Stewart Magondo v The State

The appellant was employed by the complainant Wholesale Fruiters as a Retail Operations Manager. On 17 February 2011, the complainant supplied goods (8 x 2 litres orange crush, 132 x 125 grams Bisto and 6 x 50 grams Mandras) to Metro Peach Mutare. The complainant instructed Takesure Matanha, a merchandiser, to collect payment from Metro Peach Mutare and deposit it into the appellant's personal account. The appellant converted the money amounting to US$423.00 to his own use without informing his employer. The offence came to light on 7 September 2012 when Livingstone Muzamwese went to Metro Peach to obtain payment. None of the stolen money was recovered. The appellant was a first offender but showed no contrition and denied the theft despite documentary evidence including a payment requisition form and bank statement showing the money was deposited into his personal account.

• Whether the sentence of 2 months effective imprisonment imposed by the magistrate's court was so severe, harsh and induced a sense of shock
• Whether the trial court misdirected itself in sentencing the appellant
• What is the appropriate sentence for theft from an employer involving breach of trust

The appeal against sentence was dismissed. The sentence of 6 months imprisonment of which 2 months were suspended for 5 years on conditions of good behaviour, a further 2 months suspended on condition of restitution of US$423.00, leaving an effective 2 months imprisonment, was confirmed.

An appellate court will not interfere with a sentence imposed by a lower court unless the sentence is so excessive as to induce a sense of shock or is out of conformity with sentences usually passed for offences in similar circumstances. Theft from an employer involving breach of trust warrants a custodial sentence, particularly where the offender shows no remorse and makes no restitution. The fact that an accused has made illicit profit from dishonesty which has not been recovered is a relevant factor in determining an appropriate sentence.

The court approvingly cited the observation from Donah Ncube and Anor v State HC-B-43/97 that an employee who steals from an employer is "biting the finger that fed him" and acting in a selfish manner. The court also observed that the consequences of the appellant's conduct could inconvenience or disadvantage customers who had paid for deliveries, as if they had not paid when in fact they would have paid, citing Bokani Ncube v State HC-B-3/97. The court noted that the respondent (State) was not opposed to the appeal but disagreed with that concession.

This case reinforces the principles applicable to sentencing for theft from employers in Zimbabwean criminal law. It confirms that breach of trust by employees will be treated seriously by the courts, particularly where no restitution has been made and the offender shows no remorse. The case also reaffirms the test for appellate interference with sentences, namely that a sentence will only be disturbed if it is so excessive as to induce a sense of shock or is out of conformity with sentences usually passed for similar offences.