Pre-sentence investigation

The presiding judicial officer has a wide discretion as to sentence, and must exercise it in order to arrive at a suitable sentence, one that fits the criminal as well as the crime, is fair to society, and is blended with a measure of mercy according to the circumstances.  The court must therefore ensure that it is in a position to arrive at a proper and just sentence.  In order to arrive at such a sentence, the court must have as much factual information about the circumstances as possible.

Before assessing sentence, a judicial officer must equip himself with sufficient information to enable him to assess sentence humanely and meaningfully, and to reach a decision based on fairness and proportion;  the needs of the individual and the interests of society should be balanced with care and understanding.  Hence pre-sentencing information is very important.  Where the accused is not represented, the magistrate has a duty to canvass all these aspects with the accused, if necessary postponing the trial to enable the information to be obtained.

The need for pre-sentencing information is particularly important in the case of juvenile offenders:

“There can never be a just cause to proceed and sentence juvenile offenders without getting all useful information to guide the court on the question of sentence.  This would include obtaining probation officers’ reports … [and] … might entail calling the accused’s parents or guardians or school authorities to shed light in the matter.  The need for the probation officer’s reports in cases of this nature cannot be over-emphasised.  While the courts face challenges in their dealings with the Department of Social Welfare, this can never be a just cause to proceed to sentence juvenile offenders without gathering all useful information to guide the court on the question of sentence.  Even in the absence of a probation officer and probation officers’ reports, a trial court handling the matter of a juvenile should be innovative and seek to involve the family of the juvenile before coming up with a management scheme or sentence.”

For a useful statement of the broad principles of sentencing, see S v Shariwa 2003 (1) ZLR 314 (H).

Proof of previous convictions

The fact that an accused person has previous convictions will usually affect the sentence to be imposed upon him, though it is not an aggravating feature.  The weight that the court will attach to the previous convictions will depend on their nature.

The onus is on the prosecution to prove that the accused has previous convictions, and if he has any it is generally important to prove them, particularly in cases where he was previously given a suspended sentence and his current conviction is a breach of the conditions of suspension.

After conviction in a magistrates court the prosecutor will state whether the person convicted has any previous convictions.  If he has, his record as shown on ZRP form 125 will be put to him:  that is, the prosecutor will read them out to the accused and the court will ask the accused if he admits them.  If the accused denies any or all of them the prosecutor has the right to request a remand so that he can bring evidence to prove them.

In the High Court the procedure is the same (note that there is no longer provision in the Criminal Procedure and Evidence Act for previous convictions to be proved at a preparatory examination), but if the prosecutor wishes to prove previous convictions he or she must give the accused at least 72 hours’ notice of intention to do so. 

It is undesirable for the court to proceed to sentence an accused person on the basis of a general statement by the prosecutor that he has previous convictions and a general admission by the accused that he has a previous conviction for the crime concerned.  Particularly where the accused is unrepresented, the prosecutor should state precisely what the convictions are, and those convictions should be admitted or proved.

As regards the type of evidence which can be produced to establish previous convictions, see sections 328-329 of the Criminal Procedure and Evidence Act [Chapter 9:07].  A certified fingerprint record from a police officer, a prison officer or an immigration officer is admissible as prima facie evidence against the accused in relation to previous convictions.

If the accused admits the previous convictions contained in the ZRP Form 125 this form becomes part of the record.

Evidence on sentence

Section 334(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] sets out the types of evidence and information which the court may receive for the purpose of informing itself as to the proper sentence to be passed. This includes:

• evidence on oath from the accused and his witnesses or from State witnesses;
• an unsworn statement from the accused;
• written statements from the prosecutor, the accused or his legal representative;and
• affidavits and written reports tendered by the prosecutor, the accused or his legal representative.

Hearsay evidence, affidavits and written statements may be tendered by one side only if the other side consents.  The court can decide to call the person who made any affidavit or written report submitted in evidence to give oral evidence.

Accused persons and witnesses who testify in relation to sentence are subject to cross-examination.

Generally the rules as to the admissibility of evidence are relaxed in relation to sentence.

Order in which evidence is presented or addresses are made

Where the prosecutor wishes to lead evidence in aggravation of sentence (including where he wants to prove previous convictions), he or she should do so before the accused leads evidence in mitigation of sentence.  After that, the accused or his legal practitioner should lead any evidence he wishes to adduce in mitigation of sentence.  Then the parties may address the court, first the prosecutor in aggravation of sentence and then the accused or his representative in mitigation.

In practice, however, the parties seldom lead evidence in aggravation or mitigation.  What usually happens is that the parties address the court (the prosecutor usually first, then the accused or his legal practitioner), stating aggravating or mitigating facts, sometimes putting forward propositions of law, and arguing for a particular sentence.  If the prosecutor accepts the facts advanced by the accused or his representative, the prosecutor should say so and then they are accepted as correct without further proof.  If the court does not accept those facts despite the prosecutor having done so, the court must inform the parties before passing sentence so that the defence has an opportunity to lead evidence to establish them.  A prosecutor should not accept improbable facts alleged by the defence, unless he or she has good reason to believe them to be true, nor facts that are inconsistent with the evidence led at the trial.

Unrepresented accused

An unrepresented accused person must always be afforded the opportunity to lead mitigatory evidence and to address the court in mitigation of sentence.  His address can contain both assertions of fact and an appeal to the court for clemency.  Additionally, where the accused is unrepresented the court has a duty to ensure that the factors of mitigation are fully canvassed because the accused will often be unaware of the sort of things which are relevant when it comes to sentence.  The court must thus offer guidance to the accused in this regard.

The court itself should also investigate what mitigatory features exist and take into account mitigatory factors which have emerged in evidence before conviction.  This is particularly so when the accused is a juvenile.

If the police docket contains evidence of mitigating features the prosecutor has a duty to bring them to the attention of the court:  S v Le Roux S-172-1981.

As indicated above, the court has a duty to make sure that it is in a position to arrive at a proper and just sentence.  In order to arrive at such a sentence, the court must have as much factual information about the circumstances as possible.  Unless those facts have emerged from the evidence at the trial, if an unrepresented accused does not say anything in mitigation, then the judicial officer should put such questions to the accused as will elicit that information.  This applies particularly where the unrepresented accused is unsophisticated and has been convicted of a serious crime.

Defended accused

The legal representative of the accused must be given the opportunity to lead mitigatory evidence to and address the court in mitigation of sentence.  Without calling evidence, the legal representative may simply set out what he considers to be the salient mitigatory factors in the case, and may draw the court’s attention to salient case law.  The prosecutor may either accept these facts or dispute them.  However, as regards factors such as contrition, the court is likely to attach less weight to what a legal representative has said regarding his client’s penitence than to a personal and credible expression of regret and repentance by the accused himself.

If the accused or his representative is not given an opportunity to address the court in mitigation of sentence, the sentence imposed by the court may have to be reconsidered on appeal or review.

Prosecutor

If the prosecutor wishes to do so, he must be allowed to address the court to draw attention to the aggravating features of the case and to make submissions as to the appropriate sentence in the case and to refer to any relevant case law in this regard.

The prosecutor’s duty is to assist the court in arriving at a proper sentence.  He or she should be able to advise what sentences are proper and what sentences have been approved by the High Court and the Supreme Court for similar crimes.  He or she is duty bound to dispute facts advanced in mitigation if he or she knows them to be incorrect or if they are highly improbable or absurd.  Where the accused is not legally represented, the prosecutor is also expected to draw the court’s attention to any facts of which he or she is aware which are mitigatory, such as that the accused has paid compensation to his victim.

Onus of proof

In S v Chinyani 1969 (2) RLR 42 (A), the court stated that there were no rigid rules governing the burden of proof or the degree of proof in relation to evidence or statements in mitigation of sentence.  It said that a high degree of flexibility must exist in considering the variety of factors which are relevant to sentence;  there need not always be proof of an assertion of fact before it is accepted for the purposes of sentence.  If there is any doubt at the stage of sentence as to the existence of any relevant fact, the trial court must reach its own conclusions, as it thinks right, and is entitled to disregard any such fact for the purposes of sentence if it is not satisfied that the fact exists.  Before rejecting any fact advanced in mitigation, however, the court should generally inform the accused or his representative.

Passing of sentence

Sentence to be passed in open court

Sentence must be passed in open court, where the accused is over the age of 18, unless the proceedings are in camera.

Where sentence is to be pronounced on a person under the age of 18, the only people who may be present, apart from officers of the court, are:  the accused and any co-accused, together with their spouses and legal practitioners;  parents, guardians or persons in loco parentis;  other persons whose presence is necessary to the proceedings (e.g. probation officers);  and other people who have been authorised by the judicial officer to be present.

By whom sentence may be passed

In the High Court, sentence should normally be passed “forthwith” by the judge who delivered the verdict;  if it is not, then it may be passed by any judge of the court.

In a magistrates court, sentence is normally passed forthwith by the magistrate who presided over the trial, but if for any reason that is not possible (e.g. if the original sentence has been set aside on review and it is necessary to pass sentence afresh) or in the absence of the magistrate who convicted the offender, any other magistrate of the court may impose sentence:  section 334(7) of the Criminal Procedure and Evidence Act [Chapter 9:07].  In order to use this provision, the sentencing magistrate must, firstly, note on the record the absence of the trial magistrate and the reasons for the absence.  Secondly, the accused must be given the opportunity of addressing in mitigation.  Finally, it is incumbent on the second magistrate to consider the evidence recorded and upon which the verdict was returned.  The words “in the absence of the magistrate who convicted” are unqualified by the statute and should be given the widest possible meaning, which is that the magistrate in question could be absent for whatever reason, e.g. retirement, leave, discharge from service, death, or lengthy absence abroad for whatever reason.  While these are normal forms of absence, there can be no doubt that any absence for an appreciable length of time would bring into play the provisions of the section, especially if prejudice were to be caused if the convicted person is made to await the return of the magistrate to the courthouse.  Similarly, the fact that the trial magistrate is an appreciable distance away from the court would allow the provision to be invoked.  The phrase must thus be measured in terms of the triad of time, space and circumstances.

Correction of sentence

A judicial officer may correct a sentence either before or immediately after it has been recorded, so long as there has been a genuine mistake in the delivery of the sentence (e.g. it does not reflect what the judicial officer meant or it is incompetent) and that the correction is made immediately, i.e. within a reasonable time.

It is not every mistake that can be corrected.  A judicial officer may correct a sentence if, for example, he intended to impose a sentence of six weeks’ imprisonment and discovers immediately afterwards that he erroneously recorded a sentence of six months’ imprisonment.  But if he imposed a competent sentence and then merely has second thoughts about it, he cannot change it because he is functus officio.  For example, if a magistrate has imposed a prison sentence on a first offender and some time later decides that the offender should not be sent to prison after all but should instead be sentenced to a fine or community service, the magistrate cannot alter the sentence.  And if a magistrate has imposed a fine for cycle theft, he cannot later decide that the sentence was too lenient and alter it to a prison sentence.

Sentencing for untried crimes

An accused person may apply to the court to be sentenced for untried crimes, and with the prosecutor’s consent the court may do so as if the crimes had been separately charged.  The court must be satisfied that the accused freely and voluntarily admits to having committed the crimes.  A magistrate can pass sentence on the accused even if the crimes concerned were committed outside his or her province.  The court must record the date, place and nature of each crime and the sentence imposed in respect of it.

Where sentence is imposed for such a crime, the accused is deemed to have been convicted of it and generally cannot be charged with it again;  though if the conviction for the crime of which the accused was convicted is set aside on appeal or review then the accused can be charged again with the untried crimes.

Adjournment of case where sentence exceeding magistrate’s jurisdiction is justified

If, after conviction, a magistrate forms the opinion that a sentence in excess of his or her jurisdiction is warranted, he should adjourn the case, remand the accused and submit a report to the Prosecutor-General, together with a copy of the record of the proceedings.

Where a magistrate has taken this step, the Prosecutor-General may direct either that the case be transferred to the High Court for sentence, or that it be continued before the magistrate.  On receiving the Prosecutor-General’s direction, the magistrate must cause the accused to be informed of it.

Transfer to High Court for sentence

Where the Prosecutor-General has directed that the case be transferred to the High Court for sentence, the magistrate must issue a warrant committing the accused to prison pending the imposition of sentence (though the accused can be admitted to bail) and send the record of the case to the High Court.  On receiving the record the registrar of the High Court must lay it before a judge, who must consider the verdict and any finding the magistrate may have come to in regard to the accused’s previous convictions.  In other words, the judge must review the proceedings.  If the judge considers the proceedings to be in accordance with real and substantial justice, the accused will be brought before the judge in open court and sentenced either for the crime of which he was convicted or for any other crime that the judge may have substituted in the exercise of his or her review powers.  The judge can impose any appropriate sentence and is not limited by the jurisdictional limits that applied to the trial magistrate.

Remittal to trial magistrate

If the Prosecutor-General remits the case back to the trial magistrate, the accused will be brought before the magistrate and sentenced.  Note that if the Prosecutor-General takes this course and the magistrate is an ordinary (or junior) magistrate, the magistrate’s jurisdiction to impose punishment is increased to a maximum of a fine of level 9 or four years’ imprisonment or both.

Penal provisions

All our crimes are now statutory (i.e. prescribed in statutes);  there are no longer any common-law crimes.  Statutes which create crimes almost invariably specify the maximum punishment that a court may impose, and sometimes they prescribe a minimum punishment as well.  A court is not allowed to exceed the maximum punishment prescribed in the statute for the crime concerned.  So even though it is said that the High Court has unlimited jurisdiction as to punishment, the court is not permitted to impose a heavier punishment than the relevant statute prescribes for the crime concerned:  for example, if a statute prescribes a fine of level 9 or imprisonment for three years as the maximum sentence for a crime, the High Court cannot impose a sentence of four years’ imprisonment for that crime.  In addition, a magistrates court is not allowed to impose a punishment that exceeds its jurisdiction, so, in the example just mentioned, where a statute prescribes a fine of level 9 or imprisonment for three years as the maximum sentence for a crime, an ordinary magistrate will not be able to impose that maximum (because an ordinary magistrate’s jurisdiction is limited to a fine of level 7 or two years’ imprisonment).

If a statutory provision states that a person who contravenes the provision is liable to a fine not exceeding level X or to imprisonment for a period not exceeding Y years, the court has a discretion to impose either a fine or imprisonment, but not both.  It may not, for example, impose imprisonment directly and as an alternative to a fine, nor may it impose a fine and a suspended sentence of imprisonment.  That is why most statutes imposing penalties empower a court to impose “a fine not exceeding level X or imprisonment for a period not exceeding Y years or both such fine and such imprisonment.”

Forms of sentence

General

Under section 336 of the Criminal Procedure and Evidence Act [Chapter 9:07], the following punishments are legally recognised in Zimbabwe:

• the death sentence (capital punishment);
• imprisonment, including imprisonment for life and extended imprisonment;
• a fine;
• community service;
• putting the convicted person under recognizance, with conditions.

Death sentence

The death sentence is permitted under the Constitution and is carried out by hanging.

Under section 48 of the Constitution, echoed by section 336(1)(a) of the Criminal Procedure and Evidence Act, the death sentence can be imposed only for murder committed in aggravating circumstances — there is no indication in the Constitution what is meant by “aggravating circumstances”, so its meaning should be worked out by the courts on a case-by-case basis.  Section 47(2) of the Criminal Law Code, however, purports to set out factors which a court must (“shall”) regard as aggravating:  for example if the murder was committed in the course of rape or sexual assault, or was one of two or more committed in the same episode, or if the murder was accompanied by physical torture.  This section, to the extent that it tries to compel courts to regard certain factors as aggravating, is almost certainly unconstitutional.

The sentence cannot be imposed on women, or on men below the age of 21 years or over the age of 70 years.

Provisions of the Criminal Law Code which allow the death sentence to be imposed for treason or for insurgency, banditry, sabotage or terrorism (where the crime results in the death of a person) are unconstitutional.

No executions have been carried out in Zimbabwe since 2005, and Zimbabwe is regarded internationally as a country which has placed a moratorium on the death penalty.  Unfortunately people have continued to be sentenced to death and there has been a build-up of prisoners awaiting execution:  as at 2017 one man was on “Death Row” for over 25 years.  Then in March 2018 the President published Clemency Order No. 1 of 2018 which commuted to life imprisonment the death sentences of all prisoners who had been on “Death Row” for ten years and more.  Undue delay in executing a prisoner who has been sentenced to death amounts to cruel and inhuman treatment and it is submitted that if a prisoner is kept on “Death Row” for even five years it can legitimately be claimed that he has been treated cruelly and inhumanly.

Imprisonment

It is generally recognised that offenders should be kept out of prison as far as possible, particularly if they are first offenders.  It has been said that imprisonment should be imposed only as a last resort.  But sometimes, because of the seriousness of the crime, prison is the only option.  For some crimes, only imprisonment can be imposed.

Imprisonment is a means of removing dangerous persons from society, but it has disadvantages:

• It is very expensive to keep prisoners in custody.
• Contact with hardened criminals in prison makes an offender’s rehabilitation difficult.

Young offenders (i.e. offenders in the age-group 18 to 21) should be kept out of prison where possible.  There are special provisions for the treatment of juvenile offenders (i.e. offenders below the age of 18).  First offenders are normally treated with a measure of leniency.

Court’s discretion as to period of imprisonment

Where a statute provides that the maximum sentence for a crime is imprisonment for life, or imprisonment for a specified period, the court can sentence the offender to a shorter period within the limit of the court’s sentencing jurisdiction.  Where however a statute provides for a minimum sentence of imprisonment, the court may not pass a shorter sentence, nor may it suspend any part of the sentence.

A magistrates court cannot pass a sentence of imprisonment of less than four days, except where it sentences a person to imprisonment until the rising of the court.

A sentence of imprisonment cannot be pre-dated to take into account any period that an offender has been detained before his trial.  But the courts usually take pre-trial incarceration into account when fixing the length of a sentence of imprisonment.

Imprisonment for life

According to section 344A of the Criminal Procedure and Evidence Act [Chapter 9:07], where a court sentences a person to imprisonment for life the person must be imprisoned for the rest of his or her life.  The section is unconstitutional, because imprisoning a person without hope of release violates human dignity and amounts to cruel and inhuman punishment.  What life imprisonment means, therefore, is that the prisoner is kept in prison indefinitely but is entitled to be considered for release on parole in terms of the Prisons Act.

Periodical imprisonment

Where a person is convicted of a crime specified in the Sixth Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07] (certain traffic crimes and failing to pay maintenance) he may be sentenced to periodical imprisonment in an appropriate prison for a period of between 96 and 2000 hours.  Before imposing such a sentence the court must ascertain from the officer that there is accommodation for the offender in an appropriate prison.

Periodical imprisonment is intended to cater for offenders who should be sentenced to imprisonment but who ought to be allowed to continue to work and support their families while serving their sentences.  It is intended for offenders who are in regular employment.

The way in which sentences of periodical imprisonment are to be served is laid down in the Prisons (General) Regulations, 1996 (SI 1 of 1996).  What happens is that the offenders have to report to the prison every evening during their sentences and are released the following morning.

Extended imprisonment (formerly indeterminate imprisonment of habitual criminals)

A judge may sentence an offender to extended imprisonment where the offender:

• is convicted of a crime in the Seventh Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07] (which specifies serious crimes such as murder, rape, robbery, theft and fraud);and
• has previously been convicted in at least three separate trials of a Seventh Schedule crime;and
• was at least 25 years old when he sustained the last of those convictions.

Before a person is sentenced to extended imprisonment he should be warned of the possibility that he may be so sentenced, but a warning is not a prerequisite for such a sentence to be imposed.  Where such a warning is given, it is noted on the record.

A sentence of extended imprisonment lasts from seven to 15 years, where the offender has not previously been sentenced to extended imprisonment, and from 15 to 20 years where he has.  When sentencing the offender, the judge must inform him of the minimum and maximum periods he will have to serve.

Imprisonment in default of payment of a fine

Whenever an offender is sentenced to a fine, the court may impose a period of imprisonment as an alternative to the fine.  The imprisonment can be of any length up to the court’s limit of jurisdiction, but it should not, either alone or together with any sentence of imprisonment imposed as a direct punishment, exceed the maximum period provided by the statute concerned for the crime.  The ratio between the fine and the imprisonment is in the discretion of the sentencing court, but a due proportion should be observed between the two.  The imprisonment should be long enough to induce the offender to pay the fine, but it should not be excessive.  It has been said that the period of imprisonment should generally be roughly the period the offender takes to earn the fine.

Remission of sentence

Under section 109 of the Prisons Act [Chapter 7:11], prisoners can earn remission of up to one-third of their sentences “through satisfactory industry and good conduct”.  In other words, if they behave themselves in prison they will be released early.  This does not apply to prisoners serving sentences of one month or less, or to prisoners who have been sentenced to life imprisonment, periodical imprisonment or extended imprisonment.  And it does not apply if the remission would result in the prisoner serving less than one month’s imprisonment.

Fine

Fines are an important alternative to imprisonment.  A fine can be an effective deterrent and it does not have the highly destructive consequences that incarceration often has.  However, the way in which fines are imposed can be highly discriminatory against the poor.  As was pointed out in the case of S v Munyakwe & Ors HH-92-93, the failure to assess fines in accordance with means can result in grave injustice to poorer people.

Assessment of offender’s ability to pay fine

Time and time again, the higher courts have stressed that there should be a proper investigation into the means of the accused to pay and that the fine should be tailored to his means.  Unless judicial officers gather adequate information on the means of the accused, it will be impossible for them to tailor the fine to the means of the accused.  In probing the means of the accused, earnings from the informal sector should be taken into account because large numbers of the urban population now earn their livelihood in the informal sector.

The main principles to be borne in mind in assessing the amount of a fine are as follows:

• The object of a fine is to keep the offender out of prison, and that object will be defeated if a fine is imposed which there is no reason to suppose the accused can pay.The fine must be a real alternative to the sentence of imprisonment imposed in default of payment.
• The fine should be adjusted to the accused’s means, though not necessarily his immediate means:his financial prospects must be taken into account and, where necessary he may be given time to pay the fine.If the accused is a poor person, the fine should be lower than if he is rich.And if he is rich, there is no reason why an upward adjustment of the normal fine should not be made.  At the same time, care must be taken to ensure that the wealthy are not unduly punished.
• Even if the court has reason to believe that any fine is beyond the means of the offender, a fine may still be imposed;in such a case it would be proper to impose a fine commensurate with the rough average earnings of a person in a similar position to the offender.
• A fine should be assessed on the basis of the offender’s ability to pay, not on the ability of his family or friends to pay.Otherwise his family and friends will be punished for his crime.
• Where the offender has been convicted of a crime which involves making money by illegal means, such as unlawfully dealing in gold, the amount of any fine imposed must be such as to deprive the offender of his profit.

Recovery of fines

The court may enforce the payment of a fine by ordering the seizure of money which the offender has in his possession.  This is seldom done.  Instead the court may issue a warrant authorising the sheriff or messenger of court to attach the offender’s property and sell it.  Alternatively, the court may issue a garnishee order directing the offender’s employer to deduct specified amounts from the offender’s salary or wages and to pay them to the registrar or clerk of court.

The purpose of these provisions is to exact payment of a fine from a person who is able to pay but refuses to do so, insisting on going to prison in order to make a martyr of himself and a be nuisance to the State.  The provisions can also be used where the offender has been sentenced to an effective term of imprisonment as well as a fine.

Part payment of fine

If an offender pays part of a fine, the period of imprisonment imposed as an alternative to the fine is reduced accordingly.  The reduction must be in whole days, and any payment that would reduce the period by a fraction of a day must not be accepted.

Time to pay fine

A court that sentences an offender to a fine may give him up to 12 months in which to pay the fine.  This is done by suspending the warrant committing the offender to prison in default of payment.  Conditions may be imposed on the suspension of the warrant. The court may allow the fine to be paid in instalments.

Generally, whenever the court imposes a fine on an unrepresented offender, it should investigate the question whether or not he should be given time to pay, even in the absence of an application from the offender.

Community service

Community service consists of any service for the benefit of the community or a section of the community which an offender is ordered to provide in terms of section 347, 350A or 358 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It may be imposed:

• as an alternative to a fine;
• as a condition of suspension of a sentence of imprisonment;or
• directly as a substantive punishment.

It provides an alternative to imprisonment and is particularly beneficial for first and youthful offenders.  The offender is not only kept out of prison where he would come into contact with the worst elements in society but he is also made to pay reparation for his wrongs to society.  It can be an exacting form of punishment and is not intended to be an easy way out for convicted persons.

Details as to the imposition of community service are contained in the Criminal Procedure and Evidence (Community Service) Regulations, 1998 (SI 12 of 1998).

Crimes for which community service may be imposed

Community service may be imposed in respect of less serious crimes, i.e. crimes in which the court would have imposed an effective prison sentence of 24 months or less;  according to the Community Service Guidelines, anyone who would otherwise be sentenced to an effective prison sentence of 12 months or less is eligible for community service.  Failure by a court to consider imposing community service in suitable cases is a misdirection.  It may be imposed even if the enactment which creates the crime concerned makes no provision for community service.  It may not be imposed in cases of murder, rape, armed robbery, robbery with violence, car theft, stock theft (of cattle).  Special caution must be exercised in imposing community service for crimes such as unarmed robbery, culpable homicide, infanticide, abortion, corruption involving public officers, etc.  Only where the mitigatory circumstances are very compelling should community service be considered for those crimes.

Inquiry before imposition of community service

The court must make a proper enquiry before imposing community service, and should consider the following:

• It should be regarded as a fine on leisure time and is particularly appropriate for persons who exhibit anti-social behaviour, as it gives the opportunity for constructive activity as well as a possible change of outlook on the part of the offender.
• Even if the crime is one for which community service is appropriate, the offender may not be:he may indicate unwillingness to carry out the service;he may fail to attend, requiring a warrant of arrest to be issued;or he may commit further crimes.For these reasons, courts should err on the side of caution for, if inappropriate offenders are allowed the option of community service, or if it is imposed for inappropriate crimes, public confidence in the system will be lost.
• Is a suitable place available?If so, where?If the offender possesses particular skills or expertise, he may be ordered to perform community service where those skills and expertise can be used to good advantage (for example, a doctor can be ordered to perform community service at a local clinic or hospital).
• Is the work suitable for making reparation to the community?The work should not be such that it is demeaning and amounts to degrading treatment, but on the other hand should not be so easy that it appears to be meaningless.
• If the offender is employed, can community service be arranged so as to enable him to continue in employment?Special care should be taken to ensure that the community service does not interfere with his employment (e.g. he may be ordered to carry out community service after normal working hours or on weekends).
• The recommendations of the community service officers. 2004 (1) ZLR 493 (H), the judge pointed out that community service officers are trained officers of the court whose main function is to assess the suitability of a candidate for community service.Their recommendations should not be disregarded without good cause.If a recommendation is not accepted, it is essential that the trial court show that it considered the recommendation and why it ignored it. Failure to do so is a misdirection.

Consent of offender

In terms of section 12 of the Criminal Procedure and Evidence (Community Service) Regulations, 1998 (SI 12 of 1998), a court is required to do the following:

• Explain to the offender
  
  • the aims and objectives of community service;
  • his duties in terms of the order;
  • his right to apply for variation of the order;
  • the consequences of his failing to comply with the order;and
• Ascertain whether the offender is willing to perform community service.

If the offender refuses to perform community service after this explanation, it should not be imposed in any form.

Imposition of community service

Community service is measured in hours of service.  The minimum length is 35 hours (meaning that a sentence of less than 35 hours should only be imposed in exceptional cases);  the maximum will depend on the circumstances of the case, but should generally not exceed 420 hours.  The number of hours should not be chosen arbitrarily.

The court must specify the hours of work and the times of starting and ending work, and should have regard to the offender’s circumstances — e.g. is he a full-time student or in full-time employment?  If he is, the court should allow community service to be carried out over week-ends or after working hours, by arrangement with the institution concerned.  If the hours fixed by the court become inconvenient either to the institution or to the offender, then the court must be approached to vary the conditions imposed in the order.  It is not for the institution to allow the offender time off.

Where community service is imposed as an alternative to a fine, it should only be imposed where the appropriate sentence is a fine and there is doubt whether the offender will be able to pay the fine even if it is reduced to take account of his means or if he is given time to pay.  Community service could be imposed directly where the court does not wish the offender to go to prison or to pay a fine, for example, where the fine might be paid by someone else or where a fine would have little deterrent effect but imprisonment would be inappropriate.

Amendment of community service order

In terms of section 350D of the Criminal Procedure and Evidence Act [Chapter 9:07], a community service order can be amended or revoked by the same judicial officer who imposed it or by a judicial officer of the same or greater jurisdiction.  An application for amendment or revocation can be made by the offender or, if he is a minor, by his parent or guardian, or by the Prosecutor-General or a public prosecutor.

Failure to comply with community service order

If an offender fails to comply with a community service order, a magistrate can order him to be arrested and brought before the High Court (where the order was imposed by that court) or before a magistrates court, where the court will undertake an enquiry into the default.  If the court is satisfied that the offender has failed to comply with the order, it may:

• amend or extend the order;
• order the offender to pay a fine or serve any sentence of imprisonment that was imposed on him as an alternative to community service; or
• if no alternative punishment was imposed on the offender, impose any sentence on him that could have been imposed by the original trial court.

Corporal punishment

Section 353 of the Criminal Procedure and Evidence Act permits corporal punishment (i.e. a whipping of up to six strokes) to be imposed on boys under the age of 18 who have been convicted of any crime.

Corporal punishment, whether imposed on juveniles or adults, is an unconstitutional form of punishment, and section 353 is therefore void:  see the case of S v Chokuramba CCZ 10/2019.

Putting the offender under recognizances (binding a person over to keep the peace)

Where the High Court has convicted a person of a crime, other than a capital crime, it may order him to enter into recognizances, with or without sureties, in an amount fixed by the court.  The court may make such an order in addition to, or as an alternative to, any other punishment it may impose on the convicted person.  The condition of the recognizance is that the offender will keep the peace and be of good behaviour for the time fixed by the court.

A magistrate has similar powers, where an offender has been convicted of a crime involving assault or injury to the person, but the amount of the recognizances must not exceed level 6 and the period for which the offender is bound must not exceed one year.

If a person fails to observe the conditions of recognizances he has entered into, a magistrate may order him to be brought before a judge or magistrate (depending on which court imposed the recognizances).  A peace officer who believes that a person has failed to observe the conditions of his recognizances may arrest him without warrant in order to bring him before a judge or magistrate.  A judge or magistrate before whom a person has been brought may enquire into the matter and declare the recognizances to be forfeited.

Caution and discharge

This is not really a punishment.  It can be imposed by a court for any crime except one listed in the Eighth Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07] (i.e. murder, or conspiracy or incitement to commit murder, or a crime for which a mandatory minimum sentence is imposable).

A caution and discharge is generally regarded as an acquittal, except that the Prosecutor-General is entitled to appeal against the sentence.

Mandatory minimum sentences

Several statutes provide for mandatory minimum sentences.  Where such sentences are provided, the court’s general discretion to impose a lesser sentence is removed.

Mandatory minimum sentences are constitutional so long as:

• The minimum sentence is not grossly disproportionate to the crime, having regard to its nature and the mischief which is sought to be remedied;and
• The sentence can be mitigated by a finding that special circumstances exist which allow the court to impose a lesser punishment.

A mandatory minimum sentence does not apply to attempts to commit the crime concerned, unless the statute specifically provides that it does apply.

A mandatory minimum sentence cannot be suspended, and if it is a fine the offender cannot be given time to pay.

Special circumstances or reasons

For the reasons given above, most statutes imposing minimum sentences state that the sentences need not be imposed where there are “special circumstances” or “special reasons” not to do so.  To qualify as special, a circumstance or reason must be out of the ordinary, though the court is entitled to take into account a cumulative effect of a number of circumstances or reasons.  Mitigating features such as good character cannot be taken as special, nor does contrition or co-operation on the part of the offender.  In a case involving the illegal possession of precious stones, the fact that the stones have a minimal value does not by itself amount to a special circumstance.  Special circumstances or reasons may relate to the crime or the offender, unless the statute indicates the contrary — though most statutes define the phrase as “special circumstances (or reasons) surrounding the commission of the offence”, which excludes circumstances relating to the offender.

Multiple counts

Where a person is convicted at one trial of two or more counts, the court may sentence him to punishment in respect of each count.

Cumulative or consecutive sentences

Normally, when an offender is sentenced to separate punishments on two or more counts, the sentences must be served consecutively, i.e. one after the other.  The court may direct the order in which the sentences will be served or, alternatively, may order that the sentences should run concurrently (i.e. that they should be served together).  Sentences of corporal punishment or of fines cannot, however, be made to run concurrently.  It is not possible, for example, to sentence a juvenile to four strokes on one count and four strokes on another and order that the sentences run concurrently.  The proper procedure to adopt where a number of crimes warranting corporal punishment or a fine are committed and the aggregate would be too severe, is to treat several counts as one for the purposes of sentence.

In fixing the length of each sentence, the court should take into account whether the sentence is going to be made consecutive to or concurrent with the other sentences.  There is no requirement that the sentences on closely related counts should run concurrently with one another.  The ultimate test is whether or not the aggregate sentence is reasonable in relation to the offender’s total culpability.  The overall sentence must always be borne in mind.  Even if the sentences on individual counts, taken separately, are appropriate, the total sentence may not be.  Where a person is convicted of several counts of varying degrees of gravity, it is wrong to assess an appropriate aggregate sentence and then divide it equally between the different counts.  Inappropriate sentences should not be imposed on individual counts in order to arrive at an acceptable total.  There are two alternative correct methods:

• One is to impose a globular sentence, i.e. treating all the counts as one for sentence.  This is not always desirable.  It is preferable for an offender to be sentenced separately for each crime, especially where the crimes are entirely different.  In most cases, there is no practical advantage in imposing a globular sentence.  An exception might arise where it is decided, in dealing with a juvenile, to place him in a training institute or impose a sentence of whipping.  The imposition of a globular sentence often causes difficulties on appeal or review.  Consequently, one globular sentence for two or more crimes should only be considered where the crimes are of the same or a similar nature and are closely linked in time (or, if they are not closely linked in time, if they are of a similar nature and are part of a continuous course of conduct ).  A common example would be charges of forging a document and using the document to perpetrate a fraud.

Where a magistrate takes counts as one for sentence, the globular sentence must be within his punitive jurisdiction.

Where additional punishments – such as prohibition from driving or forfeiture of goods – are provided for in respect of one of the counts on which the accused was convicted, the fact that all the counts are treated as one for sentence does not take away the right of the court to impose the additional punishment for that one count.  However, the court should make it clear that the subsidiary punishment relates only to a particular count.

• The other is to impose an adequate and appropriate sentence on each count separately.If the total period is too high, the sentence, or part of it, on one count should be ordered to run concurrently with the sentence on another count; or a portion of the total may be suspended.

It may be appropriate to group related counts together and make the sentences on the counts within each group run concurrently.  But where counts are grouped together, there should be some rational basis for doing so.

Where counts are treated separately for the purposes of sentence (even if they are made to run concurrently), a magistrate may impose any proper sentence in respect of each count which is within the limits of his or her punitive jurisdiction, even though the total sentence may be in excess of that jurisdiction.  But, as pointed out already, the magistrate must bear in mind that the overall sentence should appropriately reflect the offender’s culpability.

Sentencing guidelines

Inconsistency in sentencing — i.e. courts imposing widely different sentences for similar crimes — will always be a problem so long as judges and magistrates are given a broad discretion as to sentence.  So too will the problem of inadequate or unduly harsh sentences, because judges and magistrates, being human, will differ in their assessment of the seriousness of different crimes and in their assessment of mitigating and aggravating factors.

In order to mitigate both these problems, the Criminal Procedure and Evidence Act now provides for conferences to be convened by the Judicial Service Commission in order to discuss the objectives, policies, standards and criteria for sentencing offenders and formulating sentencing guidelines.  The conferences will bring together judges, magistrates, the National Prosecuting Authority, the Police, the Prison Service, the Law Society and other interested parties and experts.

Sentencing guidelines may deal with:

• pre-sentencing investigations;
• factors to be considered when imposing sentence;
• forms of punishment to be imposed as alternatives to imprisonment;
• principles and criteria to promote consistency in sentencing.

In formulating sentencing guidelines, conferences will have to pay regard to:

• the need for consistency in sentencing;
• the impact of sentences on offenders and their families as well as on vicims;
• the need for public confidence in the criminal justice system;
• the cost of different sentences and their relative effectiveness.

Sentencing guidelines will normally take the form of tables of “presumptive penalties”, i.e. penalties which are midway between augmented penalties that may be imposed where there are aggravating circumstances in a case, and diminished penalties that may be imposed where there are mitigating circumstances.  These presumptive penalties may be supplemented by guidelines “addressing such of the factors referred to in subsection (5) [i.e. the factors that are bulleted above] as are relevant to each offence or class of offence.”

Sentencing guidelines formulated by a conference will be subject to approval by the Judicial Service Commission which will send them to the Minister of Justice, Legal and Parliamentary Affairs for publication as regulations under the Criminal Procedure and Evidence Act.  If the Minister has any objections to the guidelines he or she may refer them back to the Commission for reconsideration by the Commission or at the next conference.  If the Commission agrees to modify them, the Minister will have to publish them as modified;  if the Commission refuses to do so, then the Minister will have to publish them in their original form.

Courts will have to pay due regard to sentencing guidelines when they impose sentence on offenders, and though they are not bound to follow the guidelines if they depart from them they must record their reasons for doing so.

Suspension or postponement of sentence

Where a person is convicted of a crime other than one specified in the Eighth Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07] (i.e. murder or a crime for which a mandatory minimum sentence is prescribed, or a conspiracy, incitement or attempt to commit such a crime), the court may:

• postpone the passing of sentence for up to five years and release the offender on such conditions as the court may specify;or
• pass sentence, but suspend the whole or part of it for up to five years on such conditions as the court may specify.

The conditions that may be imposed are dealt with below.

General considerations as to suspension or postponement

The purpose of a suspended or postponed sentence is rehabilitation and the court should be satisfied that a suspended portion of the sentence will have a rehabilitative effect.

There is no requirement that a first offender should receive a totally suspended sentence.  Whether a totally suspended sentence is appropriate or not will depend on all the circumstances.  In the case of a young first offender, for example, a suspended sentence is usually desirable and appropriate.

There is no general rule that before a court may impose a suspended sentence, whether total or partial, it must be satisfied that special or exceptional circumstances exist.  But if the appropriate sentence is an effective term of imprisonment, special circumstances would have to be shown before the court would be justified in wholly suspending the sentence.  Nor is there any rule that every first offender who is to be imprisoned is entitled to have a portion of the sentence suspended, though they usually do receive a partially suspended sentence.

Where a very long effective sentence of imprisonment is imposed, a suspended portion will generally serve little purpose, though it is sometimes appropriate — for example, where the sentence is suspended on condition that the offender compensates the victim.

Conditions of suspension or postponement

Conditions on which a sentence may be suspended or postponed may relate to:

• good conduct;
• compensation for damage or loss caused by the offender;
• rendering some benefit or service to anyone injured by the crime;
• submission to instruction or treatment;
• submission to the supervision or control of a probation officer or other suitable person;
• compulsory attendance or residence at a specified centre for a specified purpose;
• any other matter which the court may specify, having regard to the interests of the offender or any other person or the general public.

The conditions must be appropriate to the crime and must be stated with such precision that the offender clearly understands the ambit of the condition.  If there is any doubt as to how a condition should be interpreted, the doubt must be resolved in favour of the offender.  Thus, if the offender is convicted of a crime involving assault, it would be appropriate to suspend the sentence or a part of it on a condition relating to physical violence.  The use of the word “violence” alone, however, may be vague and other wording may be needed to ensure that the offender knows exactly what he must do to avoid having the suspended sentence brought into operation.  For example, “statutory rape” would probably not be a crime involving violence.  Similarly, a condition that the offender does not commit any crime involving theft or dishonesty would not apply to unlawful entry into premises.  It would only apply to crimes akin to theft.

A condition of suspension must be reasonably capable of fulfilment;  if the condition cannot be fulfilled, it should not be included.

It is improper for a court to attach more than one condition to the suspension of a portion of a sentence.  Where the offender is convicted of theft and it is desired to suspend a portion of the sentence on conditions of both restitution and subsequent good behaviour, it would be better to suspend a portion on condition of restitution and suspend a further portion on condition of subsequent good behaviour.  Any other course could lead to complications.  Similarly, it would be improper to impose a single suspended sentence in respect of two unrelated crimes.

Length of suspended sentence and period of suspension

In assessing sentence, a portion of which is to be suspended, the proper approach is to look primarily at the sentence which the crime should attract and, having determined that, consider what portion should be suspended. It is not correct to decide what effective sentence the offender should undergo and then add a suspended sentence.

The period of suspension should also be considered judicially.  The maximum period of suspension or postponement of sentence is five years and there is a tendency for the courts automatically to suspend or postpone sentences for the maximum period.  The court should determine in each case whether the maximum period is warranted.

Bringing suspended sentence into effect

If the offender breaches any of the conditions on which a sentence was suspended or postponed, the sentence may be brought into effect.

If the breach consists of a subsequent conviction, the prosecutor at the later trial should, having proved the offender’s previous convictions, point out to the court that the offender has breached the condition and apply for the suspended sentence to be brought into effect or for sentence to be passed (where the sentence was postponed).  The court should not act on its own initiative.

If the breach does not consist of a subsequent conviction, it is normally the duty of the local public prosecutor to report to the magistrate that the offender has breached the conditions, though any other interested party may do so — e.g. the person supervising community service would have to report if the offender has failed to perform the service.

The magistrate to whom the matter is reported, or the court subsequently convicting the offender, should consider the following:

• whether the new crime was committed before the period of suspension expired; and
• if the period of suspension has not expired, whether the present crime amounts to a breach of the conditions of suspension.

Deciding whether period of suspension has expired

A sentence may be suspended for up to five years.  The period of suspension normally commences on the date that the accused was sentenced.  If, however, only a portion of a prison sentence has been suspended and the accused has had to serve a term of imprisonment, the period of suspension only begins to run after the accused is released from prison after serving that term with or without remission of sentence.  Evidence from the prison service of the date of release should be elicited where necessary.

Sentences are usually suspended on condition that the accused does not commit a particular type of crime during the period of suspension.  In such a case, the vital question is whether he committed the crime during the period of suspension.  If he did so, the fact that he is only tried for the crime after the suspended sentence expired does not prevent the suspended sentence from being brought into operation.

Sometimes sentences are suspended on condition that the accused is not convicted of a particular type of crime during the period of the suspension.  Here the question will be whether or not the period of suspension had expired at the date when the accused was convicted of the current crime.  Conditions of suspension should not be formulated in this way:  conditions should be phrased so that the sentences are suspended on condition the offender does not commit (rather than is convicted of) a particular type of crime during the period of suspension.

Deciding whether accused had breached conditions of suspension

The criminal action of the accused must constitute a breach of the conditions laid down for suspension of the previous sentence.  If the condition was that he does not commit a crime of dishonesty during the period of suspension, the commission of the crime of negligent driving or assault, for example, will not amount to a breach of this condition.

Suspended sentence imposed by High Court

A magistrate cannot bring into effect a suspended sentence imposed by the High Court.  After sentencing the accused for his current crime, the magistrate must proceed in terms of section 54(2) of the Magistrates Court Act [Chapter 7:10] and refer the case to the High Court so that the High Court can bring into effect the suspended sentence if it considers that it is appropriate to do so.

Where the suspended sentence was imposed by a magistrate, it does not have to be brought into operation by the magistrate who originally imposed it.  A magistrate other than the magistrate who originally imposed it can bring into effect a suspended sentence.

Passing of postponed sentence

Most of what is stated above relating to suspended sentences applies to situations where it emerges that previously the passing of sentence on the accused was conditionally postponed.  The magistrate convicting and sentencing the accused for the current crime must also decide whether the accused must also now be sentenced for the previous crime because he has breached the conditions of the postponement within the period for which sentence was postponed.  However, it must be noted that the period of postponement begins on the date of conviction.

As with suspension, a magistrate cannot pass sentence if the High Court postponed the passing of sentence.  The case must be referred to the High Court.

A magistrate other than the magistrate who originally postponed sentence can pass sentence on the offender, but in such a case the sentencing magistrate should have the record of the previous proceedings before him.  And his sentencing jurisdiction is limited to his own jurisdiction or that of the convicting magistrate, whichever is the lower.

Further suspension or postponement

It is open to a court to grant a further suspension or postponement for a further period not exceeding five years, on good cause shown by the offender, subject to such conditions as might have been imposed when the sentence was originally suspended or postponed.  What is good cause must be decided in the light of the circumstances of each case, but “good” means “sufficient” or “satisfactory”, giving the court a wide discretion to consider factors relating to the offender and the crime.

Reasons for Sentence

Courts should give reasons for the penalties they impose, and the reasons should record when sentence is pronounced.  Full written reasons should be given even if the judicial officer thinks that the reasons for the sentence are obvious.  It is particularly important that the judicial officer should record his reasons for departing from any general policy which has been laid down by the higher courts in respect of sentence.  The imposition of an inappropriate sentence is an injustice and the review or appeal court can only determine the appropriateness of a sentence if the reasons for the sentence are given.

Factors affecting sentence

General approach to sentence

The triad of factors

When assessing an appropriate sentence to impose, courts generally consider what in the South African case of S v Zinn 1969 (2) SA 537 (A) was called:

“[T]he triad consisting of the crime, the offender and the interests of society.”

As it was put by Holmes JA in the often-quoted case of S v Sparks & Anor 1972 (3) SA 396 (A) at 410H:

“Punishment should fit the criminal as well as the crime, be fair to the State and to the accused, and be blended with a measure of mercy.”

So the three general guides in determining an appropriate sentence to impose are:  the seriousness of the crime, the personal circumstances of the offender, and the public interest.  These factors must be considered equally and no one of them should be ignored or over-emphasised at the expense of the others;  they must be balanced with care and understanding.

1.  The crime

Punishment must not be disproportionate to the crime;  this is a constitutional requirement, laid down by section 53 of the Constitution which prohibits cruel, inhuman or degrading punishment.  The proportionality of the punishment imposed in any particular case is ascertained by looking at the seriousness of the crime and the aggravating and mitigating circumstances relating to it.  Some crimes are inherently more serious than others:  for example, murder or rape are inherently more serious than, say, driving a motor vehicle without due care and attention.  As to the aggravating features, these will vary from case to case.  If the crime is one of possessing dangerous drugs, an aggravating factor may be the amount of the drugs involved.  If the crime involves violence, aggravating factors may be the extent of the violence, the brutality of the attack, and the helplessness of the victim.  Other aggravating factors applicable to this leg of the triad may include the fact that the crime was planned or that it was committed by a criminal gang.

Mitigating factors with regard to the first leg of the triad may include, for example, that the offender was convicted only of an attempt rather than of a completed crime, or that the crime was petty, or that the offender’s involvement in it was limited.

2.  The offender

The second element of the triad entails considering the offender’s personal circumstances to ensure that the sentence fits the offender.  Aggravating features in this regard would be, for example:  that the accused is a repeat offender, that he was motivated by greed, that he lacked remorse, that he committed the crime by abusing a position of trust.  Mitigating factors would include:  youth, old age, and the fact that he is a first offender.  Other factors to be considered are:  ill health, gainful employment, the fact that the offender has a family or that he has shown remorse and pleaded guilty, and so on.

3.  The interests of the public

Considerations under this head include the traditional purposes of punishment (deterrence, rehabilitation, protection, and retribution).  It can also be interpreted more widely to include additional considerations, such as restitution or payment of compensation that can help re-establish social relationships.  Aggravating factors to be considered under this head may include that the offender is dangerous and imprisoning him will protect the community, or the crime is so prevalent that a heavy sentence is appropriate as a deterrent.  It may also be an aggravating feature if the victim was defenceless (e.g. a child) or a law enforcement agent.

The triad laid down in Zinn’s case has been criticised.  It has been called elementary, vague and unsophisticated.  The three elements of the triad are not watertight;  they overlap, and sentencing factors may fall to be considered under more than one of them.  The ambiguity of the triad has often led to judges imposing sentences instinctively and using the guidelines established by the triad to justify the sentences.  In addition, the triad has also been criticised for failing to emphasise the role of victims.

In S v Shariwa 2003 (1) ZLR 314 (H) Ndou J stressed that judicial officers must adopt a rational approach towards sentencing and must have adequate information before they pass sentences.  The court said that there is no room in our system for an “instinctive” approach to sentencing;  it should be a rational process.  The sentencing court must always strive to find a punishment which will fit both the crime and the offender.  Whatever the gravity of the crime and the interests of society, the most important factors in determining the sentence are the person, and the character and circumstances of the crime.  The determination of an equitable quantum of punishment must chiefly bear a relationship to the moral blameworthiness of the offender.  However, there can be no injustice where in the weighing of crime, offender and the interests of society, more weight is attached to one or another of these, unless there is over-emphasis of one which leads to disregard of the other.  The court should not be over-influenced by the seriousness of the type of the crime and fail to pay sufficient attention to other factors which are of no less importance in the actual case before the court.  The over-emphasis of a wrongdoer’s crimes and the under-estimation of his personal circumstances constitute a misdirection which justifies the substitution of the sentence.  Justice should also be tempered with mercy.  The court should equip itself with sufficient and meaningful pre-sentencing information in order to come up with suitable punishment.

In S v Manyevere HB-38-03 the court stressed that the sentencing process is as distinct and vital a factual enquiry as the determination of the guilt of an offender.  Punishment should as far as possible be individualised by conducting meaningful pre-sentencing investigations.  Assessment of punishment should not be left to a haphazard guess based on no or inadequate information.

In S v Ngulube 2002 (1) ZLR 316 (H) the court stated that the needs of the individual and the interests of society should be balanced with care and understanding.  Pre-sentencing information is very important.  Whilst the age, marital and family status, employment, savings and assets are important aspects in the assessment of sentence, courts should always bear in mind that the reason why the offender committed the crime and the circumstances of the crime are of equal importance.

Considerations applicable in particular cases

Factors relating to the accused

Age

Very young and very old people are normally treated more leniently than mature people.

Young people (this term includes juveniles, but is not confined to juveniles) are more prone to making ill- considered and unwise decisions and cannot be expected to show the same stability, responsibility and self-restraint as a fully mature adult.  A person in his or her early twenties may benefit from this.  Note that there is no absolute dividing line as to when a person can be regarded as fully mature:  even persons in their late twenties could be regarded as immature, but the nearer the person is to 30, the less weight will be attached to the factor of age.

Very old people seldom commit crimes. An elderly first offender, who probably has never been in prison before and whose health is not likely to be good, would suffer far more from imprisonment than a younger and more resilient person would. It would be undesirable for an elderly person to end his days in prison and so the very elderly should normally be exempted from imprisonment.  Old age should evoke a note of compassion.  Furthermore, in terms of section 82 of the Constitution the State owes some duty of care to persons over the age of 70.  A criminal court, as part of the State machinery, can play a protective role by ensuring that the elderly are not unduly penalised for crimes committed in an effort to survive.

This does not mean that an elderly person should never be sent to prison.  The crime may be such that there is no other option, or the accused may have a long criminal record.

Gender

Female first offenders are generally treated more leniently than males, for three reasons:

• males commit more crimes;
• recidivism is commoner among males;
• women often have young children to care for.

In some cases, though, these factors may be absent or of lesser importance.

There may be circumstances where there is no reason to discriminate in favour of the woman, particularly where she is jointly convicted with a man and there is nothing to indicate that the man was the dominant partner.

Where a female has a previous conviction for the same crime, she cannot expect the same leniency that is shown to female first offenders.

Marital status and dependants

If a person with a spouse and dependants is imprisoned, the family will suffer.  If this can be avoided, it should, but sometimes it is unavoidable.  It is often said that the accused should have thought of the consequences to his/her family before committing the crime, but this approach often overlooks human nature, the other circumstances of the case, and the actual effect on the family.

Employment

Imprisonment is serious for any person, but it is more serious to imprison someone who is employed than someone who is not, because of the financial loss to the offender and his dependants.  Employment is also difficult to find and it may be hard to find another job.

The nature of the job and the offender’s income are relevant to his ability to pay a fine, whether immediately or in instalments.

The mere fact of conviction may result in the accused being dismissed, irrespective of the sentence imposed.  This should not be overlooked.

Many people are not in formal employment, but have a steady or even substantial income from other sources in the informal sector.  This should be investigated, particularly if a fine is being considered.

Character

Good character should be taken into account as a mitigating feature.

Imprisonment before trial

The fact that an offender was incarcerated while awaiting trial should be taken into account in reducing any prison sentence imposed on him.  It is not proper, however, to back-date the sentence to cover any period of pre-trial imprisonment.

Other punishment or personal consequences

The fact that the offender has been assaulted by a member of the public as retribution for his crime or that he has been tortured or otherwise maltreated by the police before the trial will usually be mitigating.  The court should not seek to punish the person twice.

Mental condition

The offender’s mental state, if not sufficient to make him “not responsible according to law” for the act, may amount to “diminished responsibility” and thus be relevant to sentence.  Clinical depression and post-traumatic stress could contribute to such a mitigating mental state.  Evidence would have to be led.

Plea of guilty

If there has been a plea of guilty, the plea must be indicative of penitence before weight can be attached to it.  It may be that the accused had little option but to plead guilty.  Some weight must, however, be attached to a plea of guilty.  On the other hand, it is not aggravating for the offender to plead not guilty.  He is entitled to do so.

Other indications of contrition

Assistance by the accused to the police, though not affecting his moral guilt, can be an indication of genuine repentance and if so it is relevant to sentence.

Previous convictions

Previous convictions must usually be taken into account, though the weight to be attached to them varies.

A previous conviction may be irrelevant, because the previous crime was trivial or occurred long ago or is totally unrelated to the current crime. For example, a conviction for a driving crime would generally not have bearing on what is an appropriate sentence for theft. But the commission of several crimes different from that with which the accused is now charged may indicate a disrespect for the law.

A previous conviction may render the accused liable to a particular form of sentence or to a minimum sentence. It may render him liable to undergo a suspended sentence or to have a postponed sentence passed.

The crime

Nature of the crime

Obviously this must be taken into account in all cases.

Prevalence of crime

The prevalence of a particular kind of crime must always be taken into account, but judicial officers should avoid the temptation to pass sentences of ever-increasing severity in an attempt to stem the tide of increasing lawlessness.  The prevalence of a crime should not be taken too far as a factor.

The court should also bear in mind that a particular crime may be prevalent in one area and much less so elsewhere.  The place of commission could therefore be relevant.

The prevalence of a particular kind of crime may be such that it is a matter of which a court could take judicial notice, but it may be necessary for statistical evidence to be led by the prosecutor or called by the court.

Effect on victim and victim’s family

Financial effect:  Evidence must establish the financial effect.  The court cannot assume what the effect is.

Physical or psychological effect:  This is not limited to crimes of violence.  A housebreaking could severely affect a nervous person.  But there must be some evidence, even if it is only that of the victim.  The court should also be aware of the possibility of exaggeration by the victim.

Other factors

Accused/victim relationship

This factor applies particularly to crimes of violence and sexual crimes, but is not confined to such crimes.  Theft and other crimes of dishonesty can be viewed in a more serious light if they involve a betrayal of trust, such as theft by a servant.

Marital or blood relationship:  This is particularly important in cases of domestic violence and sexual crimes.

Employer/employee, teacher/pupil:  Again, this is important in sexual crimes, where the offender’s dominant position may have resulted in coercion without physical violence.

Relative ages:  This is particularly important in cases of “statutory rape”.  The closer the ages of the parties, the more likely it is that the incident was one of passion and not one of an adult taking advantage of an innocent child.  On the other hand, a great disparity in the ages of the accused and complainant is usually regarded as aggravating; and where there has in addition been a breach of trust a prison sentence is regarded as the norm.

Victim’s consent to acts

The rationale for creating the crime of “statutory rape” is the protection of young persons. The fact that the “complainant” consented or was even willing may be mitigating, depending on the relative ages and the relationship of the parties.

Possibility of restitution, compensation, etc

It is highly desirable in crimes against property that the accused should make good the loss caused, whether by restoring stolen property or repairing or replacing damaged or destroyed property.  A willingness to make restitution is always a mitigatory factor and will generally be given considerable weight, particularly where the accused is a first offender.  The offender’s willingness and ability to make restitution should be carefully investigated.  But restitution will not necessarily mean a non-custodial sentence.  It is mitigating, but its mitigatory nature must be weighed against the nature of the crime and any aggravating features.

Entrapment

Entrapment may be mitigating if the accused was tempted to commit a crime which he otherwise would not have committed.  If the trap did not constitute an inducement, then the accused should be treated as though there was no trap.

Motive

The accused’s motive in committing a crime bears strongly on his moral guilt.  An altruistic motive would be significantly mitigatory, such as where a person steals in order to feed his starving family.  Conversely, where the motive for the crime is to enable the offender to commit another crime, his moral blameworthiness is higher.  However, if the accused does commit another crime, and he is not charged with it, and if that other crime is more serious than the one with which he is charged, the fact that he committed that other crime should not be taken into account as an aggravating feature.

Because motive bears so strongly on moral blameworthiness it is vital for courts to invite unrepresented accused persons to explain why they committed the crime:  S v Muchena HH-162-1983.

Delay in bringing the accused to trial or in dealing with appeal

Justice delayed is justice denied, and even if there has not been sufficient delay in bringing an accused person to trial to justify a permanent stay in prosecution, the delay can be mitigating if it is not the accused’s fault.  In S v Pretorius 1969 (2) RLR 95 (A) the court said that because there had been a delay of seven years in bringing the appellant to trial, and the delay was not the appellant’s fault, the prison sentence imposed on him by the trial court should be wholly suspended.

Costs

Costs are generally not awarded in criminal cases conducted at the public instance (though they may be awarded in private prosecutions).

Compensation for victims

Part XIX (ss 361-375 of the Criminal Procedure and Evidence Act [Chapter 9:07]) lays down the procedures for awarding compensation to victims at the end of criminal trials.  As a result of amendments effected in 1992, all criminal courts now have very extensive powers to order convicted persons to pay compensation to persons who have been physically injured or suffered loss or damage to their property as a result of the crimes in question.

Previously, courts could award compensation at the end of a criminal trial only for property damage.  Now they can also award compensation for physical injury, compensate innocent purchasers of property and order the restitution of unlawfully-obtained property.  The extended capacity to award compensation at the conclusion of criminal cases is aimed at ensuring that as many victims of crime as possible are compensated without their having to institute civil proceedings against the perpetrators.  The effectiveness of the new provisions, however, depends on the financial resources of the offenders.

A magistrates court is not limited in the amount it may award, or in the value of property which it can order to be returned.  Hence it can make an award in excess of its civil jurisdiction fixed in terms of section 11 of the Magistrates Court Act [Chapter 7:11].

But a court may not award compensation for loss or injury resulting from motor accidents, unless the loss or injury results from theft (e.g. if the loss or injury took place while a stolen vehicle was in the possession of a thief.  Nor may a court award compensation for loss or personal injury in any other cases, if:

• the amount of compensation is not readily quantifiable;
• the extent of liability of the wrongdoer is not readily ascertainable, or
• the convicted person may suffer prejudice as a result of the order.

And a court cannot order the return of stolen property if its return would prejudice the rights of innocent third parties.

A court may not award compensation or order the return of property unless the injured party, or the prosecutor acting on the instructions of the injured party, applies for such an award.

The court is under an obligation to ensure, wherever possible, that the injured person is acquainted with his right to apply for an award of compensation or restitution.   The prosecutor should also draw the attention of the injured party to his right to claim compensation at the end of the criminal trial and, if requested to do so, must make the application on behalf of the injured party.

Under section 62A of the Criminal Procedure and Evidence Act [Chapter 9:07] a court that convicts a person of bribery may give summary judgment in favour of the State or the convicted person’s employer or principal for the amount the person received as a bribe, plus interest.  It is submitted that a magistrate’s court is limited, in the amount it may award under the section, by its civil jurisdiction.

Forfeiture of items

In terms of section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07], a court is given a discretion to order the forfeiture of certain items which have been used in connection with criminal activity. This discretion lies with the court and its exercise does not depend on prior application for forfeiture by the prosecution.

In summary, a court can order the following items to be forfeited to the State:

• in respect of any crimes — weapons, instruments and articles used in the commission of crimes;
• in respect of theft-related crimes — vehicles used to transport stolen goods;
• in respect of statutory crimes relating to possession, conveyance or supply of habit-forming drugs or harmful liquids, possession or dealing in precious metals or stones, theft under common law or statute and housebreaking with intent to commit a common law or statutory crime — vehicles, containers and articles used in the commission of these crimes.

The factors which should be taken into account when deciding whether to order forfeiture are:

• the nature of the article;
• what its role was in the commission of the crime;
• what possibility there is of the article being used again to commit similar crimes;
• the effect of the forfeiture on the person or persons affected by it;
• whether, in the light of the value of the article, its forfeiture will lead to the imposition of a penalty which is disproportionate to the gravity of the crime committed;
• where the article is of considerable value, such as a motor-vehicle, whether that article has previously been used for a similar criminal purpose.

Forfeiture is part of the punishment and the value of the goods or articles which may be declared to be forfeit must be taken into account.  Especially where these may be of substantial value, the courts should make some inquiry to determine their value.

A court can make a forfeiture order without notice, but if it does so the order will not affect the rights of a person who is proved not to have known that the goods or articles were being or would be used to commit the crime, or to have been unable to prevent their use for that purpose.