S v SAWYER 1999 (2) ZLR 390 (H)

Flynote

Criminal procedure (sentence) — common law offences — fraud — employer defrauded of large amount over long period — c need to assess overall moral blameworthiness rather than dwell on amount taken

Criminal procedure (sentence) — general principles — multiple counts — treating as one for sentence — principles — impropriety of "hybrid" approach of combining certain counts and treating them as one for sentence

Criminal procedure (sentence) — general principles — suspended sentence — suspension of part of very lengthy term —when appropriate

Headnote

The accused, an accountant, defrauded his employer of a large amount of money over several months. He was ε convicted on 11 counts of fraud. The magistrate treated groups of the counts as one for sentence and imposed an overall sentence of 22 years, of which 4 were suspended on conditions of good behaviour.

Held, that while it is permissible to combine multiple counts as one for sentence, there must be some logical basis for doing so. The magistrate had adopted a "hybrid" approach, combining groups of counts in order to reach the aggregate he considered appropriate.

Held, further, that in crimes of dishonesty, there must be an upper limit to the sentence that should be passed, irrespective of the amount of money involved. The downward spiral in the value of money also must be recognised. The accused's overall moral blameworthiness is of greater concern than the amount taken. Here the accused's moral culpability was to be found in the breach of trust, the planning, the extended and persistent defalcations and in the final massive theft, accompanied by flight, after suspicion had fallen.

Held, further, that while it is generally inappropriate to suspend portion of a very lengthy sentence on condition of good behaviour, it may sometimes be proper to do so. Suspending portion of a lengthy sentence can, as well as encouraging the rehabilitation of the offender, mitigate the severity of the sentence where general deterrence requires an exemplary sentence but individual circumstances call for meaningful mitigation of the sentence. The mitigating circumstances in this case - the accused's voluntary return to Zimbabwe and his plea of guilty - should be given due weight.

Held, further, that account must also be taken of the greatest potential for mitigation, restitution. The greatest possible incentive should be given to make restitution. Increasing weight has been given in recent years to restitution, reflecting a growing and enlightened embrace of reconciliation, rather than retribution, as the preferred object of criminal sanction. In addition, once full restitution is made, the offence would have been entirely unprofitable.

Held, therefore, that the sentence should be altered to one of 18 years, of which 6 would be suspended on conditions of good behaviour; and a further 8 on condition of full restitution