The State v Claudius Chipinda

### Preamble
1
HMA 41-17
CRB ZK 147/17
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THE STATE

Versus

CLAUDIUS CHIPINDA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 31 JULY, 2017

CRIMINAL REVIEW

MAWADZE J:	The accused was arraigned before the Senior Magistrate sitting at Zaka and convicted after a trial of contravening section 13(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] which relates to unlawful entry into premises in aggravating circumstances.

The matter was placed before me on automatic review. The facts proved are that on 5 November 2016 the complainant left her homestead for South Africa. In the absence of the complainant the accused proceeded to the complainant’s homestead where he broke a padlock key and stole a black radio speaker, 21 water glasses, one blue dish, 12 tea cups, unspecified number of white tea cups, 12 white dinner tea cups, 12 dinner plates, some other 3 plates, 8 buckets and 6 yellow plates all valued at US$495. Property valued at US$347 was recovered at accused’s homestead.

Despite the accused’s protestations of innocence, the conviction is in order and is confirmed.

The accused was sentenced to 18 months imprisonment of which 6 months imprisonment were suspended for 5 years on the usual conditions of good behaviour. A further 3 months was suspended on condition accused paid restitution in the sum of US$148 to the complainant through the Clerk of Court, Zaka by 30 June 2017.

This matter was submitted for automatic review on 5 July 2017 after the accused was sentenced on 29 May 2017. The trial Magistrate profusely apologised for the late submission of the record for review.

On 5 July 2017 I raised a query with the trial Magistrate as regard the wisdom of incarcerating the accused for an effective prison term of 9 months without considering community service.

I only received the trial Magistrate’s response dated 27 July, on 31 July, 2017.

The need for timeous response to queries raised cannot be over emphasised. Inordinate delays are prejudicial to the accused person’s interests and rights. Further, any corrective measures taken may end up being of academic purposes only.

I find the response by the trial Magistrate to be not only injudicious but mind boggling. It reads as follows;

“Community service was not considered because of;

Accused’s display lack of remorse and intimidatory behaviour during trial (sic)

Although the property was recovered it was not at the accused’s instance. Accused and his wife even tried to hide stolen property from the police detail and the complainant and the police had to take it by force.

The court felt that community service would not be deterring enough to accused.”

It would seem that the trial Magistrate would rather punish the accused for not pleading guilty to the charge. The other reasons given are difficult to appreciate as they do not address the query I raised.

The trial Magistrate was enjoined to consider community service once an effective prison term of 9 months was imposed. The fact which should have dissuaded the court from imposing community service is if accused was not a suitable candidate. No inquiry into the suitability of community service was held. See S v Mundondo Zava HMA 15/17 in which I referred to a plethora of cases on aspects related to the concept of community service.

Our prisons should not be flooded with people who do not deserve to be in prison. There are no sufficient resources to fend for prisoners and we are facing serious economic challenges. Community service provides a suitable safety valve or alternative in dealing with offenders. A trial court should be assessing an appropriate sentence dispassionately and not to do so in a fit of rage as to why the accused did not plead guilty to the offence.

In casu the accused person is a first offender. He has family responsibilities. A substantial part of the stolen property was recovered. The accused was ordered to pay restitution.

The trial court misdirected itself in its failure to hold an inquiry into the suitability of community service. Even after I raised this query no cogent reasons were given as to why community service should not have been imposed. I am inclined to interfere with the sentence imposed by the court a quo. No useful purpose would be served by remitting the matter for purposes of considering the option of community service.

In the result, the conviction of the accused is confirmed. The sentence imposed by the trial court is set aside in its entirety and substituted with the following;

“8 months imprisonment of which 3 months imprisonment are suspended for 5 years on condition accused does not within that period commit any offence involving unlawful entry into premises and or dishonesty for which upon conviction accused is sentenced to imprisonment without the option of a fine.

Of the remainder of 5 months imprisonment, 3 months imprisonment are suspended on condition accused pays restitution to the complainant in the sum of $US148 through the Clerk of Court, Zaka on or before 30 June 2017.

Effective sentence is 2 months imprisonment.”

The accused should be called and advised of the altered sentence. If full restitution has already been made the accused would be entitled to his immediate release since he has now been in prison for 2 months.

Mafusire J. agrees …………………………………………………