Sometimes they do work against common sense because in the
real world there is nothing like a one-size-fits all approach to sentencing. By
their very nature, mandatory sentences purposefully take away the inherent discretion
of the law courts to assess such penalties as may be appropriate in any given
situation.
Where a person is convicted of stock theft, in
contravention of section 114 of the Criminal Law (Codification and Reform) Act [Chapter
9:23], and there are no special circumstances, the court has no choice but to
impose nothing less than the minimum mandatory penalty of nine years'
imprisonment. There is no discretion in this, except to go up, in appropriate
circumstances, but not down. However, in the absence of any justification for
going up, it is the mandatory minimum sentence that the court must impose.
In S v Chitate HH568-16, MAWADZE J and I decried the
harsher sentence of twelve years imprisonment that the trial court had imposed
for theft of a single bovine by a sixty-two year old first offender in
circumstances where there had been no justification for going above the
mandatory minimum. On p 1–2 of that judgment we said:
“For stock theft, the Code prescribes a mandatory prison
term of not less than 9 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. Undoubtedly, the court may go above the prescribed
minimum. But by all accounts 9 years is already a very long stretch. The
court's discretion to impose a sentence other than the prescribed minimum has
to be exercised judiciously, not whimsically. The sentence should not be a
thumb-suck.”
We reduced the sentence to the mandatory minimum.
In casu, the trial court seems to have made the same error.
The accused, twenty three years old at the time, stole the complainant's bull.
Nothing was recovered. The bull had been slaughtered. The carcass had
decomposed. The accused pleaded guilty. There were no special circumstances.
The trial court sentenced him to thirteen years imprisonment of which two years
imprisonment was suspended for five years on condition of good behaviour. A
further one year imprisonment was suspended on condition of restitution. The
effective sentence was ten years imprisonment.
The conviction was proper. It is hereby confirmed. But the
sentence was not.
In S v Chitate HH568-16, we noted that the factors that the
trial court had taken into account in going above the mandatory minimum were
neither cogent nor borne out by the record. It said stock theft had been on the
increase in that part of the country; that the crime had been premeditated;
that the accused had stolen out of greed, not need, and that it was necessary
to impose a deterrent sentence.
In casu, the trial court seems also to have made the same
mistake again. In apparent justification for imposing a sentence that was a
whopping four years above the mandatory minimum, it said, among other things,
that the beast was never recovered; that the accused had benefited from the
offence; that the crime had been committed out of greed, not need; that there
was need for restitution; and that therefore a thirteen year prison sentence
would meet the justice of the case.
That approach was wrong.
In S v Chitate HH568-16, we said even accepting that the
evidence that the court had taken into account in assessing its sentence had
been there, still it did not explain why it went above the prescribed minimum.
But, in fact, the factors there, as in the present case, merely explained
aggravating circumstances. At page 2 of the judgment, we said:
“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, in its discretion, the appropriate sentence is the
prescribed minimum, 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 HH374-15.”
In casu, there was no justification for the trial court to
impose a sentence above the prescribed minimum. As such, the sentence was not
in accordance with real and substantial justice. Therefore, it is hereby set
aside and substituted with the following:
“The accused is
sentenced to 9 years imprisonment.”
The court a quo is hereby directed to recall the
accused and to pronounce to him the above altered sentence.
