S v MHUNGU 2016 (2) ZLR 779 (H)

Flynote

Criminal procedure: " review " power of court " failure of court a quo to record its explanation of special circumstances " irregularity in record " C misdirection " prosecution and conviction complete " mitigation of sentence

Criminal procedure (sentence): " general principles " mandatory minimum sentence " mitigation of sentence where minimum sentence prescribed " special circumstances "meaning of

Headnote

The accused had pleaded guilty to stock theft convicted and sentenced to the minimum sentence of nine years. In a statement to the High Court on automatic review, the accused alleged that "special circumstances" warranted the interference of the court and argued that "special circumstances" had not been taken into account. The circumstances were that the stolen heifer had been recovered; the accused had not killed it; and he had needed it to pay lobola.

The accused had made the point that it was insufficient for the court to merely record that special circumstances had been explained to him and that he had understood. He alleged that the trial court ought to have recorded its explanation as well as noted, on the record, that a proper explanation had been given. Had it been explained to him that he could lead witnesses on the issue of special circumstances, he would have led the complainant, who had furnished a supporting affidavit, indicating that he and the accused were brothers-in-law and that the issue had been resolved by a village court, as well as within the family. The complainant averred, in his affidavit, that he believed the accused had received a double punishment i.e. from the village court and the magistrate and that, had the complainant been consulted, he would have withdrawn the charges.

Held, that s 114(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not define "special circumstances". Stock theft involving a bovine attracts a penalty of nine years' imprisonment where there are no "special circumstances". Where special circumstances exist (that are peculiar to the case) the court may impose: (1) a fine, either not more than $5 000 or twice the value of the property, whichever is the greater; or (2) a prison sentence not exceeding 25 years.

Held, further, that the accused was properly prosecuted and convicted. The cases argued by the accused were irrelevant in that they clearly explained that a complainant's unwillingness to press charges, or willingness to withdraw the charge, where the State had already instituted a prosecution, were factors relevant only to mitigation of sentence. The conviction of the accused was, therefore, confirmed.

Held, further, that the failure by the magistrate to record his own explanation of "special circumstances" to the accused was a misdirection. A review court is unable to know exactly whether the court's explanation was adequate. In these circumstances, the general approach would be to remit the matter to the trial court to properly record the explanations on special circumstances but this is not a rule of thumb, every case depends on its own facts.

Held, further, that not every irregularity in the record should set aside the sentence or quash the previous court's judgment. Section 57(4) of the Magistrates Court Act [Chapter 7:10] provides that a review of a criminal matter from the magistrates court ought to be in accordance with the High Court Act [Chapter 7:06]. Section 29 of the High Court Act says that if on review the judge considers that the proceedings of the inferior court are in accordance with real and substantial justice, he shall confirm them. Subsection (3) provides that no conviction or sentence (of the inferior court) shall be quashed or set aside by reason of any irregularity in the record or proceedings unless the review judge is satisfied that a substantial miscarriage of justice had occurred.

Held, further, that it was not a special circumstance of the case or the accused that, after the conviction had been properly entered, the complainant says he would have withdrawn charges. This amounted to mitigating factors which would dissuade a court from imposing the minimum sentence.