S v Zimbudzana (CRB 10955 of 2014) [2015] ZWHHC 109 (4 February 2015)

1 HH 109-15 CRB 10955/14 THE STATE versus KILLROY ZIMBUDZANA HIGH COURT OF ZIMBABWE DUBE J HARARE, 5 February 2015 Review Judgment DUBE J: The accused person appeared before a Harare magistrate facing charges of theft as defined in s 113 of the Criminal Law Codification and Reform Act [Chapter 9:23]. The allegations are that money went missing at the complainant and accused’s workplace. It was later discovered from CCTV clips that the accused had stolen the money as he was observed putting the money where it was later recovered. He was sentenced to 6 months imprisonment of which 4 months imprisonment was suspended on conditions. He would serve an effective 2 months. The regional magistrate has raised the following concerns:- 1) that since the money the accused is alleged to have stolen was still within the shop, accused should have been convicted of attempted theft. 2) 3) that the amount stolen is not stated in the charge sheet. that an effective imprisonment term was too excessive regard being had to the accused’s personal circumstances. I hold the view that the offence of theft was complete at the time that offence was discovered and the money recovered. The accused had stolen the money and hid it. This fact is supportive of an intention to deprive the owner permanently all his property. The stages of preparation of the offence had passed and therefore a full offence was committed. This offence is different from that of shoplifting which takes place in a shop, were a shoplifter only commits the offence after emerging from the shop and is only supposed to be arrested when he leaves the shop. The trial magistrate concedes that the amount stolen is not stated in the charge sheet. A charge sheet in a theft of property case should always states and clearly the amount of prejudice that an offender causes to a complainant. That is, the value of the property stolen. HH 109-15 CRB 10955/14 It does not suffice to merely state or allege that an offender stole cash. A charge sheet couched in this manner does not sufficiently advise the accused of the offence he is required to answer to. In assessing the appropriate sentence the trial court balanced the mitigating circumstances of the accused against the aggravating circumstances of the case. He considered that the accused pleaded guilty and hence did not waste the court’s time. The accused is a family man with a wife and child to support. All the stolen money which amounted to $525-00 was recovered. The court considered that what aggravated the case was that the accused stole from his employer and that he breached the trust entrusted upon him by his employer. The trial magistrate was at the view that imposing community service would trivialise the offence. He was correct in this approach. He decided to impose a different sentence in order to send a message that crime does not pay and discourage theft from employers. The fact that all the money was recovered does not reduce the seriousness of the offence. Theft from the employer is a serious offence which ordinarily calls for a custodial sentence unless there are strong mitigatory factors. The accused breached the trust entrusted onto him by his employers through his conduct. Although he is a youthful first offender who pleaded guilty, one should not lose sight of the seriousness and prevalence of the offence. Even first offenders are sent to jail for this type of offence. The trial magistrate properly balanced the mitigating and aggravating circumstances of this case. A short stiff custodial sentence was called for. An effective sentence of 2 months imprisonment meets the justice of the case. I have considered that the accused person acknowledged that he stole the amount in issue when essential elements were being put to him and hence he became aware of the amount allegedly stolen. I am satisfied that the proceedings are substantially in accordance with real and substantial justice. I hereby confirm the proceedings.