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's 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
section 114 of the Criminal Law [Codification and Reform] Act
[Chapter 9:23] [“the Code”]. He stole an ox valued at $350. Half
the carcass was discovered. But nothing was recovered.
The
conviction was proper and is thus confirmed.
There
were no special circumstances. The accused was 62 years old. He was
employed and earning $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 2 years
imprisonment was suspended on condition he paid restitution in the
sum of $350.
None
of the factors the trial court took into account in assessing
sentence was borne out by the record.
For
stock theft, the Criminal Law (Codification and Reform) Act (the
Code) prescribes a mandatory prison term of not less than nine (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, nine (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.
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 9 years. The factors
merely explained aggravating circumstances. So, without an
explanation why it went above 9 years, which it could do, I am not
satisfied that the exercise of discretion by the trial court was
proper.
The
trial court suspended 2 years imprisonment on condition 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
section 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.
In
terms of section 114[4] of the Criminal Law (Codification and Reform)
Act [Chapter 9:23] (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 9 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 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 section 358[2] of the Criminal Procedure and
Evidence 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, and as said already, there was no justification for the trial
court to impose a sentence above the prescribed minimum. 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 9 years imprisonment.”
