S v Sithole (HH 100 of 2004) [2004] ZWHHC 100 (4 May 2004)

HH 100­2004 CRB 131/04 THE STATE versus GERALD SITHOLE HIGH COURT OF ZIMBABWE BHUNU J HARARE, 23rd April 2004 and 5 May 2004 Criminal Review BHUNU J: The accused was convicted on his own plea of guilty on a charge of theft of $120 000.00 of which $46 780.00 was recovered. The complainant had gone to attend a funeral leaving her 5 year old son at the house. The accused took advantage and stole the money from the house in the presence of the son. All the property which the accused had bought using the unrecovered money was also recovered. On those facts, the trial magistrate sentenced him to 8 months imprisonment of which 3 months imprisonment was suspended for a period of 5 years on the usual conditions of good behaviour. Total effective sentence 5 months imprisonment. The learned scrutinising regional magistrate took issue with the severity of punishment. He observed that: “The amount stolen is $170 000.00. From the facts, Annexure ‘A’ paragraph 7, $46 780.00 was recovered from the accused person. In addition all the property which the accused had just bought using the remainder of the stolen money was also recovered. The accused person is a first offender who is married with 2 children. The mother of these two children is deceased.” The trial magistrate is however of the firm view that the sentence which she imposed is appropriate. In her lengthy response to the learned regional magistrate’s query, the trial magistrate makes a number of serious misdirections. She appears to suggest that she would have passed a more lenient sentence had it been proper for her to order restitution. She then goes on to state that she was unable to order restitution because the accused is poor and unable to make restitution. An accused person cannot be denied the HH 100­2004 CRB 131/04 opportunity to make restitution simply because he is poor and unable to make immediate restitution. He may be given time to pay. He need not pay the full amount. He may make part payment and benefit on a pro rata basis. On the other hand the complainant cannot be denied the opportunity of a restitutionary order which is easily convertible to a civil order by registration simply because the accused is poor. In the absence of a restitutionary order if the complainant wishes to recover she has to take the lengthy costly route of full litigation. It has to be borne in mind that the accused need not pay the money personally a good Samaritan may pay on his behalf. The trial court without any basis concluded that the complainant had no use for the property which had been bought by the accused using the stolen money. Surely, the trial magistrate ought to have appreciated that a litigant who has suffered loss has a duty to mitigate his loss. If he had no use for the property it could have been sold for what it was worth and the amount realised used to top up the amount recovered. The accused would benefit in the process by getting a relatively lighter sentence. Although the trial magistrate was correct to say it would have been improper to order forfeiture of the goods bought with the stolen money, there is however no bar to an accused person offering to hand over such goods to his victim. If the victim accepts the goods then the accused benefits in the sense that he would have made restitution. In this case it is simply not correct that the accused was not in a position to make restitution when he was in possession of the goods he had bought with the stolen money. He could easily have resold the goods and paid the proceeds to the complainant. Both in her reasons for sentence and response to the learned regional magistrate’s query the trial magistrate said that he sentenced the accused on the basis that nothing had been recovered. This was a clear misdirection because the facts on the record clearly establish that $46 780.00 was recovered. It appears that the trial magistrate misdirected herself in over emphasising the retributory aspects of punishment at the expense of social justice. She ought to have struck a balance between the interests of the accused, the State and the victim of the crime by making an appropriate order of restitution. The trial magistrate also did not place proper weight on the plight of the accused’s orphaned children while he was away from home for a period of 5 months. HH 100­2004 CRB 131/04 She also failed to take into account the value of the Zimbabwean dollar under the current highly inflationary circumstances. Had she taken all this into account, she would undoubtedly have passed a more lenient sentence than what she did. Having regard to the foregoing I am in agreement with the learned regional magistrate that the sentence imposed by the trial court is so severe as to warrant interference on review. It is accordingly ordered: 1) 2) That the sentence imposed by the trial court be and is hereby quashed and set aside. That the accused be and is hereby sentenced to: 3 months imprisonment of which one­month imprisonment is suspended for a period of 5 years on condition the accused does not again within that period commit any offence involving theft and for which he is sentenced to imprisonment without the option of a fine. The net result is that the accused is entitled to his immediate release. Uchena J, agrees:………………….