THE High Court has ordered the immediate release of an 18-year-old schoolboy who spent 64 days in prison for a crime he could have performed community service for.
Sitting as a court of appeals, Justices Happias Zhou and Benjamin Chikowero upheld teenager, Size Benjamin Mangadze’s appeal, saying the trial magistrate had erred by imposing a custodial sentence.
Size was convicted of unlawful possession of a firearm, which had three live rounds of ammunition, on September 26.
He was sentenced to 12 months, of which four were suspended on condition of good behaviour.
Size had pleaded guilty to the offence.
Through his lawyer, Size approached the High Court appealing against his sentence, arguing that the court mistook his maturity for unlawful possession of a firearm.
It was the judges’ finding that the trial magistrate erred by failing to consider the accused’s mitigation.
The judges said Size was immature and only wanted to show off to his schoolmates and, by pleading guilty and being a first offender, his actions did not warrant any custodial sentence.
“Size’s appeal is allowed and his sentence set aside.
“The following sentence will be imposed: Size is sentenced to six months of which four months are suspended on condition he does not commit a similar offence in the next five years.
“Failure to abide by the above condition, he will be imprisoned without an option of a fine.
“The remaining two months are suspended on condition Size performs community service, but since he has already served two months in prison, we order his immediate release,” the judges ruled.
The State consented that the magistrate had erred and failed to consider the mitigation.
However, the State was of the view that due to the spate of robberies in the country, the boy must still perform community service during weekends.