S v Mutanho (CRB 11943 of 2003) [2004] ZWHHC 105 (18 May 2004)

HH 105-2004 CRB NO. 11943/03 STATE Versus HERBERT MUTANHO HIGH COURT OF ZIMBABWE GUVAVA J HARARE 19 MAY 2004 Review Judgement GUVAVA J : The accused was employed by the complainant as a general worker. On 11 September 2003, whilst the complainant was away, the accused stole the property set out in the charge sheet. The property was valued at $213 600.00 and all the property was recovered. The accused was properly convicted of theft and was thereafter sentenced to 12 months imprisonment of which 3 months were suspended for 5 years on condition of good behaviour and the remaining 9 months on condition that the accused completed 315 hours of community service at Epworth Primary School. The court also ordered that the sentence be completed within 4 weeks of the date of commencement of the sentence. This matter was referred to this court for review by the scruitinising magistrate. She raised two concerns in her minute. Firstly she queried the procedure adopted by the trial magistrate when deciding to impose community service on the accused and secondly she queried the period when the community service was supposed to be completed. The issues raised by the scruitinising magistrate were, in my view, pertinent. The trial magistrate on convicting the accused referred him for assessment to a community service officer who declined to recommend him for community service because he was a lodger. The trial court, without conducting any further inquiry on the issue proceeded to sentence the accused to perform community service. Whilst it was quite proper for the trial magistrate to disregard the reasons given by the community service officer for failing to recommend the accused for community service it became incumbent upon her to carry out an inquiry in order to satisfy herself that the accused was a suitable candidate. HH 105-2004 CRB NO. 11943/03 Section 12 of the Criminal Procedure and Evidence (Community Service) Regulations 1998 sets out that an inquiry must be conducted in this regard. The record of proceeding is devoid of any such inquiry which may have been conducted by the trial magistrate which led to the conclusion that the accused was a suitable candidate for community service. In the case of S v Mpofu HB 73-03 CHEDA J examined section 12 of the Criminal Procedure and Evidence (Community Service) regulations, 1998 and highlighted the factors that a court must consider in deciding whether or not to sentence an accused to community service. These factors were as follows: a) b) c) d) e) f) g) whether the accused has a fixed abode. whether the accused is a family man or women. whether the accused is employed. whether the accused is a first offender. whether the accused is a youthful offender. the accused person's status in the society. the accused person's health and age. Although the list is not exhaustive a proper consideration of these factors would provide and indicate to the court on whether or not the accused person was suitable for community service. Such an inquiry is important as it ensures that persons who are sentenced to community service are likely to complete the sentence otherwise they will be a high rate of default. This will in turn make the justice delivery system lose credibility in the eyes of the public. The trial magistrate clearly erred in not providing a proper basis upon which she made her decision to allow accused to carry out a community service sentence, particularly in circumstances where a community service officer had recommended that the accused was not a suitable candidate. Turning to the issue relating to the period for completing the community service it is clear from the correspondence that the trial magistrate concedes that the sentence cannot be carried out within the 4 week period ordered. The sentence thus must be amended in order to increase the period from "4 weeks" to "8 weeks" which is the recommended HH 105-2004 CRB NO. 11943/03 period in the community service guidelines. The accused person has in all likelihood finished serving his sentence by now and no useful purpose would be served in remitting the matter to the trial magistrate in order for him to conduct a proper inquiry. Accordingly the sentence imposed by the court a quo is confirmed subject to the alteration in the last sentence of the sentence from "4 weeks" to "8 weeks." KARWI J agrees:…………………..