Tafadzwa Chinhengo v The State

On 19 July 2017, Detectives from the Zimbabwe Republic Police received information that the appellant was in possession of fake ZIMRA stamps. Upon arrival at the appellant's house, a search was conducted, leading to the recovery of two ZIMRA Bill of Entry stamps, two ZIMRA Export release stamps, one ZIMRA Private Imports stamp, one Third Party Insurance paid stamp, one date stamp, 2 x 30ml endorsing ink and two ink pads. The appellant was arrested and taken into custody. The appellant was convicted on his own plea of guilty for contravening section 40(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) - possession of articles for criminal use. The Magistrate sitting at Beitbridge sentenced the appellant to 12 months imprisonment of which 3 months was suspended on the usual conditions of future good conduct, resulting in an effective sentence of 9 months imprisonment.

• Whether the sentence of 9 months effective imprisonment was consistent with general sentencing trends for offences under section 40(1) of the Criminal Code
• Whether the court a quo erred in imposing a custodial sentence on a first offender when a non-custodial sentence such as community service could have met the justice of the case
• Whether the court a quo erred in imposing a short, sharp and retributive custodial sentence for deterrence purposes
• Whether imprisonment should be imposed as a last resort for offences under section 40(1) of the Criminal Code

The appeal against sentence was dismissed. The sentence of 12 months imprisonment with 3 months suspended on the usual conditions of future good conduct (effective 9 months imprisonment) imposed by the Magistrate's Court at Beitbridge was confirmed.

Where an accused is convicted under section 40(1) of the Criminal Law (Codification and Reform) Act for possession of articles intended for use in defrauding the state of revenue, a custodial sentence is appropriate and justified even for a first offender. An effective sentence of 9 months imprisonment for possession of fake ZIMRA stamps and related implements intended for fraudulent use does not induce a sense of shock and falls within the appropriate sentencing range. Non-custodial sentences such as fines or community service are not appropriate where the offence involves possession of articles ready to be used in a criminal enterprise aimed at depriving the state of revenue, as such offences call for severe sanction. The prevalence of a particular type of offence in a specific area (such as use of fake date stamps at a border town) is a legitimate factor justifying a custodial sentence for deterrence purposes.

The court observed that cases such as S v Makumbe 2013 (1) ZLR 141 (H) (involving negligent driving) and S v Zulu 2003 (1) ZLR 592 (H) (involving indecent assault) where non-custodial sentences were imposed on appeal are distinguishable on their facts from cases involving possession of articles for criminal use intended to defraud the state. The court noted that the appellant's intention was to deprive the state of import duty and revenue, which in itself is serious and calls for severe sanction.

This case establishes the sentencing approach for possession of articles for criminal use under section 40(1) of the Criminal Law (Codification and Reform) Act in Zimbabwe, particularly where the articles are intended for use in defrauding the state of revenue. It confirms that custodial sentences are appropriate for such offences even for first offenders, and that the seriousness of the intended criminal enterprise (in this case, depriving the state of import duty) justifies imprisonment over non-custodial alternatives. The case also emphasizes that deterrence is a legitimate sentencing consideration, particularly where specific types of offences are on the increase in particular areas.