S v KUDAVARANDA 1988 (2) ZLR 367 (HC)

Flynote

Criminal procedure (sentence) — mandatory minimum sentence — whether D may be suspended — "special circumstances" justifying a lesser sentence — two offences carrying similar mandatory sentences arising out of same course of conduct with same motive and intent — killing a rhinoceros and possessing its horns, in contravention of Parks and Wild Life Act 1975 — special circumstances found in relation to second offence.

Headnote

The accused had been convicted, inter alia, of two charges under the Parks and Wild Life Act No. 14 of 1975. The first was one of killing a specially protected animal, namely a rhinoceros, in contravention of s 36(1)(a) of the Act. The second was one of possessing the horns of the same rhinoceros, in contravention of s 37(b) of the Act. Both offences carry a mandatory penalty of a fine of $15 000 or five years' imprisonment, unless there are special circumstances in the particular case justifying the imposition of a lesser penalty. The magistrate imposed the mandatory penalty on each count, but suspended half the total for five years on appropriate conditions. On review, Held, that under s 337(1)(b) as read with the Sixth Schedule of the Criminal Procedure and Evidence Act [Chapter 59], the trial court had no power to suspend any portion of the minimum sentence.

Held, further, that in enacting the severe minimum penalties provided by the Act, the legislature intended to prevent or deter the hunting of the endangered animals themselves. In respect of the rhinoceros, the killing of the animal was motivated by a desire to acquire the horn but nothing else. In this case, the killing of the rhinoceros and the possession of its horns were completely interlinked. Consequently, special circumstances existed in relation to the offence of possession, justifying the imposition of a sentence less than the mandatory minimum sentence.