THE State V Percent Kavhukatema

### Preamble
1
HH 161-18
CRB MBR 1741/16
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THE STATE

versus

PERCENT KAVHUKATEMA

THE HIGH COURT OF ZIMBABWE

HUNGWE and MANGOTA JJ

HARARE, 28 March 2018

Criminal Review

HUNGWE J:- The Regional Magistrate forwarded the record of proceedings to the above named matter with the following comments;

“ 1. Having convicted accused on a charge of contravening section 67 (1) of the Criminal Law 	(Codification and Reform) Act, Chapter 9:23 the court sentenced him to 5 months imprisonment, 	part of which was suspended on condition of good behaviour, the remainder being suspended on 	condition that accused pays a fine. I am not convinced of the appropriateness of suspending a 	prison term on condition of payment by accused of a fine.

2.   The portion of imprisonment suspended on condition of good behaviour was suspended “on 	condition accused person does not, within that period commit an act of indecent assault.

It is my view that such a condition is too narrow or restricted as it relates only to indecent assault, 	excluding other sexual offences e.g. rape. In my opinion, this period of imprisonment should have 	been suspended on condition that within the given period accused did not commit any other 	offence of a sexual nature.”

The learned scrutinising regional magistrates took issue with the conditions upon which the fine was suspended, as well as the terms on which the imprisonment was also suspended. He is correct in so doing. The approach to the assessment of sentence is guided by several factors amongst which are such factors as whether an accused is a first offender; the seriousness or gravity of the offence, the consideration set out in the penalty provision of the relevant section of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] and so on. The trial court in assessing sentence, exercises a judicial discretion. That discretion takes into account the type of sentences associated with the category of the offence in question, as well as the local community’s expectations.

Where the court, after weighing the different competing interests, decides to impose a fine cojoined with a suspended custodial sentence, as here the traditional approach is to first assess in what amount the fine will be and its alternative imprisonment. Upon settling on these, the court may still wish to deter the accused by imposing a wholly suspended sentence to check the accused’s future conduct. It will consider judicially a reasonably short sentence where the accused is a first offender as generally first offenders are treated with a measure of leniency. See S v Mpofu (2) 1985 (1) ZKR 285 (H).

The sentence settled upon by the learned trial magistrate meets the above criteria. It needs however to be properly packaged so as to accord with the standard way in which this is done.

It is unusual to suspend a custodial sentence on condition the accused pays a fine by a particular date. Usually an accused applies for time within which to pay, and the courts as a matter of course, usually grant an accused such latitude so long as he meets specified criteria. A fine is imposed with a provision that a custodial sentenced is served upon default. If the accused cannot pay the fine immediately he will apply for time to pay which is more often than not granted as a matter of course.

Therefore the above sentence commended as follows;

“$100 or 2 months imprisonment. In addition 3 months imprisonment wholly 	suspended for 2 years on condition the accused is not during that period, convicted of 	any offence of a sexual nature for which he is sentenced to imprisonment without he 	option of a fine.”

MANGOTA J agrees:…………………………..