The State v Benevolent Moyo

### Preamble
1
HB 207/20
HCAR1274/20
---------


THE STATE

Versus

BENEVOLENT MOYO

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 28 SEPTEMBER 2020

Review Judgment

DUBE-BANDA J: 	The accused was charged and convicted of contravening section 38 of the Parks and Wildlife Act [Chapter 20:14], “Poaching.” (Act). It was alleged that on the 7th June 2020 at around 19:15 hours and at Lundi Pool, Jalukanga, the accused unlawfully hunted and killed a kudu, knowing that such hunting was unlawful or realizing that there was a real risk or possibility that such hunting was unlawful thereby contravening the said Act. He was sentenced to 24 months imprisonment of which 6 months was suspended on conditions of good behavior, and a further 6 months suspended on condition accused pays US$1000.00being restitution to the complainant on or before 20 August 2020.

The brief facts are that on the 7th June 2020, Rangers at the Tuli Safari were on foot patrol in Jalukange area. While patrolling they encountered the accused driving a scotch cart from the pool side. On seeing the rangers, the accused fled leaving behind a scotch cart loaded with fresh kudu meat. The rangers recovered the scotch cart and the meat. On the 25th June 2020, the accused in the company of his father went to Tuli Safari to recover the scotch cart, leading to accused’s arrest. The value of the killed kudu is USD1000.00.

The conviction is proper. It is the sentence imposed on the accused that I take issue with.  Section 38 (2) of the Act says any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. In this jurisdiction, it is trite that where a statute provides for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to a fine, particularly on a first offender. See Dzotizei HH-126-14. Fines are an important alternative to imprisonment. A fine can be an effective and deterrent penalty and it does not have the highly destructive consequences that incarceration often has. Fines are imposed when the offences are not serious enough to warrant imprisonment

With a statutory offence, the magistrate should first take note of the maximum fine that may be imposed. The highest fine allowed must obviously be reserved for the most serious infractions of the statute The magistrate must assess the fine that is appropriate for the particular circumstances of the statute in question, taking into account the maximum fine that is allowed. In casu, the trial court said it could not consider the imposition of a fine as any fine that would be meaningful would exceed the accused’s means greatly as he earns little.

I take the view that it is a serious misdirection to say a fine could not be considered because the accused would not afford it. The empowering provision makes the fine the first option, it has to be given serious consideration. It cannot be ignored merely on the thinking that the accused would not afford it. The court should consider the imposition of the penalty of a fine, and the possibility of giving an accused time to pay the fine. The sentencing provision provides that upon conviction the accused would be liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. In terms of Statutory Instrument 57 of 2020, the maximum fine provided for in level seven is ZW$9 600.00. This fine amount must be reserved for the worst cases in the fine bracket. I am of the view that accused’s case cannot be described as the worst case scenario in the fine bracket.

In mitigation, accused told the court that he was 26 years old; single with no children; unemployed but does odd jobs at the farms and earns ZAR1 500 a month. He had ZAR400 in savings. He had two goats. He offered to restitute the USD1000.00. The accused is a first offender. First offenders should be kept out of prison wherever possible, in particular where the sentencing provision permits it. See Mantwana S-20-82; Mayberry HH-248-86; Munyariwa HB-14-87; Chadyamunda HH-228-89. Chitanda HH215 89; Kanoyerera HH-167-89; Van Jaarsveld HB-110-90.On these facts, to negate to consider a fine on the thinking that the accused could not afford it, is a serious misdirection. I am of the view that if he could afford restitution of USD 1000.00, and where he earns ZAR 1 500 per month, he could also afford a level seven fine, particularly when he is given time to pay.

Again, I see no reason why a period of imprisonment should be suspended on condition of restitution. Part XIX (ss 361-375) of the Criminal Procedure and Evidence Act [Chapter 9:07] lays down the procedures for awarding compensation to victims at the end of criminal trials. As a result of amendments effected in 1992 (Part XIX of Act 1 of 1992), all criminal courts now have very extensive powers to order the payment of compensation by convicted persons to persons who have suffered loss or damage to their property as a result of commission of the crimes in question.The complainant should be compensated in terms of the law.

Quite clearly the sentence imposed by the trial magistrate is excessive and induces a sense of shock. In view of the trial magistrate's error in imposing a sentence which in the circumstances is so manifestly excessive as to induce a sense of shock this court is at large as to sentence.  The accused was sentenced on 3rd July 2020.  He has now served almost 2 ½ months imprisonment. In my view, the term he has served is enough.  The sentence imposed by the magistrate is set aside.  In its place I substitute a sentence of 2 ½ months imprisonment.  The accused has already served that sentence and should now be released.

Accordingly, the conviction is confirmed but the sentence is altered to 2 ½ months imprisonment. The accused is ordered to compensate the complainant the sum of USD1000 or the equivalent in RTGS as per the interbank rate calculated on the date of payment.

As the accused has served an equivalent of 2 ½ months he is entitled to his immediate release for which I have issued a warrant for his liberation.

KABASA J …………………………I agree