X's defence counsel has a right to present evidence and to address in mitigation of sentence. The defence will be given considerable latitude in adducing such evidence (Adolfo 1991 (2) ZLR 325 (H), but the case law lays down that the prosecutor is duty bound to dispute facts advanced in mitigation which he knows to be incorrect or which are highly improbable or absurd.
In preparation for his address in mitigation, the defence lawyer must extract all salient information from his client. He will need to find out such things as his financial circumstances and what he has in the way of savings (this is important when a fine could possibly be imposed), his family circumstances, his work record and whether he is likely to lose his job if convicted of the present offence, whether he has any previous convictions, whether there are persons who will be prepared to come to court and testify to his previously good character, whether he is in a poor state of health and, if so, how a prison sentence will affect his health; and so on.
For a commentary on the factors which our courts have accepted may be mitigatory see Chapter 5 A Guide to Sentencing in Zimbabwe by G Feltoe. Depending on the circumstances these factors may serve to mitigate the sentence:
- various defences which do not amount to full defences in law in the circumstances, such as claim of right, compulsion and intimidation, protection of property, provocation, self-defence, ignorance or mistake of law, intoxication, diminished mental responsibility, emotional stress, trapping of the offender;
- good motive;
- non-payment of wages due where X has stolen from employer;
- assistance to police after crime committed [See Buka 1995 (2) ZLR 130 (S) and Dube & Anor 1995 (2) ZLR 321 (S) for the weight that will be attached to this factor];
- compensation and restitution [See, for instance, Malume 1998 (2) ZLR 508 (H)]
- delay in bringing the case to trial or hearing of appeal [See, for instance, Corbett 1990 (1) ZLR 205 (S); but is not necessarily a ground for reduction of sentence, Gujral 1990 (1) ZLR 320 (H)];
- X in employment and has dependants (See, for instance, Katsaura1997 (2) ZLR 102 (H))
- good behaviour after conviction and before appeal;
- good character;
- grave physical injury to X at time of crime;
- ill-treatment while in custody;
- imprisonment before trial [See, for instance, Mutakwa & Anor 2000 (1) ZLR 393 (H); Aitken 1995 (2) ZLR 395 (S) and Dube & Anor 1995 (2) ZLR 321 (S)];
- meritorious past conduct;
- remorse and guilty plea [See, for instance, Dhliwayo 1999 (1) ZLR 229 (H) and Katsaura 1997 (2) ZLR 102 (H) on weight to be given to guilty plea.] If there are multiple accused persons, the approach to be adopted where guilt is evenly apportioned, is to treat the accused persons the same: Muleya & Ors1988 (1) ZLR 359 (S), accordingly counsel ought to make submissions in that direction;
- failure of Government to explain and consult with traders concerning price controls: Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S)
Note that in terms of s 12(4)(a) of the Supreme Court Act and s 38(4)(a) of the High Court Act the Supreme Court and the High Court, respectively, may have regard in criminal appeals to all the circumstances, including events which have occurred after the date of conviction. [See Aitken 1995 (2) ZLR 395 (S)]
The legal representative of X must be given the opportunity to lead mitigatory evidence and to address the court in mitigation of sentence. Without calling evidence, the legal representative may simply set out what he considers to be the salient mitigatory factors in the case: Furisayi 1981 ZLR 56 (A) at p 58. The prosecutor may either accept these facts or dispute them. However, as regards factors such as contrition, the court is likely to attach less weight to what a legal representative has said regarding his client's penitence than to a personal and credible expression of regret and repentance by X himself. The legal representative will often make submissions as to the appropriate sentence in the case, drawing the court's attention to salient case law.
There are some pleas in mitigation where the personal testimony of X will assist, such as where the crime was committed because of extreme hardship or destitution or because of a benevolent motive, such as to assist someone else. X should be called to testify in such circumstances, if his defence lawyer believes that he will give convincing testimony.
One factor which may be important is the attitude of the complainant. In Kelly HH-33-04 the court took the view that the attitude of the complainant in a criminal case is relevant to sentence. Where the complainant indicates that it is not his desire to have the accused incarcerated, a sentencing authority ought to attach weight to the expressions of the complainant, as such a factor has an impact on the form of sentence imposed.
Onus of proof and evidence
In Chinyani 1969 (2) RLR 42 (A) the court stated that there are no rigid rules governing the burden of proof or the degree of proof in relation to evidence or statements in mitigation of sentence. A high degree of flexibility must exist in considering the variety of factors which are relevant to sentence. There need not always be proof of an assertion of fact before it is accepted for the purposes of sentence. If there is any doubt at the stage of sentence as to the existence of any relevant fact, the trial court must reach its own conclusions, as it thinks right, and is entitled to disregard any such fact for the purposes of sentence if it not satisfied as to the existence thereof.
In Adolpho 1991 (2) ZLR 325 (H) the court pointed out that when a court considers submissions in mitigation the rules of admissibility of evidence are relaxed.