Reid-Rowland Chapter 25

General Considerations Deciding on sentence

Before passing sentence the judicial officer must give careful thought and consideration to what is the appropriate sentence in the circumstances and he or she should give full reasons for imposing the sentence which he or she has decided upon. Sentencing requires a rational process in which the court weighs all the relevant factors and decides what sentence is fair and appropriate. If the sentencer simply announces the sentence without giving reasons this may give the impression that sentencing is an arbitrary and unreasoned process.

 

Sufficient information for informed sentencing

In Ngulube HH-48-02 the judge said that before assessing sentence, a magistrate must equip himself with sufficient information in any particular case to enable him or her to assess sentence humanely and meaningfully, and to reach a decision based on fairness and proportion. 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.

 

In Shariwa HB-37-03 the court stressed that judicial officers must adopt a rational approach towards sentencing and must have adequate information before they pass sentences. It said that there is no room in our system for an “instinctive” approach to sentencing. Sentencing 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 offence, 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 offence 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 or her person 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 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.

 

Dispassionate rather than emotional sentencing

 

The sentencing process should be a rational and objective process and magistrates should not allow their emotions to cloud their judgment as to what is a suitable sentence. If they allow themselves to get carried away by their emotions, they may end up exaggerating the seriousness of the offence and imposing a disproportionate penalty for the offence: Harington 1988 (2) ZLR 344 (S).

 

Whilst it is quite proper for the judge to express his or her disapproval of the criminal misconduct in formulating the sentence, the use of extravagant and overblown language should be avoided.

 

In Mahati 1988 (1) ZLR 190 (H), the trial magistrate said in his reasons for sentence:

 

“ … it is apparent that you were part of a well-organized ring of thieves that stole might-be millions of dollars worth of car-parts from the CMED. Your conduct is very treasonous … you allow even the meagre cars and spares to be plundered most greedifully and most corruptly … This seems to indicate that the ring was organized along mafia lines and vast government properties were lost to private capitalistic business people thus if anything at all the CMED is a hive buzzing with maladministration and corruption bleeding the people to death.”

 

The review judge commented on this passage. He said at pp 2-3:

 

“ Extravagant and emotional language of this sort is not consistent with the dispassionate and objective approach expected of a judicial officer. Apart from anything else, there was no evidence to substantiate the factual content of this excerpt. X had accepted an offer of $100 to turn a ‘blind’ eye to the theft of a starter motor valued at $300. Whereas dishonesty may have been prevalent at this Government department, the facts actually proved at the trial were far removed from the suggestions conveyed in the passage cited.”

 

In Nemukuyu 2009 (2) ZLR 179 (H) the court observed that a judicial officer must, in considering sentence, be dispassionate and avoid being propelled by emotion into passing ever-increasing sentences. He must look at all factors which can be considered in passing the appropriate sentence for the offence under consideration. He must avoid over-emphasizing some factors, while playing down or ignoring others. He must language which displays gender insensitivity or bias against a class of people, as that gives an impression that the offender is, over and above being punished for his offence, being punished for belonging to a class which the judicial officer has displayed bias against. Where the factors to be considered are provided by statute he must consider all such factors. If he does not consider the factors which the statute requires him to consider, the sentence may be set aside, if it is shown that a consideration of the omitted factors would have resulted in the court arriving at a different sentence.

 

Balancing needs of individual and interests of society

In Ngulube HH-48-02 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, magistrates should always bear in mind that the reason why the accused committed the offence and the circumstances of the offence are of equal importance.

 

 

While deterrence is a valid consideration, a judicial officer must avoid giving the impression that the sentence is a tag which society must read for it to be deterred. The sentence must suit the offence and the offender. If others have to be deterred, they should be deterred by a deserved sentence, and not by one which over-emphasises deterrence, and punishes the offender beyond the level his offence deserves.

 

 

In Mukome 2008 (2) ZLR 83 (H) the court pointed out that in assessing sentence is one of the most difficult tasks that face a judicial officer. Except where the law has laid out a minimum mandatory sentence, the judicial officer is called upon to exercise his discretion and punish the accused on behalf of society. As with most judicial functions, a number of competing interests come into play and have to be delicately balanced.

 

On the one hand is the need to punish and on the other are the interests of the accused. Reaching the correct balance is always a taxing exercise and one that must be approached humanely and rationally. The same punishment does not weigh the same with all people. A sentence that is heavily weighed in favour of the needs of society without paying adequate attention to the interests of the offender is invariably harsh and appears draconian, while a sentence that underplays the interests of society while overemphasizing the interests of the offender is invariably lenient and ineffectual in curbing crime. While it is not practical that in each case the court should identify and articulate the two competing interests that it seeks to balance, this is a prudent way of approaching the exercise. If this is done, it will assist the court to view whether it has overplayed any of the interests at the expense of the other. It will also assist any superior court that will be reviewing the sentence to see whether the competing interests have each been fairly considered. Trial magistrates must not pay lip service to any plea of guilty and to the mitigatory factors that have been advanced by the accused. The sentences they impose after receiving submissions in mitigation must reflect that the mitigatory features of the case have been taken into account.

 

 

Uniformity of sentence not to interfere with discretion

 

In Mahove & Ors 2009 (2) ZLR 19 (H) 12 accused were all convicted in separate trials of housebreaking and theft. They all received the same sentence of 2 years' imprisonment, although there were several differences between the cases, such as the ages of the accused, the value of the goods stolen, and the value recovered. No portion of the sentence was suspended, although they all pleaded guilty.

 

The court held that a sentence based on a tariff, as these were, is indicative of an abrogation of judicial discretion, which is tantamount to a misdirection. Though uniformity of sentences, that is of sentences imposed upon accused persons in respect of the same offence, or in respect of similar offences of a kindred nature, may be desirable, the desire to achieve such uniformity cannot be allowed to interfere with the free exercise of his discretion by a judicial officer in determining the appropriate sentence in a particular case in the light of the relevant facts in that case and the circumstances of the person charged.

 

It is the responsibility of the judicial officer to consider all the factors and circumstances placed before him in arriving at a just sentence. The sentence must be individualized to the particular offender. Failure to individualize the sentence is a misdirection. It makes a mockery of the reasons for sentence that the judicial officer purports to have taken into account in assessing the sentence. Time and again the superior courts have strongly warned judicial officers against paying lip service to mitigatory features. It is an act of dishonesty to tell an accused person that the court has considered their personal mitigatory features when in fact no such features have been considered. Furthermore, the trend in our jurisdiction has been to spare first offenders from effective imprisonment unless the circumstances are such that imprisonment is the only suitable option. The magistrate did not consider suspending any portion of the sentences. No reason or explanation was given for such failure. Though it is not a rule that first offenders who are being imprisoned are entitled to have a portion of their sentence suspended failure to consider or to give reasons for not suspending portions of the sentences on suitable conditions, including restitution, where the sentences are not long, is a misdirection. First offenders should be given the chance to reform by not sending them to effective imprisonment. Where for good reasons imprisonment cannot be avoided, then at least a portion of the sentence must be suspended so that they serve only what is absolutely necessary.

 

Reformation preferred to retribution

 

In Chera & Anor 2008 (2) ZLR 58 (HB) the court observed that the most popular theory today is that the proper aim of criminal procedure is to reform the criminal so that he may become adjusted to the social order. A mixture of sentimental and utilitarian motives gives this view its great vogue. With the spread of humane feelings and the waning of faith in the old concept of the necessity for inflicting pain in the treatment of children and those suffering from mental disease, there has come revulsion at the hard-heartedness of the old retributive theory.

 

The growing belief in education and in the healing powers of medicine encourages people to suppose that the delinquent may be re-educated to become a useful member of society. Is it not better to save such youthful offenders for a life of usefulness rather than punish them by lengthy imprisonment, which generally makes them worse after they leave than before they entered? An enlightened judicial officer will recognise the futility of severely punishing unavoidable retrogression in human dignity. It is accepted that it is one of the functions of the criminal law to give expression to the collective feeling of revulsion towards offences committed by the accused persons, but such disapproval need not be cruel or take extreme forms. Magistrates need to be guided by principle of consistency in sentencing, so regard must be had to sentences imposed or recommended in similar cases by the superior courts.

 

 

Proof of previous convictions

 

After conviction the prosecutor will state whether the person convicted has any previous convictions. If he or she has, the onus is on the State to prove them. It is the responsibility of the prosecutor to produce the record of any previous convictions. The prosecutor will read out these previous convictions to X. The court will then ask if X admits these previous convictions. If X denies any or all of the previous convictions the prosecutor has the right to request a remand so that he or she can bring evidence to prove them: s 327 CPEA.

 

In McCormick HB-56-90, X was not legally represented. Before sentence the prosecutor advised the court that X had previous convictions. The magistrate asked X, “Have you been convicted of the same offence before?” X replied in the affirmative.

 

The review court said it was wrong for the magistrate to proceed to sentence X on the basis of a general oral statement by the prosecutor that X had previous convictions and a general admission by X that he or she has a previous conviction for that offence. This was particularly the case because X was not legally represented.

 

The onus is on the State to prove X’s previous convictions. The matter should have been postponed to enable the prosecutor to provide proof of X’s previous convictions.

 

As regards the type of evidence which can be produced to establish previous convictions see ss 328-329 CPEA. A certified fingerprint record from a police officer, a prison officer or an immigration officer is admissible as prima facie evidence against X in relation to previous convictions: s 329 CPEA. The fingerprints of X will be submitted to the Central Criminal Bureau for a check to be done on whether he or she has any previous convictions.

 

If X admits the previous convictions contained in the ZRP Form 125 this form will become part of the record.

 

Sentencing of juveniles

 

In Ncube & Ors 2011 (1) ZLR 608 (H) the court gave detailed instruction on the approach to be adopted when sentencing juveniles. Several juveniles whose ages ranged from 14 to 17 years were convicted on their own pleas by the same magistrate for crimes such as theft and unlawful entry. The accused were all school children and the crimes alleged were committed at and against their respective schools. They were all sentenced to varying strokes of corporal punishment. The juveniles were not represented at trial. No record on mitigation was prepared nor a probationer’s report sought or obtained. No good cause was supplied for these omissions. Further, no meaningful inquiry was made to discover either the circumstances surrounding commission of the offences or the peculiar circumstances of the offenders. Their parents were not called to assist nor were the school authorities called to shed light on the matter.

 

The court held that the issue of the age of a juvenile offender is a very crucial factor to which the court should apply its mind in all criminal proceedings. In fact, the inquiry into the juvenile offender’s age should start at the time of arrest if we are to properly protect the rights of children in conflict with the criminal law. Where a child is put on trial an inquiry into the child’s age must be made because from that inquiry many other important considerations flow. If the child is under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next question is whether as a matter of policy such a young person should be subjected to the might of the criminal justice system. Other methods of dealing with such an offender might be appropriate. It is hoped that the proposed system of diversion which is currently at pilot stage earmarked for Harare, Bulawayo and Gweru would be implemented with due haste. The trial magistrate proceeded to deal with the offenders without even knowing if they are juveniles or not. The misdirection is obvious. The sentence of corporal punishment is for male persons under the age of 18 years. (see s 353 (1) CPEA. The real danger is that the trial magistrate most probably subjected the accused persons to an improper and incompetent penalty or sentence.

 

The court held, further, that the need for the probation officer’s reports in cases of this nature cannot be emphasized. Indeed the court is aware of the challenges magistrates face in their dealings with other stakeholders like the department of Social Welfare. But that can never be a just cause to proceed and 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 may be innovative and seek to involve the family of the juvenile before coming up with a management scheme or sentence. To simply proceed without both the probation officer’s report and involvement of the juvenile’s family is akin to proceedings in complete darkness. Trial magistrates in similar positions should be innovative and seek to gain an insight into the circumstances of the juvenile before them from other reliable sources such as school, family or community of the accused. Our courts have always emphasised the need for the trial court to carry out a full and meaningful pre-sentence inquiry in order to arrive at an appropriate sentence.  A little bit of light is always better than no light at all.

 

The court condemned the enthusiasm by quite a number of magistrates to sentence juvenile offenders to corporal punishment even for non serious offences. This may be an easy way out in disposing of a matter. Yet in dealing with juveniles in conflict with the criminal law the court’s primary concern is to safeguard the rights of these children rather than to complete the proceedings as quickly as possible. By doing so, the court may end up imposing a retributive rather than a rehabilitative type of sentence. Magistrates should, in most cases involving juveniles in conflict with the criminal law, refer such cases to the children’s court where other various options of dealing with the juveniles are available. Magistrates should note that it is not possible to correct a misdirection on review where corporal punishment has been imposed except for academic purposes.

 

Accordingly, the court held that proceedings are not confirmable as being in accordance with real and substantial justice. Certificate withheld.

 

In M (a juvenile) HB-19-13 the appellant, a juvenile, had been convicted of two counts of rape of girls aged 6 and 4 years, respectively. A probation officer had placed before the court a quo a detailed report on the appellant’s family relationships, education, background, personality, traits, circumstances surrounding the commission of the offence, attitude towards the offence, the victim, motivational analysis, prognosis, treatment plan and had made recommendations on how best to deal with appellant. The probation officer had recommended that the charges be withdrawn before plea and that the appellant be placed under supervision of a probation officer. The appellant’s uncle undertook to take over the guardianship and upkeep of the appellant, having learnt of the appellant’s predicament. He further undertook to, at his own expense, secure a professional psychologist or counsellor to ensure the reformation and rehabilitation of the appellant. The magistrate disregarded the recommendations of the probation officer and the efforts by the appellant’s uncle to assist with his reformation and rehabilitation. Instead, the trial magistrate sentenced him to be placed at a state reformatory in Harare for a period of three years. The appellant was then lodged in a conventional prison in which he mixed with adult convicts pending transfer to Harare.

 

The court held it was a misdirection to disregard the probation officer’s report regarding the management of the appellant without good and sufficient reasons for doing so. Again, for no good reason, the court a quo spurned the uncle’s efforts. The courts have emphasized the importance of not only the probation officer’s opinion in formulating a scheme of management for a juvenile offender, but also the involvement of the juvenile’s family and education authorities in efforts to rehabilitate the offender. The sentence would be replaced with one of corporal punishment and the appellant would be placed under supervision of a probation officer.

Taking offences together for sentence

 

There is no rule forbidding the treating of closely connected offences as one for the purposes of sentence but this is not advisable or desirable in respect of serious offences such as rape and robbery.  Both offences usually attract lengthy prison sentences and as such the proper approach is to impose separate sentences for each count. See S v Imbayarwo HB-85-13

 

Imposing sentence for other offences

 

In terms of s 335 CPEA, the court convicting X of any offence, may, on application by X and with the prosecutor’s consent, pass sentence upon X for other untried offences as if they had been separately charged, provided that the court is satisfied that X freely and voluntarily admits having committed those other offences. Although, under s 56 MCA, a magistrate does not normally have jurisdiction over offences committed outside his or her province or regional division, s 335(2) CPEA provides that a magistrates court may in this situation pass sentence on X, although no act, omission or event which is an element of the offence took place in the magistrate’s province or regional division. The magistrate may impose sentence for each of the untried offences up to the limit of his or her sentencing jurisdiction.

 

The procedure which is followed when X makes application for other offences to be taken into account is set out in Chapter 34 of the Prosecutors Handbook. Basically when X makes such an application the magistrate must record the date, place and nature of the other offences and the sentence passed for each other offence. X is then deemed to have been convicted for the untried offences. The prosecutor should not consent to this procedure where he or she has no information about the additional offences admitted to. He or she should first consult with the police about these to ensure that the information given by X is correct.

 

John Reid Rowland notes that:

 

“ In practice, this procedure is invoked quite rarely. If X is willing to admit the [other] offences, he or she would usually be willing to plead guilty if they were charged separately. If the procedure is invoked, it usually happens when the police have arrested a habitual or professional thief who is charged with one or two offences. In order to close their records on the other crimes committed by X, the police prepare a list of untried offences and include it in the docket. If such a list is included in the docket, the prosecutor should establish before the trial that X is indeed willing for those offences to be dealt with under this procedure. X usually is willing because the sort of person involved is almost invariably an experienced criminal who knows that he or she will probably get a lighter sentence than if he or she were separately tried for those offences. After conviction, the prosecutor should advise the court that X wishes to request other offences to be dealt with under s 313. The magistrate will confirm with X that this is so; the prosecutor should then hand in the list of [other crimes].”

Evidence on sentence

 

Section 334(3) CPEA 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 X and his or her witnesses or from State witnesses, including hearsay evidence, an unsworn statement from X, written statements from the prosecutor, X or his or her legal representative, and affidavits and written reports tendered by the prosecutor, X or his or her legal representative. Hearsay evidence may only be tendered by one side 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.

 

Mitigation

 

For a commentary on the factors which our courts have accepted may be mitigatory see Chapter 5 A Guide to Sentencing in Zimbabwe by G Feltoe. Depending on the circumstances these factors may serve to mitigate the sentence:

• various defences which do not amount to full defences in law in the circumstances, such as claim of right, compulsion and intimidation, protection of property, provocation, self-defence, ignorance or mistake of law, intoxication, diminished mental responsibility, emotional stress, trapping of the offender;
• good motive;
• non-payment of wages due where X has stolen from employer;
• poverty;
•  
• assistance to police after crime committed [See Buka 1995 (2) ZLR 130 (S) andDube & Anor 1995 (2) ZLR 321 (S) for the weight that will be attached to this factor];
• compensation and restitution [See, for instance, Malume 1998 (2) ZLR 508 (H)]
• delay in bringing the case to trial or hearing of appeal [See, for instance, Corbett 1990 (1) ZLR 205 (S); but is not necessarily a ground for reduction of sentence, Gujral 1990 (1) ZLR 320 (H)];
• X in employment and has dependants (See, for instance, Katsaura1997 (2) ZLR 102 (H))
• good behaviour after conviction and before appeal;
• good character;
• grave physical injury to X at time of crime;
•  
• ill-treatment while in custody;
• imprisonment before trial [See, for instance, Mutakwa & Anor 2000 (1) ZLR 393 (H); Aitken 1995 (2) ZLR 395 (S) and Dube & Anor 1995 (2) ZLR 321 (S)];
• meritorious past conduct;
•  
• remorse and guilty plea [See, for instance, Dhliwayo 1999 (1) ZLR 229 (H) and Katsaura 1997 (2) ZLR 102 (H) on weight to be given to guilty plea.] If there are multiple accused persons, the approach to be adopted where guilt is evenly apportioned, is to treat the accused persons the same: Muleya & Ors1988 (1) ZLR 359 (S), accordingly counsel ought to make submissions in that direction;
• failure of Government to explain and consult with traders concerning price controls: Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S)

 

Note that in terms of s 12(4)(a) SCA and s 38(4)(a) HCA  the Supreme Court and the High Court, respectively, may have regard in criminal appeals to all the circumstances, including events which have occurred after the date of conviction. [See Aitken 1995 (2) ZLR 395 (S)]

 

The legal representative of X must be given the opportunity to lead mitigatory evidence and to address the court in mitigation of sentence. Without calling evidence, the legal representative may simply set out what he or she considers to be the salient mitigatory factors in the case: Furisayi 1981 ZLR 56 (A) at p 58. 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 or her client's penitence than to a personal and credible expression of regret and repentance by X himself. The legal representative will often make submissions as to the appropriate sentence in the case, drawing the court's attention to salient case law.

 

There are some pleas in mitigation where the personal testimony of X will assist, such as where the crime was committed because of extreme hardship or destitution or because of a benevolent motive, such as to assist someone else. X should be called to testify in such circumstances, if his or her defence lawyer believes that he or she will give convincing testimony.

 

One factor which may be important is the attitude of the complainant. In Kelly HH-33-04 the court took the view that the attitude of the complainant in a criminal case is relevant to sentence. Where the complainant indicates that it is not his or her desire to have the accused incarcerated, a sentencing authority ought to attach weight to the expressions of the complainant, as such a factor has an impact on the form of sentence imposed.

 

Specifying extent to which mitigation has reduced sentence

 

In Madembe & Anor HH-17-03 the court stated that where a judicial officer has accepted any factor of mitigation he or she must clearly specify the amount by which he or she has reduced the sentence on account of that factor. In this way he or she will be able to avoid the criticism that he or she has not sufficiently taken into account any factor or factors of mitigation, and an the appellate court or a reviewing or scrutinizing judicial officer will be less inclined to decree, rather subjectively, that the other judicial officer erred. Where sentence is being assessed according to the value of the goods involved, and a comparison is being made with sentences approved in earlier cases, it is necessary to take into account the effect of inflation so a realistic comparison can be made.

 

Presentation of evidence in mitigation

 

X or his or her lawyer must be allowed the opportunity to present evidence and to address in mitigation of sentence.

 

Duty of prosecutor

 

The prosecutor is duty bound to dispute facts advanced in mitigation which he or she knows to be incorrect or if they are highly improbable or absurd. With the undefended accused the prosecutor is also expected to draw to the attention of the court any facts of which he or she is aware which are mitigatory, such as that X has paid compensation to his or her victim.

 

For a commentary on the factors which our courts have accepted may be mitigatory, see Chapter 5 of A Guide to Sentencing in Zimbabwe by G. Feltoe.

 

Undefended accused

 

X must always be afforded the opportunity to lead mitigatory evidence and to address the court in mitigation of sentence: Million & Ors HH-53-92. His or her address can contain both assertions of fact and an appeal to the judge for clemency. Additionally, the judge has the duty to ensure that the factors of mitigation are fully canvassed because X will often be unaware of the sort of things which are relevant when it comes to sentence. The court must thus offer guidance to X 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 X is a juvenile: W HH-276-83.

 

The judge has a duty to make sure that he or she is in a position to arrive at a proper and just sentence. In order to arrive at such a sentence, he or she 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 X as will elicit that information. He or she should endeavour to discover the necessary information by inquiry if X does not volunteer this information. This applies particularly where the unrepresented accused is unsophisticated and he or she has been convicted of a serious crime: Mlilo HB-27-88; Mafu HB-68-90.

 

In Ngulube HH-48-02 the judge said that before assessing sentence, a magistrate must equip himself with sufficient information in any particular case to enable him or her 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. 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.

 

Defended accused

 

The legal representative of X 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 or she considers to be the salient mitigatory factors in the case: Fusirayi 1981 ZLR 56 (A) at p 58. 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 or her client’s penitence than to a personal and credible expression of regret and repentance by X himself.

 

The legal representative will often make submissions as to the appropriate sentence in the case, drawing the court’s attention to salient case law.

 

Onus of proof

 

In 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. It said that 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 as to the existence thereof.

 

Aggravation

 

If the prosecutor wishes to do so, he or she 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.

 

For commentary on the factors which may aggravate sentence see Chapter 7 of A Guide to Sentencing in Zimbabwe by G. Feltoe.

 

See also Mangena & Ors HB-22-05. These factors must be weighed against factors such as the age and personal circumstances of the accused. The sentencing court has a duty to enquire into the subjective elements in order to individualise the punishment.

 

As regards the factor of prevalence of a particular crime it was noted in Sibanda HB-102-06 that while the prevalence of an offence is a relevant factor in sentencing, it is not the overriding factor. It is not the function of the court to try to control crime by imprisoning people accused of crimes which the legislature, in its wisdom, considers trifling.  While the courts should never be seen by the public to be trivialising serious offences, courts are equally enjoined not to make trivial cases serious. Either scenario is as much unjust as the other.

 

In Chireyi & Ors HH-63-11 the court said each of the factors (in addition to others) listed in s 89 (3) of the Criminal Law Code should be carefully weighed in deciding whether to impose a custodial or a non-custodial sentence in cases of assault. There should be an inquiry into the circumstances of the assault, that is, the reason for and the manner of the assault. This reasoning process should be evident from the trial magistrate's reasons for sentence. Where a magistrate fails to carry out any meaningful presentence inquiry and the mitigation recorded is unhelpful and perfunctory, such scant pre-sentence information is unhelpful in arriving at an appropriate and just sentence. Imprisonment is a rigorous form of punishment and should be resorted as a last resort. Where an appropriate prison sentence falls within the general limit of effective 24 months imprisonment, the court should consider imposing community service instead. To make no inquiry into the suitability of community service and to give no cogent and sound reasons as to why community service is inappropriate constitutes a serious misdirection.

 

Particular aspects of sentencing

 

When difficult specific issues on sentencing arise reference should be made to A Guide to Sentencing in Zimbabwe by G. Feltoe published by the Legal Resources Foundation in 1990. This section will only deal with a few selected points of sentencing which have caused difficulty in the past.

 

The following things are legally impermissible:

• antedating a prison sentence: Chahora HH-349-84.
• imposing a prison sentence of less than four days: s 357 CPEA.
• imposing two sentences for one offence: Chipxere HH-314-83 (Magistrate wrongly imposing for one offence a prison term plus another prison term, wholly suspended on condition that X made restitution), Sibanda HB-36-86 (Magistrate wrongly imposing two separate prison sentences, subject to conditions, for same offence).
• making of fines run concurrently or a fine run concurrently with a prison sentence: Kambuzuma HH-60-86; Gororo HH-145-86.
• suspending a sentence of a fine where the fine is mandatory or giving the X time to pay such fine. In terms of s 356(2) as read with Sixth Schedule CPEA the court has no power to suspend any portion of a mandatory sentence of a fixed minimum fine. Nor may such a fine be postponed: De Montille 1979 RLR 105; Kudavaranda 1988 (2) ZLR 367 (H).
• suspending or postponing of a mandatory prison sentence. But where the legislature lays down that a mandatory prison sentence of a fixed term or of a length to be determined by the court must be imposed, the court may suspend all or a portion of the prison sentence: Patel S-63-87; Muzambe HH-121-90. However, in Horowitz 1976 (1) RLR 238 at 241D it is stated that the court will not lightly suspend the whole of a mandatory prison sentence; it will only do so when the mitigatory circumstances clearly make such a course desirable.

It must be carefully noted that in terms of s 356(2) as read with paragraph 3 of the Sixth Schedule [s 337(1) as read with paragraph 3 of the Seventh Schedule] CPEA the court may not suspend or postpone the prison sentence where the statute in question not only prescribes a mandatory period of imprisonment for without the option of a fine but prescribes a minimum period of such imprisonment.

• imposing a standard sentence for the particular crime without considering the individual circumstances and the moral blameworthiness of X. As far as possible there is a need for individualised sentencing: David & Anor 1964 RLR 2 and Mugwenhe & Anor 1991 (2) ZLR 66 (S).

 

Accused’s personal circumstances

 

The National Sentencing Committee has produced a questionnaire (to be completed in any case where the sentence is subject to review or sentencing) and an explanatory booklet about the matters to consider when assessing sentence. These are:

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: 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 than an elderly person should end his or her days in prison and so the very elderly should normally be exempted from imprisonment.

 

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

Sex

 

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

 

• males commit more offences;
• 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. It should not be forgotten that women can often be just as dominating as men.

 

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

 

Pregnant women with children

 

In Peacock & Anor HB-30-08 the appellants were jointly charged and convicted of committed immigration offences in that they forged an Emergency Travel Document and supporting documents. They were a married couple with 3 young children. The husband was aged 30 and the wife 21. The wife was pregnant at the time of sentence.

 

The court held on appeal that it is undesirable to imprison two young parents leaving behind their young children on their own.  At the time of conviction and sentence the wife was pregnant.  Her pregnant status is a very important mitigatory factor. It is highly undesirable to imprison a pregnant woman and where a term of imprisonment is justified, it should be suspended on appropriate conditions. It is not desirable to imprison a pregnant woman even where a term of imprisonment might otherwise be imposed.  Because of the woman’s condition, the suspension of any otherwise justifiable sentence of imprisonment is usually rendered just and necessary.     

 

Marital status and dependents

 

If a person with a spouse and dependents is imprisoned, the family will suffer. If this can be avoided, it should, but sometimes it is unavoidable. It is often said that X should have thought of the consequences to his or her/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.

 

Employed/unemployed

 

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 X (and his or her dependents). Employment is also difficult to find and it may be hard to find another job.

 

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

 

The mere fact of conviction may result in X 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.

 

Likelihood of civil action

 

Many crimes may expose X to civil action by the complainant (if the action is not prescribed). The likelihood of such action and the possible consequences to X are relevant in determining the level of any financial penalty. If a civil action has already been brought, this should be established.

 

The crime itself

 

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

 

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.

 

Accused/victim relationship

 

This factor applies particularly to crimes of violence and sexual crimes, but is not confined to such crimes. Theft and other offences 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.

 

Master/servant, teacher/pupil

 

Again, this is important in sexual offences, where X’s dominant position could result 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. It should be remembered that girls generally mature earlier than boys and that girls are just as capable of initiating sexual contacts. On the other hand, a great disparity in the ages of X 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. Similarly, if the complainant has had previous sexual experience, this could be mitigating: some young persons lead promiscuous lives and it may be somewhat unrealistic to talk of protecting them.

 

Possibility of restitution, compensation, etc

 

It is highly desirable in crimes against property that X should make good the loss caused, whether by restoring stolen property or repairing or replacing damaged or destroyed property. X’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 offence and any aggravating features.

 

Considerations specifically applicable to sexual offences

 

•     relative ages of accused and complainant (see above);

• the relationship between the parties (see above);
• the complainant’s age and previous sexual experience (note: the fact that a woman or girl has had previous sexual experience does not in any way mitigate rape. The complainant’s lack of previous sexual experience could, however, be aggravating);
• the effect on victim (see above). In addition, it is relevant to consider whether HIV, AIDS or some other venereal disease was or could have been transmitted. In respect of such diseases, it is relevant to consider any knowledge on the part of X of his or her infection and the possibility of the disease being cured;
• the general circumstances of the offence, including such as whether:

–    the offence was an unprovoked attack by a stranger (statistics show that this is not the norm);

–    whether there had been persistent advances by X over a period (this could be aggravating);

–    whether there had been initial indications of willingness on the part of the complainant (this could be mitigating).

 

Other relevant factors

 

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 happen that X had little option but to plead guilty. On the other hand, it is NOT aggravating for X to plead not guilty. He or she is entitled to plead not guilty, though should offer either

• an explanation of his or her attitude to the charge; or
• a statement indicating the basis of his or her defence.

 

If he or she fails to do so, he or she should be requested to make a statement outlining the nature of his or her defence and the material facts on which he or she relies. The consequences of failing to make such a statement must be explained.

 

Other indications of contrition

 

Assistance by X to the police, though not affecting his or her moral guilt, can be an indication of genuine repentance and if so is relevant to sentence. Voluntary recompense to the victim, without the court’s intervention, would also be mitigating (see the comments under 2.3 above).

 

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

 

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

 

Other evidence of good character

 

There may be evidence of X’s good character other than the mere lack of previous convictions. The nature of such evidence will vary from one person to another.

 

Aggravating circumstances (robbery)

 

A regional magistrate is given increased jurisdiction if robbery or armed robbery is committed in aggravating circumstances. These circumstances exist where it is proved that X or an accomplice (it does not matter which):

•     possessed a firearm or dangerous weapon; or

•     inflicted or threatened to inflict grievous bodily harm; or

•     unlawfully killed a person

 

on the occasion that the offence was committed. The aggravating acts may have been committed before, during or after the commission of the substantive offence.

 

Other aggravating circumstances

 

There may be other aggravating circumstances which, though they do give an increased jurisdiction, indicate that a heavier sentence is appropriate. These should be listed specifically.

 

Entrapment

 

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

 

Motive

 

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

 

Prevalence of crime

 

The prevalence of a particular kind of offence and the difficulties of its detection are objective elements to which regard must always be had, 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 an offence should not be taken too far as a factor.

 

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

 

The prevalence of the offence does not in itself make imprisonment appropriate where a fine would otherwise have sufficed; the case must be considered on its merits.

 

Where the offender knows that the courts have on numerous occasions issued warnings, aimed at deterring future offences, this could be taken into account, but in most cases it would be difficult to show that X had such knowledge. The man in the street is not likely to be aware of what individual judges and magistrates have said.

 

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

 

Other punishment or personal consequences

 

The fact that X has been assaulted by a member of the public as retribution for his or her offence or that he or she has been tortured or otherwise maltreated by the police before the trial will usually be mitigating. Similarly, dismissal from employment as a consequence of the offence will also be mitigating. The court should not seek to punish the person twice.

 

Accused’s mental condition

 

X’s mental state, if not sufficient to make him or her “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.

 

Nature of punishment

 

General

 

The court must first decide what sort of punishment is appropriate and what the object of the sentence is. Is the object:

• to punish the offender?
• deter the offender?
• deter others?
• compensate the victim?
• rehabilitate the offender?
• protect the public?
• a combination of all or any of these objects?

 

Taking into account the object(s) of sentence in the case, and X’s circumstances, fix a penalty appropriate for the offender and for his or her offence. Take into account ancillary matters, like whether X will lose as a result of forfeiture. Formulate reasons for your decision and explain them when passing sentence. Explain all aspects of the sentence which need to be explained to an undefended accused, such as time to pay a fine, the nature of the conditions attaching to a suspended sentence, and so on.

 

The worldwide trend is towards non-custodial sentencing. It should be recognised that it is highly desirable to keep anyone out of prison, particularly first offenders, if this can be avoided. Sometimes, though, the seriousness of the offence is such that imprisonment is the only sentence warranted. Short sentences of imprisonment are of highly questionable value. They have little reformative or rehabilitative effect; and they cause administrative problems that the prison authorities can do without.

 

Aggravating features

 

If the prosecutor wishes to do so, he may 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.

 

For commentary on the factors which may aggravate sentence see Chapter 7 of A Guide to Sentencing in Zimbabwe by G. Feltoe. See also Mangena & Ors HB-22-05. These factors must be weighed against factors such as the age and personal circumstances of the accused. The sentencing court has a duty to enquire into the subjective elements in order to individualise the punishment.

 

As regards the factor of prevalence of a particular crime it was noted in Sibanda HB-102-06 that while the prevalence of an offence is a relevant factor in sentencing, it is not the overriding factor. It is not the function of the court to try to control crime by imprisoning people accused of crimes which the legislature, in its wisdom, considers trifling.  While the courts should never be seen by the public to be trivialising serious offences, courts are equally enjoined not to make trivial cases serious. Either scenario is as much unjust as the other.

 

 

The death penalty

 

Crimes for which imposable

 

Section 48(2) of the Constitution provides that the death penalty may only be imposed for murder. Thus this penalty may no longer be imposed for treason, for terrorism or for military offences.

Persons upon whom will be imposed

Section 48(2) of the Constitution provides that the death penalty must not be imposed upon a person

•  who was less than twenty-one years old when the offence;

• who is more than seventy years old.

 

 It also provides that the death penalty must not be imposed or carried out on a woman.

 

Imposable for murder only if aggravating circumstances

 

Previously the court the court was obliged to impose the death sentence upon a person found guilty of murder where there were no extenuating circumstances. In effect, it was incumbent on the defence to establish that there were extenuating circumstances. Section 48(2) of the Constitution now provides that the death penalty may only imposed for murder committed in aggravating circumstances and the law providing for such penalty must permit the court a discretion whether or not to impose the penalty . The effect of this is that for the death penalty to be imposed for murder the prosecution would have to prove that there were aggravating circumstances that warrant the imposition of the death penalty. As the court has a discretion to impose the death penalty, the court will have to weigh any aggravating factors against mitigating factors and decide whether looking at all these factors the aggravating factors outweigh the mitigating factors such that the imposition of the death penalty is justified. Although the onus is on the prosecutor to establish that there are such aggravating features that the death sentence should be imposed, defence counsel will still seek to establish that there are various mitigating factors which outweigh the aggravating circumstances. Thus the previous case law on factors that constitute extenuation in murder cases remains relevant.

 

Extenuating factors are dealt with in detail in an article entitled "Extenuating Circumstances: A Life and Death Issue" in 1986 Volume 4 Zimbabwe Law Review 60. Particular note should be made of the fact that diminished mental responsibility, which falls short of constituting a mental disorder attracting a special verdict, may still constitute an extenuating circumstance.

By whom decision is made

 

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that a murder trial concludes with the decision on whether or not there are extenuating circumstances. That question must be decided by the majority view of the court, that is to say the judge and the assessors, even if the judge is in the minority. The death sentence may still be imposed after the judge and assessors have found that extenuating circumstances exist, if the judge concludes that the extenuating circumstances are far outweighed by the aggravating features; that is a matter for the judge alone though the assessors may give informal opinions on the issue to the judge. Under the new constitutional

 

provisions, it would seem that the question as to whether aggravating circumstances exist that justify the imposition of the death penalty would have to be decided by a majority of the court.

 

Onus of proof

Previously in Jaure 2001 (2) ZLR 393 (H) it was observed that although the onus of proof of extenuating circumstances is said to be on the accused, counsel for the State can and should assist the court in arriving at an informed decision on extenuation. The court should examine all the evidence and consider whether extenuating circumstances are shown on a balance of probabilities, regardless of who produced the evidence.

Cumulative effect of all factors

In deciding whether there are extenuating circumstances, the court must consider the cumulative effect of all possible extenuating circumstances and must not consider and dismiss each factor in isolation: Sigwahla 1967 (4) SA 566 (A) at 571 and Jaure 2001 (2) ZLR 393 (H)

Two approaches

 

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that there are two approaches for determining whether or not a murder was committed with extenuation. Either approach is permissible and the end result should be the same. The court stated that these two approaches were captured in Reid Rowland Criminal Procedure in Zimbabwe at pp 25-36 as follows:

 

“The first approach is to consider, first, all those factors which reduce the moral blameworthiness of the accused. If, in the opinion of the court, the facts so warrant, it should find that extenuating circumstances exist. The approach at this stage is largely subjective and aggravating features, many of which may be of an objective character, are not considered. The second stage is then to decide on sentence. At this stage, all aggravating features, including the brutality of the crime and all those objective factors which would assist in the determination of the sentence, are considered. The court may well then decide that, despite the existence of extenuating circumstances, they are outweighed by the aggravating circumstances and the accused should be sentenced to death.

 

The second approach is for the court to consider all the usual factors which may be regarded as extenuating and weigh them against the aggravating features. If the court considers that the aggravating features outweigh those which reduce the accused’s moral blameworthiness, the court will find that extenuating circumstances do not exist. If the court is of the opinion that aggravating features do not outweigh those which reduce the accused’s moral blameworthiness, it will find that extenuating circumstances do exist.”

Whether death penalty imposable if extenuating circumstances found

 

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that he death sentence may still be imposed after the judge and assessors have found that extenuating circumstances exist, if the judge concludes that the extenuating circumstances are far outweighed by the aggravating features

Mental instability short of insanity

If there are indications of mental instability on the part of X, this matter should be investigated. Odd, inexplicable and bizarre behaviour before, during or after the killing or from the way in which X instructs his lawyer or the way in which he behaves cannot be ignored, as it may provide the basis for establishing that there was at least diminished responsibility to an extent which constitutes extenuation. The defence lawyer has a duty to pursue this matter and to ask for a psychiatric examination where appropriate. The psychiatrist who carries out this investigation must be asked not only to give an opinion as to whether X was mentally irresponsible to an extent that a special verdict is justified, but also if X was suffering was suffering from diminished responsibility. See Chitiyo1987 (1) ZLR 235 (S), Taanorwa 1987 (1) ZLR 62 (S), Chin’ono 1990 (1) ZLR 244 (H) and Mukombe 1991 (1) ZLR 138 (S). Where the killing is apparently motiveless, this should alert the defence lawyer to the possibility that X may have been suffering from some form of mental instability when he committed the murder. Where the conduct of X was strange, the defence counsel would be well-advised to interview members of X's family, his friends, co-workers and former employers to ascertain whether he had any history of strange behaviour.

 

The case of Stephen HH-40-92 is of considerable importance in relation to the issue of mental disturbance and extenuation in murder cases. In this case a man had killed one of his sons and had attempted to kill his second son and his wife. He had committed these acts whilst in a state of hysterical dissociation with only a very minimal degree of self-control. The court found that a person who is capable of some degree of self-control becomes capable of forming the mens rea for murder. Although he was suffering from a mental disorder or disability at the time he committed the crimes, he was still responsible at law for his actions and therefore a special verdict in terms of s 28 of the Mental Health Act, was not returnable. Instead, the court found that he was guilty of murder, but with extenuating circumstances because of diminished responsibility. In the particular circumstances of this case the guilty verdict amounted really to a technicality. No moral blameworthiness attached to X. The court sentenced X to imprisonment until the court rose.

 

In Dube 1997 (1) ZLR 229 (H) X, aide to President Banana shot and killed a police officer, D, at a sports stadium  D had remonstrated with X for urinating in public place. X said he was very intoxicated and had been provoked as D had referred to him as “Banana’s wife”. X said Banana had committed homosexual acts on him against his will. X said he had violently reacted to D’s comment. According to the psychiatric evidence X was suffering from post-traumatic stress disorder as result of these acts. However, there was a conflict between the evidence of two psychiatrists. One said the combination of this disorder and drunkenness amounted to mental disorder such that X was not responsible according to law for his actions. The other psychiatrist said that the disorder would not have prevented X from appreciating what doing or the consequences of actions. The court decided that although post-traumatic stress disorder could fall within wide definition of mental disorder in the Mental Health Act, on facts found proved, it was not a disorder that prevented X from being aware of what he was doing or of consequences of his actions. The combination of alcohol, drugs and stress disorder would, however, have meant that X was suffering from diminished responsibility.

 

Defence counsel should explore a second or third line of defence in apparently motiveless murders, such as intoxication, provocation or insanity. Although the State is not obliged to establish a motive for the murder, the absence of a motive "should always set alarm signals ringing in the mind of defence counsel": McNally JA 1988 Vol 1 No 2 Legal Forum 6. In determining the issue of extenuating circumstances, everything which influenced the mind or emotions of the murderer must be taken into account: Fundakubi 1948 (3) SA 810 (A).

Youthfulness

Youthfulness on its own or together with other factors can constitute an extenuating circumstance. Youthfulness connotes immaturity, lack of experience of life, thoughtlessness and a mental condition of susceptibility to external influences, especially those emanating from adult persons:  Chininga S-79-02.

Constructive intent

In Siluli S-146-04 the court ruled that where, on a charge or murder, only a constructive intent to kill is proved, the court need not necessarily find that this is a circumstance of extenuation, but the court should examine the other features of the case very carefully indeed before rejecting a plea that the offence was committed in extenuating circumstances. A constructive intent to kill is a factor which must be put in the credit side in the accused’s favour in that weighing-up process.

Repentance and efforts to assist victim

Repentance and endeavours by the accused to assist his victim before the victim’s death cannot, standing alone, amount to extenuating circumstances: Jaure 2001 (2) ZLR 393 (H)

 

The fact that the murder weapon was taken from the victim does not constitute a factor of extenuation see; Mubaiwa & Anor 1992 (2) ZLR 362 (S).

 

Proof of murder conviction

 

The fact that there is an ongoing murder trial must not be referred to when extenuation is being considered: Mubaiwa & Anor 1992 (2) ZLR 362 (S). Proof of a murder conviction should not be adduced if the court finds no extenuating circumstances: Mlambo 1992 (2) ZLR 156 (S). In the same light,

 

Imprisonment

General

 

The first question must be: is imprisonment the only appropriate punishment? If so, why?

 

Imprisonment can confirm offenders as criminals rather than reform them. Imprisonment is also costly. But the offence may be such that nothing other than imprisonment is appropriate; or X might have such a bad record that a fine would be inappropriate for him, even if it would have been appropriate for a first offender. It may be argued that imprisonment might actually be beneficial for some offenders, such as alcoholics or drug users, as their access to alcohol or drugs should be much more restricted than when they are at liberty. The court should be careful of accepting this argument, unless it is clear that adequate medical back-up and counselling are available to deal with such persons, which is not usually the case.

 

The court should consider such factors as:

• the likelihood of reform: is X a person who is likely to reform himself? The chances of reform in prison must realistically be regarded as small;
• the deterrent value of the sentence;
• whether the sentence can be justified only in terms of retribution;
• whether the sentence can be justified on the basis of protecting society by keeping a hardened offender off the streets.

 

When deciding on the length of the sentence, there are several factors to consider:

 

• what is the maximum sentence provided (in the case of a statutory offence)? The maximum should be reserved for the most serious examples of the offence. If the desirable sentence is beyond the magistrate’s jurisdiction, the magistrate should consider stopping the trial with a view to X being sentenced in the High Court;
• the minimum sentence of imprisonment permissible is four days: s 359 CPEA. Such a sentence can rarely be justified. It causes more trouble to the prison authorities than it is worth;
• precedents as laid down by the Supreme Court or High Court. Magistrates should make themselves familiar with the sentencing trends. If necessary, adjourn to research the matter. The prosecutor should also be in a position to advise the court;
• where a statute provides for a mandatory minimum sentence, the court may not pass a sentence less than the minimum, unless the statute allows such a course (usually where there are “special circumstances”). See the comments above, in relation to mandatory minimum fines.

 

Imprisonment is a severe punishment which must only be imposed as a last resort Mpofu (2)1985 (1) ZLR 285 (H). There is thus need to push for community service in appropriate cases: Manyevere HB-38-03; Shariwa HB-37-03.

 

It is the duty of the court to consider imposing community service where court decides that effective sentence of 24 months or less is appropriate, Mabhena 1996 (1) ZLR 134 (H) If the view is taken that the offence is not serious, consideration should be given to community service Mutukura HH-39-02.

 

Young offenders and young first offenders

 

Young offenders should be kept out of prison wherever possible: Marachera A-151-68; Mantwana S-20-82; Mayberry HH-248-86; Ncube HB-153-86; Mudekwe & Anor HH-7-86; Munyariwa HB-14-87; Chadyamunda HH-228-89; Chitanda HH-215-89; Kanoyerera HH-167-89; Van Jaarsveld HB-110-90; Shariwa HB-37-03. In Munukwa HH-35-02 the court said that offenders in the age group of 18 to 21 years are young offenders who, depending on the offence of which they are convicted and the circumstances thereof, must generally be treated differently from adult offenders. In this country there are advanced, modern and appropriate provisions for the treatment of young offenders. Judicial officers are unfortunately behind in their treatment of young offenders and have not acclimatised to these alternative methods of treating youthful offenders. The routine imprisonment of such offenders should be avoided.

 

In Shariwa HB-37-03 the judge said that first offenders, especially young ones, should as far as possible be kept out of prison.

 

In Sibanda HB-37-10 X was convicted of assault with intent to do grievous bodily harm. The accused hit the complainant with a stone on the temple (forehead).  Medical evidence showed that the assault was very severe. The accused was given what the review court found as unacceptably too lenient a sentence. Medical reasons, the congestion of the nearby prison and the fact that the accused was a first offender were advanced for not giving him a custodial sentence.

 

The court held that the principle of keeping first offenders out of prison is not a be-all-and-and-all procedure.  It is in fact a guiding principle which should always be applied with caution.  It is not only first offenders who should be kept out of prison as to do so would not do justice to particular cases which demand nothing other than an effective prison term in the circumstances. It further held that the congestion of prisons is purely an administrative issue and not a legal issue at all; therefore, by allowing it to cloud its mind, the court might seriously misdirected itself.  While it indeed is a factor to be considered, it cannot be a factor which can justify a non-custodial sentence where all the facts point to a prison term.

 

The court should consider suspending portion of prison sentence imposed on first offender, although there is no rule that must suspend portion: Manaiwa & Anor HB-72-90; Mazowe HB-36-91; Gumba S-50-91.

 

Female first offenders

 

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

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

Harvey 1967 RLR 203 (A); Malunga 1990 (1) ZLR 124 (H).

 

However, in some cases, these factors may be absent or of lesser importance and there may be circumstances where there is no reason to discriminate in favour of the woman: Malunga 1991 (1) ZLR 124 (H); Gwatidzo HH-271-90. However, in Malunga 1990 (1) ZLR 124 (H) the court reiterated that a sharp distinction should be made between male and female offenders is still apposite and that the tendency in certain subsequent cases to innovate by adopting a more uniform approach between the sexes is premature.

 

The court should consider suspending portion of prison sentence imposed on first offender, although there is no rule that must suspend portion: Manaiwa & Anor HB-72-90; Mazowe HB-36-91; Gumba S-50-91.

 

Imprisonment in default of payment of a fine

 

Whenever a person is convicted of an offence punishable by a fine, the court may, in imposing a fine on X, impose a period of imprisonment as an alternative to the fine.  The period may be up to the limits of the court’s sentencing jurisdiction but, in respect of statutory offences, the period of imprisonment imposed as an alternative to the fine may not, either alone or together with any period of imprisonment imposed as a direct punishment, exceed the maximum period provided by the enactment for that offence.

 

The period of imprisonment in this situation is strictly secondary and alternative.  It is an additional sanction intended to operate only should the primary one fail.

 

It is essential that judicial officers should observe a due proportion between the fine and the alternative period of imprisonment. The ratio of the fine to the period of imprisonment is very much within the discretion of the sentencing officer. While the period should be long enough to induce X to pay the fine, care should be taken to ensure that it is realistic in relation to the gravity of the offence and not excessive.

 

There must be some logical proportion between the fine and the alternative period of imprisonment. It would be illogical to impose a fine that is well below the maximum allowed, but provide an alternative period of imprisonment which is approaching or at the maximum.

 

The first stage of the enquiry is to assess the fine, then the alternative sentence of imprisonment, not the other way round. If X is to be given the option of a fine, the fine must bear some relation to his or her means (see above). If the fine must be related to X’s means, the alternative period of imprisonment should equally be related to the fine, because if he or she cannot pay the fine he or she will suffer a disproportionate punishment. The period can be calculated, for lower income prisoners, by reference to the minimum wage. For higher income earners, it can be related to the time that it would have taken X to earn the equivalent of the fine.

 

Only if X simply has no means with which to pay a realistic fine should the judicial officer attempt at first to consider what period of imprisonment might reasonably be merited for the offence concerned.

 

It may happen that the court imposes a fine but does not impose an alternative period of imprisonment. If X does not pay the fine in full, or if it is not recovered in full by some other method, the court may have X arrested and brought to court. It may then sentence him or her to such period of imprisonment as it could have imposed on him or her as an alternative to the fine.

 

This power does, of course, not preclude the court from giving X further time to pay or taking other steps to recover the fine and it would be desirable that the court should take such steps rather than commit X to prison.

 

Periodical imprisonment

 

Where a person is convicted of an offence specified in the Sixth Schedule to the CP&EA, he or she may, instead of any other punishment, be sentenced to periodical imprisonment for a period of not less than 96 and not more than 2000 hours. It is a pre-requisite that the court should ascertain from the officer in charge of the appropriate prison that accommodation for the purpose is available. If it is not, then periodical imprisonment cannot be imposed.

 

The offences specified in the Sixth Schedule are:

• driving with a prohibited concentration of alcohol in the blood;
• driving while under the influence of alcohol or a drug;
• forging such documents as driving licences and insurance certificates or using such forged documents;
• refusing to supply a blood sample; and
• failing to pay maintenance.

 

Periodical imprisonment is not intended to meet the case of a person who is unable financially to pay a fine. If a fine is the appropriate sentence, then a fine should be imposed. Periodical imprisonment should be considered if imprisonment is the appropriate penalty for the offence and if, for example, it is desirable that the offender should be allowed to continue his or her work and support his or her family while serving his or her sentence. It is not intended for persons who are not in regular employment.

 

 

Fine

General aspects

 

A fine must be a real option and not be excessive: Kunesu & Ors 1993 (2) ZLR 253 (H). The fine must be tailored to the means of X and, where necessary, X must be given time to pay or to pay in instalments: Peti & Ors 1966 RLR 591 at 593F; Mamwere 1978 RLR 374 (GD); Mutandwa HH-35-88; Dlamini HB-3-90.

 

In Gumede HB-40-03 the court stated that to impose a fine, alternatively imprisonment, when it is clear that accused is not in a position to pay a fine and will end up serving the prison sentence is wrong. If the court intends to keep an accused out of custody then the sentence should be clearly focused towards that goal and not depend on the hope of someone else coming to his or her rescue unless there is clear evidence that a third party has volunteered to do so. The courts should regard community service as their first port of call when it comes to sentencing.

 

 

In S v Dzotizei HH-126-14 the court pointed out that where a statute provides for a penalty of a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration to a fine, particularly on a first offender. Other than saying that a fine would trivialise the offence – an offence which was trivial anyway – the trial court did not explain why it was departing from the sentencing policy propounded in numerous authorities. Even if one has regard to the circumstances of the offence, there is no way the matter qualified for the imposition of imprisonment. A small fine or a wholly suspended sentence would have met the justice of the case.

 

The failure by the Minister to lay before Parliament a statutory instrument setting out levels of fines has the effect of rendering any imposition of fines incompetent under the circumstances:  Chandafira HH-137-02.

Maximum fine

With a statutory offence, the judge should first take note of the maximum fine that may be imposed. The highest fine allowed must obviously be reserved for the most serious examples of the offence. The judge must assess the fine that is appropriate for the particular circumstances of the offence in question, taking into account the maximum fine that is allowed. The magistrate’s jurisdiction may sometimes be less than the maximum fine provided.

Realistic alternate period of imprisonment

In Munenge & Others HB-19-08 the record showed that alternative periods of imprisonment were blindly and arbitrarily imposed. The trial magistrate did not seek to derive assistance from accused persons to arrive at a fair alternative period of imprisonment. On automatic review, it was held it has been stated time without number that before the court decides to impose a fine, that process must be preceded by an elaborate inquiry into the means of the accused person to ascertain not only his ability to pay the fine but also to have an indication as to the period within which he is able to pay that fine. The alternative period of imprisonment must be realistic and must bear some relationship with the fine imposed and this demands that the accused’s financial means be properly investigated before sentence is imposed.

 

 

Where provision for deposit fine

In respect of statutory offences, is the offence one for which a deposit fine is provided in the schedule of deposit fines? If so, is there any reason to depart from the deposit fine? The fact that X has elected to come to court rather than pay a deposit fine is not aggravating. There would have to be some aggravating circumstances before the court would be justified in imposing a fine above the deposit fine. On the other hand, do not hesitate to impose a lower fine, if the circumstances warrant it. There may well be mitigating circumstances.

Mandatory minimum fines

Some statutes provide for mandatory minimum fines. The normal criteria for assessment of fines would not apply in such a situation. Even so, the court usually has some discretion. For example, where an enactment provides for a minimum fine, the court usually has the power to impose a fine greater than the minimum. In that case, it should consider whether the minimum fine is adequate or whether there are grounds for imposing a higher fine. Where the amount of the fine is not in the discretion of the court and where it is far beyond the ability of X to pay the fine, the alternative sentence must not be excessive in relation to the fine. The extent of X’s culpability is the factor by which to determine the length of imprisonment that should be imposed.

 

Accused’s ability to pay

The object of imposing a fine is to keep X out of prison, and that object will be defeated if a fine is imposed which there is no reason to suppose that X can pay.  The fine must be a real alternative to the sentence of imprisonment imposed in default of payment. It would not be a real alternative if X has no hope of paying. The fine does not, though, have to be within X’s immediate means and resources. His or her financial prospects must also be taken into account. It may be necessary to give X time to pay. It should also be remembered that X’s immediate ability to pay is not decisive. This might result in a fine being imposed that might create the impression that the court did not regard the offence in a sufficiently serious light. A very small fine, even though it might have the same proportionate effect on X as a heavier one would on a wealthier person, might have no deterrent effect at all. Before imposing a fine which is beyond the ability of X to pay, a proper enquiry should be held to determine whether other resources are available to X and the extent of them, such as his or her ability to sell assets or acquire a loan.

 

One way of avoiding a situation where X ends up in prison because he or she is unable to pay a

fine is to impose a fine and, in the alternative, impose a term of community service if X does not

pay the fine. Instead of this, if the court believes that X will not be able to pay any appropriate fine it may impose, the judge may simply impose a direct sentence of community service.

 

If a fine is imposed, and X does not have the funds immediately available, this does not mean that he or she should immediately go to prison. The court should make an effort to recover the fine and keep X out of prison. Methods of doing this include:

 

Giving X time to pay. Every effort should be made to afford X time to pay. The court may allow the fine to be paid as a lump sum, by a particular date, or in instalments, each instalment to be paid by a particular date. In considering whether X should be given time to pay, account should be taken of such factors as —

whether he or she is employed

his or her disposable income

whether he or she is of fixed abode.

 

Making a garnishee order against his or her salary, if he or she is employed.

This should be used wherever possible, if X is employed.

 

Executing against his or her movable property

It should be noted that immovable property may not be attached in the first instance. The amount which may be levied must be sufficient to cover, not only the fine itself, but the costs and expenses of the warrant and of the attachment and sale. Where the proceeds of the sale are not sufficient to cover the amounts mentioned, the High Court may issue a warrant for the levy against X’s immovable property of the amount unpaid. If the sentence was passed by the magistrates court, the High Court may authorise the magistrates court to issue such a warrant; the magistrates court may not issue one without such authorisation.

 

This procedure should be invoked where X is able to pay a fine but refuses to do so, for example where he or she is sentenced to a small fine but refuses to pay it and insists on going to prison to make a martyr of himself and a nuisance to the State. It also ought to be exercised in those cases where there is a fine plus outright imprisonment provided for the worst examples and the legislature intends that they be punished through the purse as well as through prison, particularly in those cases where X has made a profit out of his or her criminal activity.

 

Before the court invokes the power to issue a warrant, it should first satisfy itself that X is possessed of property capable of attachment and of sufficient value to pay the fine imposed, or at least a substantial portion of it.

 

 

Community service

 

General aspects

 

Community Service provides an alternative to imprisonment and is particularly beneficial to first and youthful offenders. It gives the offender the opportunity to reflect on his or her wrongdoing. Most importantly, the offender is not only kept out of prison where he or she would otherwise get into contact with the worst elements in society but he or she is also made to pay reparation for his or her wrongs to society. It can be an exacting form of punishment and is not intended to be an easy way out for convicted persons. Community Service can have a positive effect on the ever-increasing prison population.

 

The regulations relating to the imposition of Community Service are included in Appendix to this Handbook. The Community Service Guidelines provide detailed instruction in regard to the imposition of community service.

 

In terms of s 350A(1) CPEA, a court can now impose community service as a direct sentence rather than as an alternative to a fine or imprisonment. Community service may be imposed directly, with alternatives of fine or imprisonment if the offender fails to perform the service. Such a sentence of community service can itself be suspended like any other form of sentence. See Maramba & Anor 2000 (2) ZLR 69 (H).

 

In terms of s 348A CPEA, the court can impose community service as an alternative to the payment of a fine.

 

Community service may be imposed –

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

 

 

As regards the use of community service as a direct punishment and as an alternative to a fine see Appendix to this Handbook.

 

Offences for which community service may be imposed

 

Community Service may be imposed in respect of a non-serious offence case, that is a case in which the magistrate would have imposed an effective prison sentence of twelve months or less. Community Service can also be imposed as an alternative to the prison term imposed as an alternative to payment of a fine.

 

Community Service may not be imposed in cases of rape, armed robbery, robbery with violence, car theft, stock theft (of cattle). Special caution must be exercised in imposing Community Service for offences such as robbery, culpable homicide, infanticide, abortion etc. Only where the mitigatory circumstances are very compelling should Community Service be considered.

There must be a proper enquiry before Community Service is imposed.

 

The higher courts have stressed that wherever a magistrate is considering imprisoning a person for less than 24 months, he or she should always consider whether to impose a sentence of community service instead of sending the person to prison. This applies particularly where the person concerned is a young offender or a first offender.

 

In Manyevere HB-38-03 the judge observed that imprisonment is a severe and rigorous form of punishment which should only be imposed as a last, and not first, resort and where no other form of punishment will do. Failure to consider community service in appropriate cases is amisdirection. This was reiterated in Shariwa HB-37-03 where the judge went on to say that first offenders, especially young ones, should as far as possible be kept out of prison. Community service is one way of ensuring that this objective is achieved. The trial court should carry out a full enquiry, not only as to the accused’s means, but also his or her general suitability for community service.

 

 

In Mililo HB-18-08 the accused was convicted of housebreaking with intent to steal (as it then was) and sentenced to 20 months’ imprisonment with 6 months suspended on condition of restitution leaving him with an effective prison term of 14 months.

 

On automatic review, it was held that it has been stated time without number in this same court that it is clearly a misdirection to sentence an accused to a period of 24 months or less without first considering community service as an alternative (see Zvikonde & Anor HH-104-04 and Shariwa HB-37-03). It is clear from the record of proceedings that when the court a quo embarked on its pre-sentence inquiry it was not alive to the need to consider community service as an alternative to a straight term of imprisonment. This court will not countenance blind and insatiable determination to send convicted persons to gaol without first exploring other alternatives available to the court a quo. A prison term is a rigorous form of punishment which must only be resorted to when other available forms of punishment are explored and found to be inappropriate. The proceedings of the magistrate were not confirmed.

Proper inquiry and giving of reasons

 

The judicial officer must conduct a proper inquiry as to whether community service is an appropriate punishment for accused: Chinzenze 1998 (1) ZLR 470 (H) at 477E-F and Gumbo 1995 (1) ZLR 163 (H) at 168C-E. The judicial officer must apply his or her mind as to why wanted to impose direct community service and give reasons as to why he or she favoured such approach: Chinzenze Ors 1998 (1) ZLR 470 (H) at 477D-E.

 

The court should be able to explain why, where it has imposed community service, it has done so in one way rather than another. Where community service is imposed as an alternative to a fine, it should only be imposed where the appropriate sentence is a fine and X is genuinely unable to pay the fine. Where X can pay the fine, steps should be taken to ensure that the fine is paid (see above under the heading fines). Community service could be imposed directly where the court does not wish X 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.

 

Whichever way community service is imposed, the court should consider the following matters:

• 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. On the other hand, even if the offence is one for which community service is appropriate, the offender may not be: he or she may indicate unwillingness to carry out the service; he or she may fail to attend, requiring a warrant of arrest to be issued; or he or she may commit further offences. 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 offences, public confidence in the system will be lost.
• is a suitable place available? If so, where? The court should make enquiries first, before imposing community service.
• is the work suitable as making reparation to the community? The work should not be such that it is demeaning and amounts to inhuman treatment, but on the other hand should not be so easy that it appears to be meaningless.
• if X is employed, can community service be arranged so as to enable him/her to continue in employment?

 

Specification of hours of community service

 

The minimum number of hours of Community Service that may be imposed is thirty-five.  The number of hours of community service should not be chosen arbitrarily; there must be a rational basis for the number of hours imposed.

 

There is a need for the court to specify the hours to work and times of starting and ending work. The court should take into account the fact that the convicted person is a full time student or is in full time employment: Sithole & Anor HH-101-03

 

Where a person is in employment or is a full-time student, a court imposing a community service order must allow community service to be carried out over week-ends or after working hours, by arrangement with the institution concerned. The number of hours should be reduced from what it might otherwise have been. It is the duty of the trial magistrate to state the hours which the accused must work and the times when the service should be commenced and completed.  Where the hours fixed by the court become inconvenient either to the institution or to the accused, then the court must be approached to vary the conditions imposed in the order. It is not for the institution to allow the accused time off.

 

If the court imposes a direct  community service  order in terms of s 360A, the question has arisen whether a magistrate can also impose a prison term in terms of s 358 suspended on condition that X makes restitution? There is conflicting case law on this point.

 

In Mugebe 2000 (1) ZLR 376 (H) Bartlett J and Garwe J ruled that this was impermissible to do this under s 360A. If the court imposes a direct community service order in terms of  s 360A it can’t then also impose prison sentence under s 358 suspended on condition that X makes restitution because under 360A(3) prison term may only be imposed as alternative to CS.

However in the cases of Maramba & Anor 2000 (2) ZLR 69 (H) and Mhlanga & Anor 2000 (2) ZLR 73 (H) the judges decided that the Mugebe decision is wrong. They ruled that it is competent for the court, in addition to imposing direct sentence in terms of s 360A, to impose in terms of s 358 a prison term, suspended on suitable conditions, such as future good behaviour or  restitution.

 

Rejection of recommendations of community service officers

In Banda HB-72-04 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.

 

In Hakurerwi & Anor 2009 (2) ZLR 6 (H) pointed out that in terms of the guidelines on community service supervisors are empowered to use their discretion and grant time off to probationers on good cause shown. Where a probationer is given time off, he must be made to understand that the time lost will have to be made up. If the period stipulated by court is so calculated as to entail the probationer rendering service for 8 hours per day without any break, it means the supervisor has been denied the discretion and the probationer can in fact not be granted time off. Any time off granted in these circumstances would require the probationer to apply to court for an extension of the stipulated period within which to complete the community service. The granting of the discretion to grant time off to supervisors was meant, among other things, to obviate the need to approach the court whenever a probationer needed time off. It is therefore imperative that the period within which a probationer must complete community service must not be calculated to tally with the period the hours come to an end if the probationer worked non-stop at eight hours per day. Courts must always stipulate a period that takes into account public holidays, weekends and leave of absence that the supervisor may grant on good cause shown.

 

Previous conviction not precluding community service

 

In Sibanda & Ors HB-20-08 on automatic review, it was held that in a proper case, the existence of previous convictions would not preclude the imposition of community service if it is deemed to be the desired sentence. It was incumbent upon the court a quo to consider the imposition of community service as an alternative form of punishment and only when he has decided against such a form of punishment should it have proceeded to impose the sentences imposed, with his reasons so clearly stated. Failure to do so is a misdirection.

 

Concurrent/consecutive punishments

 

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

 

Cumulative or consecutive?

 

When sentencing any person to multiple punishments, the court may direct the order in which the sentences will be served or that the sentences should run concurrently. Sentences of corporal punishment or of fines cannot be made to run concurrently. It is not possible, for example, to sentence a juvenile to 4 strokes on one count and 4 strokes on another and order that the sentences run concurrently. The proper procedure to adopt where a number of offences 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 total culpability of X. An undue disparity in the sentences ordered to run concurrently may result in X getting an inappropriate overall sentence. 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 several counts. Inappropriate sentences should not be imposed on individual counts in order to arrive at an acceptable total. Each count should be treated separately on its own merits. There are two alternative correct methods. One is to impose a globular sentence (see below). 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. Where counts are grouped together, there should be some rational basis for doing so.

 

It is improper for the court to treat earlier counts on the same basis as previous convictions and increase the sentences passed on later counts.

 

Where counts are treated separately for the purposes of sentence (even if they are made to run concurrently), a judicial officer  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 his or her jurisdiction.

 

Where X is sentenced separately on a number of counts, the court may aggregate the sentences on all counts and then order that a portion of the aggregate be suspended on conditions. The period of suspension need not be related to any particular count. If the court wishes the total period of suspension to begin to run after X has served his or her sentence on all counts, the way to express it is to set out the sentences for the individual counts, state whether and to what extent any of the sentences run concurrently with one another, and finally state:

 

“ Of the total sentence of Y years/months, X years/months will be suspended for ... on condition that … ”

 

Counts as one for sentence

 

Where X is convicted of two or more offences, it is preferable that he or she should be sentenced separately for each offence, especially where the offences are entirely different.  In most cases, there is no practical advantage in imposing a globular sentence where all the counts are treated as one for sentence. An exception might arise where it is decided, in dealing with a juvenile, to place him or her 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 offences should only be considered where the offences are of the same or a similar nature and are closely linked in time. A common example would be charges of forgery and uttering.

 

Where counts are taken as one for sentence, a magistrate is limited to a globular sentence within his or her punitive jurisdiction.

 

In Faku & Anor 1997 (1) ZLR 389 (S) court held it was irregular for a magistrate to treat the counts as one for sentence, for the purpose of imposing corporal punishment, but treat them separately for the purpose of imposing a custodial sentence. The magistrate should either have treated each count individually for sentence or have treated them jointly for sentence. A hybrid approach was not permissible.

 

Where additional punishments – such as prohibition from driving or forfeiture of goods – are provided for in respect of one of the counts on which X 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.

 

Where there are numerous counts, it may be appropriate to group related counts together and impose globular sentences in respect of each group of counts.

 

In Chera & Anor 2008 (2) ZLR 58 (HB) the court pointed out that where multiple counts are involved, it is necessary, where such counts are not treated as one for sentence, to ensure that the sentence on each count, as well as the overall sentence, is not excessive. The correct approach is either to take all counts as one for the purposes of sentence and then impose a globular sentence which court considers appropriate in the circumstances, or, alternatively, to determine an appropriate sentence for each count taken singly so that the  determine a realistic total which is considers appropriate in the circumstances and where necessary the severity of the aggregate sentence on all the counts taken together may be palliated by ordering some counts to run concurrently with others. For multiple counts of theft, the maximum effective sentence should rarely even be as much as 20 years.

 

In Huni & Ors 2009 (2) ZLR 432 (H) the accused were each convicted of more than one count of stock theft. No special circumstances having been found, a minimum sentence of 9 years' imprisonment was mandatory, in terms of s 114(2)(e) CLCode .. The magistrate ordered that the counts against each accused be treated as one for sentence. On review:

 

The court held that in the absence of special circumstances an accused person must be sentenced to an effective mandatory minimum sentence of nine years for each count that he is convicted of. Where the accused person has been convicted on more than one count, to treat both or all of them as one for the purposes of sentence defeats the clear intention of the legislature, that there should be an effective mandatory minimum penalty of 9 years per count. The options available to the trial magistrate were either to impose an effective minimum sentence of 9 years' imprisonment per count and order the accused person to serve the arithmetical total or to impose the minimum mandatory sentence on each count and order both or one or more to run concurrently with each other or the others. The result will always be that the total effective sentence would be a multiple of 9 years.

 

 

Suspended sentence

 

Where a person is convicted of any offence other than an Eighth Schedule offence, the court may:

• postpone the passing of sentence for a period of 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; or
• sentence X to a fine, and alternatively to a period of imprisonment, but give X time to pay.

 

The conditions that may be imposed are dealt with below.

Offences to which applicable

 

Passing of sentence may be conditionally postponed or a sentence conditionally suspended in respect of any offence other than an Eighth Schedule offence, that is, murder (other than the murder by a woman of her newly-born child), conspiracy or incitement to commit murder, or any offence for which a minimum sentence is imposed, or conspiracy, incitement or attempt to commit such an offence.

General considerations as to suspension or postponement

 

The purpose of a suspended 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, more often than not, 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.

 

Conditions of suspension or postponement

 

The conditions must be appropriate to the crime and stated with such precision that X 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 X. Thus, if X is convicted of an offence 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 may be vague and other wording may be needed to ensure that X knows exactly what he or she must do to avoid the suspended sentence being brought into operation. For example, “statutory rape” would probably not be an offence involving violence.  Similarly, a condition that X does not commit any offence involving theft or dishonesty would not apply to housebreaking with intent unknown. It would only apply to offences 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 X 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 offences.

 

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 offence should attract and, having determined that, consider what portion should be suspended. It is not correct to decide what effective sentence X should undergo and then add a suspended sentence.

 

The length of the effective sentence is also relevant.  Where a very long sentence is imposed, there is no purpose in suspending portion of it on condition of good behaviour. If the long sentence just served does not deter X from future criminal activity, a suspended sentence will be unlikely to. On the other hand, there is no reason why portion of a lengthy sentence should not be suspended on the condition of restitution.

 

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.

 

Some of the considerations are:

 

• the nature of the offence and the circumstances surrounding its commission – whether it was planned and premeditated or whether it was spontaneous;
• whether X has exhibited a tendency to commit the type of offence;
• the character of the offender: is he or she a person of advanced age who has up to now led a blameless life?Has he or she shown by genuine penitence or by the shock and disgrace of the trial that the chance of a similar transgression is unlikely?
• are the offences to which the suspension will relate the kind of offences that could be easily committed in circumstances of emotional distress or discomposure?
• is X being sentenced to a lengthy effective term of imprisonment?That itself should have the required rehabilitative effect without requiring a further long term of suspension.
• where the offence itself did not require an effective custodial sentence, it might be unfair if at some time within a period as long as five years X had to undergo the full sentence as well as the sentence for the later offence.

 

Other punishments

 

Prohibition from driving may be considered in respect of driving offences under the Road Traffic Act and in respect of common law offences (in particular, culpable homicide) involving the use of motor vehicle.

 

      In respect of some offences, prohibition for a minimum period is mandatory. If the court is going to consider a period over the minimum, there must be some rational basis for selecting the longer period.

 

      If prohibition is discretionary, the court should ask itself whether prohibition is necessary and, if so, why. For some people, a prohibition from driving can amount to a very severe punishment, because of the nature of their work, where they work, the lack of suitable public transport, the hours of work, and so on. A prohibition could also mean the loss of the person’s job. Hiring a driver can be very costly and expecting other members of X’s family to drive him or her could amount to a punishment on them too. Sometimes these results are unavoidable, but they should be considered.

 

      There may be other statutory punishments or consequences of conviction, such as loss of licences. These may have severe financial consequences for X.

 

Sentencing by different judicial officer than one convicting accused

 

In Ngwenya HB-19-92, X had pleaded guilty to the charge and was found guilty after the magistrate had dealt with the case in terms of s 271(2)(b) CPEA. The case was then adjourned and later resumed before a different magistrate who proceeded to hear mitigation of sentence and then impose sentence.

 

On review, it was held that s 334(6) CPEA allows a magistrate other than the one who convicted X to impose sentence upon X. This can be done “in the absence of the magistrate who convicted” X. The words “in the absence of” should be given the widest possible meaning, namely that they apply whatever the reason for the convicting magistrate’s absence. Thus the absence may be due to retirement, leave, discharge from the service, death and so on. However, the second magistrate who sentences X must comply with the requirements of s 334(6), namely he or she must:

 

• note on the record the reasons for the absence of the trial magistrate;
• allow X the opportunity to address in mitigation; and
• consider the evidence recorded and on which the verdict is returned.

 

Reasons for Sentence

 

Reasons should be given for the penalty which is imposed. These reasons should be recorded in writing at the time sentence is pronounced. Full written reasons should be given even if the judge thinks that the reasons for the sentence are obvious. It is particularly important that the judge records his or her 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: Duri HH-89-91; Nyamupanda HH-101-91.

 

In Mkali & Ors HB-23-93, the court said that reasons for any decision, including sentence, must be given to show that the judicial officer has heard and considered the evidence and arguments for each side and has not taken extraneous considerations into account. A fair trial requires not just a correct decision but that it can be seen to be based on reason.

 

In Mpofu HB-21-11 the court stated that it is a cardinal principle of our criminal justice system that before assessing an appropriate sentence a judicial officer must seriously engage in a pre-sentencing inquiry in order to gather as much information as possible to enable him or her to humanely and meaningfully assess sentence. Sentencing cannot be left to the caprices and instincts of the judicial officer. A thorough investigation should be carried out by the judicial officer before arriving at an appropriate sentence. Where the judicial officer gives an ex tempore judgment with reasons for sentence contained in his head, only to be inserted in the court record much later, he runs the risk of someone concluding that he did not apply his mind to the case at hand. Indeed, it is a misdirection for the judicial officer not to record the reasons for sentence, a misdirection which entitles the reviewing judge to interfere with the sentence.

 

In the Magistrates Court (Criminal) Rules, 1966 [RGN 871 of 1966], all that is laid down is that, where appropriate, the presiding magistrate must state shortly any special factors which he or she took into account in assessing sentence, and, where the sentence imposed exceeds twelve months imprisonment with hard labour, with or without the option of a fine, the judgment must be reduced to writing and it will become part of the record.

 

Public announcement of sentence

 

In terms of s 334(1) CPEA, all sentences in criminal proceedings against persons aged eighteen or above shall be pronounced in open court.

 

Referral to High Court for sentence

 

When a magistrate is of the opinion that the appropriate sentence which is warranted in the case he or she is trying is beyond his or her sentencing jurisdiction, he or she can refer the case to the High Court under s 54(2) MCA. He or she may feel that the crime itself is of such magnitude that he or she has inadequate sentencing jurisdiction or, once X’s previous convictions have been disclosed, the magistrate may feel that he or she cannot impose an adequate sentence within the scope of his or her sentencing jurisdiction.

 

If the magistrate wishes to refer the matter to the High Court, the correct procedure to adopt is as follows:

 

• He or she must adjourn the proceeding and must submit a written report to the Attorney-General setting out why he or she is of the opinion that a sentence in excess of his or her jurisdiction is justified. The record of the proceedings must accompany the report.

 

• X is entitled to be informed on what basis the trial magistrate has decided to decline jurisdiction to sentence him or her and to proceed under s 54(2) MCA since X now faces the prospect of a higher sentence. X should thus be informed so that he or she has the opportunity to make proper submissions on sentence. He or she can only do this if the magistrate gives his or her reasons for opting to proceed under s 54(2) MCA.

 

• If the Prosecutor-General under s 225(b) CPEA directs that the case be transferred to the High Court for sentence, the magistrate must then comply with s 226 X to prison until he or she is sentenced by the High Court or is with the reasons for conviction, are transmitted to the High Court. The record should include the report sent to the Attorney-General setting out why the magistrate was of the opinion that a sentence in excess of his or her sentencing jurisdiction was called for.

 

Dangarembizi & Anor 1987 (2) ZLR 196 (H); Mandizha HH-275-90; Julieta HH-74-98.

 

Difficult aspects of sentencing

 

When difficult specific issues on sentencing arise reference should be made to A Guide to Sentencing in Zimbabwe by G. Feltoe published by the Legal Resources Foundation in 1990. This section will only deal with a few selected points of sentencing which have caused difficulty in the past.

 

Legally impermissible sentences

 

The following things are legally impermissible:

 

• The antedating of a prison sentence: Chahora HH-349-84.

 

• The imposition of a prison sentence of less than four days: s 357 CPEA.

 

• The imposition of two sentences for one offence: Chipxere HH-314-83 (Magistrate wrongly imposing for one offence a prison term plus another prison term, wholly suspended on condition that X made restitution.); Sibanda HB-36-86 (Magistrate wrongly imposing two separate prison sentences subject to conditions for same offence.)

 

• Making fines run concurrently or a fine run concurrently with a prison sentence: Kambuzuma HH-60-86, Gororo HH-145-86.

 

• The suspending of a sentence of a fine where the fine is mandatory or giving X time to pay such fine: De Montille 1979 RLR 105, Kudavaranda 1988 (2) ZLR 367 (H).

 

• The suspending or postponing of a mandatory prison sentence without the option of a fine where there is a minimum period of such imprisonment prescribed: s 356(2) [337(1)] as read with para 3 of the Seventh Schedule to CPEA.

 

But where the legislature lays down a mandatory prison sentence of a length to be determined by the court, the court may suspend all or a portion of the prison sentence. Patel S-63-87; Muzambe HH-121-90. However, in Horowitz 1976 (1) RLR 238 at 242D, it is stated that the court will not lightly suspend the whole of a mandatory prison sentence; it will only do so when the mitigatory circumstances clearly make such a course desirable.

 

• The imposition of globular sentences save in exceptional circumstances.

 

      In Chawasarira HH-18-91, it was laid down that where an accused is convicted of two or more separate offences, separate punishments should, save in exceptional cases, be imposed for each separate charge. One globular sentence for two or more offences should be considered only where the offences are of the same or a similar nature and are closely linked in point of time. If these two requirements are not satisfied, then a separate sentence must be imposed in respect of each offence.

 

      In cases of forgery and uttering it is usual, for the purposes of sentence, to treat the convictions for forgery and uttering as one since the offences are usually so interlinked that there is no impropriety in doing this. Likewise, where persons have been convicted of multiple counts of fraud or theft by conversion with the same modus operandi, offences that are closely related in point of time may be treated as one for the purposes of sentence. These cases, however, are the exception rather than the rule.

 

      In this case, the court set aside a globular sentence imposed on X for assault with intent to commit grievous bodily harm and possession of dagga.

 

      In Chirai HH-2-92, the review court ruled that a globular sentence imposed for a charge of attempted fraud and a charge of contravening s 3(1)(b) of the Prevention of Corruption Act, 1985 was inappropriate as the two offences were dissimilar.

 

      There is no increased jurisdiction where several counts are taken as one for sentence; the overall sentence must still fall within the limits of the jurisdiction: Chowdhry HH-161-85.

 

      Where there is insufficient sentencing capacity in such cases, the matter must be referred to the High Court for sentence.

 

      Although it may be technically possible to exceed jurisdiction where X is sentenced to separate sentences on individual counts, there are serious doubts about a magistrate doing this. Again, a better course would be to refer the case to the High Court for sentence. Makalima HB-16-91.

 

• The imposition of a standard sentence for the particular crime without considering the individual circumstances and the moral blameworthiness of X. There is a need for individualised sentencing: David & Anor 1964 RLR 2; Mugwenhe & Anor 1991 (2) ZLR 66 (S).

 

• The imposition of a sentence of imprisonment on a company; only a fine may be imposed upon a company even if the statutory offence provides only for the imposition of imprisonment for the offence: s 372(3) CPEA.

 

Fines

General aspects

 

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

 

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

 

If the process of adapting fines to means were to be taken seriously the end result would be a reduction in the numbers of persons in the prisons of Zimbabwe, as many who are fined cannot pay their fines and end up in prison. Frequently, however, in the past only lip service has been paid to these requirements. In the case of Munyakwe & Ors HH-92-93, the court stressed that magistrates must conduct more than a completely cursory inquiry into mitigation. In order to try to ensure that the trial court systematically and thoroughly matches the fine to X’s means, it is recommended that the court should be obliged to fill in a form like the one set out in the Appendix to this address. This form obliges the judicial officer to extract all the salient financial information, to indicate what fine would normally be appropriate and how the fine has been tailored to X’s means.

 

Fines and means

 

In Mushangwe HH-58-93, the court said that whenever a fine is appropriate, it must be made a real option, given with the intention of keeping a person out of prison, and therefore equated to his or her means (unless he or she is being made to disgorge illicit profits; or was engaged in some criminal enterprise where he or she must be prevented from thinking crime is profitable). If X has no apparent means, the fine should be based on the average income for someone of his or her station in life, as family or friends may help to keep him out of gaol. Here X had dependants and no employment; his means were obviously as limited as the magistrate’s enquiry. In this case, X had been fined $700 (and a suspended prison term of four months) for hitting and kicking his or her ex-wife using moderate force, causing no permanent disability. This was a case of only common assault. The sentence was reduced to $150 (and 3 months’ imprisonment suspended.)

 

In Kunesu & Ors HH-216-93, the court observed that the means of X is always the overriding factor. Any fear of making a serious offence seem trivial is not as important. Otherwise the courts do an injustice to the poor, and accommodation in prison is taken up unnecessarily by those who cannot pay their fines. Giving time to pay can enable the court to impose a more substantial fine, but this must not be taken too far or the poor will be punished more severely than the rich.

 

In the South African case of Ntlele 1993 (2) SACR 610 (W), the court pointed out that equality before the law means that the law must be even-handed; it must be fair, and a sentence must not be imposed which does not properly take account of the personal circumstances of X. When a sentence which is imposed for a particular offence can be paid by a rich offender out of one day’s earnings but by a poor man only after he has toiled for 60 days, these requirements are manifestly not met. A sentence which does not take account of a poor man’s inability to pay in circumstances where a fine is an appropriate sentence disregards one of the elementary criteria for punishment: the personal circumstances of X. For that reason alone, a court on review or appeal would be bound to conclude that the lower court’s discretion was not properly exercised.

 

In Mutandwa HH-35-88, the court stated that if a court decides to impose a fine, the court must allow X a real option to pay it and must inquire into X’s ability to pay, if necessary by instalments. A reasonable balance should be struck between the sum that X can pay and the sum that the gravity of the offence requires.

 

In Dlamini HB-3-90, the court stated that it is a misdirection for a judicial officer to hold that because he or she believes that X is incapable of paying the appropriate fine, he or she must therefore be sent to gaol. The proper approach was to consider first whether for the offence in question the appropriate punishment was a fine or imprisonment. If it was a fine, the amount of the fine should then have been set based upon the gravity of the offence and X’s personal circumstances. If, on balance, it was necessary to impose a fine which was more than X can afford to pay, that is no reason to alter the sentence to one of imprisonment, X is still entitled to be given the option of paying a fine, even if in the end result he or she was unable to raise the finance to pay it. Similarly, in the case of Ntlele 1993 (2) SACR 610 (W), the court said that a fine beyond X’s personal means is sometimes justified on the basis that he or she may be able to supplement his or her own resources by selling his or her assets or borrowing from family or friends. This approach should not be adopted on the mere supposition that these things may be done. Before a court is justified in imposing a fine clearly beyond X’s ability to pay, a proper inquiry should be held to determine whether such other resources are available to X, and the extent of them.

 

Suspending fine on condition of Community Service

 

A new option is to impose a suitable fine suspended on condition X carries out a community service. This may be appropriate where there is an apparently unbridgeable gap between accused’s available resources and the appropriate fine having regard to the gravity of the offence. See Kunesu & Ors HH-216-93.

 

In the case of Mlambo HH-117-95, a young married first offender stole goods worth $950 from his employer; it was all recovered. The magistrate imposed a fine of $1 000. The High Court pointed out that the trial magistrate had made the common mistake of equating the fine to the value stolen. As X made no ill-gotten gains, there was no justification for this: the fine must be related to the means of X or his ability to pay the fine. The fine was reduced to $500 (or 3 months) with the suspended prison sentence confirmed.

Giving time to pay

 

Nyirenda HH-116-88: Whenever a court sentences a person who is not legally represented to pay a fine, it should investigate the question whether or not he or she is to be given time to pay, even in the absence of an application by him or her for time to pay.

 

Motlaung 1993 (2) SACR 214 (NC): Where a judicial officer has decided to impose a fine on an accused and it is apparent that he or she will not be able to pay it in cash, the judicial officer must explain to him or her that there is provision for the fine to be paid in instalments. Only after explaining this and hearing X’s representations will the judicial officer be in a position to assess a fine appropriately. The hearing granted to X in these circumstances forms a cardinal and inherent part of the court’s adjudication regarding the question of an appropriate sentence.

 

In the case of Lekgwabe 1992 (2) SACR 219 (T), the court said that where it is intended to impose a fine with the alternative of imprisonment upon an unrepresented accused, the court should bring to X’s attention that the fine may be paid in instalments. If X indicates he or she wishes to pay the fine in instalments, the court must determine what kind of instalment would be within his or her reach.

 

Period of imprisonment in default of payment of fine

 

The alternative period of imprisonment should be related to the fine, and should generally be roughly the period X takes to earn the fine. See Nyirenda HH-116-88.

 

First offenders

 

First offenders should be kept out of prison wherever possible: Mantwana S-20-82; Mayberry HH-248-86; Munyariwa HB-14-87; Chadyamunda HH-228-89; Chitanda HH-215-89; Kanoyerera HH-167-89; Van Jaarsveld HB-110-90.

 

Young first offenders, particularly, should be kept out of prison wherever possible: Marechera A-151-68; Mudekwe & Anor HH-7-86; Ncube HB-153-86.

 

Normally female first offenders are treated more leniently than their male counterparts: Harvey 1967 RLR 203 at 205D; Malunga 1990 (1) ZLR 124 (H); Gwatidzo HH-271-90.

 

The court should consider suspending a portion of prison sentence imposed on a first offender although there is no rule that it must suspend a portion: Manaiwa & Anor HB-72-90; Mazowe HB-36-91; Gumba S-50-91.

 

Juveniles

 

General

 

Under s 351(2) CPEA, instead of sentencing a person under the age of 19 to a fine, imprisonment or to corporal punishment, the court convicting him or her can order that he or she be referred to a juvenile court to be dealt with in terms of the Children’s Act.

 

The juvenile court can call for a probation report on the offender and can, amongst other things, order him or her to be placed in the custody of a suitable person or be returned to the custody of his or her parents or guardian. A juvenile can also be ordered to be placed in a training institute for a specified period: s 351(2)(b) and 351(3) CPEA.

 

Where there is insufficient evidence of an offender’s age, the magistrate may estimate his or her age based on his or her appearance and on any information, including hearsay evidence, which may be available: s 387 CPEA.

 

Imprisonment

 

In Mavasa 2010 (1) ZLR 28 (H) X pleaded guilty and was convicted of rape. He was 16 years old at the time of the crime and the complainant, his younger sister, was aged 12. He had inserted his penis into the complainant's vagina; she removed it when she pushed the accused away. There was legal penetration even though such penetration could not be medically detected when the complainant was examined some three days later. The magistrate sentenced him to 12 years' imprisonment, of which 3 years were suspended. The trial magistrate took a long time before sentencing the accused as he was waiting for a probation officer's report. The report never came and, in the end, the trial magistrate had to proceed to assess sentence without the report. The reason for the lack of a report was a shortage of staff in the Social Welfare Department. The issue on review was the challenge that faces the courts in handling matters of juvenile offenders in the absence of the requisite support structures to inform them on how to manage such offenders.

 

The court held that under s 351 CPEA a discretion is given to the court convicting a juvenile on the options available for the management of the young person. It is clear from the section that there must be close liaison between the courts convicting the juvenile and the Social Welfare Department about training institutions or reform schools where convicted offenders may be referred to. Such liaison appears to have died down with the passage of time, leaving trial magistrates with no options but to sentence juvenile offenders to imprisonment as occurred here. There was an urgent need for this liaison to be resuscitated if the management of juvenile offenders is to be done in accordance with the law and for the rehabilitation of young offenders. Our laws and procedures have for long recognized that it is wrong to sentence juvenile offenders as if one is dealing with an adult offender. The thrust of the criminal justice delivery system in sentencing adults is to punish them for their wrongdoing, whilst in dealing with juveniles, the thrust is to reform them. A court should thus be exceedingly slow to expose a convicted juvenile to the same rigours of punishment which it will impose on an adult, as the purposes served by the sentences are different. Even in the absence of probation officers and probation officers' reports, a trial court handling the matter of a juvenile should be innovative and seek information from the school, family or community of the juvenile before coming up with a management scheme or sentence.The need to protect the complainants in sexual offences need not strip the youthful offender of his status as such and the consequent need on his part to be protected by the courts from his immaturity. The court should always strike a balance between the two competing rights. None is greater than the other. The sentence would be altered to one which would ensure the accused's immediate release.

 

In Hunda & Anor 2010 (1) ZLR 387 (H) the two accused pleaded guilty to and were convicted of theft and unlawful entry into premises, respectively and were sentenced to 15 years' imprisonment, of which 6 years were conditionally suspended. They had entered the complainant's house and stolen various items. Finding the complainant's car keys in the pocket of a jacket, they stole the car too. Most of the property was recovered. At the time the accused were convicted and sentenced, they were aged 17 and 18 years respectively. The record was sent for automatic review two and a half years after the accused were sentenced.

 

The court held that the sentences were inappropriate. The theft of the car was opportunistic; they had not gone with the object of stealing the car. Their pleas of guilty should have been given serious consideration. The rigours of imprisonment on young offenders should have had the effect of reducing the sentence to be imposed and the total effective sentence. Youthfulness and the attendant lack of serious consideration of the consequences of their actions should also have been considered. The 17 year old accused could have been sentenced to corporal punishment, plus a wholly suspended prison term. He was now above the age of 18, and must be treated as an adult, in the sense that corporal punishment is no longer applicable. The offence was a serious one. He must now be sentenced to a term of imprisonment, as he could no longer be subjected to corporal punishment. Other forms of punishment, like community service or a fine, would trivialize the serious offences he committed.

 

It is counter productive to send 17 to 18 year olds to prison for 15 years. The accused were still in their formative years. They needed more guidance than punishment. As they overstepped the line, making a non-custodial sentence inappropriate, they should be imprisoned but for a period which will let them taste the sting of imprisonment to scare them off a life of crime. The sting should not be for too long, so that they will come out adjusted to it. The sentence must seek to cause them to avoid it in future. If they are imprisoned for a period which would bring them out as hardened criminals, society and the offenders will both lose the benefit of a rehabilitative prison sentence. Society would be the greater loser as it will, at the end of such a sentence, receive into it a schooled and hardened criminal no longer scared of the prospects of being send back to prison.

 

A judicial officer must avoid imposing sentences around the maximum level of the range for cases which are far from being the worst examples of the particular crime. He must carefully consider the appropriate sentence for each case, bearing in mind that the least sentence is for the least serious example, and the maximum sentence is reserved for the worst example of that crime. This case was far from being the worst example. It was merely above the lower level, but below the middle level. An effective sentence of three years would be appropriate.

 

In Mahuni HH-4-09 the accused was aged about 14 years at the time he sexually assaulted two girls who were aged 6 years. He was charged with, pleaded guilty to and was convicted of rape. The magistrate disregarded the recommendation of the probation officer that the accused receive corporal punishment, saying that such a punishment would be too lenient. She sentenced him to 9 year's imprisonment, of which three years were suspended on appropriate conditions.

 

The court held that the magistrate had misdirected herself. To sentence such an immature person to prison at all, let along for the length imposed, was so harsh as to induce a sense of shock. She also misdirected herself in holding that corporal punishment was lenient. Corporal punishment is brutal, inhuman and degrading and can never be characterized as lenient. Juvenile offenders convicted of rape should not be treated as little adults. Their very ages denote their mental immaturity. Noncustodial options other than fines and community service should be pursued. Some of these options are counselling, institutionalization in juvenile reformatories and corporal punishment. The choices in Zimbabwe are limited by our level of economic development and our prevailing economic challenges which impact negatively on the development of new institutions and the funding and staffing of existing ones. Our courts therefore are obliged to resort to the disproportionate use of corporal punishment, coupled with a suspended term of imprisonment as the only available and viable option.

 

In Ndoziva HH-43-11 X appealed against conviction and sentence after being convicted of two counts of rape on two girls aged 4 and 8 years, respectively. He was sentenced to 10 years on each count 5 years of which were suspended on appropriate conditions. He was 21 years old at the time of the crime and 23 at the time of sentence.  Medical evidence confirmed the rape on both victims. Both victims identified the accused as well as his place of work simultaneously. The basis of the appeal against sentence was that it was too harsh. The accused was a first and young offender aged 21  and entitled to leniency.

 

The court held that all cases of rape are horrible and sentences of rape having been increasing over the years. Severe penalties are called for on the basis that rape is a gross violation of the rights, body and dignity of the victims. Our courts have called for stiff penalties especially against adults who prey on young children. Rape is a crime of violence which seeks to subjugate the will and dignity of the victim to that of the perpetrator. The appellant’s moral blameworthiness was very high. He committed two offences against two young girls within a short space of time. Young children are easy prey because they can easily be threatened or bribed into silence. It was fortuitous that the alertness of one of the mothers led to the rapid discovery of the offences. 

 

 

It held further, that the sentencing of juveniles in rape cases is a difficult exercise. The court has to perform a delicate balance between the youthfulness of the offender and the seriousness of the offence. It also throws in the interests of society into the scales. Society expects long periods of incarceration to those offenders who commit serious crimes. In the same vein it expects that youthful offenders by reason of their immaturity be afforded an opportunity to reform so that they become useful members rather than a scourge to society. While the legal age of majority is 18 years there is need to approach the concept of a ‘juvenile’ more broadly. After all, the law makes express provision for special treatment of young offenders extending to the age of 20 years. In addition, as a matter of principle, persons up to the age of 21 and even older are generally treated as young offenders as and with more leniency than other adults. The accused is thus entitled to leniency.

 

It held accordingly that both counts are to be treated as one for sentence and the accused is sentenced to 10 years’ imprisonment 2 years of which are suspended on appropriate grounds.

 

Corporal punishment

 

In Ncube & Ors 2011 (1) ZLR 608 (H) the court pointed out that the enthusiasm with quite a number of magistrates to sentence juvenile offenders to corporal punishment even for non-serious offences is a matter of concern. This may be an easy way out in disposing of a matter, but in dealing with juveniles in conflict with the criminal law the courts' primary concern is to safeguard the rights of these children rather than to complete the proceedings as quickly as possible. By taking the latter course, the court may end up imposing a retributive rather than a rehabilitative type of sentence. In most cases involving juveniles in conflict with the criminal law, the court should refer such cases to the children's court, where other various options of dealing with the juveniles are available. Where corporal punishment has been imposed, it is not possible to correct a misdirection on review, except in an academic sense.

 

Elderly accused persons

 

Old people are normally treated more leniently than mature people. An elderly first offender, who 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 than an elderly person should end his days in prison and so the very elderly should normally be exempted from imprisonment.

 

 

In Dzotizei HH-126-14 the accused, a man of over 70 years of age, was convicted of contravening s 60A(1)(a) and (b) of the Electricity Act [Chapter 13:19] He had re-connected his electricity supply after it had been cut off for non-payment of his bill. The court said it is imperative that the age of the accused is always accurately captured. It is a vital fact which has a material bearing in most situations. Inaccuracy creates unnecessary confusion on review when a judge is faced with contradictory data. If the accused was a 71 year old pensioner living in a context where assistance from the State for old people is so limited as to be virtually non-existent, then even a suspended sentence of 24 months was manifestly excessive. Under s 82 of the Constitution, the State owes some duty of care to persons over the age of 70. In this instance the criminal court, a vital part of the State machinery, can at least play a protective role by ensuring that the elderly are not unduly harshly penalised for electricity self-reconnection offences. The court cannot purport to act in complete oblivion of the real circumstances that some of the disadvantaged elderly find themselves or with complete disregard to the different facets of possible interventions by the State in promoting rights of the elderly. Where needy elderly people are involved in cases of self-reconnections, one role that the criminal courts can play is to ensure that nominal, rather than punitive, sentences are imposed, if they must, only by way of discouraging wanton breaking of the law. The sentence should be reduced to one of 3 months’ imprisonment, wholly suspended.

 

 

Special reasons/circumstances for not imposing mandatory minimum sentence

General aspects

 

Sometimes the legislature sees fit to prescribe minimum sentences for particular offences. It does so for serious crimes which are prevalent and are causing grave economic or social harm. The legislature prescribes such sentences where it believes that stern deterrent punishments are required and feels it is not enough simply to lay down high maximum sentences and to exhort the courts to impose stiff sentences for these offences as a deterrent. By prescribing mandatory minimum sentences the legislature is interfering with the normal sentencing discretion of judicial officers to decide upon an appropriate level of sentence based upon the particular circumstances of the offence and the offender and the various mitigating and aggravating factors in the case. With mandatory sentences the sentence is no longer individualised. At least the mandatory minimum sentence must be imposed. Research has shown that where a minimum term of imprisonment is made mandatory, sentences are considerably longer than would normally be imposed for the crime in question.

 

To temper the potential harshness that would follow if the mandatory sentence had to be imposed in all cases, the legislature has added the rider that the minimum sentence does not have to be imposed if there are special reasons for not imposing the sentence or special circumstances which justify the imposition of a sentence less than the minimum. This is a legislative device whereby rigours of a particularly severe prescribed sentence may be avoided in exceptional cases; it is a sort of a safety valve.

 

The Supreme Court has held that such mandatory sentences are constitutional where the court is allowed to find special circumstances and impose a lesser sentence: Arab 1990 (1) ZLR 253 (S) and Chichera v A-G S-98-04.

 

Circumstances and reasons the same

It has been judicially recognized that there is no difference between "reasons" and "circumstances" in this context: Chisiwa 1981 ZLR 666 (H) at 670C. If the legislature simply says that the mandatory sentence must be imposed unless there are special reasons for not doing so or unless there are special circumstances justifying it not doing so, then the court is entitled to take into account both the circumstances surrounding the commission of the offence and circumstances, facts and conditions affecting and peculiar to the offender. However, sometimes the legislature defines special circumstances more narrowly, as in s 49 of the Road Traffic Act [Chapter13:11]. Here, special circumstances are defined so as to include only circumstances surrounding the commission of the offence and to exclude circumstances peculiar to the offender.

 

“Special” means “extraordinary”

 

Special reasons or special circumstances are reasons or circumstances which are out of the ordinary, either in their nature or extent: Moyo 1988 (2) ZLR 1 (S). Not all factors which would be mitigatory in ordinary criminal cases will be “special” in this sense. Deciding which factors are special in this sense involves a value judgment and is a matter of degree. In Mbewe & Ors 1988 (1) ZLR 7 (H) it was stated that mitigating factors, such as good character or particular hardship stemming from the sentence, cannot be taken as special circumstances, nor can contrition or co-operation on the part of the offender. In Siziba 1990 (2) ZLR 87 (H), the court stated that special circumstances must mean more than the natural consequences which flow from the imposition of the punishment prescribed. On the facts of Siziba, the court held that any hardship that would be suffered by the woman and her family if she were unable to pay the fine and had to serve the alternative prison sentence would be no more or less than that which always occurred when a wage earner and supporter of a family is sent to gaol. This factor did not therefore constitute special circumstances.

 

But where, for example, X was bona fide ignorant of the statutory provision concerned or was, as a result of a trap, tempted into committing a crime which he or she would not otherwise have committed or was compelled by circumstances to commit the offence, these factors may constitute not only mitigatory factors but also special circumstances (see cases below).

Combination of factors

 

The cumulative effect of a number of factors can constitute special reasons or special circumstances. Again, this involves the making of a value judgment: Gumbo HB-48-89; Chidembo S-118-89.

Attempts, conspiracies and incitements

The mandatory sentence does not apply to attempts, conspiracies and incitements: Mutengwa HH-116-90; Takavarasha HH-18-92.

Torture

 

Torture and ill-treatment at the hands of the authorities can constitute “special circumstances” for not imposing the mandatory minimum sentence: Blanchard & Ors 1999 (2) ZLR 168 (H)

Lengthy delay in bringing to trial

This can amount to a special circumstance: Moyo 1988 (2) ZLR 79 (H).

Finding of special circumstances

 

If magistrate finds special circumstances, he or she is obliged to record the special circumstances of the case which justify the imposition of the lesser penalty.

Undefended accused

 

Where an unrepresented accused is charged with an offence carrying a mandatory minimum sentence in the absence of special circumstances, the court must explain to X what special circumstances are: Chaerera 1988 (2) ZLR 226 (S) and Maharangwe S-5-90. Before the court imposes the mandatory prison sentence, it must explain in some detail what is meant by special reasons and the consequences of a failure to give special reasons: Kaja S-129-89.

 

Where an undefended accused admits possession of a prohibited item, the court must establish just what X is admitting as possession is a difficult legal concept: Dube & Anor 1988 (2) ZLR 385 (S).

 

The court should consider whether the case is a complex one. It should take into account factors such as:

 

• whether the ascertainment of facts includes difficult legal concepts such as “possession” “consent” or “knowledge”;
• whether the facts themselves are complex or difficult;
• whether there is a need to prove “special reasons” or “special circumstances to avoid a minimum sentence;
• whether a long prison sentence is likely to follow on conviction.

 

In such cases, the court should consider to enter a plea of not guilty even if X has pleaded guilty and proceed in terms of s 272 CPEA.

 

It should also consider whether it would be fair and appropriate to advise X of the complexities of the matter and ask him or her if he or she has considered obtaining legal representation. If the court is satisfied that X should have legal representation but cannot afford it, the court should certify that legal representation be provided under the Legal Aid Act.

 

X should have been told that the offence involved a minimum mandatory sentence, unless they established special circumstances, and that these circumstances can be peculiar to the offender or to the commission of the offence. It is a procedural irregularity not sufficiently to explain or explore special circumstances: Takawira HH-155-91

 

The record must show that magistrate advised an unrepresented accused either during trial or during the sentencing procedure that he or she was in jeopardy of having a heavy minimum sentence imposed and could avoid this by showing special reasons: Makawa & Anor S-46-91.

 

Multiple counts

 

In Huni & Ors 2009 (2) ZLR 6 (H) the accused were each convicted of more than one count of stock theft. No special circumstances having been found, a minimum sentence of 9 years' imprisonment was mandatory, in terms of s 114(2)(e) CL Code. The magistrate ordered that the counts against each accused be treated as one for sentence. On review the court held that in the absence of special circumstances an accused person must be sentenced to an effective mandatory minimum sentence of nine years for each count that he is convicted of. Where the accused person has been convicted on more than one count, to treat both or all of them as one for the purposes of sentence defeats the clear intention of the legislature, that there should be an effective mandatory minimum penalty of 9 years per count. The options available to the trial magistrate were either to impose an effective minimum sentence of 9 years' imprisonment per count and order the accused person to serve the arithmetical total or to impose the minimum mandatory sentence on each count and order both or one or more to run concurrently with each other or the others. The result will always be that the total effective sentence would be a multiple of 9 years.

Suspension of mandatory sentence impermissible

 

Where the court decides that the mandatory minimum term of imprisonment or fine prescribed by the legislature has to be imposed, it may not suspend all or a portion of the mandatory minimum prison sentence or fine. See s 337(1) as read with paragraph 3 of Sixth Schedule of the Criminal Procedure and Evidence Act. See De Montille 1979 RLR 105; Kudavaranda 1988 (2) ZLR 367 (H).

 

On the other hand, where the legislature lays down that it is mandatory for the court to impose imprisonment for a particular type of offence but that the term of imprisonment is to be determined by the court, the court may suspend all or a part of the prison term: Patel S-63-87. However, in Horowitz 1976 (1) RLR 238 (A) at 241D it was stated that the court will not lightly suspend the whole of the sentence where imprisonment has been made mandatory for an offence.

 

In S v Chitate HH-568-16 the judge said that where a statute provides for a mandatory minimum sentence in the absence of special circumstances, the court may go above the prescribed minimum. The court’s discretion to impose a sentence other than the prescribed minimum should, though, be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.

As a sentencing principle, a court may suspend the operation of a sentence, or a portion of it, on conditions that it must specify: s 358 CPEA. But where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum. Where there is a prescribed minimum sentence for an offence, it is improper for the court to impose a harsher penalty above the prescribed minimum in circumstances where such a sentence is not warranted, simply to create some room to suspend a portion, for whatever purpose, for example, restitution. If the appropriate sentence is the prescribed minimum, the court should stick to that sentence. This does not necessarily leave the complainant without a remedy. Through the prosecutor, the injured person can always apply for restitution or compensation in terms of Part XIX of the Act. Unlike the award of restitution or compensation under s 358(2), the award of compensation or restitution under Part XIX is not part of the sentencing formula.

 

Cases in which special reasons/ circumstances existed

 

In most of the cases which follow the trial court or appeal court found that special circumstances or reasons existed for not imposing the mandatory sentence. A few cases are mentioned which point out factors which do not amount to special reasons or circumstances.

 Exchange Control Act

 

Impossibility

In Telecel Zimbabwe (Pvt) Ltd HH-55-06 the appellant company was charged with a number of offences under the exchange control regulations. It had bought foreign currency on the unofficial, “parallel”, market in order to service its debts outside the country, to pay for capital equipment and make other payments essential to keep the company in business. The court a quo found no special reasons in the particular case which would result in the imposition of a fine of not less than the value of the currency involved. It was held save in those situations where the legislation in question contains a definition of “special reasons” or “special circumstances” and that definition specifically confines the determination of such reasons or circumstances to the commission of the offence to the exclusion of the offender, the broad approach is preferable, which allows the court to consider the triad of the offender, the offence and the interests of society, the factors which any sentencer must always bear in mind, to arrive at an appropriate sentence. The appellant had two choices: either it had to behave in an ethical manner and search for foreign currency on the official market, where it was unavailable, and thereby commit corporate suicide or it had to enter the parallel market and survive. It chose life instead of death. It was necessary for its survival to purchase foreign currency from unauthorised dealers without Exchange Control authority at parallel market rates. Special reasons therefore existed not to impose the minimum sentence.

 

Remorse and righting of wrong:

Holmes 1982 (2) ZLR 267 (H): X intended to export from Zimbabwe two cheques expressed in foreign currency which he had bought. He changed his mind and deposited the cheques instead at a local bank. The genuine remorse and early and voluntary determination to right the wrong he had committed were special reasons.

 

Foolish action not causing prejudice:

McGregor HB-26-91: for reasons which were not investigated X took about Z$7500 out of country concealed in his car but he then brought this money back the next day. No one was prejudiced and his actions were foolish rather than wicked. The offences were of rather technical nature. Special reasons were found to exist.

On the other hand, the absence of prejudice to the country was held not to amount to special reasons in Patel S-63-87 because "it was no thanks to the appellant that the foreign currency did not leave the country."

 

Ignorance of law

Ndekete 1978 RLR 377: an unemployed tribesman had received a request for assistance from a sick relative in South Africa. He had sent Zimbabwean currency through the post to him, but the letter containing this currency had been intercepted by the authorities. He was probably unaware that what he was doing was unlawful. The court found that there were special reasons, in that this was an unconscious contravention and moral guilt was virtually absent.

 

Chisiwa 1981 ZLR 666 (H): the court stated that in appropriate circumstances a bona fide mistake of law would amount to special reasons.

 

See also Musa HH-144-89; Mutengwa HH-116-90; Smith S-182-90; Trinder HB-52-91.

Firearms Act

Purpose of possession

Mhiripiri HH-163-88: X had a .22 rifle for purpose of protecting crops and wild animals. Although his possession of the weapon was illegal, the court held that the purpose for which he possessed it amounted to special reasons.

 

Age of X and purpose of possession

Mutowo HH-458-88: X was 18 year old in form I who found an automatic pistol while visiting Moçambique and intended to use it for shooting birds. The age of X and the purpose of possession constituted special reasons.

 

Negligent possession of dismantled rifle

Robertson S-75-88: X possessed a dismantled FN rifle. He had kept it hidden for ten years at business premises where he worked. He had no intention to use for political purpose or to commit a crime. It was found when he left his employment. This was a case not so much of defiance of law but of considerable negligence. The combination of these factors constituted special reasons.

 

Finding unloaded and non-functional weapon

Chidembo S-118-89: a farm manager found an unloaded and non-functional revolver lying on ground. The fact that he found the weapon by chance and that it was unloaded and non-functional constituted in combination special reasons.

 

Purpose of possession and attempts to renew firearms certificates

Rudolph 1990 (1) ZLR 45 (S): X had three weapons to shoot vermin. He had firearms certificates for the weapons. He had applied for renewal of these certificates but had received no response despite giving a reminder. The fact that he had not kept these weapons for a sinister purpose and that the firearms authority was partly to blame because of its failure to respond to his application constituted special reasons.

See also Rusike HH-31-89 (unlawful possession of firearm); Kaja S-129-89 (unlawful possession of firearm).

 Parks and Wildlife Act

Single, isolated act of possession

In Mbewe & Ors 1988 (1) ZLR 7 (H) the court pointed out that a single isolated act of unlawful possession of unregistered raw ivory or horn, whether or not the possession is for the purposes of trade, can make an offender liable to mandatory minimum sentence in absence of special circumstances.

 

Killing of animal and possession of its horns

Kudavaranda HH-450-88: X killed a rhino and was in possession of the horns taken from this animal. He was sentenced to a mandatory minimum fine on each count. Because the two offences were completely interlinked, the killing of the animal being in consequence of X's desire to possess its horns, there were special circumstances in relation to X's possession of the horns, justifying the court in not imposing the mandatory minimum sentence for that offence.

 

Technical breach of the law

Hill HB-106-89: the appellant had bought a rhino horn and two elephant tusks in 1957 and had kept them ever since as ornaments. He was ignorant that his possession had become unlawful in 1975. The court found that this was a technical breach of the law and the trial court should have found that there were special circumstances.

 

Disparity in sentence

Ncube & Anor HB-143-91: the second accused was an unsophisticated communal dweller who found the bit of ivory in the bush and picked it up simply to give it to a witchdoctor. The first accused was a city dweller who persuaded his co-accused to sell the piece of ivory and took it for that purpose. Both accused were sentence by the trial court to the mandatory 5 year jail term.

 

The review court found that there were special circumstances in respect of the second X and reduced his sentence to 6 months' imprisonment. The court found that although the mandatory minimum sentence is aimed at poachers and dealers, there were no special circumstances for the first X other than the disparity in sentence between him and his  co-accused, which was not justified by the difference in their moral blameworthiness. This unjustified disparity was itself a special circumstance in the case. It therefore altered the sentence imposed on the first accused.

 

See also Chaerera 1988(2) ZLR 226 (S); Siziba HB-61-88; Botha HH-183-88; Dube & Ors 1988 (2) ZLR 385 (S); Mangando & Anor HH-277-90.

 

 Precious Stones Trade Act

Stones of minimal value

Mugangavari 1984 (1) ZLR 80 (S): the fact that the stones are of minimal value does not per se constitute a special reason for non-imposition of the mandatory sentence.

 

Woman holding stones for husband

Anand 1988 (2) ZLR 414 (S): a woman was convicted of possessing uncut emeralds worth $150 which had been hidden in her bedroom. She accepted sole blame because her husband was a sick man. The court held that the fact that she probably possessed emeralds on behalf of husband and that she had decided to sacrifice herself by shifting responsibility on herself  constituted special reasons for not imposing the mandatory minimum penalty.

 

Delay in bringing to trial

Moyo 1988 (2) ZLR 79 (H): through no fault of his or her, X was not brought to trial for nearly 4 years after possessing precious emeralds, and in the mean time he had nearly completed a prison sentence imposed on him for a subsequent offence. It was held that the delay in bringing to trial amounted to a special reason for not imposing the mandatory sentence.

 

Police trap

Kamtande 1983 (1) ZLR 302 (HB): where  X is trapped into committing the offence by the police, the fact that the police trap had promoted the commission of the offence by someone who would not otherwise have committed it may be regarded as special reason.

 

            Negligible value

Gumbo HB-48-89: X was in possession of an uncut emerald worth $3. He was a hotelier who had been given the stone as a keepsake by a guest many years ago. The cumulative effect of the following factors constituted special reasons: the negligible value of the stone, that it was acquired as a gift before the Act provided for the minimum penalty, that it had been kept for ten years and that there was no question of financial gain for X.

 

          Woman keeping stones of no commercial value

Moyo HB-6-90: the court found that there were special reasons because of the cumulative effect of these factors: the emeralds had no commercial value, the woman possessing them was keeping them for another, she was a first offender and she had two sick children.

 

See also Takavarasha HH-18-92.

Road Traffic Act

Mandatory prison sentences:

Under s 40 the Road Traffic Act a person must be imprisoned up to the specified maximum term for driving whilst prohibited from doing so unless there are special circumstances justifying the imposition of the lesser sentence of a fine. Special circumstances are not restrictively defined and thus include special circumstances relating to the crime and to the offender.

 

Mandatory prohibition from driving:

It is mandatory for the court to prohibit a person from driving when he or she has been found guilty of certain offences unless there are special circumstances surrounding the commission of the offence (not circumstances peculiar to the offender). The offences in this category are:

 

s 53 reckless driving;

 

s 54 driving with prohibited concentration of alcohol in blood (but the prohibition is mandatory only if there is a previous conviction for a similar offence or if the vehicle being driven was a bus);

 

s 55 driving under the influence of alcohol;

 

s 78 (read with s 77(6)) refusal to undergo breath test.

 

Garwe HH-249-89: mandatory prohibition for drunken driving.

Erasmus S-84-91: special reasons for not imposing mandatory prohibition from driving in a hit and run case.

 

       Criminal Law (Codification and Reform) Act

 

The Criminal Law Code also provides for a number of mandatory sentences.

• s 80 provides for a mandatory prison sentence of at least 10 years to be imposed upon a person who was infected with HIV when he or she commits certain sexual crimes. The crimes concerned are rape; aggravated indecent assault; indecent assault; sexual intercourse with a young person; and an indecent act with a young person involving penetration of the body which involves a risk of transmission of HIV.
• s 114(2)(e) provides for a minimum mandatory sentence of 9 years for stock theft involving any bovine or equine animal stolen in circumstances were there are no special circumstances to be found in the accused person’s favour.
• s 156(1)(e)(i) provides a mandatory sentence of imprisonment of 15 years in relation to the crime of unlawful dealing in dangerous drugs, wherespecial circumstances cannot be found.

 

What happens where minimum mandatory sentence is introduced for a crime but X committed the crime before the mandatory sentence came into operation but he or she was convicted after the mandatory sentence came into operation? This question arose and was answered in Mzanywa & Ors HB-9-06. The court held that the mandatory penalty may not be imposed for that crime because s 18(5) of the Constitution provides that “no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed”. See also Ndlovu & Anor HH-70-06.

 

In Mapanzure & Anor HH-141-11 the accused were convicted of stock theft, the offence having been committed before but the convictions occurring after an amendment to the Stock Theft Act [Chapter 9:18] came into operation in 2004. The Stock Theft Act itself was repealed by the Code in 2006, which re-enacted the provisions of that Act in s 114. That amendment had introduced a mandatory minimum sentence of imprisonment unless special circumstances were found. The magistrate based his various sentences on the assumption that the mandatory minimum sentence was applicable, having found no special circumstances to exist.

 

The court held that the general rule at common law is that statutes are not to operate retrospectively, unless it is expressly enacted that an enactment shall be retrospective in its operation or it is a necessary implication from the language used. This was not the case here. If the legislature intended the section to have retroactive effect it would have expressly said so. It did not. After all, it was radically increasing the punishment for the theft of a bovine or equine animal. In addition, the legislature repeated the same wording which was held in 1976 decision to have no retrospective effect. The legislature is assumed to have been aware of that decision when it promulgated the present section in identical terms.

 

 

 

 

 

 

 

Onus of proof

 

Where there is an onus on X to prove special circumstances, it is not possible to discharge the onus through address alone. There must be some factual basis established by evidence or agreed facts: Dube & Anor HB-30-92.

 

Undefended accused

 

Where an unrepresented accused is charged with an offence carrying a mandatory minimum sentence in the absence of special circumstances, the court must explain to X what special circumstances are: Chaerera 1988 (2) ZLR 226 (S) and Maharangwe S-5-90. Before the court imposes the mandatory prison sentence, it must explain in some detail what is meant by special reasons and the consequences of a failure to give special reasons: Kaja S-129-89.

 

Where an undefended accused admits possession of a prohibited item, the court must establish just what X is admitting as possession is a difficult legal concept: Dube & Anor 1988 (2) ZLR 385 (S).

 

The court should consider whether the case is a complex one. It should take into account factors such as:

 

• whether the ascertainment of facts includes difficult legal concepts such as “possession” “consent” or “knowledge”;
• whether the facts themselves are complex or difficult;
• whether there is a need to prove “special reasons” or “special circumstances to avoid a minimum sentence;
• whether a long prison sentence is likely to follow on conviction.

 

In such cases, the court should consider to enter a plea of not guilty even if X has pleaded guilty and proceed in terms of s 272 CPEA.

 

It should also consider whether it would be fair and appropriate to advise X of the complexities of the matter and ask him or her if he or she has considered obtaining legal representation. If the court is satisfied that X should have legal representation but cannot afford it, the court should certify that legal representation be provided under the Legal Aid Act.

 

X should have been told that the offence involved a minimum mandatory sentence, unless they established special circumstances, and that these circumstances can be peculiar to the offender or to the commission of the offence. It is a procedural irregularity not sufficiently to explain or explore special circumstances: Takawira HH-155-91

 

The record must show that magistrate advised an unrepresented accused either during trial or during the sentencing procedure that he or she was in jeopardy of having a heavy minimum sentence imposed and could avoid this by showing special reasons: Makawa & Anor S-46-91

 

Suspension of mandatory sentence impermissible

 

Where the court decides that the mandatory minimum term of imprisonment or fine prescribed by the legislature has to be imposed, it may not suspend all or a portion of the mandatory minimum prison sentence or fine. See s 337(1) as read with paragraph 3 of the Sixth Schedule of the. See De Montille 1979 RLR 105; Kudavaranda 1988 (2) ZLR 367 (H).

 

On the other hand, where the legislature lays down that it is mandatory for the court to impose imprisonment for a particular type of offence but that the term of imprisonment is to be determined by the court, the court may suspend all or a part of the prison term: Patel S-63-87. However, in Horowitz 1976 (1) RLR 238 (A) at 241D it was stated that the court will not lightly suspend the whole of the sentence where imprisonment has been made mandatory for an offence.

Sentencing for unlawful sexual intercourse with girl under 16

 

In Tshuma HB-70-13 the court said the rationale behind punishing unlawful sexual intercourse withf girls under 16 years is the protection of immature females from voluntarily engaging in sexual intercourse on account of a lack of capacity to appreciate the implications involved and the possibility of mental or physical injury.

 

A wide range of differing circumstances can attend this crime. The factors that should be considered include, inter alia, the age, appearance and character of the complainant, the age of the accused and the circumstances of the offence. The complainant’s age is relevant because, the younger she is, the more seriously will the court regard the exploitation of her youth, while the closer she is to 16 the less justified will be any presumption of her incapacity to make an informed decision about sexual intercourse. Her appearance is important because the moral blameworthiness of the man will be less if he wrongly believes, from her appearance, that she is older than she actually is. Similarly, the girl’s character – whether she be a virgin or promiscuous, a flirt or demure – must have a like bearing on whether the accused was knowingly preying on the innocent or merely risking lying with an underage but worldly-wise girl. In no case, though, can the girl’s sexual experience be a defence. The accused’s age is important because of the relevance to his moral blameworthiness of his own experience or lack of it and of any disparity in the ages of the parties. Apart from the accused’s age, it is also important to determine whether the accused was in a position of responsibility in relation to the girl. A careful investigation of these and other relevant factors by the trial court is essential.

 

The offence is mitigated where, for instance, (a) the complainant is of loose morals; or (b) she enticed the accused to have intercourse; or (c) the accused and complainant were genuinely in love; or (d) she was nearly 16 years old; or (e) the accused is a simple and unsophisticated person from a community in which this law is not well known; or (f) he is a youth; or (g) he bona fide believed the complainant to be of age. On the other hand, the offence is aggravated where (a) the accused is much older and more mature than the complainant; or (b) she is just above the legal age of consent; or (c) the accused has relevant previous convictions.

 

Crime victim compensation

 

Part XIX (ss 361-375 CPEA) lays down the procedures for awarding compensation to victims at the end of criminal trials. As a result of amendments effected in 1992 (Part XIX of Act 1 of 1992), all criminal courts now have very extensive powers to order the payment of compensation by convicted persons to persons who have been physically injured or suffered loss or damage to their property as a result of commission of the crimes in question.

 

Previously, the courts could award compensation at the end of a criminal trial only for property damage. Now they can also award compensation for physical injury. These provisions are intended to enhance the prospects for compensation being paid. Often victims are unaware of their rights to claim compensation in separate civil actions or lack the means to mount such separate civil actions. 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. However, if the convicted persons, as is often the case, have no financial means or property which can be used to pay compensation, the victims will not be able to recover compensation under this system.

 

At the end of the criminal trial, a court may award compensation for personal injury and for damage or loss to property. Even if it is a magistrates court it is not limited in the amount it may award.

 

But a magistrate may not award compensation for loss or injury resulting from motor accidents or in personal injury cases, if the

 

• amount of compensation is not readily qualifiable;

 

• extent of liability of the wrongdoer is not readily ascertainable.

 

However, it may only award such compensation if the injured party, or the prosecutor acting on the instructions of the injured party applies for such an award. It may not make such an award in traffic accident cases or where the amount of the compensation, or the convicted person’s legal liability to pay compensation, is not readily ascertainable.

 

The court is under an obligation to ensure, wherever possible, that the injured person is acquainted with his or her right to apply for this award of compensation. The prosecutor should also draw the attention of the injured party of his or her 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.

 

In CFX Bank Ltd v RTO Engineering (Pvt) Ltd & Anor 2010 (1) ZLR 23 (H) an order for compensation following conviction for a criminal offence may be made in terms of s 363 CPEA. If the accused person notes an appeal, the requirement to pay compensation is not thereby suspended. This is shown by the provisions of s 370.This provides that a court which makes or order of compensation may require the injured party to give security for repayment of the compensation, in case the award is reversed on appeal or review. This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review. If an order of restitution was suspended by noting an appeal, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party presupposes that compensation would have been paid soon after the sentence is passed. Under s 367, the amount of an order for compensation is not limited by the civil monetary jurisdiction of the magistrate making the order.

 

 

Forfeiture of items

In terms of s 62(1) CPEA, the court is given the 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. The discretion must be exercised judicially.

Section 62(1) CPEA provides that –

 

A court convicting any person of any offence may, without notice to any other person, declare forfeited to the State –

(a) any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or

(b) if the conviction is in respect of an offence specified in the Second Schedule, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or, in the case of a conviction relating to the theft of any goods, for the conveyance or removal of the stolen property …” (emphasis supplied).

 

The use of the words “any offence” would indicate that it is not necessary for a particular enactment specifically to provide for forfeiture in the event of conviction. The offences listed in the Second Schedule are:

 

• Any offence under any enactment relating to the unlawful possession, conveyance or supply of habit-forming drugs or harmful liquids.
• Any offence under any enactment relating to the unlawful possession of, or dealing in, precious metals or precious stones.
• Theft, either at common law or as defined by any enactment.
• Breaking and entering any premises with intent to commit an offence, either at common law or in contravention of any enactment.

 

 

In summary, a court can order forfeiture:

• in respect of any crimes — weapons, instruments and articles used in the commission of crimes can be declared forfeit to the State;
• in respect of theft related crimes — vehicles used to transport stolen goods;
• in respect of statutory offences 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 offence — vehicles, containers and articles used in the commission of these offences.

 

The factors which should be taken into account when deciding whether to order forfeiture are set out in the cases of Ndhlovu (1) 1980 ZLR 96 (GD); Nongerai & Ors HB-43-13 and Chikandiwa & Ors HH-57-13. These are:

 

• the nature of the article;
• its role in the commission of the offence;
• whether there is a possibility of the article being used again in the commission of similar offences;
• the effect of the forfeiture on the accused person;
• whether, in view of the value of the article, its forfeiture will give rise to the imposition of a penalty disproportionate to the gravity of the offence;
• where the article is of considerable value, like a motor vehicle, whether it has been used previously to commit a similar offence.

 

Forfeiture is part of the punishment and the value of the goods 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: Poswell & Anor 1969 (4) SA 194 (R); Barclay 1969 (4) SA 195 (RA); Pretorius & Anor 1969 (4) SA 198 (R); Kurimwi 1985 (2) ZLR 63 (S) forfeiture of motor vehicle inappropriate where used for smuggling only small amount of goods).

 

In Chiadzva v Commissioner-General of Police & Ors 2011 (2) ZLR 241 (H) X had been convicted of illegal possession of diamonds. His conviction was quashed on review. He then sought an order for the return of the diamonds in terms of s 61(3) CPEA. The court declined to order the return of the diamonds. It pointed out that possession of diamonds by X would be illegal in terms of s 3 of the Precious Stones Act and therefore to return the diamonds to X would be to sanction the commission of an illegal act on the part of X.

 

In Nongerai & Ors HB-43-13 three accused were convicted of assault and kidnapping. They had assaulted the complainant with an assortment of weapons, demanding money which they alleged was owed to them by her mother. She suffered injuries in the process and was medically attended to. She was then forced into a car which belonged to one of the accused and driven to another town. Throughout this period, they continued assaulting her. They were sentenced to five years’ imprisonment and the car was ordered to be forfeited. The magistrate considered the car to be the means by which the offence was committed. The court held that the order of forfeiture is purely discretionary, which discretion, of course should be judicially exercised. The motor vehicle was indeed used in the commission of the offence and it was a necessary connection between it and the offence. However, that factor must be taken together with other factors, such as the effect of the forfeiture on the owner of the motor vehicle. The vehicle was of considerable value, especially when regard was given to the fact that the accused was already serving a five year term of imprisonment. In the circumstances, forfeiture was inequitable.

 

In Chikandiwa & Ors HH-57-13 accused were convicted under s 78(1)(a) Forest Act  after they were apprehended at road blocks with vehicles filled with firewood they had taken from various farms. In addition to the suspended prison sentences to which they were sentenced, the magistrate ordered the forfeiture of the firewood and the vehicles.  Although the Forest Act does not provide for forfeiture, the magistrate relied on s 62(1) CPEA as justifying the forfeiture order. The court held that the penalties for contravening s 78(1)(a) Forest Act are set out in the Act. They do not include the forfeiture of the instruments used in the commission of the offence, be it the machete used to cut the firewood or the means of conveyance by which the firewood was carried. It was a misdirection for the magistrate to rely on s 62(1) CPEA. In any event, care must always be taken, in deciding whether to order forfeiture or not, to ensure that such order does not result in the imposition of a penalty which is disproportionate to the gravity of the offence committed. Factors to consider include: Firewood is generally of negligible value. This, measured against the considerable value of motor vehicles, meant that the unsolicited order for forfeiture was not only inequitable but clearly led to the imposition of a disproportionate penalty not matched by the gravity of the offence.

 

The editor of the law reports comments upon the Chikandiwa case by stating that it would seem that the forfeiture of the firewood could be and was lawfully ordered under s 62(1) CPEA but the forfeiture of the vehicles could not as contravening the Forest Act is not a Second Schedule offence.

 

There are also specific forfeiture provisions in a number of other pieces of legislation. Some of the more important of these are:

 

• Section 188 Customs and Excise Act pertains to forfeiture of smuggled items and things used in the commission of smuggling such as cars, ships and aircraft: Mahomed 1977 (2) RLR 207 (GD);
• Section 7 Exchange Control Act lays down that when the court convicts of certain offences under this Act involving gold, currency, goods or other property may order forfeiture of these items unless the convicted person satisfies the court that there are special reasons for not ordering forfeiture.
• Section 106 Parks and Wildlife Actempowers the court to order forfeiture of the spoils of offences under this Act such as trophies and animal carcasses and of items used in connection with offences under this Act such as weapons, explosives, tents vehicles and aircraft.
• Section 62 CPEA regarding forfeiture of ungraded meat illegally offered for sale: Mutasa 1988 (2) ZLR 4 (S)
• Section 31 Firearms Act empowering the court convicting of offences under this Act to order forfeiture of items such as firearms and ammunition.

 

 

Bringing into effect suspended sentence

 

Where the prosecutor applies for a suspended sentence to be brought into operation after X has been convicted of the current offence, the judge must examine the following things:

• whether the new offence 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 X was sentenced. If, however, only a portion of a prison sentence has been suspended and X has had to serve a term of imprisonment, the period of suspension only begins to run after X 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 X does not commit a particular type of offence during the period of suspension. In this case, the vital question is whether he or she committed the offence during the period of suspension. If he or she did so, the fact that he or she is only tried for the offence after the suspended sentence expired does not prevent the suspended sentence from being brought into operation: Deuss 1972 (1) RLR 121 (GD).

 

Sometimes sentences are suspended on condition that X is not convicted of a particular type of offence during the period of the suspension. Here the vital question will be whether or not the period of suspension had expired at the date when X was convicted of the current offence.

 

Deciding whether accused had breached conditions of suspension

 

The criminal action of X must constitute a breach of the conditions laid down for suspension of the previous sentence. If the condition was that he or she does not commit a crime of dishonesty during the period of suspension, the commission of the crime of negligent driving or assault 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: s 358(5) CPEA; Chitengu 1980 ZLR 84 (GD). After sentencing X for his or her current offence, the magistrate must proceed in terms of s 54(2) of the MCA 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.

 

A suspended sentence does not have to be brought into operation by the judicial officer who originally imposed it. A judicial officer other than the judicial officer who originally imposed it can bring into effect a suspended sentence. If a different judicial officer is dealing with the current case, the second judicial officer should have before him or her the record of the original trial.

 

Where passing of sentence has been postponed

 

Most of what is stated above relating to suspended sentences applies to situations where it emerges that previously the passing of sentence on X was conditionally postponed. The judge convicting and sentencing X for the current offence must also decide whether X must also now be sentenced for the previous offence because he or she 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. Again the case must be referred to the High Court.

 

Subsequent amendment of sentence

 

In terms of s 201(2) CPEA, when a wrong sentence is mistakenly handed down it may be amended before or immediately after it has been recorded.

 

It is not every mistake which can be corrected under this provision. The mistake must be a genuine one. In handing down sentence the judicial officer must have said something different from what he or she had intended to say or must have pronounced what he or she realises afterwards was an incompetent sentence. For example, if the judicial officer intended to impose a sentence of six weeks’ imprisonment and he or she discovers immediately afterwards that he or she erroneously recorded a sentence of six months” imprisonment, he or she may correct the record accordingly: Sikumbuzo 1967 (4) SA 602 (RA). In both the following cases, the review court decided that the magistrate had been wrong in using this section to try to alter the sentence as, in both, the magistrate had imposed competent sentences and then merely had second thoughts afterwards. The provision could not be used in these sorts of circumstances as the magistrate was functus officio.

 

In Chikumbirike HH-307-84, the magistrate imposed a jail sentence on a juvenile and then some time later called X back to court and said he had decided that, being a juvenile, he should not be in prison. He then purported to substitute a corporal punishment sentence for the sentence of imprisonment.

 

In Nyamufarira HH-335-83, the magistrate imposed a fine for cycle theft. Later on the same day, he had X brought back to court and announced to the prisoner that, on reflection, the sentence he had imposed was too lenient and proceeded to substitute a prison sentence for the fine!

 

Where the error is only discovered some time after the sentence was recorded, the matter should be referred to a judge for amendment.

 

Thus in Ncube & Ors HB-150-88, the magistrate purported to alter a sentence imposed upon X a month previously because it had come to light subsequently that they were juveniles. It was held that it was too late to have relied on s 201(2) and the matter should instead have been referred to a High Court judge.

 

The judicial officer can only amend the sentence if the mistake was his or her own. He or she cannot amend the sentence if the mistake was that of the prosecutor.

 

In Mamwere 1978 RLR 374 (GD), X was sentenced to a fine. Later the same day the public prosecutor informed the magistrate that he had just discovered that X had a previous conviction for the same type of offence and that he had therefore been wrongly treated as a first offender. X was recalled and he admitted the previous conviction. The magistrate set aside the sentence and substituted a prison sentence. The review court said that s 201(2) did not apply as the mistake was that of the prosecutor, not the magistrate.

 

Passing of sentence by judicial officer other than judicial officer who convicted

 

In Manga HH-122-06 the judge pointed out that under s 334(7) CPEA, sentence may, “in the absence of” the magistrate who convicted the offender, be passed by any magistrate of that court. 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 such 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 is 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 was 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. 

 

In Attorney-General v Sibanda 2008 (1) ZLR 187 (S) the appeal court held that another judge can take over a matter in order to impose sentence after conviction of the accused for murder by another judge but before evidence in extenuation had been led. The original judge had retired and left the county.

 

The court held that while it was correct to say that a trial in a murder case concludes when the court determines the issue of extenuation; that was not the issue. The issue was when it becomes permissible for a judge to take over a trial started by another judge. There was nothing in the language of ss 333 and 337 CPEA to suggest that a judge can only take over a murder case commenced before another judge at the conclusion of the trial or after the determination of extenuation. If the words of ss 333 and 337 are given their primary meaning, the inescapable conclusion is that the legislature authorises the take-over of a murder trial after the verdict of guilty has been reached. Section 333(2) provides that if sentence is not passed “forthwith”, that is, immediately after conviction, any judge may pass sentence upon the convicted person. There is no reference therein to completion of the trial, which in turn would mean, in a murder trial, at the conclusion of extenuation. Determining the issue of extenuation is a process in relation to sentencing and not conviction.

 

Change of plea after verdict and sentence

 

When a person has been convicted on a guilty plea and sentenced, and the required procedure has been followed, the trial court is functus officio. Mudambi S-156-95.

 

If a person has been convicted and sentenced and then wishes to change his or her plea on the basis that he or she had been unduly influenced by the police to plead guilty, he or she should make such application on appeal rather than in an application under s 41 HCA.

 

In Muchamba S-27-92, on appeal against a conviction for smuggling, counsel for appellant argued that the appellant’s guilty plea in the trial court had not been made voluntarily, advisedly and understandingly, and that there had therefore been a miscarriage of justice. He  submitted that the sentence imposed should be set aside and the case should be remitted to the trial court so that an application could be made to change the plea to one of not guilty. It was held that  as the trial court had already convicted and sentenced the appellant it was functus officio and that the court could not therefore entertain an application for change of plea.

 

See also Kaiwona & Ors S-182-93.