S v Mereki (CA 433 of 2013) [2015] ZWHHC 90 (28 January 2015)

1 HH 90-15 CA 433/13 PASSMORE MEREKI versus THE STATE HIGH COURT OF ZIMBABWE CHATUKUTA & MANGOTA JJ HARARE, 14 and 29, January, 2015 Criminal Appeal A. Mupfukudza, for the appellant R. Chikosha, for the State MANGOTA J: The parties in the present appeal are ad idem on the point that the sentence which the trial court imposed on the appellant is not only harsh and severe but it also induces a sense of shock. The court agrees with the position which the parties took. The appellant who is a 27 year old, first offender pleaded guilty to, and was convicted of, theft as defined in s 113(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The state allegations were that, on 20 March 2013 and at 1.4km peg which is along Makuti - Kariba Road, the appellant went to an accident scene where a truck carrying a consignment of assorted beer had been involved in an accident. He took from the scene 10 x 340 ml of Heinken beer valued at $13-40. The beer was recovered. The appellant was sentenced to 6 months imprisonment; 2 months of which were suspended for 5 years on the usual condition of future good conduct. The appellant was sentenced to an effective 4 months imprisonment. The appellant’s appeal was against sentence. His five grounds of appeal were that: (a) the sentence which the court a quo imposed was so severe as to induce a sense of shock; HH 90-15 CA 433/13 (b) the trial court misdirected itself by concluding that the appellant jumped into the deeper end of the offence where the value involved was $10-00 when all the goods were recovered; (c) the trial court misdirected itself by holding that a fine was not a suitable sentence when the penal provision provides for imposition of a fine; (d) where the court a quo remained of the view that a fine was not suitable, a term of imprisonment which was suspended on condition of performance of community service would have met the justice of the case - (e) and (f) because the trial court did not place any weight on the appellant’s plea of guilty, the appellant emerged worse off given the fact that he lost his employment as a result of the sentence which was imposed upon him. The abovementioned grounds do have a lot of relevance on the appeal. The trial court misdirected itself in a very serious way when it imposed a custodial sentence of 6 months on the appellant. The fact that the appellant ended up with an effective sentence of 4 months imprisonment does not, in any way, detract from the severity of the sentence which the court a quo imposed. The circumstances of the present case do not support the proposition that the appellant should have been sentenced to a term of imprisonment. The court a quo should have explored other sentencing options before it slapped him with an effective term of imprisonment. It is pertinent to stress that a court which goes about the onerous task of assessing an appropriate sentence must apply its mind in a judicious manner in order for it to arrive at a sentence which fits both the crime and the offender. The court would, by and large, fall into the error of dispensing injustice instead of justice if it pays lip-service to the offender’s mitigatory features as they appear in the record. Equally, justice would not have been served if the court imports into the record matters which are not in that record. The trial magistrate fell into the error of importing into the record what was not in the record. The error which he made affected the balance of his thinking to a point where he ended up imposing an unrealistically harsh sentence on the appellant. He stated, in the body of his reasons for sentence, as follows:- HH 90-15 CA 433/13 “The offence committed by the accused is viewed seriously by the law. Accused went to a scene of accident where a truck had been involved in an accident. People were seriously injured with one of them meeting his death. A lot of property had been damaged. Instead of rendering assistance to the injured, the accused looted property from this truck. Accused had more joy in looting the property than saving the lives of those who had been injured.” There is no doubt that the trial court misdirected itself in a very serious way when it imported the above cited statement into the record of proceedings. The record, as it stands, is silent on the point that, when the appellant arrived at the scene of the accident, there was an injured person whom he should have assisted. The trial magistrate just made mention of matters which were not supported by anything and considered them to have been aggravatory to the appellant’s case as a result of which he imposed the sentence against which the appellant appealed. A careful analysis of what was before him would have convinced the trial magistrate that the appellant’s mitigatory features far outweighed the aggravating circumstances of this case. He would, for instance, have realised that the appellant was: (i) (ii) a young first offender who was, or is, a family man who, in substance (iii) did not waste the court’s time and the state’s resources as he pleaded guilty to the offence. The above factors coupled with the fact that the beer which he stole was valued at $13-40 and was recovered should have persuaded the court a quo to avoid the incarceration of the appellant and to have considered such alternative sentencing options as a fine coupled with a wholly suspended prison term or performance of community service. There was, in the court’s view, nothing which was aggravatory in so far as the present case is concerned. The sentence which was imposed does induce a sense of shock in us. It will, accordingly, be interfered with. The appellant established his case on a balance of probabilities. The appeal, therefore, succeeds. It is, in the result, ordered that the sentence which the court a quo imposed upon the appellant be and is hereby set aside. It is substituted with the following sentence:- “the appellant is sentenced to pay a fine of $150-00 or in default of payment 30 days imprisonment. In addition, the appellant is sentenced to 3 months imprisonment the whole of which is suspended for 3 years on condition he does not, within that period, commit any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine.” HH 90-15 CA 433/13 CHATUKUTA J agrees:……………………………… Phiri and Partners, Appellant’s Legal Practitioners National Prosecuting Authority, State’s Legal Practitioners