The State v Inken Nyamaha

The accused, a 50-year-old man, was charged with four counts of contravening section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] - two counts under section 113(1)(a)(b) and two counts under section 113(1). During April 2009, the accused committed these four offences against two different complainants on two different occasions. He broke into the complainants' premises and stole goods valued at US$69. Nothing was recovered. The accused pleaded guilty before the magistrate's court, was convicted, and sentenced to 24 months imprisonment with various suspensions: 4 months suspended for 5 years on condition of good behaviour, 18 months suspended on condition of completing 630 hours community service, and 2 months suspended on condition of paying restitution of US$69.

• Whether the sentence imposed by the magistrate's court was appropriate for the offences of housebreaking and theft
• Whether the non-custodial sentence constituted a miscarriage of justice
• Whether the trial magistrate properly balanced the interests of society against those of the accused in sentencing

The court withheld its certificate of review, indicating that the sentence imposed by the magistrate's court was set aside due to the miscarriage of justice.

Housebreaking is a very serious offence which, by and large, attracts a custodial sentence. A court should have good and sufficient reason for departing from this time-honoured legal principle. In sentencing, judicial officers must balance the interests of society against those of the accused, and many times the interests of society will far outweigh those of an individual. Where an accused has on multiple occasions broken into premises and stolen property without recovery, these facts alone are sufficient to warrant an effective term of imprisonment without the option of a fine. A non-custodial sentence for such offences may constitute a miscarriage of justice. Rehabilitation concerns alone, without more, do not provide sufficient justification for imposing an entirely suspended sentence for serious housebreaking offences.

The court observed that while sentencing is the most difficult aspect of a trial, this difficulty does not excuse failure to follow established sentencing principles. The court noted that rehabilitation could have been achieved through partial suspension of sentence rather than complete suspension through community service and restitution conditions. The judge commented that the trial magistrate should have followed case authorities and imposed a just sentence in accordance with established legal principles.

This case reinforces the principle in Zimbabwean criminal law that housebreaking is a serious offence that ordinarily attracts a custodial sentence. It emphasizes the importance of judicial officers properly balancing societal interests against individual interests in sentencing, and that departure from established sentencing principles for serious offences requires good and sufficient reasons. The judgment serves as a reminder that rehabilitation concerns alone are insufficient justification for imposing non-custodial sentences for serious property crimes, and that such sentences may constitute a miscarriage of justice.