appropriate sentence, viz that he is not married, not employed, no savings and why he committed the offences. A sneak peek into the accused’s background or upbringing would have gone a long way in the assessment of an appropriate sentence instead of labeling him as one who has “chosen the path of criminality.” Does it mean that accused is now beyond reform? His pleas of guilty were simply paid lip service to on account of the learned trial magistrate’s statement that “while he saved the court’s time and the state’s resources his pleas were not a show of contrition but just a matter of course.”
The nub of my query was not that the accused did not deserve an effective custodial sentence, no! But taking into account his age, his plea of guilty to all the four counts, the value of the property stolen coupled with the actual prejudice occasioned the accused certainly did not deserve the effective four year imprisonment that he was visited with. There seems to be an element of vengeance, if not caprice on the part of the learned trial magistrate as can be gleaned from his reply to my query which must have clouded the dispassionate approach to sentence expected of a fair – minded judicial officer. This culminated in the imposition of a sentence that will not only brutalise the young offender but harden him with the inevitable result that he will entrench total disregard for the law. Contrary to the learned trial magistrate’s view that the value of the stolen property in unlawful entry matters not, that still remains a strong guiding aspect in the assessment of an appropriate sentence.
Clearly the learned trial magistrate misdirected himself when he imposed this draconian sentence. That sentence cannot be allowed to stand. Punishment should, where appropriate, be tampered with compassion.
In the result the sentence imposed by the trial magistrate is hereby set aside and is in its place substituted with the following:
All the four counts are taken as one for the purpose of sentence and the accused is sentence to 24 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition accused does not within that period, commit any offence involving dishonesty and for which he is sentenced to imprisonment without the option of a fine.
In addition the 4 months imprisonment suspended in CRB TSH 208/14 is hereby brought into effect.
The trial magistrate is directed to recall the accused and appraise him of the new sentence and also advise Prisons and Correctional Services accordingly.
Makonese J ………………………………I agree
