S v Banda (CRB W 1029 of 2001) [2004] ZWBHC 72 (26 May 2004)

Judgment No. HB 72/2004 Case No. HC 2743/02 CRB W 1029/01 THE STATE Versus EVANS BANDA IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 27 MAY 2004 Review Judgment CHEDA J: This is a review case referred to me by the scrutinising Regional Magistrate after he had noticed the apparent lenient sentence imposed on the accused. The relevant facts in brief are that accused who was 34 years of age is related to complainant and they used to stay together at Lwendulu Village, Hwange. On 15 December 2001 complainant left his residence for his rural home leaving accused behind. Accused subsequently stole complainant’s property valued at $2 991,00 and nothing was recovered. He was arrested, appeared before the court where he pleaded guilty to theft of a stove only. The state accepted a limited plea for the stove valued at $2 600. Accused was sentenced as follows: “5 months imprisonment of which 3 months imprisonment is suspended for 3 years on condition accused does not within that period commit any offence involving dishonesty for which upon conviction is sentenced to a prison term without the option of a fine. The remaining 2 months imprisonment is suspended on condition accused completes 70 hours community service at Ndangababe Primary School in Cross Dete. The community service starts on 7 January 2002 and must be completed within 2 weeks of the date. It will be performed from 8am to 1pm then 2pm to 4pm every Monday to Friday which is not a public holiday to the satisfaction of the person in charge who may on good cause grant you leave of absence which shall not count as community service completed.” HB 72/04 Before sentence was passed the court sought the views of the Community Service Officer who recommended that accused was not a suitable candidate for community service in view of his previous conviction. However, the trial court ignored this recommendation and relevant previous convictions and went further to impose a sentence of community service. It has been brought to my attention that accused did not submit himself for community service and was not arrested for his breach of the conditions of sentence. A trial court has a discretion in sentencing an accused. This power is indeed great and if not judiciously exercised it can result in injustice as has happened in this case. Community service is an alternative non-custodial form of punishment. Community Service Officers are trained officers of this court whose main function is to assess the suitability of a candidate for community service. Therefore, their recommendations can not be ignored without good cause. If it is to be ignored, it is essential that the trial court show that it considered it and further state why it ignored it. Failure to do so as was the case in this matter leaves one with the only irresistible conclusion that the trial court did not even consider it. Failure to consider it is a misdirection. The community service officer’s fears have indeed come to pass as the accused did not perform community service. There has been a clear miscarriage of justice in this matter and therefore I find myself being unable to certify these proceedings as being in accordance with real and substantial justice and I accordingly withhold my certificate.