The State v Emmanuel Sibanda

### Preamble
1
HB 270/20
HCAR 1908/20
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THE STATE

Versus

EMMANUEL SIBANDA

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 19 NOVEMBER 2020

Criminal Review

MOYO J:	The accused person in this matter was convicted of unlawful entry in aggravating circumstances as defined in section 131 (1) (2) (e) of the Criminal Law Codification and Reform Act Chapter 9:23 in that on the 14th of October 2020 at around 23:00 hours the accused broke into a storeroom at Chabeta Primary School, in Zezani, Beitbridge and stole 2 bags of cement.

The facts of the matter are that on the 14th of October 2020 at around 23:00 hours the accused person proceeded to Chabeta Primary School and stole 2 bags of cement from the storeroom.  He then put them 100 m away from the storeroom but inside the school yard.  On the same date and still at night accused decided to return back those 2 bags of cement and went away unnoticed .  The value stolen was $1 600-00 and it was all recovered.

The accused person was later arrested and he pleaded guilty to the charge.

It is the sentence that has caught my attention as I hold the view that it is unduly harsh and manifestly excessive.  I say so for the following reasons:-

1)	accused stole 2 bags of cement valued at $1 600-00.  The value stolen itself is mitigatory to the extent that it is minimal in nature.

2)	All the stolen cement was recovered.

3)	The recovery was in the sense that accused out of his own volition and conscience returned the bags of cement back to the school and from the state outline this was presumably before he was even caught.

4)	In a way accused repented on his mission to steal the bags and decided to take them back.  I say so for the state outline says he returned the bags and “went away unnoticed.” (my emphasis)

5)	Looking at the other mitigation the accused is a first offender, who pleaded guilty and he says he was drunk at the material time.

Whilst the Magistrate found that he drank beer to get dutch courage, I have not seen such a fact in the court record.  That accused was drunk cannot be taken away from him for he later returned the cement on his own so maybe he was indeed drunk at the time he took the bags.

When asked what he intended to use the cement for, accused said he intended to construct a house.  The learned Magistrate made an observation that accused showed no remorse and did not take the process seriously.  There is no further explanation as to what exactly the accused did for the court to make such a finding.  I say so for the accused answered all the questions that were put to him and he pleaded guilty.  It is being remorseful, to plead guilty to an offence when you know you committed it.  I do not appreciate what else the Magistrate expected the accused to do seeing the accused is a village fellow and may not have appreciated court etiquette which I have not seen from the court record.  Neither have I seen the learned Magistrate chiding the accused for any behavior in court.  The learned Magistrate further stated that he was not serious as he wanted to go and do community service at the same school where he stole the bags.  However, I do not understand what issues the court had with this behavior which the court does not further explain.  I do not understand why it would be a problem for the accused to do community service at the same school since the learned Magistrate does not elaborate.  However, even if the learned Magistrate felt that it would be inappropriate to do community service at the same school surely there could be other schools, clinics or police stations nearby.  That he offered to do community service at the same institution certainly cannot earn him a harsher sentence because he is being penalized for the offence that he is charged with and not his subsequent behavior.  In my view, this is one case where an accused should have been kept out of prison.

The accused was aged 26 years old and told the court that he had personal savings and assets of value.  The penalty provision for the charge on which accused had been convicted provides for a fine as well.  Of course accused stole from a public institution but still, even if the learned Magistrate felt that a fine would be inappropriate certainly, she should have considered community service.  For all the above reasons, I hold the view that a non custodial sentence will meet the justice of this case.

I accordingly order as follows:-

1)	Conviction is confirmed.

2)	The sentence by the court a quo is set aside and substituted with the following:

The accused is sentenced to 24 months imprisonment of which 10 months imprisonment is suspended for 5 years on condition accused does not within that period commit an offence of which unlawful entry or dishonesty is an element, whereupon conviction he shall be sentenced to imprisonment without the option of a fine.  The remaining 14 months are suspended on condition the accused person performs 490 hours of community service at a nearby public institution (to be determined by the learned Magistrate upon enquiry from the accused as to the nearest public institution).  The community service shall be on weekdays starting at 8:00 am and ending at 4:30 pm.

3)	The learned Magistrate shall recall the accused person (who has already been released from prison) and read out the sentence herein after making due enquiry from the accused person as to the public institutions within a walking distance from his home.

Mabhikwa J ……………………………. I agree