S v ANTONIO & ORS 1998 (2) ZLR 64 (H)

Flynote

Criminal procedure (sentence) — community service — purpose of — when appropriate to impose — imprisonment — short term of — destructive effects of such a sentence

Criminal procedure (sentence) — principles — choice of one form of punishment rather than another — rational basis should exist for selecting and reasons for doing so should be stated

Headnote

Sentencing of offenders must be a rational and not a capricious process. When a judicial officer imposes a sentence he must give reasons for imposing the sentence. Failure to justify the sentence imposed amounts to a misdirection. It is particularly important that reasons be given for sentences imposed in non-serious cases where there is a whole range of options available to the sentencer.

Studies have shown that a short term of imprisonment is usually destructive to the offender and defeats the object of rehabilitation of the offender as the offender is stigmatised by imprisonment and is negatively influenced by hardened criminals in prison.

For a non-serious offence that might attract a sentence of less than twelve months' imprisonment, the sentencer must first consider whether non-custodial sentences are not appropriate. If he decides they are not, he must give full reasons for this decision. In a non-serious case, if a fine is a permissible sentence for the crime in question, the sentencer should consider first whether a fine with or without an alternative of community service should be imposed. If he considers that a fine is not appropriate, he should then consider whether a direct sentence of community service is appropriate. If he decides it is not, he should consider whether a term of imprisonment should be imposed but he should also consider whether this should be suspended on condition that the accused performs community service. Finally, if the sentencer decides that none of these options are appropriate and some effective term of imprisonment should be imposed, he should give proper reasons for his decision.

In three of the cases under review, the magistrates had misdirected themselves by imposing short effective prison sentences when it would have been appropriate to impose fines or other non-custodial sentences, such as community service, as alternatives to fines or terms of imprisonment.

In the fourth case, the accused was sentenced to community service as a direct punishment. The period of community service did not equate to the fine that would have otherwise have been imposed and the imposition of this period of community service had resulted in the accused being punished more severely than was warranted.