S v Zvikonde & Anor (HH 104 of 2004) [2004] ZWHHC 104 (30 March 2004)

HH 104-2004 CRB C 1310-1/03 THE STATE Versus TONGAI ZVIKONDE NYASHA DZVIRIRI HIGH COURT OF ZIMBABWE HUNGWE J HARARE: 31 MARCH 2004 Criminal Review HUNGWE J: The two accused were convicted of theft on their own pleas. The convictions are proper. It is the sentence on Nyasha which impresses as too severe to induce a sense of shock. The agreed facts are that the two connived to steal a knapsack sprayer and four aluminium pipes valued at $360 000 and $67 501.00 respectively. The knapsack sprayer was recovered. The pipes were recovered although they had already been cut to pieces therefore useless to the owner. In his reasons for sentence the learned trial magistrate held that the value of the stolen property was substantial, that there was great potential prejudice to the complainant, that part of the property was recovered and that the offence was prevalent. He also held that part of the property was not recovered and that the accused benefited from the offence. The trial court, thereafter imposed a sentence of 16 months of which only 5 months were suspended on conditions of good behaviour and a further 3 months on conditions that each pays to the Clerk of Court $33 750 each by 30 October 2003. …… the one paying the other to be absolved." Effectively each will serve 8 months. Accused 2 is a juvenile. He has already served three months. He is a first offender. He pleaded guilty. It is likely that he was influenced into committing this offence by his elder brother-in-law and accomplice. The courts have, on times without number, emphasized the need to keep first offenders out of prison. This case illustrates the errors that lead to serious miscarriages of justice which occur when a trial court does not heed the sentencing guidelines which this court attempts to provide in various HH 104-2004 CRB C 1310-1/03 ways. Youthfulness has always been recognized as mitigatory factor which ought to exclude the offender from the rigours of imprisonment and its debilitating effect on offenders. As much as possible young first offenders ought to be kept out of prison. The guidelines to sentencing prepared by the National Committee on Community Service stipulates that where a judicial officer would otherwise impose a sentence of imprisonment of less than 24 months he should first consider the option of community service as an alternative to imprisonment. In his reasons for sentence the trial court did not expressly state that he had considered these options of punishment and rejected them; nor did he already give any reasons for rejecting them. The only reference to the choice of sentence is when it remarked that "a custodial sentence was called for as this will act as a deterrence sentence." Where a judicial officer decides to impose a custodial sentence when community service could have been a competent sentence he should state his reasons for preferring that custodial sentence as opposed to either community service or a fine. See S v Antonio 1998 (2) ZLR 64 at 68 S v Dematema 1967 RLR 311 at 316. In view of this misdirection this court is at large with sentence. The sentence imposed in the court a quo is therefore set aside and the following substituted. "Accused (1):12 months of which 6 months is suspended for five years on condition the accused is not convicted of any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine. Accused (2):6 months of which 2 months is suspended for 3 years in the same condition stipulated above." As the accused (2) has served an equivalent of 4 months I have ordered that his warrant for liberation be issued and that he be released forthwith. HH 104-2004 CRB C 1310-1/03 An amended warrant must be issued for accused (1) and the alteration of his sentence be explained to him. HUNGWE J. CHITAKUNYE J agrees