S v SIBANDA 2016 (2) ZLR 429 (C)

Flynote

Criminal procedure (sentence): " general principles " suspended sentence " subsequent offence " existence of suspended sentence immediately brought to court's attention " whether court has discretion to further suspend previous suspended sentence

Headnote

The accused was a pathological stock thief, regularly stealing goats. His first offence incurred a sentence of 90 days' imprisonment. His second offence, committed very shortly thereafter, resulted in a sentence of 18 months' imprisonment of which six months was suspended for five years on condition he was not convicted of an offence for which he was sentenced to imprisonment without the option of a fine. Shortly after his release he again stole a goat and was sentenced to 24 months imprisonment of which portion was suspended on condition of payment of compensation to the complainant before a specified date. The six months suspended for the prior conviction was further suspended on the same terms.

Held, that the discretion as to whether or not to grant further suspension of a suspended sentence is triggered only where the court has ordered an offender to be brought before it in terms of s 358(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Where the offender is tried and convicted of a different or fresh charge and the sentence for that different or fresh charge brings about a violation of the suspended sentence, the court has no such discretion. A conviction during the currency of the period resulting in a sentence of imprisonment without the option of a fine, amounts to a breach of the condition of suspension. Having violated the condition, the accused lost the benefit of the suspension and the suspended sentence had to be brought into effect. ¹