S v MAKUNIKE 2015 (2) ZLR 464 (H)

Flynote

Criminal procedure (sentence) — transfer of case to High Court for sentence — referral of matter to Prosecutor-General by magistrate — need for Prosecutor-General to make his own decision as to what sentence would be appropriate and not rubber-stamp magistrate's opinion

Criminal procedure (sentence) — offences under Criminal Law Code — kidnapping — matters which should be considered — normal factors should be taken into account

Headnote

The accused was convicted of kidnapping by a senior magistrate. She had pleaded guilty. She admitted to abducting a small boy aged 3-4 years from his parents and taking him to Botswana where he was kept for at least three years. Her reason for doing so was that she was barren. Desperate to save her marriage, she stole the minor and presented him to her husband as his biological child borne by her. The magistrate considered that the offence was committed in aggravating circumstances and that a sentence well above his sentencing jurisdiction was appropriate. He referred the record to the Prosecutor-General in terms of s 225 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The Prosecutor-General ordered that the matter be transferred to the High Court for sentence.

Held, that before transferring a matter for sentence, the Prosecutor-General has a duty to carefully consider any request by a trial magistrate to have a matter referred to the High Court for a higher penalty. He shouldconsider (a) the relevant provisions of the law in terms of which the accused was charged and convicted; (b) the aggravating and mitigating factors; and (c) relevant case law; and determine whether in fact the trial magistrate is correct that a stiffer penalty is appropriate. The Prosecutor-General must decide for himself what the appropriate sentence would be in the circumstances instead of rubber-stamping the opinion of the trial magistrate. It is not every case in which a trial magistrate forms the opinion that a stiffer penalty would be more appropriate which must be referred to the High Court for sentencing unless the circumstances of the case, and the law, support such an opinion. A careful analysis of the issues to be taken into consideration in assessing sentence should be undertaken by the Prosecutor-General.

Held, further, that the nature and seriousness of the crime ought to take precedence in awarding punishment. Kidnapping is always a serious offence, since it involves deprivation of liberty, particularly freedom of movement, freedom to be where one wants to be, and so on. Kidnapping for the purpose of rape or ransom has generally attracted stiffer penalties,whereas offenders who have altruistic or other non-violent motives have been treated with leniency. Kidnapping is a serious offence which occasions emotional trauma on the victim and on those left behind who assume the worst and fear that they will never see their loved one again. It is important, however, that the process of sentencing be a rational and objective one and trial magistrates must strive to balance the interests of D society and the need to deter other would be offenders. The court must have regard to the rights of the accused to be punished in accordance with the circumstances of the case, and the need to rehabilitate the victim, while appeasing the anger and despair of the victim's loved ones. Magistrates should not allow their emotions to cloud their judgment as E to which sentence is appropriate in the circumstances. Without evidence in the record on the point, it was a misdirection by the magistrate to allude to the current prevalence of kidnappings for ritual purposes. The appropriate sentence here was four years' imprisonment, of which one year would be suspended.