S v TADZEMBWA

HIGH COURT, BULAWAYO

[Criminal Review HB 85-16]

March 17, 2016

MATHONSI AND MAKONESE JJ

Criminal procedure  –  Sentence  –  Accused convicted on multiple counts of similar nature  –  Approach to be adopted  –  Need to avoid “tariff” approach to sentencing.

Criminal procedure  –  Sentence  –  Suspension on condition of restitution  –  Portion suspended should be appealing in order to motivate accused to restitute complainants.

The accused, an illegal money-changer, employing the same modus operandi, defrauded 17 complainants of substantial amounts of money. He was convicted on 16 counts of fraud and one count of theft. The magistrate sentenced him individually in respect of each count giving an aggregate sentence of 27 years imprisonment five years of which was suspended on condition of future good behaviour and a further one year was suspended on condition he restitutes the complainants of the respective sums they were defrauded, leaving an effective sentence of 21 years imprisonment. The review court having found that the sentencing court misdirected itself in more ways than one set aside the sentence and substituted it with an effective nine years imprisonment.

Held, that whilst uniformity of sentences may be desirable, the desire to achieve uniformity should not be allowed to interfere with the free exercise of discretion by the sentencer. The prime consideration in exercising sentencing discretion should be the achievement of a sentence befitting the relevant facts and the circumstances of the accused. A sentencer should therefore avoid adopting a “tariff” approach to sentencing as that inevitably results in the imposition of unduly lengthy terms of imprisonment that are completely disproportionate to the offences.

Held, further, that where an accused has been convicted on multiple counts of offences of a similar nature, the sentencer should, in order to achieve an appropriate sentence, strive to objectively and logically group the counts as one for purposes of sentence.

Held, further, that where a sentencer considers it necessary to suspend a portion of the sentence on condition of restitution, the length of the suspended portion must be significant enough to motivate the accused to restitute the complainants.

Cases cited:

S v Fazzie and Others 1964 (4) SA 673 (A), referred to

S v Mugwenhe & Anor 1991 (2) ZLR 66 (S), referred to

S v Mukura & Ors 2003 (1) ZLR 596 (H), applied

S v Reddy 1975 (3) SA 757 (A) 759 (H), referred to

S v Zulu HB 174-11 (unreported), referred to

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], ss 136, 275, Fourth Schedule

MATHONSI J:

The accused person appeared before a provincial magistrate at Beitbridge charged with 17 counts of fraud in contravention of s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”). He pleaded guilty to all the charges but had his guilty plea in respect of count 15 altered to not guilty after he had rendered an explanation which struck the court as a defence. He was however convicted of theft in respect of that count following a trial which is a permissible verdict to fraud in terms of s 275 as read with the Fourth Schedule of the Code.

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