S v Musariri & Anor (CRB BF 32 of 2015; CRB K 198 of 2015; HH 394 of 2015) [2015] ZWHHC 394 (21 April 2015)

1 HH 394-15 CRB BF 32/15 CRB K198/15 THE STATE versus BLESSING MUSARIRI and ANYWAY NDAVA HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 22 April 2015 Criminal Review MATHONSI J: In these two matters the accused persons appeared separately before a magistrate at Kadoma on charges of unlawful entry and theft in contravention of s 131 (1) and s 113(1) of the Criminal Law Code [Chapter 9:23] on 14 February 2015. They both pleaded guilty to the charge and upon conviction Blessing Musariri, aged 27, was sentenced to 36 months imprisonment of which six months imprisonment was suspended for five years on condition of future good behaviour. Two months imprisonment was suspended on condition that he restitutes the complainant the sum of $50-00 which had not been recovered leaving him with an effective 28 months imprisonment. Anyway Ndava, aged 20, was sentenced to 24 months imprisonment of which six months imprisonment was suspended for five years on condition of future good behaviour. This left the youthful first offender with an effective 18 months imprisonment. When asked to justify what are patently very stiff sentences for the offences committed the trial magistrate went on about the two accused persons having broken into commercial premises during the night and that although the value of the prejudice was insignificant, the value of the property did not play a part in determining the sentence in unlawful entry and theft cases because the offence takes the form of a “lucky dip.” The facts are that on 13 February 2015 at about 0400 hours Blessing Musariri was caught red-handed by the bar lady employed by the complainant at Madzima bar in Kadoma after he had gained entry through the roof and had helped himself to 11 braai packs of meat, HH 394-15 CRB BF 32/15 CRB K198/15 two decoders, one portable dvd, two cellphones, a television set, 10 quarts of beer, three pints of beer and $50-00 cash. He was immediately apprehended and all the property except the $50-00 cash, was recovered. In mitigation the court noted that the accused was a 27 year old married man with two children. He is employed as a Storeman earning $240-00 a month with no assets or savings. On the night of 9 February 2015 Anyway Ndava broke a window pane at Patchway Bigbar Kadoma inorder to gain entry. Once inside he stole a laptop and $45-00 and made good his escape. He was arrested four days later as he tried to sell the laptop which was promptly recovered leaving only the $45-00 cash outstanding. In mitigation the court noted that he was a 20 year old married man with no children who was employed as a miner earning $50-00 per month. He owned only one beast but had no savings. Considering that both accused persons were first offenders who pleaded guilty to the charges and therefore did not waste the court’s time, as well as the fact that the value of the prejudice was small, the sentences imposed by the trial court induce a sense of shock and are clearly disproportionate to the offences. There was a misdirection on the part of the trial court especially as it appears to think that breaking into commercial premises should be taken as aggravation. It is not. Quite to the contrary, in terms of s 131 (2) of the Criminal Law Code the offence of unlawful entry is committed in aggravating circumstances if the convicted person entered a dwelling house not commercial premises. In both instances the state did not address the court in aggravation and the aggravating factors referred to by the magistrate in justifying the sentences came from his head. It is a celebrated principle of our sentencing jurisprudence that judicial officers should not let their emotions cloud their judgment on what is an appropriate sentence or allow themselves to be carried away by imagination as this may lead to undue exaggeration of the seriousness of the offence and the imposition of a disproportionate sentence: S v Harington 1988 (2) ZLR 344 (S); S v Takawira & Anor HH 75/15. Where a court has accepted any factor as mitigation it must be specified and must be reflected on the reduced sentence. There is no point in muttering to an accused person that the court has taken into account that he is a first offender who has pleaded guilty when the sentence imposed eventually does not reflect any reduction of sentence. To say that as far possible first offenders must be kept out of prison and then go on to send the first offender to HH 394-15 CRB BF 32/15 CRB K198/15 prison for an offence where the prejudice is insignificant, is pointless. It is paying lipservice to mitigating factors which must be guarded against. S v Madembo & Anor 2003 (1) ZLR 137 at 140 B-D; S v Nyenge HB 107/10; S v Chikandiwa & Ors HH 57/13. It is also interesting to note that the magistrate decided to suspend small portions of the sentences on condition of restitution. A person serving 28 months imprisonment will have no incentive whatsoever of paying restitution in order to avoid serving an extra two months imprisonment. If a court considers suspending a portion of the sentence on conditions, it must make it possible for the affected person to fulfil the condition: S v Mukura & Ors 2003 (2) ZLR 596 at 599 H. In my view in all circumstance these are matters in which the accused persons should have been sentenced to perform community service. Imprisonment was clearly inappropriate. As it turns out, the accused persons have been in custody for two months and nothing can be done to reverse that. One can only interfere with what remains of the sentence and impose a sentence fitting within the time they have spent in custody. In the result IT IS ORDERED THAT: 1. In CRB BF 32/15 the conviction of the accused person Blessing Musariri is hereby confirmed. 2. The sentence is set aside and in its place is substituted the following sentence: “12 months imprisonment of which 10 months imprisonment is suspended for 5 years on condition the accused does not, during that period commit an offence involving dishonesty for which, upon conviction he is sentenced to imprisonment without the option of a fine.” 3. In CRB K198/15 the conviction of the accused person Anyway Ndava is hereby confirmed. 4. The sentence is set aside and in its place is substituted the following sentence: “12 months imprisonment of which 10 months imprisonment is suspended for 5 years on condition the accused does not, during that period commit an offence involving dishonesty for which, upon conviction he is sentenced to imprisonment without the option of a fine.” 5. As both accused persons have served the effective sentences of 2 months, they are entitled to their immediate release. HH 394-15 CRB BF 32/15 CRB K198/15 TSANGA J agrees:……………………………………