The State v Zibusiso Sikhosana and Brian Mbewe and Marvellous Ndlovu

The three youthful accused persons masqueraded as police officers at the intersection of Masiyephambili Road and Nketa Drive in Bulawayo on 2 November 2016. They extorted $50.00 from the first complainant and $20.00 from the second complainant while threatening to impound their motor vehicles. The accused were first offenders who committed the offences while intoxicated. They pleaded guilty to two counts of extortion in contravention of section 134(1)(a) and (b) of the Criminal Law Code. By the time of conviction, $50.00 had already been repaid to one complainant.

• Whether the sentence imposed by the magistrate's court was unduly harsh and constituted a misdirection
• Whether a fine or alternative sentence should have been imposed rather than imprisonment for first offenders convicted of statutory offences
• The proper application of sentencing guidelines where the statute provides for both a fine and imprisonment

1. The conviction of the three accused persons was confirmed. 2. The original sentence was set aside and replaced with: 12 months imprisonment of which 6 months suspended for 5 years on condition of good behaviour (no offences involving dishonesty), and of the remaining 6 months, 3½ months suspended on condition of joint and several restitution of $70.00 by 28 February 2017. 3. As the accused had already served 2½ months, they were entitled to immediate release.

Where a statute provides for a penalty of a fine or imprisonment, it is a misdirection for the sentencing court to impose imprisonment without giving serious consideration to the imposition of a fine, particularly for first offenders. The normal sentence for a first offender in statutory offences permitting a fine is a fine unless the offence is particularly serious or prevalent, or there would be serious consequences if the deterrent of imprisonment is not used. A sentence must fit both the offence and the offender. Economic realities including prison overcrowding and state financial constraints must be considered in sentencing, especially for first offenders convicted of minor offences.

Mathonsi J made observations about the economic realities in Zimbabwe at the time, noting that prisons are overcrowded, prisoners are afflicted by disease, and the state is struggling to maintain and feed inmates due to lack of funds. The court stated that for these reasons, sentencing courts should lean in favour of non-custodial sentencing options for first offenders convicted of minor offences and should not approach sentencing with a closed mind. The court also observed that the total amount extorted ($70.00) was a very small amount.

This case is significant in Zimbabwean criminal law as it reaffirms and applies the principle that where legislation provides for both a fine and imprisonment, courts must give serious consideration to imposing a fine rather than imprisonment for first offenders, unless the offence is particularly serious or prevalent. The judgment emphasizes the need for sentencing courts to consider economic realities including prison overcrowding and state financial constraints, and to approach sentencing with an open mind rather than automatically imposing custodial sentences. It demonstrates the High Court's review function in correcting unduly harsh sentences that result from misdirections by lower courts.