S v Gukwe (HH 93 of 2004) [2004] ZWHHC 93 (12 April 2004)

HH 93­2004 CRB 958/04 THE STATE versus REGINA GUKWE HIGH COURT OF ZIMBABWE BHUNU J. HARARE, 13 April, 2004 Criminal Review BHUNU J: The accused a youthful young female first offender of 20 years of age was convicted on her own plea of guilty on a charge of theft. The stolen property is valued at $1 364 000.00 all of which was recovered. The trial magistrate sentenced her to pay a fine of $60 000.00 or in default of payment 3 months imprisonment coupled with a 3 months wholly suspended sentence on condition of good behaviour. On those facts the learned scrutinising regional magistrate refused to grant his certificate arguing that: “Despite the fact that all the stolen property was recovered and that accused is an unemployed youthful offender, it is my humble view that the sentence imposed in the instant case is overly lenient. If the trial magistrate was of the view that the offender did not have adequate financial resources to enable her to pay a meaningful fine, he should have settled for community service to ensure that the offender is adequately punished for the offence. That sentencing option was never considered by the trial magistrate.” With all due respect I am unable to agree with the learned scrutinising regional magistrate. Community service is only one of the many modes of sentencing calculated to keep first offenders out of prison to avoid them being contaminated by hardened criminals. It also affords the offender a chance to reform without ruining his or her social life and prospects of earning a decent living. In sentencing convicted offenders, judicial officers have a wide discretion which should not lightly be interfered with in the absence of a prescribed tariff or minimum penalty. In this case the trial magistrate was entitled in his discretion to prefer a fine instead HH 93­2004 CRB 958/04 of community service. Once the trial magistrate had decided on a fine it was up to him to determine the appropriate level of penalty according to the exigencies and personal circumstances of the offender. The accused stole property valued at $1 364 000.00 which was all recovered. She is a young female first offender hardly out of her teens. She did not benefit from and neither did her victim suffer actual prejudice from her criminal conduct. She was sentenced to pay a fine of $60 000.00 or in default of payment 3 months imprisonment. The courts have indicated that the amount of fine per month should roughly equate to what the offender is capable of earning per month (see S v Moyo HH 63­84). Having regard to the accused’s personal circumstances and her age I am unable to say that the trial magistrate misdirected himself in determining the level of fine. By coupling the fine with an additional 3 months sentence of imprisonment on condition of good behaviour the trial magistrate was endeavouring to reform the accused thereby protecting society and the convict from this type of criminal conduct. All in all the accused was sentenced to 6 months imprisonment which is roughly the level of punishment for thefts of this nature. Despite that observation I am unable to say that the learned regional magistrate’s views are wrong. I take the view that the scrutinising regional magistrate’s views are supportable with equal force. There is merit and a lot to be commended to his approach. The bottom line is however that there are no hard and fast rules in sentencing. The scrutinising and reviewing judicial officers however ought not to lightly interfere with the wide discretion of fellow judicial officers in the absence of serious misdirection. The purpose of scrutiny and review is not in my view to substitute one judicial officer’s discretion with another. The purpose is simply to ensure the dispensation of justice within reasonable limits. In the circumstances of this case I am unable to say that the trial magistrate improperly exercised his discretion. That being the case I have confirmed the proceedings as being in accordance with real and substantial justice. Guvava J, agrees:………………………….. HH 93­2004 CRB 958/04