S v RAWSTRON 1982 (2) ZLR 221 (H)

Flynote

Criminal C procedure — sentence — Exchange control Act [Chapter 170] — acquisition of foreign currency by under-invoicing goods exported — using money to purchase goods which revere then sold at profit in Zimbabwe — proceeds used to buy further goods which lucre D exported — net result was art advantage to Zimbabwe, not prejudice — special reason for not imposing mandatory minimum sentence — "special reasons" — distinction from mitigatory circumstances.

Headnote

The accused pleaded guilty, and was convicted, on four charges under the Exchange control Act [Chapter 170] and one under the "Control of Goods Act [Chapter 280]. The charges arose out of his activities in connexion with the export of wild birds frown "Rhodesia (and, later, Zimbabwe). He had falsely under-stated in the appropriate forms the number off birds exported and thus acquired foreign currency outside the country. However, he had used this currency to purchase exotic birds which he imported into the country and sold at a profit. With the profit he purchased more wild birds in Zimbabwe, and these he exported. The net result of these activities was that the country's foreign currency reserves were not actually prejudiced; on the contrary, they were increased. The mitigating features were considerable. The accused at no time built up a "nest-egg" of foreign currency for himself. The country benefitted from his activities. The unlawful nature of what he did was motivated in part by inefficiency and delays in the Department of National Parks and in part of the practical difficulty, during the period of UDI and sanctions, of acquiring export markets and the necessity to resort to unlawful means to retain those markets. The questions arose whether he , in all the circumstances, shown that there were "special reasons" why the minimum sentences prescribed in section 5 (3) of the Act should not be imposed. Held, that a distinction must be drawn between those factors which create special reasons and those that are only mitigatory. A special reason is one which is special to the facts which constitute offence, as opposed to special to the offender. Matters which might be pleaded as mitigation, such as good character or particular hardships, are not "special" but general circumstances. Such mitigatory features cannot be ignored when assessing sentence, but do not constitute "special reasons". Conversely, "special reasons" may also be mitigatory. Held, further, that in the circumstances of this case there were, as was agreed between counsel, special circumstances which, together with the real circumstances of mitigation, made the case unique and allowed the Court to impose a relatively moderate fine.