S v TSHUMA
HIGH COURT, BULAWAYO
[Criminal Review HB 302-16]
November 3, 2016
MATHONSI AND MOYO JJ
Criminal procedure - Review - Purpose of - Reviewing judge - Duty of and relationship with trial magistrate.
Criminal procedure - Sentence - General principles - Fine - Where a penal provision of a statute provides for a fine and imprisonment the court must first consider a fine.
The reviewing judge queried the propriety of the sentence imposed and formally invited the trial magistrate to comment on specific points. The trial magistrate did not address his mind to the points raised but instead purported to justify the sentence imposed on other grounds.
Held, that the process of review benefits both the accused person and the trial magistrate as the reviewing judge is expected, in the process of correcting errors that may be committed by the trial magistrate in the agony of the moment, to give guidance to the magistrate.
Held, further, that where a statute provides for a fine as well as a period of imprisonment a court must first give consideration to the imposition of a fine. Imprisonment should be reserved for bad cases. In statutory offences permitting the imposition of a fine, the normal sentence for a first offender is a fine unless the offence is particularly serious or prevalent or there would be serious consequences if the deterrent of imprisonment is not used.
Cases cited:
S v Antonio & Ors 1998 (2) ZLR 64 (H), referred to
S v Chawanda 1996 (2) ZLR 8 (H), applied
S v Chireyi & Ors 2011 (1) ZLR 254 (H), referred to
S v Mabhena 1996 (1) ZLR 134 (H), referred to
S v Mhondiwa HB 193-11 (unreported), referred to
S v Ndlovu HB 267-16 (unreported), referred to
S v Shava HB 200-11 (unreported), referred to
S v Zuwa 2014 (1) ZLR 15 (H), referred to
Legislation considered:
Magistrates Court Act [Chapter 7:10], s 57 (1)
Parks and Wildlife Act [Chapter 20:14], ss 59 (2)(a), (5)
MATHONSI J:
This matter was placed before me for automatic review in terms of s 57 (1) of the Magistrates Court Act [Chapter 7:10]. In undertaking that exercise, the reviewing judge and the trial magistrate are a tag team serving the same purpose, that of ensuring that justice is done and that the accused person receives fair treatment - see S v Mhondiwa HB 193-11 (unreported); S v Shava HB 200-11 (unreported).
The process of review benefits both the accused person and the trial magistrate as the reviewing judge is expected, in the process of correcting errors that may be committed by the trial magistrate in the agony of the moment to give guidance to the magistrate. In that regard both judicial officers should take the exercise seriously in order to achieve a "win-win" situation as opposed to a "win-lose" or "lose-lose" situation. Automatic review is not designed to render the business of adjudication by magistrates a serious professional hazard or a ruinous undertaking. Neither is it supposed to be hazardous to the reviewing judge because one of the actors decides to be impervious to the discourse.
The 52 year old accused person was convicted of poaching in contravention of s 59 (2)(a) of the Parks and Wildlife Act [Chapter 20:14]. He put up 35 snares at Dollar Block Range Farm in the Inyathi area of Matabeleland North and caught an impala. He was arraigned before a magistrate on circuit at Inyathi and pleaded guilty to the charge and upon conviction, he was sentenced to 24 months imprisonment of which six months imprisonment was suspended for five years on condition of future good behaviour. This left him with an effective 18 months imprisonment which presented some disquiet to me when the matter came for review.
I queried the sentence in a letter to the trial magistrate dated 27 September 2016 which reads in relevant part thus:
"Subsection (5) of s 59 of the Parks and Wildlife Act is the penal provision and it reads:
'Any person who contravenes subsection (2) or (3) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.'
Clearly therefore the sentence of 24 months is incompetent. I would have simply interfered with the sentence but I would like the trial magistrate to comment on the following issues:
1. There is more than sufficient case law that where a statute provides for a sentence of a fine and imprisonment, the court must first and foremost give effect to the sentence of a fine and reserve imprisonment for the most serious aberrations and/or repeat offenders. The accused having been a very poor first offender who caught an impala, why could he not be given the lighter sentence?
2. There is again more than sufficient case law that where the effective imprisonment sentence is less than two years, the court must consider community service as an alternative to imprisonment. Where after considering community service the court is of the view that it is inappropriate, it must record both the inquiry and the reasons for rejecting it.
There is nothing in the record to suggest that the exercise was undertaken."
Perhaps I should not have bothered raising that query with the trial magistrate. Either because he did not bother to read the query or if he did not apply his mind to the issues raised, his response, which unfortunately was penned almost a month later on 25 October 2016, is exceedingly unhelpful. He stated:
"REVIEW MINUTE: STATE v LAMECK TSHUMA: CRB INY 286-16
Kindly place the record of proceedings before the learned Mathonsi J. I acknowledge receipt of your minute dated 27 September 2016. I found a sentence of imprisonment appropriate due to the prevalence of poaching cases which are a national concern. Also aggravatory was that accused had set 35 other wire snares which could have led or had a potential to the poaching of 35 other animals. Surely if our heritage were poached at this rate they would face extinction. I did not consider community service as it would have trivialised the offence accused is facing. I found that a custodial sentence would deter likeminded elements of the society which could be a measure in preserving our heritage. However, I always stand guided by the learned judge."
Apart from the fact that the argument advanced by the trial magistrate that a deterrent sentence or exemplary sentence is just, as the court must make an example of the accused person by punishing him more severely than he deserves so as to persuade others to desist from acting in a similar manner, is specious and fallacious in the extreme, that argument did not address the issues raised in my query.
For a start, the penal section provides for a maximum imprisonment sentence of 12 months but the magistrate settled for 24 months and an effective sentence of 18 months. As much as it is settled in our jurisdiction that the determination of sentence is eminently a matter for the discretion of the trial court, that principle does not repose a discretion in the trial court which is outside the provisions of the enabling statute. In its wisdom the legislature which criminalised the act of poaching under s 59 of the Parks and Wildlife Act imposed an imprisonment term not exceeding 12 months. There is no way the trial court can exercise jurisdiction not given to it by the enabling statute.
{mprestriction ids="1,2,3"}Secondly, the trial magistrate completely ignores the issue that where a statute provides for a sentence of a fine or imprisonment the court must first give effect to a fine. In S v Zuwa 2014 (1) ZLR 15 (H) at 18A-C, I made reference to the judgment of MALABA J (as he then was) in S v Chawanda 1996 (2) ZLR 8 (H) at 10C-G where the court remarked:
"The authority for the proposition that where a statute provided for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to the imposition of a fine, particularly on a first offender, is found in the case of S v Muhenyere HB-31-92, cited by the accused's legal practitioner. At p 3 of the cyclostyled judgment in Muhenyere's case supra BLACKIE J, with the concurrence of CHEDA J, quoted with approval from the decisions in the cases of S v Rutsvara S-2-89 and S v van Jaarsveld HB-110-90. The learned judge said:
'It is trite that where the statute lays down a monetary penalty as well as a period of imprisonment the court must give consideration to the imposition of a fine. It would normally reserve imprisonment for bad cases.'
'...In statutory offences permitting the imposition of a fine, the normal sentence for a first offender is a fine unless the offence is particularly serious or prevalent or there would be serious consequences if the deterrent of imprisonment is not used.'"
In a country afflicted by a devastating el niño induced drought and widespread unemployment owing to a debilitating economic meltdown, where people have been reduced to hunter-gatherers, poaching an impala may be the ultimate activity for one to irk out a living or to survive. It remains an offence which must be penalised but one cannot say that society has a sense of revulsion for such an offence and courts of law should not elevate it to a status not accorded to it by both statute and society.
Thirdly there is the issue of community service. The trial magistrate must attempt to grasp the guidelines on that type of sentencing given in a line of cases coming out of the superior courts instead of just groping in the dark when there is case law which binds him which has settled the issue - see S v Mabhena 1996 (1) ZLR 134 (H) at 140E; S v Antonio & Ors 1998 (2) ZLR 64 (H);
S v Chireyi & Ors 2011 (1) ZLR 254 (H) at 260D.
These authorities make it mandatory for a trial magistrate who has settled for an effective prison term of 24 months or less to inquire into the suitability of community service as a sentencing option in respect of a first offender. The magistrate simply has no choice and cannot be heard to say he did not consider community service as it would have trivialised the offence.
The inquiry is mandatory and it must appear on the record. This is not to say that the magistrate may not opt out of the imposition of community service but that anyone reading the record must be able to see that an inquiry was conducted. If, following such an inquiry, the magistrate comes to the conclusion that it is inappropriate, and that imprisonment is the proper sentence, he or she must give proper reasons for the decision which must also appear, ex facie the record. See S v Ndlovu HB 267-16 (unreported).
There was therefore a misdirection because by his own admission the magistrate did not bother to consider community service even though he settled for an effective imprisonment sentence of 18 months. Having said that, I must state that there is this readiness on the part of magistrates to jump for imprisonment sentences which is shocking indeed. It would appear that for some magistrates justice can only be achieved by sending an offender to prison even for the smallest of crimes.
It is a kind of habit which is at variance with the needs of society and does not even respond to the economic realities of this country. The fact that prisons are hopelessly overcrowded, prisoners are afflicted by disease, the State is struggling to maintain prisons and feed inmates and simply has no money, are factors which have gained notoriety. Against that background it is therefore surprising that we have a magistracy which is impervious to decisions of superior courts calling for alternative sentences, but remain rooted in one place.
This is a matter in which the accused person should have been given community service because the sentence should not have exceeded 12 months, he is a first offender who should be kept out of prison, he pleaded guilty and should have been rewarded for the guilty plea. More importantly he was shown to be very poor and committed the offence out of need as opposed to greed. A prison term served no useful purpose. Considering that he has been in prison since 12 August 2016 that should be enough punishment. I will therefore alter the sentence to an effective two months imprisonment in recognition of the period he has served.
In the result, it is ordered that:
1. The conviction of the accused person is hereby confirmed.
2. The sentence is set aside and substituted with the following sentence:
"12 months imprisonment of which 10 months imprisonment is suspended for three years on condition the accused does not within that period commit any offence involving illegal hunting for which, upon conviction, he is sentenced to imprisonment without the option of a fine.
In addition the snares are forfeited to the State for destruction."
MOYO J concurred.
{/mprestriction}