S v CHITATE 2016 (2) ZLR 357 (H)

Flynote

Criminal procedure (sentence): " general principles " mandatory minimum sentences " when sentence higher than mandatory minimum sentence may be imposed " imposing higher sentence in order to allow for suspension of part thereof " impropriety of

Where a statute provides for a mandatory minimum sentence in the absence of special circumstances, the court may —— go above the prescribed minimum. —— The court's discretion to impose a sentence other than the prescribed minimum should, though, be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.

As a sentencing principle, a court may suspend the operation of a sentence, or a portion of it, on conditions that it must specify: s 358 of the Criminal Procedure and Evidence Act [Chapter 9:07]. But where there —— is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum. Where there is a prescribed minimum sentence for an offence, it is improper for the court to impose a harsher penalty above the prescribed minimum in circumstances where such a sentence is not warranted, simply to create —— some room to suspend a portion, for whatever purpose, for example, restitution. If the appropriate sentence is the prescribed minimum, the court should stick to that sentence. This does not necessarily leave the complainant without a remedy. Through the prosecutor, the injured person can always apply for restitution or compensation in terms of Part XIX of the Act. Unlike the award of restitution or compensation under —— s 358(2), the award of compensation or restitution under Part XIX is not part of the sentencing formula.