Mandatory minimum sentence- special circumstances and reasons (Zimbabwe)
Sometimes the legislature sees fit to prescribe minimum sentences for particular offences. It will do this in respect of crimes which are prevalent and are causing serious economic or social harm. The legislature prescribes such sentences where it believes that stern deterrent punishments are required and that it is not enough simply to lay down high maximum sentences for these offences and to hope that the courts will impose stiff sentences as a deterrent. By prescribing mandatory minimum sentences, the legislature is interfering with the normal sentencing discretion of judicial officers to decide upon an appropriate level of sentence based upon the particular circumstances of the offence and the offender and the various mitigating and aggravating factors in the case. With mandatory sentences, the sentence is no longer individualised. At least the mandatory minimum sentence must be imposed. Research has shown that where a minimum term of imprisonment is made mandatory sentences imposed are considerably longer than would normally be imposed for the crime in question.
However, in order to temper the potential harshness that would follow if the mandatory sentence had to be imposed in all cases, the legislature has added the rider that the minimum sentence does not have to be imposed if there are "special reasons" for not imposing the sentence or "special circumstances" which justify the imposition of sentence less than the minimum. This is a legislative device whereby rigours of a particularly severe prescribed sentence may be avoided in exceptional cases; it is a sort of a safety valve.
The Supreme Court has held that such mandatory sentences are constitutional where the court is allowed to find special circumstances and impose a lesser sentence: Arab 1990 (1) ZLR 253 (SC) and Chichera v A-G S-98-04.
- 1 Circumstances and reasons the same
- 2 "Special" means "extraordinary"
- 3 Combination of factors
- 4 Torture
- 5 Lengthy delay in bringing to trial
- 6 Finding of special circumstances
- 7 Suspension of mandatory sentence impermissible
- 8 Cases in which special reasons/ circumstances existed
Circumstances and reasons the same
It has been judicially recognized that there is no difference between "reasons" and "circumstances" in this context: Chisiwa 1981 ZLR 666 (H) at 670C. If the legislature simply says that the mandatory sentence must be imposed unless there are special reasons for not doing so or unless there are special circumstances justifying it not doing so, then the court is entitled to take into account both the circumstances surrounding the commission of the offence and circumstances, facts and conditions affecting and peculiar to the offender. However, sometimes the legislature defines special circumstances more narrowly, as in s 49 of the Road Traffic Act [Chapter13:11]. Here, special circumstances are defined so as to include only circumstances surrounding the commission of the offence and to exclude circumstances peculiar to the offender.
"Special" means "extraordinary"
Special reasons or special circumstances are reasons or circumstances which are out of the ordinary, either in their nature or extent: Moyo 1988 (2) ZLR 1 (S). Not all factors which would be mitigatory in ordinary criminal cases will be "special" in this sense. Deciding which factors are special in this sense involves a value judgment and is a matter of degree. In Mbewe & Ors 1988 (1) ZLR 7 (HC) it was stated that mitigating factors, such as good character or particular hardship stemming from the sentence, cannot be taken as special circumstances, nor can contrition or co-operation on the part of the offender. In Siziba 1990 (2) ZLR 87 (H), the court stated that special circumstances must mean more than the natural consequences which flow from the imposition of the punishment prescribed. On the facts of Siziba, the court held that any hardship that would be suffered by the woman and her family if she were unable to pay the fine and had to serve the alternative prison sentence would be no more or less than that which always occurred when a wage earner and supporter of a family is sent to gaol. This factor did not therefore constitute special circumstances.
But where, for example, X was bona fide ignorant of the statutory provision concerned or was, as a result of a trap, tempted into committing a crime which he would not otherwise have committed or was compelled by circumstances to commit the offence, these factors may constitute not only mitigatory factors but also special circumstances (see cases below).
Combination of factors
The cumulative effect of a number of factors can constitute special reasons or special circumstances. Again, this involves the making of a value judgment: Gumbo HB-48-89; Chidembo S-118-89. Attempts, conspiracies and incitements The mandatory sentence does not apply to attempts, conspiracies and incitements: Mutengwa HH-116-90; Takavarasha HH-18-92.
Torture and ill-treatment at the hands of the authorities can constitute "special circumstances" for not imposing mandatory minimum sentence also includes torture and other ill-treatment at the hands of authorities: Blanchard & Ors 1999 (2) ZLR 168 (H)
Lengthy delay in bringing to trial
This can amount to a special circumstance: Moyo 1988 (2) ZLR 79 (H)
Finding of special circumstances
If magistrate finds special circumstances, he is obliged to record the special circumstances of the case which justify the imposition of the lesser penalty.
Suspension of mandatory sentence impermissible
Where the court decides that the mandatory minimum term of imprisonment or fine prescribed by the legislature has to be imposed, it may not suspend all or even a portion of the mandatory minimum prison sentence or fine. See s 337(1) as read with paragraph 3 of the Sixth Schedule CPEA, as read with De Montille 1979 RLR 105; Kudavaranda 1988 (2) ZLR 367 (H).
On the other hand, where the legislature lays down that it is mandatory for the court to impose imprisonment for a particular type of offence but that the term of imprisonment is to be determined by the court, the court may suspend all or a part of the prison term: Patel S-63-87. However, in Horowitz 1976 (1) RLR 238 at 241D, it was stated that the court will not lightly suspend the whole of the sentence where imprisonment has been made mandatory for an offence.
Cases in which special reasons/ circumstances existed
In most of the cases which follow the trial court or appeal court found that special circumstances or reasons existed for not imposing the mandatory sentence. A few cases are mentioned which point out factors which do not amount to special reasons or circumstances.
Exchange Control Act
In Telecel Zimbabwe (Pvt) Ltd HH-55-06 The appellant company was charged with a number of offences under the exchange control regulations. It had bought foreign currency on the unofficial, "parallel", market in order to service its debts outside the country, to pay for capital equipment and make other payments essential to keep the company in business. The court a quo found no special reasons in the particular case which would result in the imposition of a fine of not less than the value of the currency involved. It was held save in those situations where the legislation in question contains a definition of "special reasons" or "special circumstances" and that definition specifically confines the determination of such reasons or circumstances to the commission of the offence to the exclusion of the offender, the broad approach is preferable, which allows the court to consider the triad of the offender, the offence and the interests of society, the factors which any sentencer must always bear in mind, to arrive at an appropriate sentence. The appellant had two choices: either it had to behave in an ethical manner and search for foreign currency on the official market, where it was unavailable, and thereby commit corporate suicide or it had to enter the parallel market and survive. It chose life instead of death. It was necessary for its survival to purchase foreign currency from unauthorised dealers without Exchange Control authority at parallel market rates. Special reasons therefore existed not to impose the minimum sentence.
Remorse and righting of wrong:
Holmes 1982 (2) ZLR 267 (H): X intended to export from Zimbabwe two cheques expressed in foreign currency which he had bought. He changed his mind and deposited the cheques instead at a local bank. The genuine remorse and early and voluntary determination to right the wrong he had committed were special reasons.
Foolish action not causing prejudice:
McGregor HB-26-91: for reasons which were not investigated X took about Z$7500 out of country concealed in his car but he then brought this money back the next day. No one was prejudiced and his actions were foolish rather than wicked. The offences of rather technical nature. Special reasons were found to exist. On the other hand, the absence of prejudice to the country was held not to amount to special reasons in Patel S-63-87 because "it was no thanks to the appellant that the foreign currency did not leave the country."
Ignorance of law
Ndekete 1978 RLR 377: an unemployed tribesman had received a request for assistance from a sick relative in South Africa. He had sent Zimbabwean currency through the post to him, but the letter containing this currency had been intercepted by the authorities. He was probably unaware that what he was doing was unlawful. The court found that there were special reasons, in that this was an unconscious contravention and moral guilt was virtually absent.
Chisiwa 1981 ZLR 666 (H): the court stated that in appropriate circumstances a bona fide mistake of law would amount to special reasons.
See also Musa HH-144-89; Mutengwa HH-116-90; Smith S-182-90; Trinder HB-52-91.
Purpose of possession
Mhiripiri HH-163-88: X had a .22 rifle for purpose of protecting crops and wild animals. Although his possession of the weapon was illegal, the court held that the purpose for which he possessed it amounted to special reasons.
Age of X and purpose of possession
Negligent possession of dismantled rifle
Robertson S-75-88: X possessed a dismantled FN rifle. He had kept it hidden for ten years at business premises where he worked. He had no intention to use for political purpose or to commit a crime. It was found when he left his employment. This was a case not so much of defiance of law but of considerable negligence. The combination of these factors constituted special reasons.
Finding unloaded and non-functional weapon
Chidembo S-118-89: a farm manager found an unloaded and non-functional revolver lying on ground. The fact that he found the weapon by chance and that it was unloaded and non-functional constituted in combination special reasons.
Purpose of possession and attempts to renew firearms certificates
Rudolph 1990 (1) ZLR 45 (S): X had three weapons to shoot vermin. He had firearms certificates for the weapons. He had applied for renewal of these certificates but had received no response despite giving a reminder. The fact that he had not kept these weapons for a sinister purpose and that the firearms authority was partly to blame because of its failure to respond to his application constituted special reasons. See also Rusike HH-31-89 (unlawful possession of firearm); Kaja S-129-89 (unlawful possession of firearm).
Parks and Wildlife Act
Single, isolated act of possession
In Mbewe & Ors 1988 (1) ZLR 7 (H) the court pointed out that a single isolated act of unlawful possession of unregistered raw ivory or horn, whether or not the possession is for the purposes of trade, can make an offender liable to mandatory minimum sentence in absence of special circumstances.
Killing of animal and possession of its horns
Kudavaranda HH-450-88: X killed a rhino and was in possession of the horns taken from this animal. He was sentenced to a mandatory minimum fine on each count. Because the two offences were completely interlinked, the killing of the animal being in consequence of X's desire to possess its horns, there were special circumstances in relation to X's possession of the horns, justifying the court in not imposing the mandatory minimum sentence for that offence.
Technical breach of the law
Hill HB-106-89: the appellant had bought a rhino horn and two elephant tusks in 1957 and had kept them ever since as ornaments. He was ignorant that his possession had become unlawful in 1975. The court found that this was a technical breach of the law and the trial court should have found that there were special circumstances.
Disparity in sentence
Ncube & Anor HB-143-91: the second accused was an unsophisticated communal dweller who found the bit of ivory in the bush and picked it up simply to give it to a witchdoctor. The first accused was a city dweller who persuaded his co-accused to sell the piece of ivory and took it for that purpose. Both accused were sentence by the trial court to the mandatory 5 year jail term.
The review court found that there were special circumstances in respect of the second X and reduced his sentence to 6 months' imprisonment. The court found that although the mandatory minimum sentence is aimed at poachers and dealers, there were no special circumstances for the first X other than the disparity in sentence between him and his co-accused, which was not justified by the difference in their moral blameworthiness. This unjustified disparity was itself a special circumstance in the case. It therefore altered the sentence imposed on the first accused.
See also Chaerera 1988(2) ZLR 226 (S); Siziba HB-61-88; Botha HH-183-88; Dube & Ors 1988 (2) ZLR 385 (S); Mangando & Anor HH-277-90.
Precious Stones Trade Act
Stones of minimal value
Mugangavari 1984 (1) ZLR 80 (S): the fact that the stones are of minimal value does not per se constitute a special reason for non-imposition of the mandatory sentence.
Woman holding stones for husband
Anand 1988 (2) ZLR 414 (S): a woman was convicted of possessing uncut emeralds worth $150 which had been hidden in her bedroom. She accepted sole blame because her husband was a sick man. The court held that the fact that she probably possessed emeralds on behalf of husband and that he had decided to sacrifice his wife by shifting responsibility on her constituted special reasons for not imposing the mandatory minimum penalty.
Delay in bringing to trial
Moyo 1988 (2) ZLR 79 (H): through no fault of his, X was not brought to trial for nearly 4 years after possessing precious emeralds, and in the mean time he had nearly completed a prison sentence imposed on him for a subsequent offence. It was held that the delay in bringing to trial amounted to a special reason for not imposing the mandatory sentence.
Kamtande 1983 (1) ZLR 302 (HB): where X is trapped into committing the offence by the police, the fact that the police trap had promoted the commission of the offence by someone who would not otherwise have committed it may be regarded as special reason.
Gumbo HB-48-89: X was in possession of an uncut emerald worth $3. He was a hotelier who had been given the stone as a keepsake by a guest many years ago. The cumulative effect of the following factors constituted special reasons: the negligible value of the stone, that it was acquired as a gift before the Act provided for the minimum penalty, that it had been kept for ten years and that there was no question of financial gain for X.
Woman keeping stones of no commercial value
Moyo HB-6-90: the court found that there were special reasons because of the cumulative effect of these factors: the emeralds had no commercial value, the woman possessing them was keeping them for another, she was a first offender and she had two sick children.
See also Takavarasha HH-18-92.
Road Traffic Act
Mandatory prison sentences:
Under s 40 the Road Traffic Act a person must be imprisoned up to the specified maximum term for driving whilst prohibited from doing so unless there are special circumstances justifying the imposition of the lesser sentence of a fine. Special circumstances are not restrictively defined and thus include special circumstances relating to the crime and to the offender.
Mandatory prohibition from driving:
It is mandatory for the court to prohibit a person from driving when he has been found guilty of certain offences unless there are special circumstances surrounding the commission of the offence (not circumstances peculiar to the offender). The offences in this category are:
- s 53 reckless driving;
- s 54 driving with prohibited concentration of alcohol in blood (but the prohibition is mandatory only if there is a previous conviction for a similar offence or if the vehicle being driven was a bus);
- s 55 driving under the influence of alcohol;
- s 78 (read with s 77(6)) refusal to undergo breath test.
Garwe HH-249-89: mandatory prohibition for drunken driving. Erasmus S-84-91: special reasons for not imposing mandatory prohibition from driving in a hit and run case.
Criminal Law (Codification and Reform) Act
The Criminal Law Code also provides for a number of mandatory sentences.
- s 80 provides for a mandatory prison sentence of at least 10 years to be imposed upon a person who was infected with HIV when he or she commits certain sexual crimes. The crimes concerned are rape; aggravated indecent assault; indecent assault; sexual intercourse with a young person; and an indecent act with a young person involving penetration of the body which involves a risk of transmission of HIV.
- s 114(2)(e) provides for a minimum mandatory sentence of 9 years for stock theft involving any bovine or equine animal stolen in circumstances were there are no special circumstances to be found in the accused person's favour.
- s 156(1)(e)(i) provides a mandatory sentence of imprisonement of 15 years in relation to the crime of unlawful dealing in dangerous drugs, where special circumstances cannot be found.
Mandatory penalties not to be applied retrospectively
What happens where minimum mandatory sentence is introduced for a crime but X committed the crime before the mandatory sentence came into operation but he was convicted after the mandatory sentence came into operation? This question arose and was answered in Mzanywa & Ors HB-9-06. The court held that the mandatory penalty may not be imposed for that crime because s 18(5) of the Constitution provides that "no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed". See also Ndlovu & Anor HH-70-06.