S v Manyuchi (CRB R 1440 of 2014) [2015] ZWHHC 163 (16 February 2015)

1 HH 163-15 CRB R 1440/14 THE STATE versus EMMANUEL MANYUCHI HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 17 February 2015 Criminal Review MUREMBA J: The accused was charged with the crime of deliberately supplying false information to the public authority as defined in s 180 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused pleaded guilty and was duly convicted by a Provincial magistrate at Rusape Magistrates Court. I confirm the conviction. The accused was then sentenced to 12 months imprisonment with four months of the sentence suspended on condition of future good behaviour. The remainder of eight months imprisonment was suspended on condition of performance of 280 hours of community service. The record was placed before a regional magistrate for scrutiny. The regional magistrate in turn forwarded it to this court for review with the comment that the sentence that was imposed by the trial magistrate was incompetent because the penalty for this offence as it appears on s 180 (1) is a fine not exceeding level five or imprisonment for a period not exceeding six months or both. The trial magistrate made a concession that the sentence was incompetent. The concession by the trial magistrate shows that he used what can be called an instinctive approach to sentencing. It has always been stressed by this court that the sentencing court must always strive to find a punishment which fits both the offender and the crime. In order to achieve this, the court must put in mind that for every offence there is a penalty that is stipulated. The starting point therefore is for the sentencing judicial officer to look at the penalty provision for it is the main guiding factor. It is a serious misdirection for a judicial officer to totally disregard the penalty provision. HH 163-15 CRB R 1440/14 It is indeed correct that in terms of s 180 (1) the maximum period of imprisonment should not exceed six months. The sentence that was imposed by the trial magistrate is therefore not competent. The accused pleaded guilty to the charge. He was a first offender aged 24 years. He is still single. He is employed at a mine earning $80 per month. He pleaded with the court for leniency stating that he needed to go back to work. Despite this plea the accused was ordered to perform community service between Mondays and Fridays. Of concern is the fact that there is nothing in the record to show that a pre-sentence inquiry on the suitability of community service was ever conducted yet such an inquiry is a requirement: S v Chinzenze 1998 (1) ZLR 470 (H) at 477 E-F and S v Gumbo 1995 (1) ZLR 163 (H) at 168 C-E. It is also important for the offender to indicate his willingness to perform community service otherwise there is a risk that he or she will not perform the community service if he or she is unwilling to perform. See S v Matara HH 31/95; S v Mukono HH 161/96. Not only did the trial magistrate sentence the accused without making an inquiry into the suitability or otherwise of community service, the trial magistrate did not even ask the accused on which days of the week he goes to work. I want to believe that in sentencing the accused to perform community service the trial magistrate’s intention among other things was to ensure that the accused would keep his job at the mine. The trial magistrate therefore ought to have asked the accused on which days of the week he goes to work and then ordered him to perform community service during the days he does not go to work. Employment is difficult to find and if the accused loses it he may find it difficult to find another job. In S v Sithole and Another HH 101-03 it was stated that there is need for the court to specify the hours the accused is supposed to work and the times of starting and ending work taking into account that the convicted person is a full time student or is in full time employment. In S v Gumbo1995 (1) ZLR 163 (HC) at 168 BARTLET J said: “It is important for magistrates to be innovative where a person is in employment, to allow community service to be carried out over weekends or after working hours ....” In casu what made the accused to be charged is that he lied to the police that he had been robbed by three men who were armed with pistols and that they had taken his cellphone and US$283-00. When the investigations failed to yield anything the accused then confessed that he had lied. He explained that his reason for making a false report was that he had no HH 163-15 CRB R 1440/14 money to go to Mutare from Rusape. So he wanted a letter from the police so that he could get free transport to Mutare. In my view the false report was fairly serious in nature in that the accused went to the police station to make the report and caused the police to go to the alleged scene of robbery. A stiffer penalty is called for and since an incompetent sentence was imposed there is need to substitute it with a competent one. This is despite the fact that the accused who was ordered to commence community service performance on 10 December 2014 has by now probably finished performing the 280 hours that he was ordered to perform. There is need to get rid of the four months imprisonment that was suspended for five years on condition of good behaviour in order to avoid future prejudice to the accused in the event that he is convicted of a similar offence in future. The accused is sentenced to: “Six months imprisonment wholly suspended on condition accused performs 210 hours of community service at ZRP Rusape urban commencing on 10 December 2014. The community service shall be performed every Monday to Friday excluding public holidays between 8a.m – 1pm and from 2pm – 4pm to the satisfaction of the person in charge of the said institution who may for good cause shown grant him leave to be absent on certain days or during certain hours but such leave of absence shall not be counted as part of the community service to be performed.” The trial magistrate should recall the accused and advise him of the altered sentence. MAWADZE J agrees _________________________