3
HH 176-24
Ref : HCHCR 2039/24
Ref: CRB HREP. 3958/24
STATE
Versus
YU YUE
High Court of Zimbabwe
CHIRAWU-MUGOMBA J
Harare, 10 May 2024
CRIMINAL REVIEW
CHIRAWU-MUGOMBA J: This matter was placed before me as a criminal review. The accused person was charged with contravening s113(2) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], that is, “ theft of trust property”. The accused person pleaded guilty and was convicted on his own plea. He was sentenced to 18 months imprisonment , wholly suspended on the usual conditions.
The facts of the case reveal that the accused person was employed by the complainant as a sales representative, selling tyres. From June 2023 to April 2024 he received money for sales but did not remit it to the complainant. An April 2024 audit revealed that the accused had converted to his own use, the amount of USD 72 050.
In their analysis of the relevant case authority, the Magistrate rightly concluded that theft from an employer is treated seriously and constitutes a breach of trust. The presumptive sentence is 10 years. The court took into account the following mitigatory circumstances. That the accused person is a Chinese national, he is aged 33 years and full restitution has been made. Further that he lost his job. The complainant’s interest was in actually recovering the money as stated in the victim impact statement.
In aggravation the court took into account the fact that the offence was committed for sheer pleasure as the accused person spent the money at a casino and that he was in a position of trust. In assessing the appropriate sentence after weighing the mitigatory and aggravating factors, the court stated that a fine was not appropriate and it would trivialise the offence. Community service was also ruled out since the accused person is a Chinese national and had lost his job. He was likely going to go back to China. The inclination of the court would have been to impose a custodial sentence coupled with restitution, but this was no longer the case. The court also noted the harsh conditions prevailing in the prisons.
Nothing turns on the conviction. It is the sentence that raises alarm. It is pertinent to note that the state, while discounting a fine and community service, had called for a sentence that is not lenient. The complainant had called for a lengthy custodial sentence. While it is trite that sentencing should be left to the discretion of the trial court, in my view the Magistrate placed too much weight on the fact that the accused person had made restitution. I had occasion to consider the reported judgment of S. vs. Allegrucci, 2002 (1) ZLR 674 (H). In that matter the accused person was convicted for fraud after his own plea. He was sentenced to three years imprisonment with five suspended on the usual conditions. He had made restitution in excess of the money that he had defrauded. He appealed against sentence only. On appeal, the sentence was set aside and a sentence of a fine plus a wholly suspended period of imprisonment was substituted.
The Criminal Procedure ( Sentencing Guidelines) Regulations, 2023 in section 6 outline the objectives of sentencing. These are reformation/rehabilitation; retribution; deterrence; protection or prevention; restitution and compensation. The criteria is stated as proportionality; parity/equality and totality. Therefore a court that passes sentence should be so guided. In section 8(b) evidence of prior planning and premeditation is an aggravating factor. Other aggravating factors are 8(f) where the offender abused a position of power, authority or trust; 8(j) where the offence resulted in considerable material or economic loss to the victim. Under the table of presumptive penalties, specifically for offences under s113 of the Code, the aggravating factors are- offender is in a position of trust and sophisticated execution of the theft.
In my view, in casu, the accused person literally walked away scot free. The complainant clearly expressed the economic impact of the crime. Had it not been for the audit, the accused was likely going to continue with the crime. The fact that he went undetected for a long time shows the sophisticated nature of the crime. In my view, the sentence should have been a combination of a wholly suspended one and a fine. That would have met the justice the of the case.
The proceedings are not in accordance with real and substantial justice and I accordingly withhold my certificate.
