S v DUBE & ANOR 1995 (2) ZLR 321 (S)

Flynote

Criminal procedure (sentence) — general principles — assessment of — D tariff sentence — not to be used — pre-trial incarceration — factors affecting — plea — guilty — weight to be afforded to — specific common law offences — theft — motor vehicle — factors in relation to sentence

Headnote

Where the court's sentencing discretion has not been fettered by statute, the court must properly exercise its discretion. It is wrong for the court to apply a tariff sentence. The court must always arrive at a just sentence, taking into account the circumstances of the particular case and mitigating and aggravation factors. The desire to achieve uniformity in sentencing must not lead the sentence to abdicate his judicial responsibility to decide upon an appropriate sentence in respect of the case under consideration.

In sentencing a person, credit should be given to the fact that he has confessed his guilt to the police (especially where there is no evidence against him other than his confession) and to the fact that he has co-operated with the police in bringing to book his accomplices or recovering stolen property. Even in the absence of earlier co-operation with the police, a plea of guilty in court should be a factor that is taken into account in his favour when it comes to sentence as such a plea saves the State time and unnecessary expense in proving the case against the accused.

As regards sentencing for offences involving theft of motor vehicles:

1. Theft of a motor vehicle is a very serious offence as it has become rampant and has assumed international proportions. Where the offence transcends international boundaries it deprives the owner of a valuable asset and destabilises the economy.

2. Where a receiver has made common cause with a thief by agreeing to deal with the stolen vehicle after it has been stolen, no distinction should be drawn between the thief and the receiver.

3. Where a person is dealing in stolen vehicles, the fact that the stolen vehicle is recovered undamaged is irrelevant, as it is in the interests of the dealer that the vehicle is kept in good condition.