General factors

Defence counsel should obviously be aware of the sort of factors that the court will take into account when determining sentence. These have been set out in a number of cases. For instance, Moyo & Ors HB-114-06 the judge stated that the sentence imposed on an accused should be shaped and determined by the following factors amongst others:

• the degree of premeditation by the offender;
• the circumstances surrounding the conviction of the accused;
• the gravity of the crime committed, in some instances in regard to which the maximum punishment provided by statute is an indication;
• the attitude of the offender after the commission of the conviction of the crime, as this serves to indicate the degree of criminality involved and throws some light on the character of the participant; the previous criminal record, if any, of the offender;
• the age, mode of life, climate and personality of the offender;
• any recommendation presented to the court as a pre-sentencing report from an official designated to assist in assessing the accused; and
• case authorities in relation to similar offences.

 

—           Proof of previous convictions

 

After conviction the prosecutor will state whether the person convicted has any previous convictions. If he has, the onus is on the State to prove these. 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 can bring evidence to prove them: s 327 CPEA.

 

The onus lies with the State to prove X's previous convictions: Mc Cormick HB-56-90. As regards the type of evidence which can be produced to establish previous convictions see ss 328-329 CPEA.

 

Note that in a murder case the previous convictions of X must not be revealed by the State to the court until the court has made a finding on extenuating circumstances: Namatimba S-27-91.

 

In Mutume 1985 (2) ZLR 94 (S) the court said it will not normally attach much weight to very old convictions.

—           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 witnesses or from State witnesses, including hearsay evidence, an unsworn statement from X, written statements from the prosecutor, X or his legal representative and affidavits and written reports tendered by the prosecutor, X or his legal representative. Hearsay evidence may only be tendered by one side if the other side consents. The court can decide to call to give oral evidence the person who made any affidavit or written report submitted in evidence.

 

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

 

—           Mitigation

§   General

 

X’s defence counsel has a right to present evidence and to address in mitigation of sentence. The defence will be given considerable latitude in adducing such evidence (Adolfo 1991 (2) ZLR 325 (H), but the case law lays down that the prosecutor is duty bound to dispute facts advanced in mitigation which he knows to be incorrect or which are highly improbable or absurd.

 

In preparation for his address in mitigation, the defence lawyer must extract all salient information from his client. He will need to find out such things as his financial circumstances and what he has in the way of savings (this is important when a fine could possibly be imposed), his family circumstances, his work record and whether he is likely to lose his job if convicted of the present offence, whether he has any previous convictions, whether there are persons who will be prepared to come to court and testify to his previously good character, whether he is in a poor state of health and, if so, how a prison sentence will affect his health; and so on.

 

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) and  Dube & 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) of the Supreme Court Act and s 38(4)(a) of the High Court Act  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 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 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 defence lawyer believes that he 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 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.

§   Onus of proof and evidence

In Chinyani 1969 (2) RLR 42 (A) the court stated that there are no rigid rules governing the burden of proof or the degree of proof in relation to evidence or statements in mitigation of sentence. A high degree of flexibility must exist in considering the variety of factors which are relevant to sentence. There need not always be proof of an assertion of fact before it is accepted for the purposes of sentence. If there is any doubt at the stage of sentence as to the existence of any relevant fact, the trial court must reach its own conclusions, as it thinks right, and is entitled to disregard any such fact for the purposes of sentence if it not satisfied as to the existence thereof.

 

In Adolpho 1991 (2) ZLR 325 (H) the court pointed out that when a court considers submissions in mitigation the rules of admissibility of evidence are relaxed.

 

—           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 or for any other crime than murder.

§   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.

§   Cumulative effect of all factors

In deciding whether the death penalty is to be imposed for murder, the court will have to consider the cumulative effect of all the factors. It will need to consider first whether the State has discharged the onus of establishing that there are aggravating circumstances. If it has done this, it will then consider whether there are mitigating circumstances and if there are, whether the mitigating circumstances outweigh the aggravating circumstances.

 

Previously the court had to 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). In Jaure the court pointed out that there are two approaches for determining whether or not a murder was committed with extenuation. Either approach was 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,

 

—           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).

 

—           Useful cases on sentence

 

The following cases are useful for defence lawyers when arguing on the matter of sentence:

§   Fine

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 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.

 

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.

§   Imprisonment

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 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.

 

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 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, though, 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.

§   Corporal punishment

The courts have observed that corporal punishment is a very severe form of punishment which should not be resorted to where other sentencing options are available: Tototai HH-5-02. It is particularly brutal and barbaric where the child is too immature to understand it, F (a juvenile)1988 (1) ZLR 327 (H). The maximum number of cuts should be reserved for serious manifestations of juvenile criminal delinquency, Butau 1994 (1) ZLR 240 (H)

 

—           Community service

 

When community service is applicable

Community service is an available alternative to imprisonment. Defence counsel should be conversant with the sort of situations where the court will be likely to impose community service and seek to persuade the court to impose this sentence upon their clients instead of sending them to prison.

 

The courts have stated that 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

 

Defence counsel should familiarize themselves with the Community Service Guidelines. (See Appendix) See also Dullabh 1994 (2) ZLR 129 (H) and Zhou 1995 (1) ZLR 329 (H) for the offences for which community service is appropriate.

 

Counsel must be alive to the information which must be available before court may consider imposing community service: Chiweshe 1996 (1) ZLR 425 (H)

 

In Banda HB-72-04 it was stated 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. Where there is such a recommendation, defence counsel should refer to this case and submit to the court that the recommendation should be followed.

 

It is also vitally important that defence counsel asks to the court to take into account the particular circumstances of the accused in relation to times of availability especially if the accused is employed or is a student. In Sithole & Anor HH-101-03 it was observed that 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. 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.

 

On whether a direct sentence of community service may be suspended see Maramba & Anor 2000 (2) ZLR 69 (H)

 

On whether further suspended term of imprisonment may be imposed in addition see Mhlanga & Anor 2000 (2) ZLR 73 (H).

 

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 a misdirection. 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.

§   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.

 

§   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.

 

§   Attempts by accused to rehabilitate himself between trial and hearing of appeal

In Nyajena 1991 (1) ZLR 175 (S) the court took into account that during the lengthy interval between the arraignment of the appellant and the conclusion of the appeal, the appellant had obtained an undergraduate degree and was in the process of obtaining a Master’s degree and that appellant had since the noting of his appeal pestered the Clerk of Court about the preparation of his record.

§   Attempts by accused to right the wrong done

In Allegrucci HB-37-02 X made a fraudulent claim against an insurance company, but when the fraud was discovered he admitted it, co-operated fully with the insurer, and made full restitution plus interest and paid certain other expenses. It was held that there is no rule which states that where the amount of money involved is large, X must necessarily get a custodial sentence. Each case must be decided on its merits. Even where the amount is large, if X has, on his own initiative and accord prior to conviction and sentence made good his damage by paying full restitution and in circumstances that clearly indicate that he is contrite, repentant and certainly reformed, a fine may be appropriate.

 

—           Mandatory minimum sentence - special circumstances and reasons

 

Sometimes the legislature sees fit to prescribe minimum sentences for particular offences. It will do this in respect of crimes which are prevalent and are causing serious economic or social harm. The legislature prescribes such sentences where it believes that stern deterrent punishments are required and that it is not enough simply to lay down high maximum sentences for these offences and to hope that the courts will impose stiff sentences 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 imposed are considerably longer than would normally be imposed for the crime in question.

 

However, in order 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 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.

 

Counsel defending a persons convicted of crimes potentially carrying mandatory sentences need to familiarise themselves with the factors that will constitute special reasons or special circumstances in order to be able to put forward convincing arguments why the mandatory sentence should not be imposed.

 

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 (HC) 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 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).

 

§   Role of legal representative

 

Special circumstances will be canvassed immediately after the verdict of guilty has been pronounced. The legal representative of the accused will address the court on the matter of special circumstances.

 

§   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 mandatory minimum sentence also includes torture and other ill-treatment at the hands of authorities: 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 is obliged to record the special circumstances

of the case which justify the imposition of the lesser penalty.

§   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 even a portion of the mandatory minimum prison sentence or fine. See s 337(1) as read with paragraph 3 of the Sixth Schedule CPEA, as read with 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 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.

 

§   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 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 he had decided to sacrifice his wife by shifting responsibility on her 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, 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 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 imprisonement of 15 years in relation to the crime of unlawful dealing in dangerous drugs, wherespecial circumstances cannot be found.

 

Mandatory penalties not to be applied retrospectively

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 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.

 

 

 

—           Effect on sentence of delay in trial or hearing appeal

§   Delay in bringing to trial

 

In Dube & Anor 1989 (3) ZLR 245 (S) the court said that for justice to be seen to be done, the machinery of justice, as it grinds through police stations, the Attorney-General’s Department and the courts of justice, must move expeditiously. In this case, where the accused spent over 4 years out of prison awaiting trial and the hearing of their appeals, it was held not to be in the interests of justice to send them to prison.

 

In Ruzario 1990 (1) ZLR 359 (S) X a police officer had been convicted of culpable homicide and sentenced to four months imprisonment with labour for killing three persons while driving negligently and under the influence of alcohol. There had been a delay of 4 years in bringing the case for trial. The appeal court declined to interfere with the prison sentence. Once it was apparent that the State was dragging its feet he ought to have taken appropriate steps to have asserted his right to have the matter dealt with within a reasonable period of time. He had not done so. In any event it was evident  from the magistrate’s judgment that he took into account the four year delay in his assessment of punishment and were it not for that feature, would have ordered the appellant to serve a far longer period of imprisonment. The appeal was dismissed.

 

In the case of Chakwinya 1997 (1) ZLR 109 (H) the court held that every person, deserving or otherwise, was entitled to the protection of s 18 of the Constitution, which includes the right to a fair trial within a reasonable time. The delay in this case had been extreme and the reason for it was inexcusable. The prejudice to the accused was such that had he been convicted and sentenced when he should have been, he would more than likely have been released by now. To impose the sentence that would normally be expected would be unconscionably prejudicial. It further held that it would be most inappropriate to hold against an unrepresented accused a failure to take assiduous steps to enforce his freedom. The accused was an unemployed communal land dweller who had never been advised of his rights. He was at the mercy of the system, and the system failed him. Elementary administrative checks would have revealed the accused’s plight.

 

In Kundishora 1990 (2) ZLR 245 (S) X was sentenced a prison term for fraud He appealed. The trial took place 3½ years after the discovery of the offence and the appeal was heard 10 months later. Dismissing the appeal against conviction and sentence, the court held that the delay in this matter should not be regarded as a mitigating factor in sentence because X did nothing to assert his right to be tried within a reasonable period and part of the delay was due to the appellant putting up a thoroughly dishonest defence, which had no prospects of success.

 

See also Kamusana S-110-89; Makoni S-9-90; Mlambo S-221-91.

§   Delay in hearing appeal

 

In Dzvaka S-47-92 almost four years had elapsed from the date when the appellant was sentenced to the day on which his appeal was held. This delay occurred because a substantial portion of the record of the proceedings went missing, necessitating postponements of hearings. The Supreme Court decided that the blame for the inordinate delay could not be attributed to the appellant. He could hardly consent to the appeal being heard with the record of the evidence incomplete. There was nothing he could have done to expedite the appeal. Even when the appeal was eventually argued many of the exhibits were unavailable, having apparently been destroyed by the police. Some reduction of the punishment imposed by the trial court was therefore warranted.

 

In the case of In Re Ndimande: Attorney-General v Ndimande 1992 (2) ZLR 259 (S) the facts were that in 1986 X had been convicted of theft by conversion and theft by false pretences. He was sentenced to a term of imprisonment. He served part of this sentence before being released on bail pending appeal. In 1989 the accused successfully applied to have the convictions and sentence set aside so that the case could be remitted for  further evidence to be adduced. The Attorney-General consented to this application. The order remitting it for the hearing of further evidence could not be complied with, however, as the trial magistrate had left the service. The trial could thus not be resumed but could only start afresh. The court held that in view of the delay in the case it would be unfair to order that the trial start afresh. An order staying further proceedings in this matter was ordered by consent.

 

See also Makuyana HB-117-89; Gonese HH-218-89; Kaschula HH-220-89; Guvava HH-110-89; Kuzvarwa HH-12-90; Corbett S-33-90; Chilimanzi 1990 (1) ZLR 150 (H); Tagwireyi S-10-90; Mudadi S-125-90; Badze 1990 (1) ZLR 369 (S); Gujiral 1990 (1) ZLR 320 (H).

 

In Nyambo S-24-05 the appellant was sentenced to death for murder in October 1994, nearly a year after the coming into effect of the 13^th amendment to the Constitution. This amendment provided that any delay in carrying out sentence of death should not be treated as a violation of the convicted person’s right under s 15 of the Constitution (which prohibits inhuman or degrading punishment or treatment). He noted an appeal on the appropriate prison documents, but for reasons unexplained the documents did not reach the court for another 10 years. It was argued that the delay amounted to a violation of the appellant’s fundamental rights under s 15(1) of the Constitution and that the sentence should be altered to life imprisonment. It was held that in view of the provisions of the amending Act, which came into effect before the appellant was sentenced, he was not entitled to the relief he was seeking.

 

Suspended sentences

The courts have repeatedly pointed out that the condition on which sentence is suspended  must be reasonably capable of fulfilment otherwise it is incompetent and provides a basis for attack before a superior court: Mukura & Ors HH-20-03.

If the court proposes to suspend a sentence of imprisonment – for example, on condition that the accused makes restitution – there must be a real likelihood that the condition is reasonably capable of fulfilment; for otherwise the object of the condition, namely, to keep the accused out of prison or to reduce the length of the prison term imposed and to compensate the complainant, could be defeated. The offender will then serve imprisonment on account of his poverty and not because of any mala fides or negligence on his part. If the offender is unlikely to be able to meet the condition, then the condition should not be imposed: : Mukura & Ors HH-20-03.

 

—           Forfeiture of items used in connection with crimes

 

In terms of s 62 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.

 

In summary, a court can order forfeiture:

• in respect of any crimes: of weapons, instruments and articles used in the commission of crimes can be declared forfeit to the State;
• in respect of theft and 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 of 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

 

In Zendera HH-157-04 the court decided that an article “by means whereof” the offence is committed is one which enables the offender to commit the offence or assists or aids the offender in committing the offence.

 

The factors which should be taken into account when deciding whether to order forfeiture are set out in Ndhlovu(1)1980 ZLR 96 (GD). These are:

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

 

Forfeiture is part of the punishment and the value of the goods 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 1969(4) SA 194 (R); Barclay 1969 (4) SA 195 (RA); Pretorius 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); Mutasa 1988(2) ZLR 4 (S) (forfeiture of ungraded meat illegally offered for sale).

 

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

 

            s 209 of the Customs and Excise Act [Chapter 23:02]

pertaining to forfeiture of smuggled items and things used in the commission of smuggling such as cars, ships and aircraft. See Mahomed 1977 (2) RLR 207 (GD);

 

            s 7 of the Exchange Control Act [Chapter 22:05]

laying down that when the court convicts for certain offences under this Act involving gold, currency, goods or other property it may order forfeiture of these items, unless the convicted person satisfies the court that there are special reasons for not ordering forfeiture;

 

            s 106 of the Parks and Wildlife Act [Chapter 20:14] empowering 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.

 

            s 31 of the Firearms Act [Chapter 10:09]

empowering the court convicting for offences under this Act to order forfeiture of items such as firearms and ammunition.

 

 

Passing sentence

 

The sentencing process should be a rational and objective process and judicial officers are not expected to 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. See Harington 1988 (2) ZLR 344 (S).

 

Before passing sentence the judicial officer is expected to give careful thought and consideration to what is the appropriate sentence in the circumstances and he should give full reasons for imposing the sentence which he 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. There must be a rational basis for the choice of one form of punishment rather than another Choice of one form of punishment rather than another. The sentencer should give reasons for this decision: Antonio & Ors1998 (2) ZLR 64 (H)

 

If the sentencer simply announces the sentence without giving reasons this may give the impression that sentencing is an arbitrary and unreasoned process. The court noted in Shariwa HB-37-03 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 person constitute a misdirection which justifies the substitution of the sentence. Justice should also be tempered with mercy.

See also Ngulube HH-48-02; Manyevere HB-38-03.

 

—           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 judicial officer thinks that the reasons for the sentence are obvious. It is particularly important that a magistrate records his reasons for departing from any general policy which has been laid down by the higher courts in respect of sentence. The imposition of an inappropriate sentence is an injustice and the review or appeal court can only determine the appropriateness of a sentence if the reasons for the sentence are given: Duri HH-89-91; Nyamupanda HH-101-91; Ngwenya HH--14-90.

 

—           Public announcement of sentence

 

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

 

—           Referral from magistrates court to High Court for sentence

 

When a magistrate is of the opinion that the appropriate sentence which is warranted in the case he is trying is beyond his sentencing jurisdiction, he can refer the case to the High Court under s 54(2) MCA. If he does this the correct procedure to adopt is as follows:

• He must submit a report to the Prosecutor-General, setting out why he is of the opinion that a sentence in excess of his jurisdiction is justified. The record of the proceedings must accompany the report.
• X and his lawyer are entitled to be informed on what basis the trial magistrate has decided to decline jurisdiction to sentence him and to proceed under s 54(2) MCA, since X now faces the prospect of a higher sentence. This must be done so that the defence has the opportunity to make proper submissions on sentence. The magistrate must therefore give his reasons for opting to proceed under s 54(2) MCA.
• If the Prosecutor-General under s 225 CPEA directs that the case be transferred to the High Court for sentence, the magistrate must then comply with s 226(b) CPEA by informing X of the Prosecutor-General's direction and then committing X to prison until he is sentenced by the High Court or is granted bail. He must also ensure that the record of the criminal proceedings, together with the reasons for conviction, are transmitted to the High Court. The record should include the report sent to the Prosecutor-General setting out why the magistrate was of the opinion that a sentence in excess of that which he could impose within his jurisdiction was called for.

 

The magistrate must base his or her decision to refer the matter to the High Court on all relevant factors and give reasons for invoking the section, Dangarembizi & Anor 1987 (2) ZLR 196 (H); Mandizha HH-275-90; Julieta & Anor 1998(1) ZLR 432 (H). Defence counsel must object to such referral if there is no proper basis for so referring it.

 

—           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.

 

For example, if the judicial officer intended to impose a sentence of six weeks’ imprisonment and he discovers immediately afterwards that he erroneously recorded a sentence of six months’ imprisonment, he may correct the record accordingly: Sikumbuzo 1967 (4) SA 602 (RA); Chikumbirike HH-307-84; Nyamufarira HH-335-83.

 

Where the error is only discovered some time after the sentence was recorded by a magistrate, the magistrate should refer the matter to a judge for amendment: Ncube & Ors HB-150-88.

 

A judicial officer can only amend the sentence if the mistake was his own. He cannot amend the sentence if the mistake was that of the prosecutor: Mamwere 1978 RLR 374 (GD).

 

Change of plea after verdict and sentence

 

If a person has been convicted and sentenced and then wishes to change his plea on the basis that he had been unduly influenced by the police to plead guilty, he should make such application on appeal.

 

If a matter has however, been referred to the High Court for sentence and X wishes to change his plea before sentence, such an application can only be directed towards the trial court: Jackson HH-201-02.