The accused was convicted of theft of trust property as
defined in section 113(2) of the Criminal Law (Codification & Reform) Act [Chapter
9:23].
He was sentenced to twelve months' imprisonment of which
five months imprisonment was suspended for five years on condition of good
behaviour. A further two months' imprisonment was suspended on condition of
restitution. The remaining five months imprisonment was commuted to community
service.
On scrutiny, the Regional Magistrates raised two queries.
The first was that the trial court sentenced the accused as a first offender
yet the record makes no indication that the prosecution had so advised the
court.
The second query was that the order of restitution was
imposed by the trial court mero motu, i.e. without any application by the
prosecutor or the complainant as contemplated by section 368(1) of the Criminal
Procedure and Evidence Act [Chapter 9:07] (“the CP & E Act”).
To the first query, the trial magistrate conceded that she
had omitted to record that the prosecution had indicated that the accused was
indeed a first offender. To the second query, the trial magistrate stated that
she had acted in terms of section 358(3)(b) of the Criminal Procedure and
Evidence Act [Chapter 9:07] and that section 368(1), which the Regional Magistrate
had cited, applied to section 366 of the Criminal Procedure and Evidence Act [Chapter
9:07].
In response to the response by the trial magistrate, the Regional
Magistrate argued that section 358(3)(b) of the Criminal Procedure and Evidence
Act [Chapter 9:07] did not refer to restitution
but to compensation, and that,
at any rate, whether the section referred to compensation or restitution, the
trial court ought not to have made such an order without an application having
been made by either the prosecutor or the complainant as required by section
368(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
I have considered the record of proceedings and the queries
by the Regional Magistrate….,.
With regards the second query, the correct position, with
all due respect to the Regional Magistrate, is that adopted by the trial
magistrate. The following should be noted:
1. In terms of section 358(2)(b), as read with section 358(3)(b)
of the Criminal Procedure and Evidence Act [Chapter 9:07], a court which has
convicted a person of an offence which is not one specified in the Eighth
Schedule, may suspend the operation of the whole or a portion of the sentence
for a period not exceeding five years on condition that the accused pays compensation
for the damage or pecuniary loss caused by the offence.
An application by the prosecutor or the complainant is not
a pre-requisite.
2. The power of a court to suspend the whole or a portion
of the sentence on condition of compensation, in terms of section 358 of the
Criminal Procedure and Evidence Act [Chapter 9:07] aforesaid should not be
confused with the power of the court to order compensation or restitution under
Part XIX of the Criminal Procedure and Evidence Act [Chapter 9:07].
The compensation under section 358 is part of the sentence. The award of compensation under
Part XIX is not.
3. That the compensation under section 358 of the Criminal
Procedure and Evidence Act [Chapter 9:07] is part of the sentence is clear from
sub-sections (4) and (9). In terms of subsection (4), the suspended portion of
the sentence falls away where the accused complies with the condition of
suspension. Under subsection (9), where the accused complies with only a part
of the condition, then the suspended portion falls away to the extent of the
part compliance, as the court may consider appropriate.
4. That the compensation under section 358 of the Criminal
Procedure and Evidence Act [Chapter 9:07] is part of the sentence is also clear
from the proviso to section 358(3)(b). It reads:
“Provided that no such condition shall require compensation
to be paid in respect of damage or loss that is the subject of an award of
compensation in terms of Part XIX.”
In other words, where the damage or loss caused by the
offence is one in respect of which an award of compensation may be made by the
court under Part XIX, then it is not competent for the court to impose it in
lieu of a portion of the sentence as can be done under section 358(2)(b) as
read with section 358(3)(b) of the Criminal Procedure and Evidence Act [Chapter
9:07].
5. That the award of compensation under Part XIX is not
part of the sentence is manifest from a reading of that whole part. It is clear
that under this part, the criminal court is enjoined to exercise a special
civil jurisdiction which, among other things, is unfettered by the usual limits
of civil jurisdiction, for example, such as those imposed on the court of a
magistrate under the Magistrates Court Act [Chapter 7:10], or any other
enactment.
Section 367 of the Criminal Procedure and Evidence Act [Chapter
9:07] expressly empowers the court to award compensation in any amount or restitution of
property of whatever value.
6. That in making an award under Part XIX of the Criminal
Procedure and Evidence Act [Chapter 9:07], the court will be exercising a civil
function is also evident from the following provisions:
(a) The provision that requires that such an award be made
only upon an application being made by the injured party or the prosecutor [section
368], which is not a requirement under section 358;
(b) The provision that the award of compensation be
registered by the Registrar of the High Court or the Clerk of the Magistrates Court
for enforcement [section 372(1) and (2)], which is not necessary with a section
358 award;
(c) The provision that says any appeal by the accused
person against conviction or sentence or both does not affect or suspend the
award even if the execution of the sentence may have been suspended, or even if
such an appeal is successful [section 372(3)];
(d) The provision that the injured party in respect of whom
the award is made is debarred from instituting separate civil proceedings in
respect of the loss or injury which has been the subject of the award [section
374].
In conclusion, the award of compensation by the court under
section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07], and the
nature and purpose of such an award are manifestly different from those under
Part XIX of the Criminal Procedure and Evidence Act [Chapter 9:07]. The
observation by the Regional Magistrate that section 358(3)(b) refers to 'compensation' and not 'restitution' is, with due respect, a
distinction without a difference. In para (b) of subsection (3), the
compensation is for “damage or
pecuniary loss caused by the offence.”
In law, 'compensation'
is money or something that one gives to another in lieu of the hurt or harm or
damage or loss caused. 'Restitution'
is the same. It is the giving back of something that was lost or stolen. It is
also the payment, usually of money, for some harm or wrong done.
Notwithstanding that Part XIX of the Criminal Procedure and
Evidence Act [Chapter 9:07] is titled “COMPENSATION AND RESTITUTION”, it is
noted that except for section 366(2) and 367 where the term 'restitution' is
used in reference to the restoration of property obtained unlawfully, in all
other instances only the term 'compensation' is used, the same as in section
358.
Therefore, the proceedings of the trial court
are hereby certified as having been conducted in accordance with real and
substantial justice.
