S v MUTENHA & ANOR

HIGH COURT, BULAWAYO

[Criminal Review HB 35-16]

February 18, 2016

MATHONSI AND TAKUVA JJ

Criminal procedure  –  Sentence  –  General principles  –  Duty of court to consider non-custodial sentence where it decides that an effective 24 months imprisonment or less is appropriate  –  Magistrate’s obligation to give convincing reasons for imposing a custodial sentence.

It is a tenet of our sentencing jurisprudence that judicial officers should not let their emotions cloud their judgment as to what is an appropriate sentence as doing so may lead to undue exaggeration of the seriousness of the offence and result in imposition of disproportionate sentences.

In determining an appropriate sentence in non-serious offences that might attract a sentence of 24 months or less the sentencer is obliged to consider whether a non-custodial sentence is not appropriate. Where a fine is a permissible sentence for the offence in question, the sentencer should first consider the option of a fine and where it is considered that a fine is not appropriate he or she should then consider whether a sentence of community service is appropriate. In the end if the sentencer considers that none of these options are appropriate but that an effective term of imprisonment is the only option, he or she should give cogent and sound reasons for arriving at that decision, which reasons must appear on record.

In these two separate cases the sentencing court misdirected itself by imposing short effective terms of imprisonment where imposition of a fine or community service would have been appropriate.

Cases cited:

S v Antonio & Ors 1998 (2) ZLR 64 (H), referred to

S v Chawanda 1996 (2) ZLR 8 (H), referred to

S v Chinzenze & Ors 1998 (1) ZLR 470 (H), referred to

S v Chireyi & Ors 2011 (1) ZLR 254 (H), referred to

S v Harington 1988 (2) ZLR 344 (S), referred to

S v Mabhena 1996 (1) ZLR 134 (H), referred to

S v Musariri & Anor HH 394-15 (unreported), referred to

S v Takawira & Anor HH 75-15 (unreported), referred to

S v Zuwa 2014 (1) ZLR 15 (H), referred to

Silume v The State 2016 (1) ZLR 249 (H), referred to

Legislation Considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 113, 113 (1)

Magistrates Court Act [Chapter 7:10], s 57 (1)

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