Austin Chiwetu v The State

The appellant was convicted by the regional court at Bulawayo on 17 December 2012 of 13 counts of fraud involving $56,778.00 following a contested trial. He was sentenced to 5 years imprisonment of which 4 years were suspended on certain conditions including restitution of $25,589.00 and future good behaviour, leaving him with an effective 1 year imprisonment. He initially appealed against both conviction and sentence, but later abandoned the appeal against conviction and pursued only the appeal against sentence. After conviction and sentence, the appellant was in custody for a period of 2½ months before being granted bail.

• Whether the trial court misdirected itself in sentencing by failing to inquire into the suitability of community service as an option where the effective sentence was 12 months imprisonment
• Whether the sentence imposed was appropriate in the circumstances
• Whether the period already served in custody should be taken into account in determining an appropriate sentence

1) The conviction of the appellant was confirmed. 2) The appeal against sentence was upheld. 3) The sentence of the court a quo was altered to read: "5 years imprisonment of which 1 year 10 months imprisonment is suspended for 5 years on condition the appellant does not, during that period, commit any offence involving dishonesty for which, upon conviction, he is sentenced to imprisonment without the option of a fine. Of the remaining 3 years and 2 months 3 years is suspended on condition the appellant compensates the complainant in the sum of $25,589.00 through the clerk of court Bulawayo by 31 March 2018." 4) As the appellant had served the period of 2 months imprisonment he was entitled to his continued freedom.

Where a sentencing court settles for an effective imprisonment term of 24 months or less, it is required to inquire into the suitability of community service as an option. By settling for such a term, the court has relegated the offence to a minor offence and cannot, by the same breath, say that community service would trivialize the offence which it has already trivialized itself. While the inquiry is mandatory, the court is not obliged to impose community service in all such cases - it may still find community service unsuitable after inquiry, but must record the reasons for that conclusion. Failure to conduct this inquiry constitutes a misdirection in sentencing.

The court observed that the amount involved in the fraud, though huge, had been taken into account by the restitution that was ordered and could not have a huge impact in determining the balance of the sentence. The court also noted that the period the appellant served in custody (2½ months) should atone for the community service which the appellant should have performed, demonstrating a pragmatic approach to crediting time served when restructuring sentences on appeal.

This case reinforces the important sentencing principle in Zimbabwean criminal law that where a court settles for an effective imprisonment term of 24 months or less, it is required to inquire into the suitability of community service as an alternative sentence. The case clarifies that such an inquiry is mandatory but does not obligate the court to impose community service in all cases - the court may still find it unsuitable after proper inquiry, provided reasons are recorded. The case demonstrates that failure to conduct this inquiry constitutes a misdirection that allows the appeal court to be at large regarding sentence. It also addresses how time already served in custody should be taken into account when restructuring a sentence on appeal.