S v CHITATE
HIGH COURT, HARARE
[Criminal Review HH 568-16]
September 22, 2016
MAWADZE AND MAFUSIRE JJ
Criminal procedure - Sentence - General principles - Mandatory minimum sentences - When sentence higher than mandatory minimum sentence may be imposed - Imposing higher sentence in order to allow for suspension of part thereof - Impropriety of.
Held, that where a statute provides for a mandatory minimum sentence in the absence of special circumstances, the court may go above the prescribed minimum sentence. The court's discretion to impose a sentence other than the prescribed minimum sentence should, though, be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.
Held, further, that 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 of the Criminal Procedure and Evidence Act [Chapter 9:07]. But where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum sentence. 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 sentence 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 sentence, 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 Criminal Procedure and Evidence 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.
Case cited:
S v Mutetwa 2015 (1) ZLR 578 (H), referred to
Legislation considered:
Criminal Law (Codification and Reform) Act [Chapter 9:23], s 114, 114 (4)
Criminal Procedure and Evidence Act [Chapter 9:07], s 358, 358 (2), Part XIX
MAFUSIRE J:
In this matter, the absence of an explanation for the harsher sentence above the prescribed mandatory minimum which the trial court imposed, coupled with the manifest mistreatment of the sentencing principle of suspension of sentence, has led this Court to interfere. The case was tried in the Provincial Magistrate Court for the province of Mashonaland West sitting at Chinhoyi.
The accused was convicted on his own plea of guilty to stock theft, as defined by s 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ("the Code"). He stole an ox valued at US$ 350. Half the carcass was discovered, but nothing was recovered.
{mprestriction ids="1,2,3"}The conviction was proper and is thus confirmed. There were no special circumstances.
The accused was 62 years old. He was employed and earning US$ 400 per annum. He was a first offender and a widower with three children. Their ages were not given. The accused offered to compensate the complainant. The reason the accused gave for slaughtering the ox was rather strange. He said he did not slaughter it for the meat, but just to look at it!
In its assessment of sentence, the trial court said stock theft was on the increase in the district of Chinhoyi; that there was a need to impose a deterrent sentence; that the crime was premeditated; that the reason why the accused slaughtered the ox was to destroy the evidence and that he did not steal out of need or economic hardship. The accused was sentenced to 12 years' imprisonment of which two years imprisonment was suspended on condition he paid restitution in the sum of US$ 350.
None of the factors the trial court took into account in assessing sentence were borne out by the record. For stock theft, the Code prescribes a mandatory prison term of not less than nine years. Where the essential elements of the crime have been proved and there are no special circumstances, the courts have no choice but to impose the prescribed minimum sentence. Undoubtedly, the court may go above the prescribed minimum sentence. But by all accounts, nine years is already a very long stretch. The court's discretion to impose a sentence other than the prescribed minimum sentence has to be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.
In casu, even accepting that there was evidence of the factors the magistrate took into account in assessing sentence, they still did not explain the reason for the departure from nine years. The factors merely explained aggravating circumstances. So, without an explanation why it went above nine years, which it could do, I am not satisfied that the exercise of discretion by the trial court was proper.
The trial court suspended two years' imprisonment on condition that the accused paid restitution. As a sentencing principle, a court can suspend the operation of a sentence, or a portion of it, on conditions that it must specify - see s 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. But where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum sentence. In terms of s 114 (4) of the Code, where a person has been convicted of stock theft, and there are no special circumstances, the court is prohibited from suspending the sentence, whether as a whole or in part, where it has imposed the minimum sentence of nine years.
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 sentence 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, in its discretion, the court considers that the appropriate sentence is the prescribed minimum sentence, the court should stick to it. That it cannot suspend the operation of a portion on condition of restitution 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 Criminal Procedure and Evidence Act. Unlike the award of restitution or compensation under s 358 (2) of that Act, the award of compensation or restitution under Part XIX is not part of the sentencing formula - see S v Mutetwa 2015 (1)
ZLR 578 (H).
In casu, and as said already, there was no justification for the trial court to impose a sentence above the prescribed minimum sentence. In the circumstances, the sentence was not in accordance with real and substantial justice. It is hereby set aside and substituted with the following:
"The accused is sentenced to nine years imprisonment."
MAWADZE J concurred.
{/mprestriction}