Useful cases on sentence (Zimbabwe)

The following cases are useful for defence lawyers when arguing on the matter of sentence:

Fine

A fine must be a real option and not be excessive: Kunesu & Ors 1993 (2) ZLR 253 (H). The fine must be tailored to the means of X and, where necessary, X must be given time to pay or to pay in instalments: Peti & Ors 1966 RLR 591 at 593F; Mamwere 1978 RLR 374 (GD); Mutandwa HH-35-88; Dlamini HB-3-90.

In Gumede HB-40-03 the court stated that to impose a fine, alternatively imprisonment, when it is clear that accused is not in a position to pay a fine and will end up serving the prison sentence is wrong. If the court intends to keep an accused out of custody then the sentence should be clearly focused towards that goal and not depend on the hope of someone else coming to his rescue unless there is clear evidence that a third party has volunteered to do so. The courts should regard community service as their first port of call when it comes to sentencing.

The failure by the Minister to lay before Parliament a statutory instrument setting out levels of fines has the effect of rendering any imposition of fines incompetent under the circumstances: Chandafira HH-137-02.

Imprisonment

Imprisonment is a severe punishment which must only be imposed as a last resort Mpofu (2)1985 (1) ZLR 285 (H). There is thus need to push for community service in appropriate cases: Manyevere HB-38-03; Shariwa HB-37-03.

It is the duty of the court to consider imposing community service where court decides that effective sentence of 24 months or less is appropriate, Mabhena 1996 (1) ZLR 134 (H) If the view is taken that the offence is not serious, consideration should be given to community service Mutukura HH-39-02.

Young offenders should be kept out of prison wherever possible: Marachera A-151-68; Mantwana S-20-82; Mayberry HH-248-86; Ncube HB-153-86; Mudekwe & Anor HH-7-86; Munyariwa HB-14-87; Chadyamunda HH-228-89; Chitanda HH-215-89; Kanoyerera HH-167-89; Van Jaarsveld HB-110-90; Shariwa HB-37-03. In Munukwa HH-35-02 the court said that offenders in the age group of 18 to 21 years are young offenders who, depending on the offence of which they are convicted and the circumstances thereof, must generally be treated differently from adult offenders. In this country there are advanced, modern and appropriate provisions for the treatment of young offenders. Judicial officers are unfortunately behind in their treatment of young offenders and have not acclimatised to these alternative methods of treating youthful offenders. The routine imprisonment of such offenders should be avoided.

In Shariwa HB-37-03 the judge said that first offenders, especially young ones, should as far as possible be kept out of prison.

The court should consider suspending portion of prison sentence imposed on first offender, although there is no rule that must suspend portion: Manaiwa & Anor HB-72-90; Mazowe HB-36-91; Gumba S-50-91.

Female first offenders are generally treated more leniently than males, for three reasons:

• males commit more offences;
• recidivism is commoner among males;
• women often have young children to care for.

Harvey 1967 RLR 203 (A); Malunga 1990 (1) ZLR 124 (H)

However, in some cases, though, these factors may be absent or of lesser importance and there may be circumstances where there is no reason to discriminate in favour of the woman: Malunga 1991 (1) ZLR 124 (H); Gwatidzo HH-271-90. However, in Malunga 1990 (1) ZLR 124 (H) the court reiterated that a sharp distinction should be made between male and female offenders is still apposite and that the tendency in certain subsequent cases to innovate by adopting a more uniform approach between the sexes is premature.

The court should consider suspending portion of prison sentence imposed on first offender, although there is no rule that must suspend portion: Manaiwa & Anor HB-72-90; Mazowe HB-36-91; Gumba S-50-91.

Corporal punishment

The courts have observed that corporal punishment is a very severe form of punishment which should not be resorted to where other sentencing options are available: Tototai HH-5-02. It is particularly brutal and barbaric where the child is too immature to understand it, F (a juvenile)1988 (1) ZLR 327 (H). The maximum number of cuts should be reserved for serious manifestations of juvenile criminal delinquency, Butau 1994 (1) ZLR 240 (H)

Community service

Community service is an available alternative to imprisonment. Defence counsel should be conversant with the sort of situations where the court will be likely to impose community service and seek to persuade the court to impose this sentence upon their clients instead of sending them to prison.

Defence counsel should familiarize themselves with the Community Service Guidelines. (See Appendix) See also Dullabh 1994 (2) ZLR 129 (H) and Zhou 1995 (1) ZLR 329 (H) for the offences for which community service is appropriate.

Counsel must be alive to the information which must be available before court may consider imposing community service: Chiweshe 1996 (1) ZLR 425 (H)

In Banda HB-72-04 it was stated that community service officers are trained officers of the court whose main function is to assess the suitability of a candidate for community service. Their recommendations should not be disregarded without good cause. Where there is such a recommendation, defence counsel should refer to this case and submit to the court that the recommendation should be followed.

It is also vitally important that defence counsel asks to the court to take into account the particular circumstances of the accused in relation to times of availability especially if the accused is employed or is a student. In Sithole & Anor HH-101-03 it was observed that where a person is in employment or is a full-time student, a court imposing a community service order must allow community service to be carried out over week-ends or after working hours, by arrangement with the institution concerned. The number of hours should be reduced from what it might otherwise have been. Where the hours fixed by the court become inconvenient either to the institution or to the accused, then the court must be approached to vary the conditions imposed in the order.

On whether a direct sentence of community service may be suspended see Maramba & Anor 2000 (2) ZLR 69 (H)

On whether further suspended term of imprisonment may be imposed in addition see Mhlanga & Anor 2000 (2) ZLR 73 (H). Attempts by accused to rehabilitate himself between trial and hearing of appeal In Nyajena 1991 (1) ZLR 175 (S) the court took into account that during the lengthy interval between the arraignment of the appellant and the conclusion of the appeal, the appellant had obtained an undergraduate degree and was in the process of obtaining a Master's degree and that appellant had since the noting of his appeal pestered the Clerk of Court about the preparation of his record.

Attempts by accused to right the wrong done

In Allegrucci HB-37-02 X made a fraudulent claim against an insurance company, but when the fraud was discovered he admitted it, co-operated fully with the insurer, and made full restitution plus interest and paid certain other expenses. It was held that there is no rule which states that where the amount of money involved is large, X must necessarily get a custodial sentence. Each case must be decided on its merits. Even where the amount is large, if X has, on his own initiative and accord prior to conviction and sentence made good his damage by paying full restitution and in circumstances that clearly indicate that he is contrite, repentant and certainly reformed, a fine may be appropriate.