S v GOROGODO 1988 (2) ZLR 378 (SC)

Flynote

Criminal procedure (sentence) — assessment of — need to decide what total sentence should be then determine what portion (if any) should be suspended — suspended sentence — no rule that first offender entitled to have portion of sentence suspended — theft — by public official of public funds — appropriate sentence.

Headnote

The appellant was convicted on fifty-five counts of theft by conversion of money, involving some $73 000. He had been employed by the Manicaland Provincial Authority as an accountant and had stolen the money from his employer over an eighteen month period. None of the stolen money was recovered and no explanation proffered for this persistent course of conduct. The magistrate took various groups of the offences as one for sentence and ordered some to run concurrently with others, and thus arrived at a globular total sentence of seventeen years' imprisonment, of which five years were suspended for five years on conditions. On appeal against sentence.

Held, that the proper approach to sentence was to look primarily, not at the effective sentence, but at what total sentence the offence or offences should attract; and having determined that, to consider what portion, if any should be suspended. ⁶

Held, further, that there was no rule that every first offender who is to be imprisoned is entitled to have a portion of the sentence suspended. The main purpose of a suspended sentence is rehabilitation; if an offender is required to undergo very lengthy incarceration and that punishment does not induce him to settle down to a useful life, it is unlikely that upon his

release from prison a further period of imprisonment hanging over his head will deter him from future crime.

Held, further, that the dishonest appropriation of public monies can never be viewed lightly, particularly where the sum involved is enormous. Regrettably, despite warnings from the courts, thefts by persons in positions of trust have not significantly decreased and factors of deterrence and public expectation regarding punishment must be taken as paramount considerations. Nonetheless, such factors must not be permitted to weight so heavily as to negate others which may in some way lessen the seriousness of the offence. No principle can justify, for the sake of deterrence and public indignation, the imposition of a sentence grossly in excess of what, having regard to the crime and the degree of the offender's moral reprehensibility, would be a fair and just punishment.

Held, further, that the appellant could not claim that he was illfitted by qualification or experience to hold the position he did. He was properly trained and the system did not create conditions conducive to the commission of thefts or frauds. The temptation to which he was exposed was no greater than that which every senior accountant encounters. The nature of that calling presumes the attributes of a high degree of integrity and honesty. The appropriate sentence was one of twelve years' imprisonment, with none suspended.