THE State V Victor Ncube

### Preamble
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HB 192/20
HCAR 1329/20
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THE STATE

Versus

VICTOR NCUBE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 14 SEPTEMBER 2020

Criminal Review

MAKONESE J:	The accused appeared before a Provincial Magistrate at Lupane facing one count of theft as defined in section 113 (1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The accused pleaded guilty to the charge and was convicted and sentenced to 3 months imprisonment wholly suspended on condition accused restitutes the complainant the sum of $1 500 representing the value of the stolen goods.  In addition accused was sentenced to 9 months imprisonment of which 3 months was suspended for 5 years on condition that accused does not commit an offence involving dishonesty as an element and for which upon conviction he is sentenced to imprisonment without the option of a fine.  The trial magistrate proceeded to sentence the accused to a further 6 months imprisonment suspended on condition he performed 210 hours of community service at Lupane Clinic.

The brief facts to the matter as gleaned from the state outline are that the complainant is a part time carpenter plying his trade at Business Association Lupane.  Sometime in December 2019 complainant left a semi-finished door at his workplace.  During the night of 31st January 2020 the accused stole the door.  The door was valued at Z$1 500.

The scrutinizing Regional Magistrate raised a query with the trial magistrate in a minute dated 26 March 2020 in the following terms:

“Accused was charged and convicted for theft as defined in section 113 (1) of the Criminal Law Codification and Reform Act (Chapter 9:23).

I have no quarrel with the conviction.  It is the sentence that I raise this query.

Accused was sentenced as follows:

3 months imprisonment wholly suspended on condition accused restituted the complainant a sum of Z$1 500 by the 30th March 2020 …

In addition 9 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition that the accused does not during that period commit any offence of which dishonesty is an element …

A further 6 months imprisonment is suspended on condition accused completes 210 hours of community service at Lupane Clinic.”

Are the above sentences competent, taking into account that the accused was convicted for a single count of theft?

Is it legally permissible to pass a prison term that is wholly suspended on condition that the accused restitutes, then in addition pass another separate prison term with partial suspensions on condition firstly of good behaviour and that accused performs community service?

Was the accused not sentenced twice for a single offence?”

In response the trial magistrate conceded that he might have erred in his approach to sentence.  His written response is in the following terms:

“…

I had thought that it was a competent sentence since the conditions of suspension were different.  I had considered that the first 3 months was for restitution, another was for behaviour and lastly 6 months for community service.

However, I appreciate the observation that the sentence sounds like sentencing twice for a single offence hence I stand guided.”

The general principle of sentencing is that the court is not authorized to impose for any offence a punishment other than or greater than that which it is competent in law to impose for the offence.  It is not competent for a court to sentence an accused person   twice in respect of the same offence.  The double jeopardy principle in our criminal justice system prohibits an accused from being tried twice for the same offence applies with equal force in this matter. Simply put, none shall be punished twice in respect of the same charge.

For these reasons the sentence imposed by the trial magistrate is incompetent at law.  It must be set aside.

Accordingly, and in the result the following order is made:

The conviction is hereby confirmed.

The sentence is set aside and substituted with the following:

“Accused is sentenced to 12 months imprisonment of which 3 months are suspended for 5 years on condition accused does not within that period commit any offence of which dishonesty is an element and for which upon conviction will be sentenced to imprisonment without the option of a fine.

A further 3 months is suspended on condition accused restituted the complainant a sum of Z$1 500 by the 30th March 2020 being the value of the complainant’s door.  Restitution  to be paid through the Clerk of Court, Lupane.

The remaining 6 months imprisonment is suspended on condition accused completes 210 hours of community service at Lupane Clinic.  Community service shall be performed every Monday to Friday excluding public holidays to the satisfaction of the person in charge, who may on good cause grant leave of absence on certain days however leave of absence shall not count as part of community service.  Community service shall start on the 28th February 2020 and must be completed within 6 weeks from that date.”

Moyo J ……………………………………. I agree