S v Mandonga and Anor (HB 3 of 2006) [2006] ZWBHC 3 (18 January 2006)

Judgment No. HB 3/06 Case No. HCA 87-88/04 SIMBARASHE MANDONGA And TOBIAS KWEZANI Versus THE STATE IN THE HIGH COURT OF ZIMBABWE CHEDA & NDOU JJ BULAWAYO 12 SEPTEMBER 2005 AND 19 JANUARY 2006 K Phulu for the appellants Ms B Wozhele for the state Criminal Appeal CHEDA J: This is an appeal against sentence only. Appellants were charged with theft of a gear box valued at $6 million. The second gear box was recovered. They pleaded guilty to the charge and were sentenced to 2 years imprisonment of which 1 year was suspended for 5 years on the usual conditions. The appeal is against sentence only. The basis of the appeal is that the sentence of 2 years imprisonment where the property has been fully recovered is harsh and is not in line with the current sentencing guidelines. It is trite law that where a judicial officer considers the imposition of a prison term of less than 24 months, he should both as a rule and practice first consider community service, see S v Khumalo HB 39-03 and S v CM & S v ZD HB-67/03 I do not agree with Mr Phulu for appellant that theft of property worth $6million even if it was recovered does not warrant imprisonment. HB 3/06 Each case will depend entirely on its merits. Appellants stole from their employers. Though , they are young first offenders, a prison term would have been warranted, had the trial magistrate imposed a term of prison which is more than 24 months imprisonment. It should be borne in mind that the trial court can still impose a prison term which is within 24 months provided that he has first seriously considered a non-custodial term as an alternative. In casu it does not appear he did so. He merely mentioned that he had so considered. The state conceded that a non-custodial sentence will meet the justice of the case. The sentence imposed by the trial court is set aside and is substituted by the following: “Each appellant is sentenced to pay a fine of $4 000 000 or 6 months imprisonment.” Ndou J ……………………….. I agree