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Criminal procedure — agreed facts — court rejecting fact — court must inform accused before c refusing to accept the fact
Criminal procedure (sentence) — general principles — factors affecting — restitution — accused making full restitution before trial — weight to be given to this factor
The accused was convicted of thirty-six counts of theft by conversion. It had been accepted in evidence during the trial that the accused had been motivated to commit this crime by need and not by greed. Before the accused was tried, he had voluntarily made full restitution and had made good the loss caused by his theft. The trial court had sentenced the accused to six years' imprisonment, two of which had been conditionally suspended. The accused appealed against sentence.
Held, that if the trial magistrate decides not to accept a particular fact that has been placed before him and is not disputed by the State, he must inform the accused of this so that the accused can, if he so wishes, lead evidence to establish this fact. Not to inform the accused is unfair to the accused. In the present case, if the magistrate was disinclined to accept that the crime was motivated by need and not greed, he should have communicated this fact to the accused.
Held, further, that where the accused has voluntarily made full restitution for the loss he has caused by theft, full weight must be given to this mitigatory fact in assessing the appropriate sentence. Although the impression must not be created that the making of full restitution will almost invariably lead to a non-custodial sentence, the court should consider whether, in the circumstances of the particular case, the making of full restitution constitutes evidence not only of contrition and repentance, but more importantly of reformation. If it does the court may decide, where appropriate, that a custodial sentence will defeat the object of reformation.
Held, further, that in the circumstances of the present case, an appropriate sentence was a fine plus a wholly suspended prison sentence.
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