THE State V ORIA Mukachana

### Preamble
1
HB 184/25
HCBCR 5190/25
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THE STATE

Versus

ORIA MUKACHANA

HIGH COURT OF ZIMBAB	WE

MUTEVEDZI & CHIVAYO JJ

BULAWAYO, 3 NOVEMBER 2025

Criminal review judgment

MUTEVEDZI J: The accused was arraigned before a Magistrate at Kwekwe Magistrate Court on charges of Theft as defined in section 113(1)(a)(b) of the Criminal Law (Codification and Reform) [Chapter 9:23] [“the CODE”]. Briefly, the allegations were that on 10 October 2025 and at Collision Mine, Redcliff he took 581,2 metres of diamond match wire, 2 x 2 metres gates and one 0,8 metres x 1,2 metres gate belonging to Collision mine. He was convicted on his own plea of guilty. The total value of the property stolen was US$2338-56 and property worth US$1270.00 was recovered.

Thereafter, the trial magistrate imposed a sentence which was in the following terms:

“20 months imprisonment of which 4 months is suspended for 3 years on condition the accused does not within that period commit an offence involving dishonesty and for which upon conviction accused person is sentenced to imprisonment without the option of a fine. A further 4 months imprisonment is suspended on condition accused person restitutes the complainant in the sum of US $1068.56 or equivalent in ZIG through Clerk of Court, Kwekwe Magistrate Court on or before 30.11.25. Effective – 12 months imprisonment.”

The record of proceedings was placed before me for review in terms of section 57 of the Magistrate Court Act (“the MCA”). The conviction is proper and l hereby confirm it as being in accordance with real and substantial justice. The same however cannot be said about the sentence.  In sentencing, the principle is that the sentence is largely the discretion of the trial court.  As such, this court is not permitted to interfere with that sentencing discretion except in instances where there is a misdirection going to the root of the sentencing process or where the sentence imposed is manifestly excessive as to induce a sense of shock; see the cases of S v Chiweshe 1996 (1) ZLR 425 (H) 429D; R v Ramushu S25-93; S v Nhumwa S40-88.

In the instant case, the trial magistrate settled for an effective sentence of 12 months imprisonment. She/he was obligated to consider the possibility of imposing community service or other forms of non-custodial punishments. In S v Chireyi and Others 2011 (1) ZLR 254 (H) 260D MAWADZE J (now DJP) held that:

“ The learned judge took the view that it was a misdirection for a trial magistrate not to inquire into the suitability of community service where he or she settles for effective imprisonment of 24 months or less.  I must add that it is not enough to simply pay lip-service to the factor of community service by merely mumbling something to the effect that it is inappropriate without more or that it will trivialize the offence.”

Here, the crime is the offender’s first brush with the law. He has fixed employment and has solid family ties. More so, the offender pleaded guilty. That factor is always regarded as a sign of contrition and remorse. Judicial officers have always been urged to reward the plea of guilty for the benefits that it brings to the administration of justice. In S v Sidat 1997 (1) ZLR 487 (S) at 493B McNally JA stated that:

“A plea of guilty must be recognized for what it is – a valuable contribution towards the effective and efficient administration of justice. It must be made clear to offenders that a plea of guilty, while not absolving them, is something which will be rewarded. Otherwise, again, why plead guilty.”

The practice in this jurisdiction has been and continues to be, to strive to keep first offenders who plead guilty to the crimes they face, out of prison unless the situation cannot be helped. Clearly, the trial magistrate paid lip-service to the mitigatory factors highlighted above and completely failed or neglected to consider imposing community service when the effective custodial term fell within the grid of those where it is a requirement to consider community service. The magistrate was not impressed with the offender’s actions which he/she described as “stealing to cure poverty.” For that reason, he went hard on the offender and imposed an effective term of 12 months imprisonment. In arriving at the sentence that it imposed, the trial court reasoned as follows:

“In assessing the appropriate sentence, the court considered both the mitigatory factors and the aggravatory factors. It has come to the attention of the court that people are justifying stealing with poverty. They is a rise in theft cases simply because people are poor. That cannot be an excuse to cure poverty. They is a need for a deterrent sentence. A fine will be rather lenient given the value of the stolen property. It is the court’s considered view that a custodial sentence coupled with an order of restitution will best meet the ends of justice.” (sic)

If the trial magistrate agreed that the offender was poor, then imposing a heavy fine on such an offender will not in any way trivialize the crime like he/she believed. If anything, it would have been quite hard on the offender who would no doubt struggle and find it taxing to raise the money to pay the fine. What is worse is that once an effective sentence of 24 months imprisonment had been settled for, the trial magistrate was required as of necessity, to consider the efficacy or otherwise of imposing community service reasons ought to have been given if the court though that it was not ideal to impose community service. The point underscored by CHINHENGO J in S v Antonio & Ors 1998 (2) ZLR 64 (H) that if a fine is a permissible sentence for the crime in question, the sentence should consider first whether a fine with or without an alternative of community service should be imposed is critical. If a court considers that a fine is not appropriate, it must then consider whether a direct sentence of community service or a term of imprisonment suspended on condition of performance of community service is appropriate. It is only when those options are not available that, as a measure of last resort, a court must entertain imposing effective imprisonment. See also S v Chinzenze & Ors 1998 (1) ZLR 470 (H). More importantly to note is that, it is not sufficient for a judicial officer to dismiss the possibility of punishing an offender through non-custodial ways by advancing the flimsy reason that such would trivialise the offence and nothing more. The position was aptly by MATHONSI J (now JA)  in S v Silume  HB12-16 when he said:

“To my mind it is an injudicious exercise of the sentencing discretion for the sentencer to merely state that a fine or community service would trivialize the offence and end there. This is especially so where what is regarded as aggravation is nothing out of the ordinary but the usual incidence of theft like the convenience of the complainant.

The moment the trail magistrate settled for an effective 14 months imprisonment, he was obliged to inquire into the suitability of community service. To just divine that community service would be inappropriate without the requisite inquiry was a misdirection calling for interference with the sentence. I find it extremely difficult to understand why there is this visible readiness on the part of magistrates to send convicted persons to prison even when an alternative and indeed appropriate sentence exists. Petty crimes are being visited with imprisonment without due regard to existing guidelines. This occurs even when the penalty section of the infringed statute enjoins the sentencing court to first give regard to a fine. ”

In this case, the trial magistrate fell into the same errors cautioned against in the above authorities by not considering non-custodial options.

In the result, I have no choice but to interfere with the sentence resorted to. I order as follows: -

The sentence imposed by the trial court be and is hereby set aside

The matter is remitted to the trial magistrate for resentencing afresh after properly considering the imposition of non-custodial alternatives

Any new sentence imposed must consider the period which the offender would have already spent in custody.

MUTEVEDZI J……………………………………….

CHIVAYO J………………………………………………I agree