S v Moyo (CRB 1357 of 2014) [2015] ZWHHC 220 (26 February 2015)

1 HH 220-15 CRB 1357/14 THE STATE versus EMMSON MOYO HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 27 February 2015 REVIEW JUDGMENT MWAYERA J: The record of proceeding was placed before me for review by the provincial head Mashonaland East Province. The provincial head uplifted the record during routine CRB checks. The accused was convicted on 7 October 2014 of one count of unlawful entry as defined in s 131 (1) (a) of The Criminal Law Codification and Reform Act [Chapter 9:23]. The state adduced evidence to show that the accused was not a first offender. The trial magistrate did not make an inquiry on whether or not the suspended prison term should be brought into effect. Further the state did not apply to have the suspended prison term brought into effect. The trial court in sentencing the accused brought into effect the suspended prison term. The accused was not given any chance to give input on the suspended prison term. It is also not clear from the record if the bringing into effect of the suspended prison term was taken as the sentence for the current offence. The provincial head was right in detecting the anomaly and bringing the record for review. A perusal of the record shows that the accused was not sentenced for the current offence and that the suspended prison term was unprocedurally brought into effect. The prosecutor did not apply for it to be brought into effect and the accused did not give any input on the suspended prison term. The sentence by the trial court in the premises cannot stand as it is irregular. It is set aside. However, given the delays in bringing the matter for review the court will take judicial notice of the fact that the accused has already finished serving the suspended prison term which was brought into effect to then seek to further suspend that prison term would not only be prejudicial to the accused but unduly harsh. The suspended sentence has already been served. The accused was not sentenced for the current offence. It is our considered view that given the mitigatory factors on record and circumstances of the case a wholly suspended prison term will meet the justice of the case. The accused is sentenced as follows: One month imprisonment wholly suspended for three years on condition the accused does not within that period commit any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine. The accused to be recalled and advised of the suspended sentence. TAGU J: Agrees……………………………………………………………