The High Court has set aside a 10-year mandatory sentence against a Chinhoyi man who was convicted for stealing an electric cable from Athenzi farm.
Luckmore Mutsindiko had his sentence quashed and case was referred back for trial before a different magistrate after the upper court ruled that he was wrongly convicted and sentenced.
Mutsindiko was convicted after a trial for contravening s60 A (3) (1) of the Electricity Act [Chapter 13:19] “the Act” for cutting, destroying or interfering with apparatus used to generate, transmit or supply electricity.
He pleaded guilty to the charge.
The court found no special circumstances, it then imposed the minimum mandatory sentence of 10 years imprisonment.
Despite preferring a charge under the Electricity Act, the wording of the charge revealed a simple theft but the trial magistrate failed to pick this.
On the other hand, the facts on the State Outline showed that an offence under the Electricity Act was committed.
The trial court canvassed the essential elements of theft but convicted the accused on a different charge and Chinhoyi High Court judge, Justice Philda Muzofa ruled that this was a misdirection.
“The charge was poorly drafted in this case. It is first for the prosecution to make sure that the charge is properly drafted.
“However the court as the final arbiter has the ultimate duty to make sure that the charge before it is correct.
“An accused must never be convicted on a charge different from the alleged facts as in this case,” noted the judge.
The State alleged that on January 30 2022 Mutsindiko unlawfully took a 30-meter X 50 millimetres core (sic) from Athenzi Farm.
The charge does not allege the actus reus (actual act) that resonates with contravening s60 A (3) (b).
Muzofa said Mutsindiko allegedly took action that is not synonymous with cutting to interfere with the transmission of power.
“The charge reveals a simple theft of already cut core armoured cables.
“He was then convicted of the serious charge under s60 A (3) (b) of the Act.
“The proceedings before the trial Court show that it did not address its mind to the facts of the case,” she said.
Muzofa said that oversight led to the accused being convicted of theft but sentenced for some serious offence.
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The judge also said to alter the charge at this stage would be incompetent since the accused did not plead guilty to contravention of s60 A (3) (b) of the Act.
She also said quashing the proceedings and releasing the accused may not be in accordance with real and substantial justice.
“The best course is to quash the proceedings and remit the matter for a trial de novo before a different Magistrate,” she ruled.
The judge also said in the event that Mutsindiko is convicted, in sentencing the accused the period already served must be taken into account.
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Source link : https://allafrica.com/stories/202412130092.html
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Publish date : 2024-12-13 05:38:42
