THE State V Steven Mutumwa

### Preamble
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HMA 41-19
CRB CH 454/19
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THE STATE

vs

STEVEN MUTUMWA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 26TH September, 2019

Criminal Review

MAWADZE J:  	This review judgment has been necessitated by the learned trial Magistrate’s apparent failure to embrace the modern day sentencing principles in our criminal justice system. These general principles are well articulated by NDOU J in the case of S v Shariwa 2003 (1) ZLR 314 (H).

It is prudent for judicial officers to appreciate that any effective custodial sentence is reserved for very serious offenses and should not only be used sparingly but as a last resort especially in respect of youthful first offenders. Our jurisprudence has evolved over the years by embracing the concept of rehabilitation rather than retribution in addressing the aspect of sentence in our criminal justice system. The concept of community service has thus become an integral part of our criminal justice. I made this point in the case of The State v Mundondo Zava HMA 15/17. Needless to say that our prisons are currently over crowded, flooded with offenders who should otherwise not be in those prisons. This extra burden thrust upon society to support such prisoners should be avoided more so as our country is facing a number of economic challenges.

In this case the 22-year-old first offender was convicted of two counts on his own pleas of guilt. In count 1 the offence is contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] relating to unlawful entry into premises and in count 2 it is contravening section 113(1) of the same Act [Cap 9:23] relating to theft. I mention in passing that he could have simply been charged and convicted of one count relating to unlawful entry into premises in aggravating circumstances as defined in s 131(1) as read with s 131(2) of the same Act [Cap 9:02].

The bare bones of this matter are that the accused who is unemployed left his residence at No A 61 Lennox Mine, Mashava and proceeded to the complainant’s house at No C 21 Lennox Mine, Mashava on 22 July 2019. It is not clear as to what time of the day it was. The accused broke the window and effected entry into the house. Whilst inside the house he stole a bicycle, one blanket, one mattress, one foam rubber, one bucket, a bicycle pump, a speaker, a DVD player, 5 spanners, a camera, some 3 codes, a wrist watch and 3 kango pots. All this property despite seemingly being so many items is valued at a paltry RTGs$1040. The facts do not disclose when, where or how the accused was apprehended and arrested. However, property valued at RTGs$820 was recovered. This means that the actual prejudice caused is property valued at RTGs$220.

In mitigation the accused’s age is now recorded as 24 years and that he is married with a 6 year old child. The accused indicated that he is an artisinal miner (a polite way of saying an illegal gold panner). He explained that he was really sorry for his criminal conduct and was faced with the current economic hardships. The accused prayed for a non-custodial sentence. The State had no submissions to make in aggravation.

The reasons for sentence by the trial Magistrate are lengthy covering 4 pages. Ultimately the learned trial Magistrate was of the view that the value of the stolen property was inconsequential and that accused’s moral blameworthiness was very high warranting a sentence of 18 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of good behaviour leaving an effective prison term of 12 months.

The misdirection in this matter is that no inquiry was made into the suitability of community service despite that the effective sentence was within the 24 months threshold see S v Antonio 1998 (1) ZLR 64 (H), S v Chinzenze & Ors. 1998 (1) ZLR 470 (H). In fact, it never occurred in the mind of the learned trial Magistrate that community service could be appropriate in this case. No reasons are given as to why community service was deemed inappropriate see State v Mabhena 1996 (1) ZLR 134 (H).

While I agree that the privacy of dwellings of citizens should be protected and that persons who do not respect the privacy of other people’s homes and property should be punished I do not share the misguided view that an effective custodial sentence is always called for in such cases. Indeed, we cannot carry our houses with us as we go about our daily chores to avoid falling prey to those who have no respect for other people’s premises and or property. Be that as it may, an effective custodial sentence should only be imposed as a last resort and where there are sound and good reasons as to why other forms of punishment are deemed inappropriate.

I am not persuaded by the learned trial Magistrate’s reasoning that the value of the property stolen is inconsequential in assessing sentence, let alone the value of actual prejudice occasioned. This is a factor which should be properly considered with other factors in grappling with the complex concept of an appropriate sentence. It is therefore a misdirection to disregard the value of the property stolen, and or the actual prejudice caused.

While the accused’s moral blameworthiness is high the sentence of 18 months is clearly excessive in the circumstances. The accused is a first offender and pleaded guilty. The value of the property stolen was not much and most of it was recovered. His only benefit was property valued at RTGs$220. It is not clear how he was arrested.

A proper assessment of all the factors in this matter warrants an overall sentence of 6 months imprisonment after taking both counts as one for purposes of sentence. Out of those 6 months imprisonment, 3 months imprisonment should be suspended for 5 years on the usual conditions of good behaviour. The remainder of 3 months imprisonment should be suspended on condition accused performs equivalent hours of community service on the usual conditions unless he is deemed to be an improper candidate for community service.

I am inclined, in the circumstances to interfere with the sentence imposed by the learned trial Magistrate. The conviction of the accused in respect of both counts is confirmed.

In the result, I make the following order;

That the conviction of the accused in respect of both counts be and is hereby confirmed.

The sentence imposed by the court a quo is set aside in its entirety and substituted with the following;

“(a)	Both counts are treated as one and accused is sentenced to 6 months imprisonment of which 3 months imprisonment is 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 accused is sentenced to a term of imprisonment without the option of a fine.

(b)	The matter be and is hereby remitted to the trial Magistrate or in his or her absence any other Magistrate to carry out an inquiry into accused’s suitability to perform an equivalent hours of community service work in relation to 3 months on the usual conditions.

(c )	That if accused is found to be a suitable candidate community service should be imposed and that the number of hours should take into account the period accused has already served from 9 September, 2019. An effective prison sentence shall only be imposed if accused is deemed to be an unsuitable candidate to perform community service and such reasons shall be recorded.

(d)	The record should thereafter be re-submitted timeously to this court for review.”

Wamambo J. agrees …………………………………………..