S v Moyana & Anor (CRB J 311 of 2014; CRB J 312 of 2014) [2015] ZWHHC 165 (16 February 2015)

1 HH 165-15 CRB J 311-12/14 THE STATE versus HOWARD MOYANA and BHUKUCHAYI CHIPONGO HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 17 February 2015 Review Judgment MUREMBA J: The two accused were charged with theft as defined in s 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted on their own pleas. Nothing turns on the convictions. I thus confirm them. What causes disquiet are the different sentences that were imposed on the accused. Accused one was sentenced to 10 months imprisonment which was wholly suspended on condition of performance of 350 hours of community service. Accused two was sentenced to three months imprisonment of which one month imprisonment was suspended on condition of good behaviour. The accused are aged 21 and 23 years respectively. Both are not married and not employed. While accused one has no children, accused two has two children. None of the two had money or savings. On 28 December 2014 at 9 a.m the two went to Checheche growth point in Chipinge. They entered a shop which was unattended and stole two Nokia cellphones worth $120-00 which were on top of the table. They left the shop. These two cellphones were later recovered from the accused. What is apparent is that the two accused committed the offence together. They only have an age difference of 2 years and their personal circumstances are more or less the same. The magistrate imposed different sentences for the reason that while the first accused was a first offender the second accused was not. The second accused had a previous conviction of assault which he committed in 2012 and for which he paid a fine of $10-00. HH 165-15 CRB J 311-12/14 While this differentiation by the trial magistrate might be appreciated what is of concern is the huge difference in the sentences. A difference of 10 months and three months does induce a sense of shock even though the 10 months was then suspended on condition of performance of community service. The other issue is that considering the youthfulness of the second accused, the value of the cell phones that were stolen, that these cell phones were later recovered and that the previous conviction is not of a similar nature to the current offence the trial magistrate ought to have spared the second accused an effective custodial sentence. For the previous conviction of assault, the second accused was sentenced to pay a fine of $10-00. This shows that it was a minor assault. Moreover, it was committed two years ago. It has been said times without number that imprisonment is a rigorous form of punishment which should only be resorted to as a last resort. See S v Gumbo 1995 (1) ZLR 163 (HC). John Reid Rowland, Criminal Procedure in Zimbabwe 1997 on pp 25-28 stated that:- “Imprisonment should not be lightly imposed particularly where the offence is relatively petty. The harm to the accused by a term of imprisonment may far outweigh the possible advantages.” Surely under the circumstances it cannot be said that there were no other options available to the trial magistrate. Ordinarily the offence that was committed by the accused persons calls for a fine. However, the accused had no savings at all making it difficult for the court to impose a fine. Accused one was sentenced to community service which was quite appropriate, but 10 months imprisonment for such a petty offence is too harsh and it induces a sense of shock. I do not see why accused two was not also considered for community service even though he was a repeat offender. It is not on hard and fast rule that community service should be reserved for first offenders. It is just a general rule. A repeat offender can be considered for community service where there are special mitigatory features. Even where an accused has been previously sentenced to community service, it may still be appropriate in some cases for him to be given another chance to stay out of prison by performing further community service. It is also not a hard and fast rule that repeat offenders have to be sentenced to imprisonment. The objective of community service is to keep non-serious offenders out of prison where they would be exposed to hardened criminals. HH 165-15 CRB J 311-12/14 Each case should be treated according to its own merits. In deserving cases a repeat offender can benefit from community service and the case of the second accused is one good example. It is a settled position that youthful offenders should not be sent to prison unless that is the only suitable form of punishment in the circumstances. In casu, the previous conviction is irrelevant because it is totally unrelated to the current offence, it is trivial and it was committed a long time ago. The personal circumstances of the accused persons being more or less the same it was desirable for the trial magistrate to impose a uniform sentence for the two accused. I cannot confirm the sentences as being in accordance with real and substantial justice. Both sentences are set aside and substituted with the following:- Each accused “three months imprisonment of which one month imprisonment is suspended for five years on condition the accused does not within that period commit an offence involving dishonesty and for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining two months imprisonment is suspended on condition of performance of 70 hours of community service.” It takes two weeks to complete 70 hours of community service. The second accused has been in custody since 31 December 2014 which means that he has served for more than a month. If he had been sentenced to community service by now he would have completed performing the community service. So he should be entitled to his immediate release. A warrant of his liberation is hereby issued. The first accused commenced his community service on 6 January 2015. I would like to believe that he has completed more than two weeks of community service by now. He should be called and advised of his altered sentence. TAGU J agrees:………………………………