S v MUKOME 2008 (2) ZLR 83 (H)

Flynote

Criminal procedure (sentence) — general principles — factors to consider — need to balance interests of society and of the accused — prudent way of approaching sentence — sentencing court should identify and articulatethe two conflicting interests

Headnote

In sentencing an accused person a number of competing interests come into play and have to be delicately balanced. On the one hand is the needto punish and on the other hand are the interests of the accused being punished. Reaching the correct balance is always a taxing exercise and one that must be approached humanely and rationally. The same punishment does not weigh the same with all people. A sentence that is heavily weighed in favour of the needs of society without paying adequate attention to the interests of the offender is invariably harsh and appears draconian, while a sentence that underplays the interests of society while over-emphasizing the interests of the offender is invariably lenient and ineffectual in curbing crime. While it is not practical that in each case a sentencing court should identify and articulate these two competing interests that it seeks to balance, it is a prudent way of approaching the sentencing exercise.

The accused had been correctly convicted of contravening s 3(1) A of the Precious Stones Act [Chapter 21:6]. While she had ministerial possession to possess diamonds inside the mining area, she had been found in possession of 157 diamonds, outside that area, valued at $1 669 760 (old money). Notwithstanding that she was a first offender and had pleaded guilty to the charge, she was sentenced in the magistrates court to three years' imprisonment of which one year was suspended on conditions. The magistrate had taken the view that the gravity of the offences, as reflected in s 3(1) of the Act and the effects of the offence on the economy and inflation, justified such a sentence.

Held, that the magistrate had over-emphasized the interests of society in assessing sentence, while at the same time paying scant regard to the accused's personal circumstances. In doing so, he had misdirected himself in failing to consider other sentencing options.

Held, further, that, in all the circumstances, a fine of double the value of the diamonds, coupled with a wholly suspended term of imprisonment, would meet the justice of the case.