S v ZINDOGA 1988 (2) ZLR 86 (SC)

Flynote

Criminal procedure (sentence) - theft - restitution - extent to which mitigating - suspended sentence - conditions of restitution and good behaviour - impropriety of combining such conditions in relation to a single portion of sentence.

Headnote

Full restitution, in crimes such as theft, particularly in the case of a first offender, is a weighty mitigating factor. Where the accused is in a position to make restitution, two competing interests arise, between which a balance must be struck. On the one hand, there is the interest which the public has in the avoidance of loss by the victims of the crime; the trial court's duty is to provide an incentive to the accused in the manner of its punishment to make good that loss. On the other hand, there is the public interest in the passing of a sentence which will deter others from perpetrating such offences. The impression should not be created that the making of restitution will almost invariably be regarded as countering the dishonest transaction to the extent of resulting in a non-custodial punishment. Each case must be judged on its merits. Restitution and other mitigatory features should be weighed against the nature of the offence and any aggravating features.

Where the accused is a first offender, it is improper to attach two conditions to the suspension of a single portion of the sentence. It would thus be improper to suspend a portion of the sentence on condition of both good conduct and restitution. For one thing, where partial restitution is made, the suspended period should be reduced proportionally. For another, if restitution is not made, the effect may be that the accused serves the whole a period of imprisonment, in spite of complying with the condition relating to good conduct.