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FROM 75 YRS IMPRISONMENT TO COMMUNITY SERVICE

10/02/2020 03:16:00 BY MBONGISENI NDZIMANDZE

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MBABANE – The man who was sentenced to 75 years imprisonment without an option of a fine for a string of robberies, smiled all the way home, after his sentence was reduced to a mere two years of community service.

Community service, also known as community restitution, is a form of punishment intended to benefit the community that’s been harmed by an offender’s crime. Judges often order offenders to perform community service in addition to or instead of other forms of punishment, such as incarceration, fines, or probation.

Imprisonment

Nhlanhla ‘Father’ Mdluli was not the only convict to have his sentence reduced to two years of community service, as a similar order was issued for four others who were serving different sentences. Mdluli was sentenced by Magistrate Sindisile Zwane after she found him guilty on 20 counts of robberies, theft and indecent assault.

Instead of serving the 75 years, Judge Sipho Nkosi ordered Mdluli to undertake community service at Nhlangano Clinic for a period of 24 months from 8am to 5pm.

The other convicts who were ordered to undertake community service, were each serving sentences ranging from three to six years imprisonment without an option of a fine. Phila Vilakati and Linda Ndlangamandla were each serving sentences of three years.

Judge Nkosi set aside the sentences of three years and replaced them with community service for each of the convicts. Vilakati was sentenced to undertake a community service Kwaluseni Market near Fundi Dlamini’s church from 8am to 5pm for a period of 24 months. Ndlangamandla was directed to do community service at Lavumisa Umphakatsi every Saturday from 8am to 5pm.

Another convict who had his sentence replaced with community service was Mario Ndlovu, who had been sentenced to four years imprisonment without an option of a fine. Judge Nkosi ordered Ndlovu to undertake community service at Luhlangotsini Primary School for a period of 24 months every Saturday from 8am to 5pm.

Sentence

The court also ordered Mzwandile Matsebula to do community service at Hillside Clinic every Saturday from 8pm to 5pm for a period of 24 months. The order directing the convicts to undertake community services, comes after they individually approached the High Court for review of the different sentences that were imposed by the magistrates after they were found guilty.

In his application, Mdluli submitted that around the year 2013, he was arrested by members of the Royal Eswatini Police Service (REPS) and was subsequently charged with 20 counts of robbery, one of indecent assault and that of theft.

He told Judge Nkosi that he subsequently appeared before Senior Magistrate Zwane, who convicted and sentenced him to 75 years imprisonment without an option of a fine. Mdluli told the court that he was currently kept at the Matsapha Maximum Prison.

“I noted an appeal against the sentence imposed by the magistrate. While waiting for my appeal, I am desirous of being admitted to bail,” submitted Mdluli. He averred that he had prospects of success on his appeal. He contended that another court might find and hold that the cumulative sentence that was imposed by the magistrate was harsh and induced a sense of shock.

“I am further advised and verily believe that the trial court erred both in law and in fact by failing to order that some of the sentences should run concurrently when they occurred within a short space of time,” submitted Mdluli.
According to Mdluli, the magistrate also erred both in law and in fact by failing to consider the trial when arriving at a proper sentence to be meted out on him. Mdluli was represented by Noncedo Ndlangamandla.

What kind of community service can a judge order?
Judges have a lot of discretion in what community service they can order, but the sentence must bear some relationship to the crime. In general, judges have broad discretion to decide what kind of community service to order for an offender.

As long as the sentence reasonably protects the public’s interests and isn’t unduly harsh, all different kinds of community service options are available. However, there are a few guidelines that judges must follow when crafting community service sentences.

Community service may be ordered as a stand-alone sentence or as a condition of probation for many types of crimes, and in fact, may be a required condition of punishment for crimes like looting or damaging property. However, community service is typically unavailable for serious offences punishable by death or life imprisonment.

Restitution

The main requirement of any community service sentence is that it benefits the community.
Thus, a judge may order a bank executive who misappropriated bank funds to volunteer for a community organisation and donate funds to that organisation. The judge might choose this sentence as an alternative to a term of imprisonment and in-prison restitution programmes.

This donation of charitable services in a public forum benefits the community in two ways: it serves as a deterrent to other potential offenders, and provides a symbolic (and practical) form of restitution for the harm the defendant caused.

While there are many forms of community service that can benefit the public, there must be a direct connection between that service and the crime. For example, courts have struck down community service sentences that involve public organisations with no ties to the offender or the crime.

Suppose a corporate executive with no substance abuse history is convicted of misappropriating corporate funds for personal use; the judge orders the executive to pay restitution to a community substance abuse facility.

If the defendant challenges the sentence, an appellate court will likely strike it down—that’s because the rehabilitation facility has no relation to either the offender or the crime. In many instances, judges determine that the community will benefit from a substance-abusing offender entering a rehab programme.

The community will benefit because the judge believes the offender is unlikely to continue to commit crimes with proper substance-abuse treatment.
However, an offender’s mere attendance and participation in a treatment programme is usually not enough, standing alone, to meet the ‘for the benefit of the community’ test.

Typically, judges will also require the offender to do work over and above programme participation. (additional information sourced from community service website)